U.S. statutory law is organized into 50 books, known as titles. Each title should contain only those laws that have to do with a discrete subject area. In addition, it should only contain general and permanent laws — excluding provisions that apply only for a limited time (e.g., an annual appropriations law) or to a small number of people (e.g., a private law). For example, Title 7 should only contain permanent laws having to do with agriculture. Title 28 should only concern the judiciary and judicial procedure.

However, the last time that all law was organized in this way (or “codified”) was in 1926. Since then, entirely new areas of law have emerged that weren’t part of the original structure. Those laws have been placed into the code wherever was convenient, without Congress necessarily considering where would make the most sense.

Over time, this has created a mess. Laws that are related to one another often are placed in completely different places. Occasionally, Congress enacts laws that contain technical errors. And, the passage of time and future legislation render certain provisions obsolete.

In response to these issues, the Office of Law Revision Counsel recodifies the laws: it reorganizes and rewords them. However, without legislative action, the office’s recodification does not have full legal force. In those instances, to see the actual text of the law, you have to look up the original bill passed by Congress and compare it against any additional laws that modify that original law.

Unless Congress enacts and the president signs the OLRC’s suggested revisions into law, the recodified text serves as a guide to how the law should be organized; it is prima facie (i.e., facial) evidence of what the law is. When Congress enacts the OLRC’s codification, it transforms the code into “positive law,” and repeals the statutes that originally created the laws. The only statutory law left is that newly-passed U.S. Code title.

As things currently stand, 24 titles have been revised and enacted into law. The other titles remain only prima facie evidence of the law.

The process of turning proposed codifications of the law into positive law can take a lot of time. After the OLRC proposes revisions to the code, it invites comments from federal agencies and non-governmental stakeholders in a process that can take more than a year. Currently, the OLRC has proposed six revisions to U.S. law, including the addition of four new titles to the code.

Congress, however, isn’t always so quick to act. For example, legislation to codify Title 41, concerning public contracts, was first introduced in the House of Representatives in May 2004. It has been reintroduced each subsequent Congress since then, and was finally passed by the House of Representatives on May 6, 2009. The ball is now in the Senate’s court.

The OLRC has been taking steps to update its services. It recently started a twitter feed, and it is interesting to watch as the OLRC announces where newly enacted legislation should be classified. In addition, OLRC recently updated its “popular name tool,” which allows users to find legislation by its popularly known name. Another useful resource from the office is its online search engine, which returns the most recently published version of the code plus a page containing any subsequent amendments or notes, and Public Law citation information. I can’t wait to see what other improvements the office will make to their web site.

It looks like the Committee for Economic Development, a DC public policy NGO, has undertaken a systematic study of openness as it applies to American Health Care.  Their new report (pdf), “Harnessing Openness to Transform American Health Care”, examines healthcare’s potential transformation in the face of Internet technology, much like the Open House Project has for Congress: “Our goal in this report is to bring the DCC’s expertise in information and communications technology and electronic commerce to bear on those aspects of healthcare that have been or can be changed by the Internet, the continued growth in computing power and data storage capacity, and the increasing digitization of information.  These technological changes, and the greater openness that they enable, are visible in areas that range from biomedical research and the disclosure of research findings, through the process of evaluating drugs and devices, to the emergence of electronic health records, and the development and implementation of treatment regimes by caregivers and patients.”  (pdf, page 1)

This is absolutely a step in the right direction, and I’m glad to see a concerted well coordinated analysis of disclosure in other fields.  This study pairs nicely with the recently passed requirement that the National Institutes of Health disclose results of publicly funded research.  (I’m not sure which bill is responsible for this reform, if you are, let us know in the comments.)

If you look through the National Science Foundation’s requests for proposals, many of them pertain to the cyber-infrastructure issues that are the stuff of the future of public science collaboration.  I’m especially fond of the  “Sustainable Digital Data Preservation and Access Network Partners (DataNet)” rfp, because my sister researches HIV, and I’ve witnessed the contorted amalgamation of web searches scientific researchers need to go through to stay on top of their field.  Scientific discoveries and health information both face the same public access revolution that legislative information does, and I’m happy to see when the problems are being approached in the same public, collaborative manner.

For more background on the document, see this post, and for updates, I’m keeping notes on this page, from which future updates will likely be pulled.

-John  (start review)

foreword:
compiled by the Task Force on the Documentation of Congress of the Society of American Archivists Congressional Archivists Roundtable, coming from 1989’s “Understanding Congress: A Bicentennial Research Conference”.  “the fragmented nature of congressional primary source documentation” is partly responsible for the lack of scholarly writing on the legislative branch.  Report is a “study of the archival sources that document the operations of Congress.”

Preface:
“Because the documentation of Congress, in particular, most directly reveals the will of the people as expressed through their elected representatives, it is especially crucial to preserve evidence and information about the legislative process and make it accessible to the public.”  (gives great detail on problems with public access: “fragmented and geographically scattered; collections are often voluminous, of complex arrangement, inadequately indexed, and in poor physical condition; contents of many collections are uneven, with unexplained gaps in information; and repositories that receive these collections frequently lack the resources to provide state-of-the-art arrangement, description, and archival preservation.”  Project undertaken by the Task Force on Congressional Documentation of the Society of American Archivists’ Congressional Archivists Roundtable (that’s correctly transcribed).  “many of its suggestions will take years to be carried out; others can be effected immediately.”  “Among the most pressing needs are actions to improve the documentation of legislation, representation, congressional leadership, political activities, and programs of congressional support agencies.  Other recommendations are aimed at better documenting Congress’ relations and interaction with media, the executive and the judicial branches, lobbyists, and think tanks.  Finally, steps are suggested to improve documentation of the administration of Congress’ to fill gaps in the historical record through structured, coordinated oral history interview programs; and to improve the preservation of congressional sources.

Intro:
Report organized into congressional “functions”, “documentation”, and “recommendations”.  (apparently there’s a 1978 report from the National Study Commission on the Records and Documents of Federal Officials, which “recommended that office files and personal papers of members of Congress be legally designated as federal records with guaranteed public access after fifteen years” (this wasn’t implemented, but that report would be useful to find).  This report led to a 2 day conference, where they decided to publish a handbook on member records management.  1985 then saw a 2 day conference on documenting Congress, put on by the “Dirksen Congressional Center and the national Historical Publications and Records Commission” (another great report to find)  This conference led to the creation of the Congressional Archivists Roundtable of the Society of American Archivists (which, in turn, led to the current day 2008 Advisory Committee on the Records of Congress (link).  (The Congressional Archivists Roundtable appears to be defunct, perhaps being defunded in the mid 90’s?)  “the “importance” [of congressional material] had not led to a determined effort to systematically appraise and preserve a documentary record of Congress.” (page vi)  Problems archivists face: “the information explosion, the computer and telecommunications revolutions, insufficient resources for archival work as government and repository budgets tighten, and the lack of clearly defined long-term strategies and action plans to accomplish overall documentary objectives.”  The response to this is a strategy, which matches the organization of this document (functions, documentation, and recommendations).    The report then lists participants.

Page ix lists contents, listing the major topics to be examined: Institutional Setting, the Legislative Process, Representation, Political Activities, External Relations, Administration and Support, Research Use of Congressional Collections, Appendices, and Notes.

Summary Report and Recommendations
Repeats problem.  “Historical records do not simply materialize.”  They’re trying to balance the needs of three authorities: members and officials of Congress “individually responsible for the on-site management of the information that is collected and maintained in their offices”, NARA’s CLA, and the “literally hundreds of archival repositories across the country [that] preserve and provide access to the personal papers that are deposited in them by the members”.  This listing seems to me to be a result of their institutional setting, my take on the jurisdictions at work in congressional information access can be found here.

Major Findings:
1. “Congressional committees are relatively, although not uniformly, well documented, [but] there is great variation in the documentary quality of individual members’ collections”  This conclusion strikes me as a result of writing in the mid 1990s, when paying meaningful attention to legislative affairs through the Internet was rather impossible.  There was little difference then between “well documented” and “publicly available (online)”, where now that difference is quite clear.  What is “well documented”, like committee hearing transcripts, or the upcoming schedules for committee hearings, in the archival sense, can also be useless for those hoping to actually watch Congress in action, even in time for upcoming elections, which is a much lower bar than the near-real time awareness lobbyists need in order to be legislatively relevant.  Thus the report’s focus on member records, which were managed in a much less standard manner then.

2. The need for a “coordinated retention plan that meets the long-term needs of Congress” as applied to congressional support agencies.  The GAO was doing well, the (now defunct) Office of Technology Assessment and Government Printing Office had partial programs, and the CRS and CBO had none.  Again, no real mention of OTA and GAO providing public documentation while CRS does not.  Our expectations of finding things online has led to a new set of expectations.  (well, that and the expectation of equal access to publicly funded documents, since CRS reports are sold through private companies.)

3. Executive Branch and Judicial Branches are doing a rather good job, but are relevant here nevertheless.

4. Other sources they feel have been thitherto overlooked: nat’l, congressional, and individual campaign committees, political party organizations; and congressional member organizations and caucuses.  (still true, 16 years later)

5. Member documentary repositories are hard to use, recommend better practices here.

6. Member materials will be better processed if offices hire and train archivists, and keep up with documents processing.

The Report then launches into specific recommendations, lining up with the table of contents, but in summary form.

My basic point was that members of Congress have certain privileges granted by the Constitution, giving them freedom from legal action relating to their legislative duties. Congress members aren’t above the law, so only legislative acts qualify as being immune from certain kinds of legal attention.

My question, after finding qualifying statements from some committees and from CRS, was the following: do lawmakers or their staff incur legal liabilities by posting information on their websites? Do they give up some immunity by (ostensibly) serving the public, in this case, and not doing something more obviously definable as a legislative act?

My question was answered by several different exchanges that I’ve had in the last few days. First, I was made aware of the Gravel (yes, that Gravel) Supreme Court case. Gravel read the Pentagon Papers into the Congressional Record, which resulted in legal action leading to the supreme court, which broadly interpreted the immunity of lawmakers. Apparently, legislative acts are immune under the Speech or Debate clause, and these protections apply also to aides or staff that are engaging in acts that the legislator would also engage in.

This case defines the bounds of the immunity granted under this clause of the first amendment as extending to staff as well as members of Congress.

Further detail, I’m told, is available to staff on the Hill, defining in more specific terms what staff can do and still maintain their protection under speech and debate.

The Open House Project’s success has come from just such a public conceptual space, a precondition for real collaborative analysis and constructive advocacy. If the societal influences that affect democratic decision making are fundamentally changed by the Internet and the broad public access that it promotes, it makes sense that a project promoting exactly that kind of public access would be among the first to demonstrate success. In a certain sense, the kind of public access that we’re advocating for is a precondition for the civically-empowered society we’d like to see, and the accountable transparent government that is built on it.

In the spirit of loosely connected observations potentially generating progress, here are some things I learned reading this weekend.

I finally got around to reading The Legal Research Manual, which a former employee of mine gave me (a pre-law student). The first few chapters were particularly relevant for me, since they provided a broad practical view of government information sources. I didn’t know about the US Government Manual, which is a yearly document by the GPO outlining the organization and function of the entire government.

The book also helpfully distinguishes between administrative (executive), statutory (legislative), and common (judicial) law, depending on its source, and further distinguishes between digests that organize this law based on either subject matter or chronology. All of the above are organized in both ways, leading to the existence of both an authoritative compendium and a running update. (For example, the Federal Register prints regulations from federal agencies as they’re passed, among other things, and the Code of Federal Regulations lists all of them according to topic.)

The Manual also explains judicial organization in great detail, with special attention payed to judicial jurisdiction (that construction may be a tautology) and practical approaches to researching case law and legal citations. Supreme court decisions are all apparently published in the United States Reports, which was good to see. Legal information, however, seems to suffer from an ad-hoc organizational system combining both official public prints and authoritative private services. For example, West publishes a “US Code Congressional and Administrative News” update, and digests of court opinions from throughout different levels of the Judiciary branch.

The linguistics appreciator in me loves that lawyers rely on a book called “Words and Phrases,” which catalogs legally articulated semantic distinctions. This would be a sort of legal ontology, I suppose.

Ontology, in philosophy, refers broadly to the study of being, in the same way that ethics is about action or epistemology is about knowledge. Ontology often gets brought up in discussions of structured data, and I’ve usually taken it to refer to the way that markup languages choose to recognize certain qualities or attributes as existent in certain settings. According to my understanding, a philosophical outlook leads to an ontology, or the ontic properties, those of existence, in the same way that the context of a given programming language leads to certain attributes. The radical doubt of solipsism leads to the lonely existence of the self, or the medieval metaphysics of Aquinas yields a complex hierarchy of angelic beings, just as RSS standards lead to attributes of title or publication time, or the context of HTML makes tags for italics or headers existent.

What got me thinking about all of this was Clay Shirky’s Ontology is Overrated, which is a great read. He outlines categorization schemas, and concludes that the imprecise statistical organization that arises from crowds organizing on the Internet is more useful than the top-down methods of organization like card catalogues (depending on the context).

Intellectual interaction’s electronically magnified potential will have considerable consequences for democratic governance. I assume that the effect will be a good one. In terms of corruption and conflict of interest, I wonder what the ideal conditions are for it to grow? I assume that a low information sharing environment is one of the basic conditions for administrative abuse. I wonder what else helps corruption to thrive? Is this studied systematically?