FRBR and legislation

["Thomas R. Bruce" <tom@liicornell.org>]

Folks:

Fabio has asked me to catalog my unease about FRBR and legislation in 
the US context.  That's difficult to do, since at this point it's mostly 
vague unease that I'm feeling, but I will try to pin it down to 
something concrete.  Basically, it boils down to the idea that American 
legislative process is much less rational and orderly than what goes on 
in Europe, the UK, or really anywhere else.  It may be that what I am 
talking about here is a series of small qualitative differences that add 
up to a general feeling that FRBR ain't the whole story, rather than 
some huge and obvious structurally-based objection to it.  It may also 
be that I'm just ignorant.  Let's see.

First, the US system embodies an extreme separation between the 
executive and legislative branches of government; there's little 
similarity of process at all.  We also believe -- maybe incorrectly -- 
that the rationalization of law-making processes that took place in the 
early 19th century in Europe left a much more stable, consolidated and 
rational system than what we have.  We perceive -- also perhaps 
incorrectly -- that legislative process in places outside the US 
consists of (first) creating an Act and (later) amending the text of 
that Act to fit current desires, and then re-passing it as a (revised) 
whole.  Of course, in the meantime, we imagine that there are amendments 
passed as separate entities, but each amendment is focussed on a 
particular Act and ultimately there is some kind of consolidation that 
amounts to the amend-and-pass-as-a-whole thing I just spoke of.  This is 
probably a naive perception on our part.  But it is easy to see in that 
context how an Act would be a work that has a series of expressions that 
might be subsequent consolidations -- essentially new "editions" of the 
Act.  All very neat and bibliographic.

Second, let me say that the perception of orderliness may have to do 
with where, exactly, you are in the process when you try to capture and 
encode the legislation.  Here in my shop we've been post-hoc publishers 
of a finished result called the US Code, and that is much less demanding 
than what you would need for (say) a point-in-time drafting system.  So 
there's a design question in itself:  are we trying to capture the final 
resulting legislation, or the many intermediate drafts and other 
products that are created during the legislative process?  I imagine 
that the orderly European process is a lot less so when viewed from 
inside the legislative workflow.  But still, things are aimed at 
producing an orderly result.

Here, that is far from the case.  While our civics books for children 
typically state that bills originate in one chamber of the legislature 
and make their way through another in an orderly sequence, more often 
competing bills arise in each chamber and go through formal and informal 
reconciliation processes that can take different forms at different 
times.   Bills are not topically focussed, but can be (and often are) 
"Frankenbills" made up of multiple entirely unrelated provisions -- see 
111 Pub. L. 226, at http://liicr.nl/Iu0xDa  for one of the most stunning 
examples we've seen (read the description in the headnote, then the 
headers for the Titles within the Act).

We address the problem of topical organization through a post-passage 
process of codification in which the Act is typically blown to bits and 
the bits scattered throughout a topically organized Code (the Wikipedia 
article will help: http://en.wikipedia.org/wiki/United_States_Code ).  
Occasionally, an Act that is completely original in its subject matter 
will get moved into the Code wholesale, but more often, bits and pieces 
are scattered to whereever they logically belong in the topical 
structure of the Code.  Subsequent amending language -- introduced and 
passed in new bills -- might be addressed in terms of some subdivision 
of the original Act (usually referred to by Public Law number), in terms 
of some addressable location in the US Code, or perhaps a mixture 
(though I think that's rare).   It is difficult to see how the FRBR 
notion of an expression would survive that process, which is essentially 
a recombinant one.   Table III of the US Code provides a tool for 
tracing codification decisions (though it does not preserve all 
decisions indefinitely), and I suppose it could be used to reassemble a 
consolidated Act after amendments had taken place within the codified 
frame of reference.  I am not sure why you'd ever do such a thing, however.

Thus, my uncertainty about FRBR has mainly to do with its capacity to 
accomodate multiple simultaneous drafts, reconciliation processes, and 
codification -- all processes in which snippets of something that FRBR 
would call a "work" are recombined into expressions that have little 
relationship to the original "work" as an intellectual entity -- in many 
cases because the original "entity" had little intellectual coherence to 
begin with.

And here I must confess to ignorance regarding FRBR.  What mechanisms 
does it have for addressing this kind of recombinance, which takes place 
at a very granular level?

All the best,
Tb.


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Thomas R. Bruce @trbruce
Director, Legal Information Institute
Cornell Law School
http://www.law.cornell.edu/ @liicornell
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