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Subject: FRBR and legislation


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,

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

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