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.

In academia, via FGI, it looks like Harvard is embracing standards of open access for academic research in their Arts and Sciences departments.  This is great news, as they seem to be asserting their role as agents in a broad intellectual sphere as more important than their role as agents in the academic publishing world.  There is a difference between the business of publishing research and the process of actually taking advantage of that research.  Access to even college course material is developing online.

Similarly, Carl Malamud, Lawrence Lessig, and Public.Resource.org have staked a claim in the realm of public access to legal research, as they recently announced the release of “substantial part of all federal cases.”  Their work similarly helps to distinguish between the functional world of real people needing access to research materials and the walled off publishing companies that have long held exclusive access to the materials they produce.  Let’s not be naive, however, publishing companies like West have played an essential role in providing information to a broad and paying legal community that couldn’t function without their institutional role as managers of legal information.

So where’s the middle ground?  Where does the clear public good of broad information access begin, and where does the public domain end?  How does one negotiate the terrain of digitizing public information that has some degree of copyright asserted over it?

Mr. Malamud gives us real perspective on his attemps to realize the proper place for public information, as he lets us see into the negotiations surrounding his work, posting his correspondence with Thomson North American Legal along with the court documents his team has digitized.  Among my favorite passages (pdf):

He has also posted the company’s reply, and publicresource’s press release of the collection’s release.

I’m hoping that his work with creating broad public access to legal research materials and historical national documents leads to a better relationship between citizens and legal and legislative information.

Access to a history of Supreme Court decisions puts us one step closer to gaining a comprehensive public view of all of the important aspects of legal research, and being able to see the relevant documentation of public policy from its inception and legislative consideration to its implementation and eventual interpretation in the courts.