Researching Uncodified Law for Appellate Briefs

by Best Best & Krieger LLP
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IMLA Appellate Practice Blog - October 28, 2013

If things did not go so well in the trial court, an attorney may want to return to the books for more research for the appellate briefing. In cases involving statutory issues, there may be relevant law that has not been codified that may make the difference.

It’s easy to assume that the code book in your hand or the sections that appear initially on the computer screen contain all the laws. Not so. Legislatures enact many laws that are not codified at all or are codified only in part. Common examples include:

Uncodified provisions may sometimes be found in notes to the codified law when deemed relevant by those creating the notes. E.g., Dittman v. State of California, 191 F.3d 1020 (9th Cir. 1999), cert. denied, 530 U.S. 1261 (2000) (addressing an alleged violation of section 7(a)(1) of the Privacy Act (uncodified), 5 U.S.C. § 552a (note), Pub.L. No. 93-579, 88 Stat. 1896 et seq.). Often, however, uncodified provisions are not referenced at all in the primary codes. These provisions may be found in the Statutes at Large for federal law and in the session laws, chaptered bills, enrolled bills, acts of the legislature, or other named collection of all enacted laws of a particular state. Among other sources, these are available at http://www.lawsource.com/also/.

Always keep in mind that the common law is traditionally uncodified. The business judgment rule, laches, estoppel, a variety of equitable rules, and numerous other doctrines that are “the law” are often not codified.

A brief that relies on uncodified provisions should include authorities establishing the applicability and weight of the provisions in the specific jurisdiction.

* This blog post was originally published in IMLA Appellate Practice Blog, October 28, 2013. Republished with permission. Visit www.imla.org/blog to read additional IMLA Appellate Practice Blog posts and to subscribe by email.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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