On December 18, 2010 with a stroke of his pen, U.S. President Barack Obama signed into law Public Law 111-314, creating Title 51 of the United States Code. Title 51 gathers together all in-force federal law on the topic of National and Commercial Space Programs. Since the Title was enacted as a single piece of legislation, it serves as positive law. There will be no need to refer back to the underlying publication of the statutes that make up its component parts in the Statutes at Large. Though I have had difficulty finding colleagues who find this event as earth shattering as I do, I see this as a very exciting development.
Why is it such a big deal? It is the first new Title to be added since the U.S. Code was created in 1926. There is good reason for the eighty five years of stability: Promulgating the U. S. Code took years of labor and was attended by much political haggling. If one tries to organize all of the generally applicable, in-force legislation of a jurisdiction into a set of organized topics, one confronts a very touchy set of questions. Pieces of legislation passed at different times by different Congresses have to be blended together into a coherent structure. Language must be smoothed over and decisions must be made. Bits might be left out; meanings might be shaded one way or the other. The whole enterprise is designed to raise the hackles of the suspicious among us — and there are many suspicious among us. Law reform, traveling under the guise of neatening things up, may occur.
Worse, many laws that are still in force are redundant, obsolete or contradictory. Great swathes of the existing U.S. Code might not be re-enacted if voted on today. Is everything up for grabs? These problems have kept the 50 titles in place, even when Title 34 was abandoned, and even though some of the Titles like Title 4, The Flag and Seal, Seat of Government and the States, are brief and seldom modified (the flag is pretty established and Washington, D.C. appears safe), and others like Title 42 Public Health and Welfare are bursting at the seams and always being amended.
For a time the Congress tried to enact individual Titles into positive law as a matter of convenience and economy, but the process was abandoned for the reasons set out above. Just looking at some Titles was enough to set off political fireworks. And that was a case of turning an existing Title into positive law.
Even worse, each and every book currently written about the U.S. Code is now wrong. There are now 51 Titles. This will be a boon for Thomson Reuters and for LEXISNEXIS as each produces a printed annotated version of the U.S. Code that are still widely used. Everyone wil have to decide if they are to buy a whole new set. Sigh. And the Office of the Law Revision Counsel of the United States House of Representatives has announced that four more are coming.
Title 51, concerned as it is with space travel, presents little controversy. But Title 52 will focus on Voting and Elections, and Title 55 on the Environment. All relevant laws on these sensitive topics will have to be pulled from other parts of the U.S. Code, and reformulated into the new Titles. I think that a bit of dust will be raised over those enactments. Just imagine the enlightened solons that comprise the United States Congress re-enacting all environmental law without bringing out the hatchets. It is to laugh.
I am a patient man — age has helped me on that score. The decline of the book, the end of newspapers and the commodification of legal information: I can deal with all of them. But for me, messing with the U.S. Code is the last straw. The 21st Century is proving to be a wild ride indeed. And I cannot get anybody excited about it!