Codification and the Hidden Work of Congress


Where does law go after Congress enacts it, but before courts interpret it and the public reads it? This seemingly simple question is in fact very complicated, without a single, predictable answer. This Article provides the first in-depth scholarly examination of the process by which enacted laws are organized and presented for public consumption, known as codification, a process that has mostly escaped the notice of judges and scholars of legislation, and is not explained in textbooks meant to introduce lawyers to the creation and interpretation of law. It argues that the failure to account for this process has left gaps in our understanding of what law is and how it should be interpreted.

Law often undergoes significant change between enactment and the time it is organized within
the U.S. Code, which is a compilation of Congress’s individual enactments. The decision of how to organize these individual enactments within the Code, or whether to leave them out of the Code altogether, is made by a nonpartisan group of lawyers within Congress known as the Office of the Law Revision Counsel. These technical organizers have significant power over how (and in some cases, whether) courts, litigants, and the public see an enacted law, although their power differs depending on the type of Code title. This Article’s descriptive and normative claims have real world application because organization and context are central to interpretation, but  interpreters have failed to grapple with how codification affects organization and context. This Article argues that interpreters must understand the full complexity of how law is organized and presented before they can make confident pronouncements about congressional bargains and legislative intent. Understanding the codification process provides a more accurate, albeit more complicated, path forward for statutory interpretation.

By uclalaw