Why Primary Law Matters

What is Primary Law?

Primary law includes laws passed by a legislature that have become law, regulations promulgated and adopted by administrative agencies, and judicial opinions. Primary law is the basis for secondary legal information sources, such as treatises, articles, commentaries, and newsletters. While secondary law sources are important, they must be grounded in current and accurate primary law; otherwise, they can mislead and misinform.

Comprehensive, accurate, and current primary law is also essential for compliance-oriented organizations, attorneys, and others. It provides the “black letter” documentation that supplies the answer to questions such as “where does it say so in the law?” or “where does it say we cannot do that?”

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U.S. Federal Statutes

In the United States, federal laws are passed by Congress and become law, usually after being signed by the President. Each such law of a public nature is known as a “public law”. The Securities Exchange Act of 1934 is an example of a statute enacted by Congress. Frequently, a public law will be amended by subsequent public laws. Public laws are compiled by the U.S. government in a publication called the Statutes at Large, which arranges the public laws as originally enacted in chronological order. If a public law is amended by a subsequent public law, the Statutes at Large will show the first public law as originally enacted and will also show the amendatory law, but will not show what the first public law looks like after the amendment.

The United States Code is the compilation of all general and permanent statutes enacted by Congress and in force. Unlike the Statutes at Large, the United States Code shows laws as amended, and is topically oriented and divided into approximately 51 titles organized by subject. Some of these titles are "positive law" and some of them are "non-positive law".

Positive law titles. A positive law title of the United States Code is a title which Congress has explicitly enacted into law as a title of the Code. Generally, a positive law title is designed to address a particular subject and has been explicitly passed by Congress as an integral and comprehensive approach to a subject. For example, Title 49 of the United States Code, Transportation, is a positive law title because the entire title as such has been explicitly enacted. The language in a positive law title is the exact language used by Congress.

Non-positive law titles. A non-positive title of the United States Code, like a positive law title, is designed to address a certain comprehensive subject area, but instead of being legislatively passed as a whole unit by Congress it is an editorial compilation of related general and permanent statutes organized in a title by the Office of the Law Revision Counsel of the U.S. House of Representatives. Title 29 of the United States Code, Labor, is a non-positive law title. It is a compilation of discrete individual statutes, such as the Fair Labor Standards Act of 1938 and the Family and Medical Leave Act of 1993. The section numbers in a non-positive law title are assigned by the Office of the Law Revision Counsel rather than by Congress. If a statute which appears in a non-positive law title makes reference to a particular section of a particular statute, such reference will generally be replaced in such title by a reference to the corresponding United States Code section, a process sometimes referred to as "translation". Thus, for example, a reference in the Fair Labor Standards Act of 1938 to "section 13" might be replaced by a reference to "section 213 of this title", because section 13 of that Act appears as section 213 of Title 29.

Converting non-positive law titles into positive law titles. At present, only about half of the titles of the United States Code are positive law. The Office of the Law of Revision Counsel in the U.S. House of Representatives is charged with converting the remaining non-positive titles to positive law – taking the existing contents of a non-positive title and recasting it as an integrated positive law title without substantive change that Congress would pass as an integrated unit.

Incorporating statutes into the United States Code. In addressing a policy objective, individual statutes passed by Congress may affect numerous titles of the United States Code. The incorporation of amendments, additions, and repeals made by individual statutes to a non-positive law title requires placement of the statutory provisions in the proper place within the title, ensuring that correct translations of underlying references to the non-positive law provisions are made, and ensuring that the proper section histories of each section account accurately for the changes. Newly enacted sections require the editor to be intimately familiar with the structure of the U.S. Code to anticipate correct placement and translations – one of the many skills the staff of Legal Content Inc. brings to our work.

The incorporation of changes to positive law titles can be easier in that Congress has already classified new enactments by virtue of incorporating them in a positive law title.

Adding to the complexity of statutory codification are the mechanics of statutory change. Federal enactments do not often set out the complete text to be added, amended, or repealed, but will instead reference a provision and give directions such as substitute "A" for "B" following "C", so an accurate and current base compilation is essential to accurate maintenance. Sometimes legislation is global and does not specify which specific code provisions are amended. For example, the General Accounting Office was renamed the Government Accountability Office, requiring changes throughout the United States Code.

On top of complexity, the factor of time becomes important. Health care reform legislation enacted in 2010 was implemented as the result of two separate statutory enactments by Congress. This legislation will not be completely effective until 2017. Legal Content Inc. has the expertise and experience in tracking, executing, and implementing these changes as they become operative, so the data we provide will be the most current and accurate available.

Finally, because legislating is a human activity, it is subject to human error. Legal Content Inc. supplies notes and aids that will bring these to readers’ attention and explain them. The official United States Code is published every six years and is updated with annual supplements. The latest comprehensive edition of the printed United States Code is current with laws through 2006. Legal Content Inc. provides U.S. Code data that is almost immediately current! Our staff executes and uploads statutory changes as they become available.

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U.S. Regulations

Numerous federal administrative agencies issue regulations on a variety of topics every year to address specific policy goals, such as permissible occupations for employees who are not adults. Similar to individual pieces of legislation, regulatory changes are collected in a government publication called the Federal Register. The Federal Register is the official daily publication for rules, proposed rules, and notices of Federal agencies, as well as executive orders and other presidential documents. It is published Monday through Friday, except Federal holidays. Each year of publication is collected in a volume number (2011 issues comprise Volume 76) and the pagination of each daily issue picks up from where the prior date left off. A year’s worth of Federal Register contents can easily exceed 70,000 pages of material.

Similar to the United States Code, the Code of Federal Regulations (CFR) is the codification of the regulations published in the Federal Register by the executive departments and agencies of the Federal Government. It does not contain proposed regulations, which do appear in the Federal Register. The CFR is divided into 50 titles that represent broad areas subject to Federal regulation.

Each printed volume of the CFR is updated once each calendar year, with one-fourth of the titles updated quarterly – a print CFR section may therefore be months out of date! Legal Content Inc. tracks the contents of each daily edition of the Federal Register and updates its database daily with these updates. With LCI, regulations issued yesterday appear in our data today! It is the most current version available anywhere.

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State Primary Law

U.S. states each have their own legislatures and administrative agencies. Like the U.S. Congress, state legislatures enact laws in each legislative session to meet specific policy concerns. In turn, the general and permanent provisions of these "session laws" are organized topically into state codes. Administrative agencies issue regulations to meet specific regulatory needs that find their way into topically organized codes of administrative regulations. Legal Content Inc. has the know-how to provide you with the most accurate and current state data available to accommodate with your needs.

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