The Jameson Law Library Blog will be on hiatus for the summer. Join us again in August.
Until then, enjoy the Great Summer Reads suggested by law school faculty and staff.
The Jameson Law Library Blog will be on hiatus for the summer. Join us again in August.
Until then, enjoy the Great Summer Reads suggested by law school faculty and staff.
Don’t let the snow in Montana today fool you– it’s almost summer! And that means it’s almost time for summer reading. Again this year, law school faculty and staff share some of their suggestions.
Wave: A Memoir of Life after the Tsunami by Sonali Deraniyagala
Common Ground: A Turbulent Decade in the Lives of Three American Families by Anthony Lukas
Aimless Love: New and Selected Poems by Billy Collins
Green Governance: Ecological Survival, Human Rights, and the Law of the Commons by Burns H. Weston & David Boiller
Yes, Chef: A Memoir by Marcus Samuelsson
Zen and the Art of Motorcycle Maintenance by Robert Pirsig
Written In My Own Heart’s Blood by Diana Gabaldon (due out in June)
The Reluctant Entrepreneur: Making a Living Doing What You Love by Mary Ellen Bates
Wild Ones: A Sometimes Dismaying, Weirdly Reassuring Story about Looking at People Looking at Animals in America by Jon Mooallem
Uncommon Carriers by John McPhee
Encounter with the Archdruid by John McPhee
Add your own suggestions by commenting on this post.
It seems another reading week and finals period are already upon us and so you know what that means . . . lots of time for watching movies! I mean studying. I mean watching movies while studying . . . wait, that doesn’t work at all. How about watching a movie after a long, full day of studying? Seeing as school is still in session you might as well watch a legally themed movie, right? To reinforce what you are learning in all your classes . . . or to analyze where the screenwriters got things wrong.
While this week’s blog post is intended to end the semester with a bit of fun, many in the law profession do believe that movies are an excellent learning tool. Kelly Lynn Anders, a lawyer focusing on social media ethics and a former film critic, wrote the book Advocacy to Zealousness: Learning Lawyering Skills from Classic Films. In her book she explores important lawyering skills and how certain films can teach these skills . . . but at this time of year no one needs another book to read!
So the question then becomes: how do you find the perfect movie to watch after a full day of outlining? Many of us have Netflix these days (or a friend with a Netflix account) and can watch movies instantly. But as you may have already discovered, searching for movies on Netflix can be a really good way to decide not to watch a movie. You spend a lot of time and effort trying to find something good to watch, scrolling through descriptions, and by the time you finally find one that looks good you’re ready to fall asleep. To top it off, you don’t know if what you choose will be very good because their star system is skewed by 13-year-olds in Oklahoma.
Another problem with Netfix is that it mixes TV shows with movies and no one can afford to get addicted to Law & Order: SVU at this time of year. Sorry Netflix — as a method to search for law-related movies you get a thumb down.
What you really need is a list of the best law movies that you can check out before you go to Netflix. To save you the time you’d have to spend searching for a good legal movie, I’ve done some of the legwork for you. After searching through some legal movie lists and databases, I found that there aren’t very many, and those that do exist are not always very user friendly. For instance, while I found a lot of great movies on a list written by a law professor at Louisiana State University Law School, the choice to use black writing on a gray background in 10 point font is not the best way of getting people to frequent your website. Take a look below.
Another website, created by a criminal law consultant, provides a pretty good list of criminal law movies and gives you the option of purchasing the movie from Amazon, a very convenient . . . and possibly very costly . . . feature. Still, you may be frustrated by the lack of movie descriptions on the list. It’s hard to pick a movie by only the title, especially when you’re not a fan of horror movies and have been tricked by nondescript titles before.
The ABA Journal has a list of the top 25 legal movies ever made (according to their membership). But you may find this list tiresome because you have to scroll through all twenty-five movies to view each one. The ABA Journal gets points for style, but not for efficiency. Still, I am going to give this list one thumb up because it mentions some great movies and includes nice thumbnail descriptions of all of them — like The Paper Chase below — a law school movie classic.
After a lot of searching, one legal movie list stood out above the rest. Not so much because it is very fancy or stylish, but because it is organized in a very user-friendly manner. Ted Tjaden, a lawyer and librarian in Toronto, Canada, created this list. The website gives you helpful search options. You can start simply by viewing an A to Z list of some of the best law related movies out there.
Anyone need to find a movie to watch for Professor Ford’s family law class? Perhaps Kramer v. Kramer? Open the family law section to find this movie along with a few other excellent family law related movies. Notice below that you get a short description of the movie and can even follow a link to a review if you want more information.
Another thing you’ll love about this website is that you can jump straight to comedies or to inspirational movies or to dramas, all of which in some way relate to the law. You can pick a movie based on what mood you’re in and don’t have to be surprised by a tearjerker when what you really need is an evening of legal laughs.
After finding this site, I couldn’t resist asking our own resident legal writing expert, Professor Howell, for a movie suggestion. Some of you may have figured out that our 1L memo and brief problems are usually filled with characters from current legal movies. In 2012, the characters were pulled out of the movie The Lincoln Lawyer and in 2014, the names came from American Hustle. Points for anyone who knows what the problem was based on last year, because neither Professor Howell nor any current 2Ls I approached can remember! Professor Howell’s pick? He suggests we all take the time to watch The Verdict with the great actor Paul Newman portraying an alcoholic attorney facing a “David v. Goliath” legal battle.
Legal movies can be a great way for all of us to unwind from a day of studying for finals. And who knows, it’s possible that we might even learn a thing or two at the same time. You might need to use these legal movie resources in conjunction with Netflix or Crazy Mike’s, but hopefully one of them might help you procrastinate. Er, I mean study!
Draw near! Give your attention to all that you must know to practice effectively in federal court. Whether a student or a seasoned lawyer, one can’t help but pause at all there is to know. The United States inherited many practices and traditions from England. Some survived the Revolution while others did not. The U.S. Constitution created the federal judiciary as a co-equal branch of government. Congress and the federal courts forged new laws and traditions which continue to evolve every day.
The novice is challenged at the outset by all the formal rules, established doctrines, and nuances of federal practice. Nonetheless, all practitioners are challenged to stay abreast of new federal statutes, new cases, evolving precedent, and rule refinements through time. Fortunately, two major treatises are available to power you along the learning curve: Federal Practice and Procedure (Wright and Miller) and Moore’s Federal Practice.
Which to choose? Both are available in print form at almost any law library. However, WestlawNext subscribers have exclusive access to Wright and Miller, while Lexis Advance subscribers have exclusive access to Moore’s. Either way, both treatises offer a comprehensive guide to federal court practice and procedural rules, along with commentary on cited authorities and historical analyses. The main differences are the overall organizational structure and how footnotes are formatted. These are insignificant for the most part. Users will hone their skills at using one or the other through practice.
Library shelves dedicated to the print edition of each treatise literally illustrate the volume of material confronting the federal court practitioner. Mercifully, the spines are well labeled and easy to follow. But researching complex topics having significant cross references would be cumbersome in print form. Both WestlawNext and Lexis Advance online databases allow rapid cross referencing and pursuit of research threads far more conveniently. The online researcher can move from either treatise to other authorities and content with each hyperlinked click. The ease of electronic research masks the organizational structure and the sheer volume of content. If relying on print editions, be sure to consult WestlawNext or Lexis Advance online to be sure you are relying on the most current law.
Who were these giants and how do we use the treatises that bear their name?
Federal Practice and Procedure (Wright and Miller)
Charles A. Wright (1927-2000) and Arthur R. Miller (1934- ) first authored and published this comprehensive treatise in 1969. Subsequent editions were published in 1987 and 2002. In updating earlier editions of Barron and Holtzoff’s Federal Treatise, Wright and Miller sought to continue serving lawyer’s practical needs. This treatise covers all manner of topics that could come up in a federal court: Criminal, Civil, Jurisdiction and Related Matters, Appellate Courts, the U.S. Supreme Court, Evidence, and Judicial Review of Administrative Action.
Federal Practice and Procedure consists of thirty-three hardbound volumes and requires 15 linear feet of library shelf space. Intervening pocket parts provide annual updates to particular sections of individually numbered volumes. The Quick Reference Guides will rapidly become those dog-eared, well-loved handbooks you reach for at the corner of your desk, time and time again.
The entire collection is organized into sections, numbered sequentially from 1 to 8500. Each section is broken down further into subsections. Tables of Content in each hardcover volume provide the road map and corresponding page numbers for that topic area. Footnotes provide case citations and other useful parenthetical commentary. The volumes are organized as follows:
- Volumes 1-3: Federal Rules of Criminal Procedure, Appendix, and Quick Reference Guide
- Volumes 4-12: Federal Rules of Civil Procedure, Admiralty and Maritime, and Quick Reference Guide
- Volumes 13-19: Jurisdiction and Related Matters, Rules of Appellate Procedure and Supreme Court Practice
- Volume 20: Federal Practice Deskbook
- Volumes 21-31: Federal Rules of Evidence and Quick Reference Guide
- Volumes 32-33: Judicial review of administrative action, with accompanying Appendices and Index
WestlawNext subscribers can easily locate Wright and Miller by searching “Wright and Miller” or “Federal Practice” from the main search bar. Watch for WestlawNext’s auto populate suggestions (see image below).
The first search suggestion, Federal Practice & Procedure, offers three choices. Drill down through each heading to find section numbers and hyperlinked content.
The second search suggestion, Federal Practice & Procedure Index, offers a Table of Contents. This alphabetized topical list is best searched using a “control find” (hold down the control button and type “F”). If you wish, look for the search bar in the upper right corner of your screen to enter your key term or phrase. Here, we see results for “Advisory Opinions” (see image to right; click to enlarge). Note the hyperlinked section numbers. Drill down to the next content level. Hover over the superscripts to read a footnote or click and navigate directly to it or the cited authority. Navigating from one section to the next is easy using the green triangles in the upper right corner. Feeling lost? Click on the Table of Contents in the upper right corner for a road map of where you are in the treatise. Need more? Consult the Citing References tab in the upper left corner to locate other materials which cite to Wright and Miller.
Moore’s Federal Practice
J. William Moore (1905-1994) was raised on a ranch near Bozeman, Montana. His intellectual capacity became apparent early in life and he entered Montana State College at the age of 14. The Montana College of Agriculture and Mechanic Arts was commonly referred to as Montana State College by the 1920s. After graduating, he worked as the chief Deputy clerk of the Montana District Court. Moore left Montana and earned his law degree from the University of Chicago, graduating first in his class. Moore briefly returned to practice in Montana, but left to pursue a graduate degree at Yale Law School.
While a doctoral student in 1935, he co-authored an article summarizing the history of federal practice and argued that rule reform should embrace a merge of law and equity. Late, U.S. Supreme Court Chief Justice Hughes announced that new federal rules would “unify the procedure for cases in equity and actions in law so as to secure one form of civil action and procedure for both.” Moore became the Chief Research Assistant to the Advisory Committee drafting the first version of the Federal Rules of Civil Procedure after passage of the Rules Enabling Act. He concurrently drafted Moore’s Federal Practice. Moore believed the rules should ensure that disputes were resolved on merit and not gamesmanship.
The treatise was first published in 1938, not long after the revised federal rules took effect. Four volumes grew to 31 by the 2013 third edition. Moore himself guided practitioners through the rules and various federal doctrines, and remained involved during subsequent updates until 1990. Now, a Board of Editors and invited contributors continue the long and strong tradition of historical analysis and commentary.
In print, Moore’s is commonly found as a loose leaf three-ring binder. It, too, requires significant library shelf real estate — 12 linear feet. Thirty-one volumes are divided into chapters, numbered 1-919. Each chapter typically has two parts: Rules and related commentary and a Historical Appendix. The Rules section includes text, details and commentary about the rules, including footnotes organized by Federal Circuit Practice and key U.S. Supreme Court decisions. The Historical Appendix includes the legislative history of each rule or doctrine, all committee notes since inception, and a historical analysis. The historical treatment is more comprehensive than Wright and Miller, owing to the fact that Moore himself was the chief researcher when the rules were first drafted and his ongoing involvement until four years before his death. The volumes are organized as follows:
- Volumes 1-14: Federal Rules of Civil Procedure
- Volumes 15-18: Federal Courts, jurisdiction, venue, various doctrines, judgments, and preclusion
- Volumes 19-20A: Federal Rules of Appellate Procedure
- Volume 21: U.S. Courts of Appeals and Index
- Volumes 22-23: U.S. Supreme Court
- Volumes 24-28: Federal Rules of Criminal Procedure
- Volume 29: Admiralty and Index
- Volume 30: Federal Law of Attorney Conduct
- Volume 31: Law and Practice of Arbitration
A comprehensive Subject Matter Index covers both the civil and criminal volumes providing an opportunity to find a subject and its cross referenced material throughout the treatise. An Annual Update binder contains monthly updates to content throughout the treatise.
Lexis Advance users can easily find Moore’s Federal Practice by typing “Moore’s Federal Practice” in the main search bar. Be sure to include the apostrophe and watch for auto populate suggestions (see image below).
Lexis Advance will suggest three choices: Moore’s Federal Practice — Civil, Criminal, and Update. Click on “View Table of Contents” first. If your finger instinctively hits the return key, Lexis Advance will produce an unwieldy number of results. Simply back up and re-type the original search term.
Click View Table of Contents under Moore’s Federal Practice — Civil. This displays the exact same volume number and chapters as the print edition (see image below; click to enlarge). Drill down to find progressively detailed content by clicking on the triangle icons to expand your choices. Once you see a listing of topics by section number, click the link to see the actual content information. Focus your research using the search bar at the top using key words. Results are cross-referenced by volume number and hyperlinked.
Navigate directly from the Table of Contents by clicking on any section number. Feeling lost? Consult the textual road map at the top of the page. Navigate within this Chapter using the Previous or Next buttons at the top of the page. Topic Summaries are sometimes available for a specific practice area. Footnotes are designed as pop-up windows with Rules or Case Citations and information parentheticals. These are linked for access to the source’s complete document. (See image top left; click to enlarge.)
Sooner or later, most practitioners will need to sharpen their knowledge about some aspect of federal practice. Both treatises are quite good and manageable. The choice will likely boil down to availability. Once you understand how each treatise organizes the material, you too can access the genius of these giants.
Freshly out of law school, I have a first client meeting with a man who has legal troubles. He was recently arrested for driving under the influence and assault. He’s the one in trouble, but I am pretty nervous too. After all this is my first case. Fortunately, I remember a reference book from law school, which might prove helpful . . .
Published by Lexis Nexis, the Criminal Law Deskbook (“Deskbook”) is conveniently available at your local law library, in loose-leaf format, or online at Lexis Advance. I choose to access it online because, being at everyone’s fingertips, it seems most practical. The Deskbook was written with the criminal lawyer in mind but that said, the Deskbook offers a road map to guide any attorney through every stage of the criminal justice process. It covers all aspects of the criminal justice system from arrest through disposition of the case, explaining every procedure, the related aims, and how to achieve them. In fact, despite being only two volumes, the Deskbook is so comprehensive that aspiring prosecutors and defense attorneys may wonder why they even went to law school with this resource at their fingertips.
Accessing the Deskbook on Lexis Advance is simple. Slowly type “Criminal Law Deskbook” into the red search box and wait for the auto-populate feature to bring up the Deskbook. Click on “View Table of Contents,” not on the title, to retrieve an expandable list of chapters (see image below).
If you want to search the Deskbook, click on the title instead and enter your search terms in the red box. For my research, however, I use the expandable table of contents because it lays out all the chapters so I can easily view what information is available (see image below).
The first chapter (The Adversary System and the Criminal Justice Process) discusses the theory behind the adversarial system and the functions of each side, prosecution and defense, in the criminal justice system. It explains the difference between legal and factual guilt, discusses the burden of proof, then goes on to explore the professional responsibilities of defense attorneys, prosecutors, and judges. Chapter 1 also covers limitations on advocacy, such as the prohibition against making a false statement of law or fact and jurisdictional rules.
After reviewing the initial materials, I feel ready to jump into the meat of the Deskbook and take on my first case. Remember, because the Deskbook examines each step of the criminal process it isn’t necessary to utilize every section in the guide. I simply look up, in the interactive table of contents, the step I need to take in the process and go forward from there. For example, chapter 3A, which relates to terrorism prosecution, will be unnecessary to defend my client.
The table of contents is in the same chronological order as the proceedings themselves and I can easily expand each chapter topic by clicking on the arrows (see image below).
For my client’s case, in preparation for the arraignment and bail hearing, I first review chapter 2 (Arraignment and Bail Hearings). Besides providing the background and purpose of an arraignment, chapter 2 details some of the steps that I, as defense counsel, should consider prior to arraignment, including:
- interviewing the defendant;
- interviewing witnesses;
- securing the attendance of family members;
- assisting the defendant to secure bail;
- examining the accusatory instrument; and
- planning the future trial strategy
Of course, all of these steps may not be complete before the arraignment and bail hearing, but they give me a sensible place to start advocating for my client.
Also before meeting with my client I look up his particular crimes in chapter 3 (Substantive Crimes and Their Elements). I expand chapter 3 and select “Offenses against Public Order.” Next I open “Driving under the Influence,” which provides the definition (or elements) of my client’s charge. Additionally, I learn how the crime may be proven and some information as to the penalty (e.g. that multiple offenses may constitute a felony). For my client’s second charge, I return to chapter 3, but this time I examine “Offenses against the Person,” which leads me to “Assault” (see image below). Here I find the elements of this offense, learn when an assault is a felony, and encounter a brief discussion of “gang assault,” a charge available to combat gang violence in some jurisdictions and fortunately not applicable in my client’s case.
Next, I turn to chapter 4 because it deals with the preliminary examination. I’d like to learn more about the process that determines whether there was a probable cause to believe that a crime was committed and that the defendant committed it. In addition, the chapter covers the timing of the preliminary examination noting, for instance, that such a hearing can be waived. In some cases a defendant may be charged by information without necessitating a preliminary examination because the information addresses the issue of probable cause.
In chapter 5, I return to a task central to my duties as defense counsel: discovery. Besides learning the purpose of discovery, I find a discussion of what the prosecutor is required to divulge and what she is not, under the Federal Rules of Criminal Procedure. Further, I discover that as defense attorney, I must make reciprocal discovery when requested. In addition, I learn there is a requirement to inform the prosecution of certain defenses — alibis and insanity defenses, primarily. Particularly helpful, since this is my first case, is the sample request for discovery form located at the end of the chapter (see image below). This model form contains questions of about every type, which is especially useful because I want my discovery request to be complete and exhaustive.
After reviewing the discovery response I may be ready to file a motion to suppress evidence, a pretrial motion. However, I find no grounds yet to file any pretrial motion and thus move on to chapter 7 (Search and Seizure). Unfortunately for my client, there do not appear to be any 4th Amendment issues I can raise. The dashboard camera from the police cruiser clearly shows my client driving erratically, then assaulting his passenger after being pulled over. This does not seem like the ideal case to take to trial as the prosecution appears to have a solid case in hand. Thus, I skip the next few chapters dealing with “Suppression of Statements,” “Suppression of Identification Evidence,” and “Motions Limiting Cross-Examination.”
My client is not innocent, but he has no prior criminal record and the assault was minimal. This is important because, as I learned earlier, prior offenses for DUI may result in a stiffer sentence or a felony. Similarly, had there been bodily harm or had a weapon been used in the assault, the law allows for a felony conviction and more jail time. Because, in my estimation, my client is a good candidate for outpatient treatment and probation, but not for trial or prison, I turn to chapter 11 (Plea Bargaining and the Guilty Plea).
Like the others, chapter 11 begins with a bit of background. After a brief synopsis, the chapter delves into everything I need to know about plea bargaining so I can advocate for my client. I review the types of plea agreements, the factors the prosecution and defense should weigh when deciding whether to enter into a plea agreement, the lawyer’s role in advising the defendant, and preparation for plea bargaining. There are two particularly helpful sections in this chapter: “Negotiating Techniques and Tactics” and “Defense Arguments in Plea Bargaining.” Besides the reminder that the defendant is ultimately responsible for the decision to plead guilty or not, there are suggestions about what to use to gain bargaining leverage, the important things I should stress when talking to the prosecutor about my client, types of pleas (Alford, for example), and the plea taking process. There is even an example of a plea taking process so I feel comfortable in this negotiation, even though it’s my first one (see image below).
Luckily for my client, and thanks to the Deskbook I have confidence that the plea bargain will go well, and I don’t anticipate that he will serve any jail time if he behaves for the next 3 years. Equally fortunate for him is the fact that he probably won’t have to go to trial, where I feel a jury would like convict. But should such a possibility occur, my job will be made immeasurably easier by the Deskbook. I will simply move on to chapter 12 — “Preparation for Trial.” That along with the remaining chapters will guide me how to proceed through trial, right to sentencing.
“The hardest thing in the world to understand is the income tax.” — Albert Einstein
It is generally accepted that the subject of taxation can be difficult to grasp. Luckily, practical resources are available to help individuals better understand the rules and their interpretation. One of the many research databases the Law Library provides as a resource for visitors, students, and faculty is the Tax Practice Series, part of the BNA Premier subscription. The site provides an array of useful materials to aid in researching questions related to tax.
Access the Tax Practice Series database from the Law Library website. Click on Law Library Databases and then select BNA Premier. From the BNA Premier homepage, scroll to the Tax category and select Tax Practice Series. As you can see below, the Tax Practice Series main page is divided into several informational sections related to common tax research needs — Tax Forms, Expert Analysis, Practice Tools, and Source Documents. You also have the option to search Indexes. (Click image to enlarge.)
The Tax Form section is useful if you need to find a specific IRS form. Although the IRS also offers these forms to the public, the Tax Practice Series offers an interactive function that allows you to input information directly into the form and computer calculations based on the provided information.
Another convenient tool on the main page is the “Go To Document By Citation.” Here you can choose to select a source to search (e.g., Internal Revenue Code) using the drop down menu. It’s important to type in the exact citation for the document you wish to locate. For instance, if I want to find the treasury regulations for § 262 (relating to personal, living, and family expenses), I need to know the starting cite is 1.262-1. Of course for those advanced enough to know that the Regs are filled with dashes and dots, this isn’t a problem. But many of us are used to search engines that recognize what we are looking for — even when we don’t state it exactly. However, one solution, if you aren’t clear about the correct citation format, is to click on “Citation Formats” just below the search box (see below). From here you can obtain citation examples for the individual tax collections.
Now the reason I was looking into § 262 in the first place is because I have a question about business related deductions. During a recent conversation with a friend, who happens to be a yoga instructor and also works at a store that sells fancy yoga gear, I learned that she plans to deduct the expense of the clothes she buys from the store. She believes she can deduct this expense because she uses these clothes in her business as a yoga teacher. In the back of my mind I recalled my tax professor telling our tax class that this is a type of deduction that is not allowed because these clothes are suitable for everyday wear — unlike say, police uniforms, which are not, and thus may be deducted. If my friend was my client — or if this situation happened to come up in my practice as a lawyer — I would need to be sure about my answer. I decide to use the Tax Practice Series database as a resource to research how I would answer this question.
I begin by looking under “Expert Analysis, which lists common tax topics. Based on my question, I opt to click on “Deductions.” The page that opens contains a long list of topics related to deductions.
To view the material, I like to use the “split-screen” option (instead of the default full -screen option). The split-screen allows me to easily navigate the sections while also viewing the content. I scroll down the list of sections on deductions to ¶ 2810, which discusses personal, living, and family expenses, and expand the section (see below; click image to enlarge).
By the way, don’t be confused by the ¶ symbols you see. Most loose leaf style services such as this one, which began as print resources, utilize paragraph symbols to identify sections and parts of documents and have retained it in their online formats.
I expand ¶ 2810 and find concise, plain-language explanations relating to personal expense deductions. The materials include citations to the relevant code sections and regulations, along with important case law interpretations. Although I can’t cite to this specific loose leaf as an authority to the court, and although the section and paragraph numbers don’t correspond with the Internal Revenue Code, the information does lead me to the correct code sections, regulations, tax court decisions, and revenue rulings — all of which I can cite as authority.
After reading through the information, I conclude that my friend is not allowed to deduct her yoga clothing as a business expense. Luxury yoga wear is so commonplace and fashionable that it cannot be considered an ordinary and necessary business expense. Because it can be worn in a non-business context for her own personal wear, she shouldn’t be deducting this cost.
Another handy tool, especially for new attorneys, is the “client letter,” which you can find under Practice Aids at ¶ 2810.100. It provides you with a template that you can use to draft a letter to send to your client and includes all of the relevant information related to personal expense deductions (see below; click image to enlarge). Thus, if my yoga teacher friend was also my client, I could use the client letter as a template for the one I would write and send.
It’s pretty clear that BNA Premier’s Tax Practice Series is great if you have an idea of what you are looking for and are familiar with tax law language. However, if you feel you need assistance conducting a search, consider using either Advanced Search or Guided Search. Both provide template-style searching that helps you locate information easily — great when you are new to tax law research.
For example, to use Guided Search open the template and select a collection to search — say, Tax Practice Series, specifically deductions. Then scroll to the bottom of the screen and enter search terms related to your question. Using my client scenario, entering “work clothing” is one possibility (see below; click image to enlarge). Search results bring up the Tax Practice Series: Deductions. When you expand the section you’ll see that you end up in the same place as I located above.
The advanced search option also leads you to the answers you need, but be prepared to sift through information and navigation tabs before you find what you want. Also, don’t forget the Help button located at the top of the screen for more exhaustive assistance. (Click image to enlarge.)
The site has an old-school feel, but contains valuable information for students, practitioners, and faculty. I wish I had known about this database when I was first taking tax courses because it can be used as a supplemental study aid. Now that I do have a basic understanding of how the database works, I can use it for class, work, and personal use.
So you consider yourself a well-informed person, generally aware of current events and politics in Montana. You read the newspaper, check out online articles, follow some blogs, and even check in on the Montana Legislature from time to time. But you have this nagging feeling like you might have the opportunity to do more, to get involved, to become part of the process which hands down the rules and regulations that control some of your everyday experiences. After doing a bit of research, you discover that while the Legislature writes the broad laws, the real grunt work of the daily administration of those laws is performed by various executive agencies usually operating under Departments, such as the Department of Revenue and the Department of Justice. These agencies, acting in both legislative and judicial functions, help implement the laws through rule making and adjudication. As part of that process, the agencies regularly ask for input from interested parties and the public in general. But how do you know what’s being proposed, how and where to comment, and what decisions have been made? The good news is you don’t have to look far for a centralized location to investigate and become involved. Welcome to the Administrative Rules of Montana tab on the Montana Secretary of State Website.
Okay, 5 white tabs and 10 tan tabs — that’s a lot of tabs. Luckily, the first tan tab contains answers to FAQs and is filled with helpful information to assist orienting you to the site. For example, you can learn about relationship between the Administrative Rules of Montana (ARM) and the Montana Administrative Register (MAR), the timetable for adoption of new rules by the various state agencies, and a get an explanation of ARM citations. Be sure you don’t miss the visual guide to the rule adoption process under Resources on the FAQ page (click on image to enlarge).
Feeling confident that you have the general idea of what you’re looking at, you decide it’s time to explore the site and learn what’s happening with these agencies. You start with the white tabs — specifically the ARM and MAR tabs on the left.
Having read the FAQ, you know it makes sense to start with the ARM and MAR tabs because of the relationship between them. You know that the ARM contains all the existing rules and that the MAR is a twice-monthly publication for proposed rules, amendments and other pending agency action that will or won’t become part of the ARM depending on the outcome of their particular processes. Aside from the usual straightforward search functions, which allow you to search by text or by rule, chapter, title, or MCA (Montana Code Annotated) number, one section is worth highlighting. Under the ARM section, click on the circled Go button to the left of “By Department, Chapter, and Rules Table of Contents.”
After opening this link, a useful table of contents appears that contains all the current agency rules organized by Department — helpful if you know the Department name and the type of rule you are looking for, or if you just want to browse a particular Agency. For instance, click on Title 36 (Department of Natural Resources & Conservation) and then on Chapter 36.2 (Procedural Rules). Notice in the screenshot below that you can click on the rule links to view in full text or you can use your browser’s ctrl-F function to search the language of the title of rules. You can even click on the “View as eBook” feature to open a user friendly layout with the same information.
Browse back to the main search page for now. Look under the MAR section. In the screenshot below, note the hyperlinks within the red highlighted section — this is the easiest way to find the newest issue of the MAR. Also, if you want to locate past issues, say to look for proposed rules that may not have been adopted, click the second link, “Archived Issues.”
Go ahead and click on the most recent issue link — 2014#7. As you see below, the MAR is neatly organized into a Notice Section, a Rule Section, an Interpretation Section, and a Special Notice and Table Section. As you scan through and read the summaries observe that some are notices for public hearings while others are notices that an agency has made a proposal to amend or repeal and existing agency rule.
If you click on the hyperlink under the Notice No. column, you can view the actual language of the notice. For example, below is the Notice of Public Hearing regarding amendment of the Montana regulation relating to the maximum pricing and printing standards.
- date and location of the hearing
- information for accommodations of persons with disabilities
- the rule language
- information for submitting written or oral comments
- the agency staff conducting the hearing
- other administrative information and hyperlinks to relevant existing rules or the Montana Code Annotated
Proposed rule change notices follow a similar format. However, a public hearing is not always required. It may happen only under certain conditions as specified in the notice itself, such as request from a certain number of person directly affected by the pending agency action. For an example, click on Notice No. 32-14-245 and look over paragraph 6.
Rule Notices are much more concise and contain the relevant rule numbers, whether or not a public hearing happened, whether comments were received (they aren’t always), and the resulting agency response and action taken regarding the rule.
The Interpretation Section gives you a glimpse into one of the ways agencies act in a judicial function, when they interpret the rules of the Enabling Acts (the initial rules for the agency as written by the Montana Legislature), or the rules they’ve promulgated post agency formation. For instance, in one particular ruling, 38-Declaratory Ruling D2014.1.9, the affected party wanted the term “controlling interest” interpreted a certain way. However, the agency declined to do so and issued its own interpretation. The affected party may apply for judicial review outside the agency, but significant deference is usually given to agency decisions.
That’s the MAR in a nutshell. Browsing back to the main page, the remaining three white tabs are worth mentioning briefly.
- Emergency Rule Notices — contain rules adopted by various agencies without notice to meet some imminent concern, such as closures of rivers or bridges.
- Secretary of State Rule Notices — rules regarding the Secretary of State agency itself.
- Tools for State Agencies — provide executive agencies with links for filing, templates, glossaries, and other information to ensure the rule making process conforms to approved standards.
Although the information above really forms the substance of the Administrative section of the Secretary of State website, some of the tan tabs under Additional Resources, aside from the FAQ tab already discussed, merit brief mention.
This overview should give you enough information to get involved with and become part of the Administrative Rule Making Process in Montana. With just a few clicks you can stay informed of pending public hearings, proposed rule changes, adopted rules, agency judicial decisions, and more. And if you really want to take that next step, you can finding existing or future vacancies in an agency and perhaps begin the process of officially becoming part of the Administrative machine.