Margi Heinen is the Manager of Library Services at Sherman and Howard.
Oh the mystery and adventure of …CODES! Have you been caught up in The Da Vinci Code excitement? The solving of a convoluted and difficult code makes for a great puzzler. Of course, CODE in legal research terms is the opposite of a mystery. It is supposed to organize all sorts of loose legislation into a meaningful, structured body of law. For legal researchers the real mystery begins when something is left out of the code. We are then faced with law which can be difficult to trace and that's when we play our own version of hide and seek. Uncodified statutes occur at both the federal and state level (see Carolina Rose’s article, “California Statutes: “effective, operative, and retroactive” dates; and ghostly “uncodified general law statutes” in NOCALL News, (Jan-Feb. 2002 - http://www.nocall.org/nocallnews/0201states.html) but because of the far-reaching effects of federal law, we'll concentrate on finding uncodified federal legislation.
Understanding how federal legislation gets codified in the first place is key to our uncodified puzzler. Legislation is published as it is enacted—chronologically in slip format and then by session in volumes as the United States Statutes at Large. Recent slip laws can be accessed via Thomas while the earliest volumes [ 1- 18, (1789 – 1875)] are available via the Library of Congress American Memory project. HeinOnLine recently added the Statutes at Large from 1789 through 2002 to their already fine collection. Print copies of the Statutes at Large can often be found in academic law libraries or public and academic libraries with government depository collections. [Editor's note: please see these related links about the future of depository libraries.]
These federal laws on disparate subjects of a general and permanent nature are then arranged by subject in the United States Code. Some laws never make that leap. There is an entire group of laws that are never expected to be codified because they are "private". They apply to an individual or single group of persons and are passed to assist that person or persons in a primarily private matter—relief from deportation for example. These private laws are published in the Statutes at Large. Another group of laws are not anticipated to be codified because they are "temporary". Appropriation acts are examples of this legislation. The funding within these acts generally only applies to a single year. However, it is often these very appropriations acts that mislead the legal researcher. The can contain any number of non-appropriations provisions resulting from the ebb and flow of political compromise.
Let’s take this example from our recent experience: an attorney says, "find me the statute that says you have to allow breastfeeding in federal buildings". We leap to any of our favorite U.S. Code sources, but we don’t seem to find this language. The attorney is adamant this language exists. Where did we go wrong? A Google search locates the following language at a breastfeeding advocacy website: "In September 1999, President Clinton signed into law the "Treasury and General Government Appropriations Act which included legislative language….to make breastfeeding legal anywhere on federal property." Ah ha! A look at the Popular Name Table shows us that there seem to be acts with this name from 1998 through 2003 and nearly all the references have the word "note" after them—example: 42 sec. 3771 note. The notes don’t address the issue we are looking for so we realize we have to examine the enacted language instead of the code. Searching HeinOnline's Statutes at Large helps us to identify the language from a 1999 appropriation's act text.
A CRS report entitled Breastfeeding: Federal Legislation also results from our Google search. The discussion on page CRS-4 of this report cites multiple appropriations acts and sections reflecting the right to breastfeed on federal property or in federal buildings as well as remarking in footnote 23 that the 1999 "…[p]rovision is apparently not codified". Using the P.L. number and section, the act's language is easily obtained via Thomas' Public Laws for the 106th Congress or HeinOnline's Statutes at Large. The report also cites to subsequent years' appropriations legislation which has affirmed the practice of breastfeeding in federal buildings and on federal property. Keep in mind that you may need to update any relevant uncodified legislation that you may find.
These are brief, fairly straight forward examples of approaches to identify and obtain uncodified federal legislation. Commercial online vendors offer the text of public laws as well as the convenience of their search methods. USCA and USCS have legislative service pamphlets containing the text of the current Congress' public laws. These print sets also offer tables volumes which may help you to identify whether a specific section of a public law has been codified. In addition, USCS offers its Uncodified: Notes to Uncodified Laws and Treaties volumes providing annotations to selected federal laws, treaties and proclamations arranged in chronological order.
When faced with a legislative puzzler—keep session laws in mind. While many of our legislative requests tend towards the pre-enactment stages or finding a current code section, we may also be asked to find federal legislation or statutes that are the current law but not contained in the code volumes. Remember that these laws are important for current as well as historical research.
To facilitate a dialog, we invite you to send your comments on research process and problems to Margi Heinen. We look forward to stimulating "conversation".