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As has been previously observed (in my initial brief), the House Office of the Law Revision Counsel confirms the observation of the Supreme Court in United States v. LaSalle National Bank cited above, and the attached Joint Committee On Taxation's presentation of the sources of authority for the 1939 and 1954 code sections to the effect that Title 26 (the IRC) is not, in fact, enacted into “positive law”:

“Certain titles of the Code have been enacted into positive law, and pursuant to section 204 of title 1of the Code, the text of those titles is legal evidence of the law contained in those titles. The other titles of the Code are prima facie evidence of the laws contained in those titles. The following titles of the Code have been enacted into positive law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 44, 46, and 49.” United States House of Representatives Office of the Law Revision Counsel

When we study law we are studying text, to one extent or another.1 The graph on the cover of this issue of the Journal of Legal Metrics illustrates one approach to that study. It charts the extent to which two bodies of law - federal statutory and regulatory law - have increased over time. It does so by counting the pages in the United States Code and Code of Federal Regulations from first through the most recent editions.2

The general idea is not new: trace the growth of federal law over time.3 Never before, however, has a side-by-side measurement of federal statutory and regulatory text been compiled from first through current edition. This short essay provides a little background on those two federal codes, a note on the method used to compile the data, and a few observations, as well as the data itself in an appendix.

Part III focuses on the last three words of the EPC, emphasizing the meaning of the word "laws" that was firmly established as of 1868. Lawyers understood the word "laws" (plural) to exclude the decisions of courts, except insofar as courts construe positive laws. The deliberate choice of the words "of the laws," instead of the narrower language "of its laws," envisioned a pivotal role for laws made by Congress.

EPA's claim of authority rests entirely on an improper statutory interpretation that ignores the text of the United States Code and the role of the House Office of the Law Revision Counsel. EPA tries in vain to circumvent the Code, but fails to show that it contains any errors or is otherwise inconsistent or in conflict with the Statutes at Large. EPA further offers nothing in the text, structure, or legislative history of the Act that would permit it to ignore the clear and sensible limitation on its authority embodied in Section 111(d).

EPA's reliance on illusory authority is inflicting real and permanent injury on Murray Energy and its numerous supporting intervenors. This Court can and should stop EPA's ultra vires actions now.

the -- used as a function word before a noun or a substantivized adjective to indicate reference to a group as a whole <the elite>

`(4) ENACT- The term `enact' means passage of a bill or resolution in identical form by both Houses, except a vetoed bill or resolution when the veto message is referred to committee in either House or when either House votes to sustain the veto.

Definition of the word “resolve,” given by Webster is “to express an opinion or determination by resolution or vote; as ‘it was resolved by the legislature;” It is of similar force to the word “enact,” which is defined by Bouvier as meaning “to establish by law”.

[**10] Second, Eastport asserts that the presumption against retroactivity does not apply because the amendment was intended only as a clarification of existing law. HN7 Where an amendment to a statute is remedial in nature and merely serves to clarify existing law, no question of retroactivity is involved and the law will be applied to pending cases. City of Redlands v. Sorensen, 176 Cal. App. 3d 202, 211, 221 Cal. Rptr. 728, 732 (1985). The evidence in this case, however, does not support the conclusion that the amendment to section 66452.6(f) was simply a clarification of preexisting law. The Legislative Counsel's Digest specifically states that "the bill would expand the definition of development moratorium." Senate Bill 186, Stats. 1988, ch. 1330, at 3375 (emphasis added). Since the Legislative Counsel is a state official required by law to analyze pending legislation, it is reasonable to presume that the Legislature amended the statute with the intent and meaning expressed in the Counsel's digest. People v. Martinez, 194 Cal. App. 3d 15, 22, 239 Cal. Rptr. 272, 276 (1987). By its ordinary meaning, the term "expand" indicates a change in the law, rather than a restatement of existing [**11] law. In light of the Counsel's comment, Eastport's argument is unpersuasive.

Nunez deems it critical to this particular analysis that the distinction be made among unenacted titles, enacted titles, and the actual Statutes at Large contained in them. To that end, it is instructive and helpful to set forth 1 U.S.C. § 204 (a) in its entirety.

(a) United States Code.---The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.

On March 18, 1947, one of the great justices, Felix Frankfurter, gave one of the great speeches on statutory interpretation. He called it “Some Reflections on the Reading of Statutes.”1 Sixty years later, we consider his speech a classic on how to read the statutes. The irony, however, is that we no longer read the statutes. Not in the sense that Frankfurter did. Frankfurter actually did read the actual statutes. He did not read the United States Code; he read the Statutes at Large. He jauntily described himself as “one for whom the Statutes at Large constitute his staple reading.”2 Frankfurter, in other words, did not read imitation law; he read real law. So did everyone else, in Frankfurter's day.

Nowadays, we don't. We read imitation law.

¶1 Pretty much every legal researcher in the United States has to deal with federal statutes. Even in what is mostly a state practice, federal issues arise. Just handling divorces? Think about possible social security benefits post-retirement and who will claim the kids as dependents on federal tax returns. Defending clients charged with state crimes? Remember the criminal procedure guarantees from the United States Constitution. Helping a client set up a business? Don't forget federal labor, trademark, tax, and environmental laws.

¶2 Most of us can find our way around the United States Code, United States Code Annotated, United States Code Service, and United States Statutes at Large. But I still had some questions about codification, so I went exploring, and in this article I will share with you what I learned.

Prosperity blesses our country. Our fiscal policy is fixed by law, is well grounded and generally approved. No threatening issue mars our foreign intercourse, and the wisdom, integrity, and thrift of our people may be trusted to continue undisturbed the present assured career of peace, tranquilly, and welfare. The gloom and anxiety which have enshrouded the country must make repose especially welcome now. No demand for speedy legislation has been heard; no adequate occasion is apparent for an unusual session of Congress. The Constitution defines the functions and powers of the executive as clearly as those of either of the other two departments of the Government, and he must answer for the just exercise of the discretion it permits and the performance of the duties it imposes. Summoned to these high duties and responsibilities and profoundly conscious of their magnitude and gravity, I assume the trust imposed by the Constitution, relying for aid on divine guidance and the virtue, patriotism, and intelligence of the American people.

Statutes, also known as acts, are laws passed by a legislature. Federal statutes are the laws passed by Congress, usually with the approval of the President. Federal statutes are published in three formats:

Second, the question is whether social security is strictly limited to public schemes. As discussed at the start of this chapter, acknowledgement of state responsibility for income protection was at the root of social security, thus stressing the importance of public responsibility. Of course, income protection can also be organised by other parties, including employers, family members, mutual funds and private funds. This raises the question whether such provisions are also to be counted as social security. This question has become more relevant now that in many countries the role of the state is being reduced and some public tasks are privatised, including parts of social security.

There is nothing against including such forms in the concept of social security, for instance, for calculating expenditure on social issues or income redistribution. However, in view of the normative dimension the issue is different, since again the question has to be answered whether the state has fulfilled its obligations. Because of the impact upon the legal position of the persons concerned, it still makes a very important difference as to who is responsible for income redistribution.

For example, OLRC may insert what it calls a “no source” provision into a new positive title that it is preparing for Congress. A “no source” provision is one that did not exist in any congressionally enacted law, but that OLRC creates out of whole cloth.620 For example, if OLRC concludes that a new defined term will help it more easily articulate the policies that it is assembling in the title, it may insert a new definition into the title, and then use this newly defined term throughout the title.621 In the chapter of title 46 labeled “Liability of Water Carriers,” for example, the very concept of a “carrier” is a *1665 defined term added by OLRC in a “no source” provision (the term that indicates OLRC created it).622 While the Revision Notes flag those provisions as having no source, those notes are hard to find and do not appear in the main text--whereas the “no source” provisions themselves do appear in the main text of the Code unflagged, just like provisions that Congress actually had enacted in prior law. “In a positive law codification bill,” an interviewee reported, “we create these definition sections pretty frequently.”623

Where does law go after Congress enacts it, but before courts interpret it and the public reads it? This seemingly simple question is in fact very complicated, without a single, predictable answer. This Article provides the first in-depth scholarly examination of the process by which enacted laws are organized and presented for public consumption, known as codification, a process that has mostly escaped the notice of judges and scholars of legislation, and is not explained in textbooks meant to introduce lawyers to the creation and interpretation of law. It argues that the failure to account for this process has left gaps in our understanding of what law is and how it should be interpreted.

Law often undergoes significant change between enactment and the time it is organized within the U.S. Code, which is a compilation of Congress's individual enactments. The decision of how to organize these individual enactments within the Code, or whether to leave them out of the Code altogether, is made by a nonpartisan group of lawyers within Congress known as the Office of the Law Revision Counsel. These technical organizers have significant power over how (and in some cases, whether) courts, litigants, and the public see an enacted law, although their power differs depending on the type of Code title. This Article's descriptive and normative claims have real-world application because organization and context are central to interpretation, but interpreters have failed to grapple with how codification affects organization and context. This Article argues that interpreters must understand the full complexity of how law is organized and presented before they can make confident pronouncements about congressional bargains and legislative intent. Understanding the codification process provides a more accurate, albeit more complicated, path forward for statutory interpretation.

This idea is not new. Justice (then Chief Judge) Cardozo proposed creating a “Ministry of Justice” to review judicial decisions in 1921, attributing the idea to earlier writings by Roscoe Pound and Jeremy Bentham.82 Cardozo's proposal was part of a broader movement that led to the establishment in most states of judicial conferences and in many states of law revision commissions.83 The former are typically responsible for running the state's judicial bureaucracy and for updating its rules of procedure and evidence. The latter more closely approximate the kind of entity I am proposing for the federal system in that state law revision commissions are usually responsible for examining laws and judicial decisions and making recommendations for reform to the legislature.

Experience with state law revision commissions has generally been good, and several states, particularly New York and California, have had notable success.84 The New York Law Revision Commission was responsible for that state's adoption of the Uniform Commercial Code (“UCC”),85 which helped create momentum for the UCC's nationwide acceptance. The California commission produced an evidence code that has been the basis for practically all subsequent reform in the field.86 In addition to such large projects, both the New York and California Law Revision Commissions have made many less *93 prominent, but still useful, recommendations. Through 1984, 163 of 185 recommendations made by the California Law Revision Commission had been adopted in whole or in part by the state's legislature.87 In its first twenty-three years, the New York Law Revision Commission submitted 315 recommendations dealing with 245 subjects, of which 181 were enacted.88 These successes have led other commentators—among them judges, legislators, and executive officials—to recommend creating a law revision commission for the federal government.89

IV. IMPLEMENTATION OF A FAMILY TAX LAW SUBDIVISION OF THE CODE

As discussed above, the last reorganization of the Internal Revenue Code occurred under President Ronald Reagan in 1986.145 It was meant *281 to be a comprehensive overhaul of the entire body of American Income taxation.146 Prior to the 1986 overhaul, the Internal Revenue Code of 1954 replaced the Internal Revenue Code of 1939.147 In the thirty years since the last reorganization of the Code, family law has emerged as a discrete area of legal specialization. As mentioned above, there is currently a political will to address family law issues in the context of federal tax reform.148 Implementation of the proposal to create a family tax law subdivision will require identification of existing sections of the Code that should be included within the subdivision. This article has identified those sections. Next, it will be necessary to determine where in the Code to place the subdivision. This includes placing the subdivision at the appropriate level of the existing organization. The subdivision may be a subchapter, part, or subpart of the Code. This will require knowledge about both family law and the organizational structure of the entire Internal Revenue Code.

On the other hand, positive law titles reflect Congress's decisions about both the content and organization of the law because those titles are voted on in Code form. Before a title of the Code is voted into positive law, it benefits from a long process of revision and amendment, with input from interested agencies, congressional committees, and outside parties before being put to a congressional vote. This process identifies “obsolete, ambiguous, or inconsistent provisions”8 and then strives to fix them by improving the Code's organization and wording.9 While positive law codification improves the organization and coherence of law, it is not without problems. Once a title is enacted into positive law, any future amendments must be made by Congress directly to the Code. This imposes on Congress the burden of maintaining the organization of the Code going forward, a burden that Congress has not always shown itself to be able to bear well. Congress must specifically amend the exact places it wants to change, which is no small task when Congress is in a rush or more concerned with enacting a law for *646 political purposes than precisely amending existing law.10 If Congress does not accurately amend a positive law title, then OLRC's only option is to put the enacted text into a note of the relevant title, which sometimes results in entire bills being relegated to positive law notes. Despite its flaws, positive law codification certainly better reflects Congress's work than nonpositive law, and the flaws can generally be attributed directly to Congress, rather than to OLRC.

Congress could address many of the issues with codification this Article identifies by accelerating its use of positive law. As this Article shows, positive law codification is a slow process, and in most years many more pages are added to nonpositive law titles than positive law ones.11 Congress could reverse this trend by choosing to enact more titles into positive law. Although this would increase the burden on Congress, Congress could remedy this by allowing OLRC to be involved in the organizational aspects of drafting laws. As it currently stands, OLRC's work begins only after enactment, and so their expertise in the Code does not carry over to the drafting of legislation, which is left to Congress's professional drafters and other groups who are less expert in the codification process. These types of codification changes would address many of the main issues of codification by reducing OLRC's discretion to affect the substance of the law while still allowing their technical expertise to inform the creation and organization of the law.

Some might wonder what is so bad about letting judges create a common law of statutory drafting conventions and word meanings. After all, our legal system is, at bottom, a common-law system, and judges have long been in charge of establishing common-law definitions for legal concepts such as “fraud,” “negligence,” and the like. Indeed, Black's Law Dictionary derives many of its definitions from caselaw.241 This is a counterargument that is more appealing at first blush than upon closer inspection. The problem with letting judges dictate one-size-fits-all definitions for terms used in statutes--as opposed to letting them establish definitions for legal concepts like “fraud” that courts themselves created through the incremental lawmaking process that is the common law--is that judges are not the drafters, or originators, of statutory words and phrases. Congress is. And Congress, unlike common-law judges, enacts individual statutes to address specific social problems; it does not engage in incremental rulemaking or carefully seek to harmonize new statutes with older ones already on the books. Moreover, Congress's drafting choices are political--often taken from proposals provided by interest groups242--and are influenced by the need for political compromise and coalition building. So when judges insist, without any legislative-record support, that two statutes enacted under different political conditions should be presumed to use specific words and phrases consistently, they are not being “faithful agents” of the legislatures that drafted those statutes. Rather, they are imposing the distinctly judicial goals of coherence, elegance, and logical consistency onto a political product that is messy, chaotic, and full of often-contradictory compromises.

Notably, judges who externally impose coherence across disparate statutes are behaving inconsistently with textualists' own repeated exhortations that each statute's text is the product of a finely *142 wrought political compromise: Textualists often emphasize this point in arguing that interpreters should attend carefully to each statute's precise wording rather than its overall purpose, on the theory that the statute's final words are the result of political bargains and reflect “a decision to go so far and no farther.”243 But if this is so--if the precise wording of each statute reflects a delicate political compromise following a messy “legislative battle among interest groups, Congress, and the President”244--then that suggests not only that interpreters should “hew closely to the semantic meaning”245 of the enacted text, but also that the bar should be very high for gauging similarity between different statutes enacted after different legislative battles producing different political compromises.246