The ones that aren’t enacted as positive law aren’t ‘law’

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.

*90 I. A LITTLE BACKGROUND

A. United States Code

The United States Code is a collection of “the laws of the United States, general and permanent in their nature.”4 That is, the code is a consolidation of federal statutes, organized based on broad subject matter into 54 titles.5 The titles, in turn, are subdivided into smaller units including subtitles, chapters, subchapters, parts, subparts, sections, subsections, paragraphs, subparagraphs, clauses, subclauses, and items, although not necessarily in that order.6

Twenty-seven titles are “positive law,” meaning the titles' contents are the law itself.7 Surprisingly, the remaining titles are not. Their contents are merely rebuttable evidence of what the law is.8 The law itself with respect to these titles is to be found in the volumes of the United States Statutes at Large, which is the permanent collection of all laws and resolutions enacted during each session of Congress, organized in chronological order.9

Similarly startling is the relative youth of the United States Code. Although the Constitution was ratified in 1788 and the first Congress convened and began passing bills the following year, the first publication of the United States Code was not until in 1926. The graph adorning the cover of this issue of the Journal of Legal Metrics, as noted, illustrates the growth of that body of law from 1926 onwards. The story of what came before, however, is also one worth briefly retelling.10

*91 * * *

The first law regarding the publishing of the laws of the United States was enacted in 1789.11 During the first session of the first Congress, a law was enacted providing that when an act of Congress became law, the secretary of state was to preserve the original, deliver a copy to each congressperson, send two copies to each state's executive authority, and publish the law in at least three newspapers printed in the United States “as soon as conveniently may be.”12

The first law regarding the official collection of the laws of the United States was enacted six years later. It ordered the printing of a complete edition of all public laws and treaties of the United States up to that date (i.e., 1795), with an index.13 The law also ordered that after each session of Congress, the laws enacted during that session were to be printed and distributed among the states and territories.14

The United States Statutes at Large came into being four decades later when in March 1845 a law was enacted directing the attorney general to contract with Messrs. Little and Brown to publish a thousand copies of the compiled laws and treaties of the United States in chronological order.15 The gentlemen completed the first edition the following year, an eight-volume work.16

In doing so, they “discovered errors in the original text of many laws. They copied such text, however, verbatim, and where something had to be added in order that the text might make sense, it was enclosed in brackets.”17 And so it went for the next two decades. Little and Brown continued to compile, but not consolidate, federal laws in chronological order.18

As the compilation continued to expand, previously enacted laws continued *92 to be repealed, superseded, or modified, with the result that it became “almost a practical impossibility to make a thorough search of the statutes on many subjects.”19 Eventually, in 1866 a commission was formed to consolidate the Statutes at Large into a unified whole.20 But the commission quickly found their task would require rewriting numerous laws, reporting to Congress: “Where several statutes relating to the same subject modify each other, it has been impossible to state their united effect without writing a new statute.”21 Faced with the choice of writing a new statute or abandoning the task, the commission pressed on with its work.

The final product was presented to Congress in 1873, enacted in 1874, and published in 1875.22 In doing so, the federal government made a clean break with what had come before. When the Revised Statutes of 1873, as they came to be known, took effect, all preceding federal laws “embraced in any section were repealed.”23 This was the first time (and to date the only time) that a complete revision of all general and permanent statutes was enacted.24 They were not well received.25

While still on the printing presses, 69 mistakes and omissions were identified.26 Congress hastily passed a law correcting these errors, which was printed as a four-page appendix to the Revised Statutes of 1873.27 But these weren't the only errors and omissions in the text. Acts to fix other errors followed each successive year until 1878, when an amended and updated edition was published.28

The updated edition of 1878, unlike its predecessor, was not enacted as positive law; rather, it was merely rebuttable evidence of what the law was. The reason was simple; “Congress, after its experience with the Revised Statutes of 1873, was reluctant to enact as law even a consolidation and revision of the statutes in a restricted field passed during only a four year period.”29

*93 Four decades passed before serious work on consolidating the laws of the United States resumed. That work began in 1919, when the chairman of the House of Representatives' law revision committee, Colonel Little, undertook the task.30 The Senate's law revision committee was underwhelmed with the results, however, identifying 600 errors.31 The two chambers then came up with a new plan: outsource the work to West Publishing Company and Edward Thompson Company.32

The two publishing companies promptly set to work consolidating an authoritative code, which drew upon Colonel Little's work, was checked by various committees and departments, and was also checked by an outside expert.33 Nevertheless, “glaring errors were discovered when the bill to enact the codification was before the Senate and House of Representatives.”34 (Unsurprisingly, the process of enacting the United States Code as positive law would not begin until 1947).35

The 1926 edition was replaced by a new edition in 1934, with successive full editions following at six-year intervals.36 The handsome graph on the cover of this issue and appendix concluding this essay detail the growth of that body of law, as well as the growth of federal regulatory law, discussed next.