5. US Code is a summary of the law---NOT the law itself.

¶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.

The Basic Spiel

¶3 First there are the basics that we often teach to students:

• When a law is enacted--passed by the House and the Senate and signed by the President--it is given a public law number reflecting when it was passed (which *546 “Congress”) and the order it came within that Congress. For example, Pub. L. No. 108-1 was the first law of the 108th Congress.2

• Laws are published in chronological order in United States Statutes at Large (Stat.).

• Because that chronological arrangement isn't efficient for researchers (imagine looking at every volume since 1935 to find all the amendments to the Social Security Act!), the laws are sorted into subjects (“codified”) in the United States Code (U.S.C.).

• The U.S.C. is divided into fifty titles with broad subjects--e.g., title 7, Agriculture; title 8, Aliens (i.e., immigration and naturalization); title 20, Education. You can't assume too much about the title groupings though. For instance, federal employment discrimination laws are in title 42, Public Welfare, and not title 20, Labor, as you might guess.

• Titles are divided into sections. If you look at the table of contents, you'll see that they're grouped into chapters and subchapters, but you don't cite those--just the title and the section.

• Small changes are made in codification to make cross-references work--for instance, changing a reference to a section within the act to a section in the Code.3

• Private publishers put out annotated editions of the United States Code-- United States Code Annotated (U.S.C.A.) and United States Code Service (U.S.C.S.)--that are even more useful for researchers. They include the text of the laws, with the same numbering as U.S.C., and following each section of the code they also list relevant secondary sources and give brief summaries of cases.4

• These sets are generally much more current than the U.S.C.--another big bonus for researchers. You update by checking pocket parts and supplements at the end of the sets. The versions on Westlaw or LexisNexis are even more up to date.

¶4 Sometimes a student asks, “If the U.S.C. is easier for researchers, why would we ever look at Statutes at Large?” I start with this answer: Sometimes you care about the whole act as Congress passed it, before it was split up and codified, and sometimes you want to see when a particular provision was added. Moreover, if there's any change in language between Statutes at Large and U.S.C., the language *547 in Statutes at Large governs. The United States Code is only prima facie evidence of the law for much of the code. But some titles (marked with asterisks at the front of the bound volumes) have been enacted into positive law.

¶5 And that's where the questions can start us on our way out to sea. What is “positive law”? What difference does it really make in practice? How often does it come up that there's a typo or some other change in the United States Code?. What other changes would there be, anyway? Why did Congress enact those titles as positive law? Is Congress going to enact any more?

¶6 After we look at sample pages from the official and annotated codes, someone often asks, “If U.S.C.A. and U.S.C.S. are so handy, why should we bother with U.S.C.?” Short answer: Because the Bluebook says you have to. A longer answer would add that it's often helpful to be able to see a chapter or subchapter printed on big pages without annotations to figure out how the sections fit together. Sometimes you want a copy of just the statute, without all the pages of annotations in between sections. And then one could add: “Well, because it's official, and if there's a typo in one of the others, the U.S.C. version would count.” But then you'd only have somebody ask: “Come on, how often does that really happen?”5

¶7 It is questions like these that I want to address here. We still won't have time to spell out all the details about positive law and codification in a short class, but we will know more ourselves and be better able to answer student questions.6

Prima Facie Evidence of the Law

¶8 The United States Code self-referentially provides that it is “prima facie” evidence of the general and permanent laws in force at a given date-- except that the titles that have been enacted as positive law are “legal evidence of the laws therein contained ....”7 In contrast, the Statutes at Large are “legal evidence of laws ....”8 The difference between prima facie and legal evidence is this:

If you go into court and cite a section of the United States Code, your adversary may bring in a dozen Statutes at Large to show that what is in the Code is not an accurate statement. As a result, he may prevail because the Statutes at Large are legal evidence of the law, whereas the Code is only prima facie evidence.9

¶9 And there are cases where that has happened. For example, the Treasury Department once relied on a provision in the United States Code that did not reflect an amendment, so the agency's regulation imposed a requirement on taxpayers that *548 was not in the current statute. The I.R.S. tried to collect, based on the regulation, but the court went back to the Statutes at Large and held for the taxpayer.10

¶10 Another example, while harder to explain, illustrates some of the benefits and hazards of codification. Section 4 of the Clayton Act creates a private cause of action--with treble damages--for “any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws ....”11 In the 1934 United States Code, that section was codified in title 15, section 15 (as it is still, with amendments).

¶11 What laws are “the antitrust laws”? They're listed in section 1 of the Clayton Act:

“[A]ntitrust laws,” as used herein, includes the Act entitled “An Act to protect trade and commerce against unlawful restraints and monopolies,” approved July second, eighteen hundred and ninety; sections seventy-three to seventy-seven, inclusive, of an Act entitled “An Act to reduce taxation, to provide revenue for the Government, and for other purposes,” of August twenty-seventh, eighteen hundred and ninety-four; an Act entitled “An Act to amend sections seventy-three and seventy-six of the Act of August twenty-seventh, eighteen hundred and ninety-four, entitled ‘An Act to reduce taxation, to provide revenue for the Government, and for other purposes,”’ approved February twelfth, nineteen hundred and thirteen; and also this Act.12

In the 1934 United States Code, this definition appeared in title 15, section 12 as: “‘Antitrust laws', as used in sections 12 to 27, inclusive, of this chapter, includes sections 1 to 27, inclusive, of this chapter.” Right there you can see an advantage of codification: the definition in the code is much easier to read than the one in the session law, isn't it?13

¶12 In 1936, section 1 of the Robinson-Patman Act14 explicitly amended section 2 of the Clayton Act, codified at 15 U.S.C. § 13.15 The other three sections of the Robinson-Patman Act did not explicitly amend the Clayton Act, but they were codified nearby, in new sections 13a, 13b, and 13c. The 1940 United States Code (and later editions) did not change the definition of “antitrust laws.”

¶13 In the 1950s, some plaintiffs sued for treble damages under section 3 of the Robinson-Patman Act. Would that be allowed? On the one hand, the Robinson-Patman Act was codified within the range for “antitrust laws” listed in 15 U.S.C. § 12. On the other hand, section 3 of the Robinson-Patman Act isn't listed in the definition of “antitrust laws” in the Clayton Act. (It was passed later, so how could it be?) The Supreme Court said that the location of the codified sections did not make them part of the “antitrust laws”: “[T]he 1940 codification was a palpable error. Moreover, this codification seems to us ... to be manifestly inconsistent with the Robinson-Patman Act, and in such circumstances Congress has specifically *549 provided that the underlying statute must prevail.”16 While we think of the United States Code as law, Congress did not vote on and the President did not sign the 1940 United States Code--so it was necessary to go back to the session laws to see what was enacted.17

Why Only Prima Facie Evidence?

¶14 Why is the United States Code only prima facie evidence of the laws? The rule could certainly be otherwise. Congress could have said that the United States Code is the definitive statement of the law, without resort to Statutes at Large, as some states do for their codes.18 Why didn't it? The short answer is: because too many mistakes find their way into a project as big as a code of all the laws of the United States. The Senate insisted that the new code not be binding, just in case.