Positive Law Codification Discussion

Explain and summarize the process of positive law codification. (attached)

What are the benefits of positive law codification?

Office of the Law Revision Counsel
United States House of Representatives
http://uscode.house.gov/
telephone 202-226-2411
POSITIVE LAW CODIFICATION
IN THE
UNITED STATES CODE
The Office of the Law Revision Counsel is required by law to engage in a
comprehensive ongoing program, known as positive law codification, under
which all general and permanent Federal statutory law is to be revised and
restated.1
This brochure explains the process of positive law codification and provides
related information concerning the Office of the Law Revision Counsel and the
United States Code.
QUICK SUMMARY
Positive law codification:
• Restates existing law – nothing new
• Enacts existing law as a “positive law” title
• Improves organization
• Removes obsolete provisions
• Corrects technical errors
1
Under section 205(c)(1) of House Resolution No. 988, 93d Congress, as enacted into law by Public Law
93-554 (2 U.S.C. 285b(1)), the Office of the Law Revision Counsel of the United States House of
Representatives is required “[t]o prepare, and submit to the Committee on the Judiciary one title at a time, a
complete compilation, restatement, and revision of the general and permanent laws of the United States
which conforms to the understood policy, intent, and purpose of the Congress in the original enactments,
with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections
both of substance and of form, separately stated, with a view to the enactment of each title as positive law.”
Office of the Law Revision Counsel
United States House of Representatives
http://uscode.house.gov/
telephone 202-226-2411
Positive law codification
Positive law codification is the process of preparing and enacting a restatement of existing law.
The restatement conforms to the policy, intent, and purpose of Congress in the original
enactments, but the organizational structure of the law is improved, obsolete provisions are
eliminated, and technical errors are corrected. The restatement is enacted as a positive law title
(see below) of the United States Code.
United States Code
The United States Code is the official codification of Federal statutory law.
Positive law titles
The United States Code is divided into subject matter titles. Some are “positive law” titles and
some are “non-positive law” titles. The difference is this:
A positive law title of the United States
Code is – itself – a Federal statute.
A non-positive law title of the United
States Code is an editorial compilation of
Federal statutes.
positive law title
a Federal statute
non-positive law title
an editorial compilation of Federal statutes
For example, title 10, United States Code, “Armed Forces”, is a positive law title because the title,
per se, has been explicitly enacted.
Alternatively, title 42, United States Code, “The Public Health and Welfare”, is a non-positive law
title. The Federal statutes set out editorially in title 42 have been explicitly enacted, but title 42,
per se, has not.
Provisions set out in non-positive law titles of the United States Code may vary slightly from the
precise language enacted into law; cross references are adapted and stylistic changes are made
in order to facilitate the integration of Federal statutory provisions into the United States Code. By
contrast, a positive law title of the United States Code constitutes the precise statutory language
enacted into law.
The distinction between positive law titles and non-positive law titles can have legal and practical
ramifications. See Benefits of Positive Law Codification (last page of this brochure).
Ultimately, all titles of the United States Code will be positive law titles. At present, about half are
positive law titles.
Office of the Law Revision Counsel
United States House of Representatives
http://uscode.house.gov/
telephone 202-226-2411
Office of the Law Revision Counsel
The Office of the Law Revision Counsel is an independent office in the United States House of
Representatives. Among other duties, the Office of the Law Revision Counsel is required to
prepare positive law codification bills to be transmitted to the Committee on the Judiciary of the
House of Representatives. The Office of the Law Revision Counsel is non-political, being required
by law to maintain impartiality as to issues of legislative policy. In general, the function of the
Office of the Law Revision Counsel is to maintain and improve the United States Code, which is
the official codification of Federal statutory law.
Review and comment
As a positive law codification bill is prepared, the Office of the Law Revision Counsel actively
seeks input from Federal agencies, congressional committees, and others with expertise in the
area of law being codified. Close review and rigorous analysis are welcomed, so that all
interested parties are assured that the restatement of law is accurate and comprehensive. A
formal review and comment period begins once the bill is introduced, but from the very outset of
the drafting process the Office of the Law Revision Counsel actively seeks feedback.
Legislative procedure
The Office of the Law Revision Counsel prepares an initial draft of a bill to restate existing law as
a positive law title of the United States Code. The bill is introduced in the House of
Representatives by the Chairman of the Committee on the Judiciary. The Committee on the
Judiciary has jurisdiction of codification legislation. After introduction of the bill, an extensive
review and comment period ensues. The Office of the Law Revision Counsel actively seeks input
from Federal agencies, congressional committees, and others with expertise in the area of law
being codified. At the conclusion of the comment period, an amendment in the nature of a
substitute – reflecting corrections and comments – is prepared by the Office of the Law Revision
Counsel and transmitted to the Committee on the Judiciary for Committee action. Typically, the
bill is passed by the House under suspension of the rules and in the Senate by unanimous
consent.
Benefits of Positive Law Codification
The process of positive law codification yields a number of benefits for the courts, Congress,
Federal agencies, the private bar, and all who use or refer to Federal statutory law.
Legal evidence.–Provisions set out in non-positive law titles of the United States Code are
merely prima facie evidence of the actual law. However, once those provisions are enacted as a
positive law title of the United States Code, the provisions, as set out in the Code, constitute legal
evidence of the law in all Federal and State courts.
Improved organization.–Provisions that are closely related by subject may be scattered in
different places in the United States Code. Such provisions may have been enacted many years
apart and incorporated into the United States Code at different times. Positive law codification
affords an opportunity to revisit the organizational structure of statutory material. Thoughtful
regrouping of provisions often yields a statutory product that is easier to use and that fosters a
more comprehensive understanding of the law.
Elimination of obsolete provisions.–Obsolete provisions are frequently identified in the course
of preparing a positive law codification bill. For example, existing law often contains provisions
related to reports that were required and submitted many decades in the past. Obsolete
provisions are eliminated from the law after appropriate vetting of proposed changes. Although
such changes seem small and innocuous when viewed individually, the cumulative effect of
removing all obsolete provisions can be profound, resulting in a much more compact and
comprehensible text.
Improved wording and form.–Some provisions – particularly provisions enacted many years
ago – use archaic “legalese” that obscures the meaning of the text. Positive law codification
provides an opportunity to update wording to achieve a more consistent and readable style. Even
when no words are changed, improvements in form may make the text more understandable. For
example, an overlong and complex provision may be broken down into labeled parts to aid the
reader in following the text and focusing on relevant material. In all cases, great care is taken to
ensure that the restatement of existing law conforms to the policy, intent, and purpose of
Congress in the original enactments.
Correction of technical errors.–Positive law codification provides an opportunity to correct
technical errors in the law, including typographical errors, misspellings, and punctuation and
grammar problems.
Precise statutory text.–The process of positive law codification promotes public access to the
precise text of Federal statutory law. Provisions set out in non-positive law titles of the United
States Code may vary slightly from the precise language enacted into law; cross references are
adapted and stylistic changes are made in order to facilitate the integration of Federal statutory
provisions into the United States Code. By contrast, a positive law title of the United States Code
constitutes the precise statutory language enacted into law.
Cleaner amendments.–Positive law codification promotes accuracy and efficiency in the
preparation of amendments. A positive law title of the United States Code constitutes the precise
statutory language enacted into law. Specifying words to be struck or the place where new words
are to be inserted is simplified. Understanding the impact of proposed amendments is easier.
Drafting errors are reduced. In addition, compliance with congressional rules requiring
comparative prints (showing proposed omissions and insertions) is facilitated.
Streamlined citations.–Statutory citations in court documents, legal academic papers, and other
legal work are streamlined as a result of positive law codification. A reference to a provision in a
non-positive law title of the United States Code may require a long citation including the section
number, the short title of the Act, the Public Law number, and the Statutes at Large citation – all in
addition to the United States Code citation. However, once the provision is enacted as a part of a
positive law title, the United States Code citation becomes the complete citation.