This post originally appeared on the blog of the Case Western Reserve University Law Library.
I recently wrote about the fact that website distribution of digitally-signed PDF facsimiles of the “classic” printed versions of certain Government Printing Office publications made it possible to do “official” research into federal administrative regulations freely, online. Among those free resources is the Code of Federal Regulations, the codification of federal administrative-agency regulations.
There isn’t any quite comparable access to “fully official” online legal research in statutory law in the federal system, due to the complicated status of the United States Code.
The GPO’s FDSys portal does include digitally-signed PDF download of Titles of the United States Code, as supplemented up to the end of the previous year; but the set they use is taken from the online edition prepared by the Office of the Law Revision Counsel (described below) that carries a firm disclaimer:
FDsys contains virtual main editions of the U.S. Code. The information contained in the U.S. Code on FDsys has been provided to GPO by the Office of the Law Revision Counsel of the U.S. House of Representatives. While every effort has been made to ensure that the U.S. Code on FDsys is accurate, those using it for legal research should verify their results against the printed version of the U.S. Code available through the Government Printing Office.
So in essence we have an authentication method, but it certifies authenticity to an unofficial edition of the resource.
FDSys does provide digitally-signed (authenticated) downloads of federal slip laws (first publication of new individual enactments) up to a very recent date, and of the Statutes at Large (the formal, and official, republication of federal laws), both from 2003-forward and (as part of an “additional government resources” collection) as a retrospective digitization currently covering the period from 1951-2001.
Access to authenticated copies of federal session-law materials is very valuable. But for most legal research purposes what you really want are Codes; and those (officially) cannot be gotten online, technically not even through the high-dollar commercial services.
By way of introduction (or review), a code (in the American legal usage) is a compiled, reconciled, and subject-arranged collection of laws. Statutory codifications collect all of the individual statutory enactments of the legislature of a jurisdiction (or, at least, those that affect some general and permanent change to the law) and combine them together into a coherent whole. Without a statutory code, you can imagine that research into statute law could be quite unwieldy. If you wanted to know the law of your state on, say, automobile registration, you would need to seek out and locate every individual legislative enactment that had ever addressed that issue. Then you would have to figure out for yourself how they fit together — perhaps by reading each of them in chronological order, and continually referring back to the earliest laws with a red pen to scratch out the parts the meaning of which had seemingly been changed by later legislation. It would be a mess.
Codes are why you don’t need to do that.
How Codes Work
You don’t have to piece together every session law on your topic, over all time. You don’t, because an existing codification essentially does it for you: and not just for one individual topical area but for the whole corpus of statute law of your jurisdiction. There are broad comprehensive codifications of laws (statutes) for all 50 states and for the federal government.
What follows discusses U.S. federal statutory law. The standard scenario in the states is simpler (at least for the end-user researcher). Rather than an official government-produced statutory Code and commercially-published alternatives, there will generally only be the latter type of commercially-published annotated Code (though often with an official sanction) in the states. A topic for another day will be the deprecated, unofficial, status of most freely online editions of state codes. But that is not part of today’s discussion.
United States Code
In the federal system, the official United States Code is maintained under the direction of the Office of the Law Revision Counsel (an administrative office of the U.S. House of Representatives) and printed and distributed by the Government Printing Office. While the official codification is only produced every six years (with yearly supplemental sets in the interim), and only in print, the Office of the Law Revision Counsel does work continuously, and classification tables mapping new legislation to its impact on the existing Code are released quickly enough to be a primary tool available to third-party codifiers of both (highly) commercial and free unofficial editions of the Code.
Depending on whether an individual Code Title has been reenacted through an additional process of Positive Law Codification (a topic for another day), new amending legislation may be written to explicitly specify changes to existing, codified, sections. Alternatively, for non-reenacted Titles, new legislation may not be explicit on its face about precisely how existing Code language should change to reflect the new enactment.
The Old Guard
As noted above, the official United States code is issued as a complete whole every six years, and supplemental volumes are produced on a yearly basis. Note there is a substantial production delay even for these, so official availability is generally not even quite as good as it is(n’t) in theory. As those of you who cite check for journals know, the official publication schedule retains some relevance for citation and authentication purposes and for high-stakes validation of the correct Code language. But for initial, topic-driven, research queries you will simply not be using the official United States Code.
The traditional alternative, and still the main one taught and used, is to turn to one of two alternative Code publications. The United States Code Annotated, published by West in print and as the Code used in Westlaw, or the United States Code Service, now published by Lexis in print and as the Code used in its online service. Both are completely unofficial, as a formal matter. But both are also very venerable institutions, backed up by the authority conveyed by the stake in them held by large and central commercial publishers whose own credibility is at stake in the quality of their editorial work on products like these. The Bluebook, for instance, tacitly recognizes this in its specified hierarchy of resources to cite to, in the (not unlikely) event that the Code language you wish to cite has not yet been enshrined in print by the official United States Code.
USCA and USCS add two important things to the official Code: improved currency combined with high fidelity to the abstract notion of what a true continuous Code would look like; and annotations. Annotations are the cross-references to secondary sources and other legal materials, and especially the short, organized, excerpts from applicable case law that accompany each section in USCA or USCS.
While both this method of improved currency and the case law annotations remain important (even vital) to the legal researcher, it is also true that neither is quite as vital, or quite as unique, as it once was.
While they are not officially sanctioned, USCA and USCS certainly share a status as products of very long standing produced and backed by the considerable credibility (and financial stake) of dominant legal publishers with (especially in the case of West/USCA) old and close ties to those engaged in the official production of legal resources. As such, they have a sort of cognitive status — the collective habits of mind of the legal profession accord them a lot of respect.
But… The Office of the Law Revision Counsel does, after all, publish and update the Classification Tables (online, and with respectable speed) that are the essential “recipe” for reconciling new Acts into the United States Code. Beginning in 2010, the Office of Law Revision Counsel has also introduced the USC Prelim, which can be found on the Office of Law Revision Counsel website. This is a public presentation of what is essentially the preliminary release, subject to further revision, of what will eventually become the formal United States Code text.
Other publishers certainly could produce their own unofficial approximation of updated Code text — either by using the Classification Tables and sessional statutory language to attempt to maintain a more current Code OR (avoiding any thorny issues in rendering the Code language correctly) by retaining only official United States Code language in the main text of their edition, but adding something like an immediately accessible sidebar alert or similar interface to inform their users that new enactments had affected this section and provide immediate access to the relevant portions of those new Acts.
New(er) commercial computer-assisted legal research platforms have, of course, created their own unofficial-but-reasonably-current renditions of the United States Code. Such entrants include Fastcase, Casemaker, and LoisLaw.
In the “free” realm, the non-profit Legal Information Institute once again leads the way, with a major usability enhancement of the USC Prelim.
The LRC’s own website provides a searching interface to the USC Prelim, but doesn’t give the end-user researcher any meaningful way to browse Titles or make really effective use of that Code as a research or statute-reading tool. Bulk download options are provided, but without an interface tool they don’t get you far as an ultimate consumer of this information.
The U.S. Code that is available from the LII, on the other hand, takes the U.S. Code prelim text, makes it searchable, browseable, and downloadable by Title or other sub-division; and takes it to the next step by adding a “currency” tab that allows further updating by automatically referencing the Classification Tables and the related Editorial Classification Change Table. Once again, a valuable tool for at least initial-stage statutory research without any chance of accruing CALR costs.
(In the past I’ve discussed and recommended the LII version of the U.S. Code, for a reason (slightly) distinct from “legal research” in the narrow sense of locating the relevant texts. Annotations are a valuable research tool, but can get in the way of fluid statute reading. I highly recommend the (free!) edition of the U.S. Code from the Legal Information Institute as a tool to support the close reading of typically complex and internally-referencing statutory texts without the encumbrance of long annotations after each section. (Chapter-level PDF downloads are particularly useful for this.))