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Subject: Re: [legaldocml] FRBR and legislation

                                                                    I've seen things you people wouldn't believe,
                                                                  attack ships on fire off the shoulder of Orion,
                                             I watched the c-beams glitter in the dark near the Tannhäuser Gates.
                                                                                                  Roy Batty, 2019

Dear Tom, 

thank you for the interesting discussion and the amazing example (that I think should straightly in Monica's folder of pathological legal documents, of which she has now a sizable collection). I have several things to say in a complex order, and I am not sure how to organize it, but I'll try. 

First, let me point out that when in Akoma Ntoso we mention FRBR, we mean a very specific interpretation of FRBR, which I am not even sure is the mainstream interpretation of FRBR, yet one that is (as far as I know) legitimate under the FRBR specification and (as far as I have checked) internally consistent. But again, one may mean different things within FRBR that we mean. 

This interpretation is in my mind associated to specific terms, which best describe the inner nature of the layer. I'll share them with you before examining your issues: 

* A work is "a distinct intellectual or artistic creation". To me, the term that best describes it is "identity", as in: a work has an identity of its own. I'll call the creator of the work the **originator**. 
* An expression "encompasses the specific words, sentences, paragraphs, etc. that result from the realization of a work in the form of a text". To me, the term that best describes it is "content", as in: every different content of the same work corresponds to a different expression. I'll call the creator of the expression the **author**. 
* A manifestation "represents all the physical objects that bear the same characteristics, in respect to both intellectual content and physical form". This is where we possibly deviate from the standard interpretation of FRBR. To me, the terms that best describe it is "form" and/or "format", as in: the choice of a format such as PDF or XML/Akoma Ntoso generates a different manifestation. I'll call the creator of the manifestation the **editor**. 
* An item is "a single exemplar of a manifestation". It is one of many identical copies sharing the same form/format and having a different concrete reality. To me, the term that best describes it is "location", as in: two items of the same manifestation have the same form but are separated in where they are put. I'll call the creator of the manifestation the **copier**. 

The fact that every layer has its own type of creator (namely, originator, author, editor, copier) is also something that is not specified explicitly in FRBR but is very important for me. 

An Akoma Ntoso file is a specific manifestation, which means that its editor chooses a specific content of a work (i.e., the product of an author) and creates the markup that best captures whatever he/she feels expressing. This author could be the originator or someone else. Some authors are authoritative (there is a specific delegation of power from the originator that makes their expressions "true"), but I could correctly create a version of a US Code that removes all the vowels and that would still be an expression of that US Code, although not very correct nor authoritative. 

Now to come to your discussion.

> 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).

I fear you have a dreamy and unjustified admiration for the legislative process in Europe. At least in Italy, this is just as messy and chaotic as you describe yours. We have Frankenbills (I love the term, and will use it as often as I can), we have reconciliation of separate bills, we have multi-topical bills, we have simultaneous versions of the same document. We have found a way to use/coerce/rape FRBR to deal with these situations. 

> 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.  

If I were an Akoma Ntoso editor (i.e., the creator of specific manifestations of some expressions of some works) I would interpret this case as follows: there are two Works, a new Act and an existing Code. There is just one expression of the Act (the original one) whose author is also the originator. Its content is whatever was explicitly signed into law upon its promulgation. 

There are many expressions of the Code (at least one for every codification of previous Acts). The content of the Code is, at the moment, the specific version that was the result of all the previous modifications, except this one. My task as an editor is to create a manifestation of both, i.e. to create an XML version of the Act (that is easy) and an XML version of the Code as the result the codification. 

If your country has a specific delegation of power that entrusts a (government) office to create the new version of the Code with the new bits placed in (some countries do), you have an authoritative content, i.e., an official expression, and creating the XML manifestation is also easy. Otherwise, the Act is the only official text, and its codification is not authoritative, but authorial, which means that there must exist a (non legally entrusted) author that decides to assume the task and the responsibility of creating a (non official) expression for the amended version of the Code. 

Once the author is finished with the codification (manually by himself, through the use of a legal expert or through an automatic tool that reads the text and proposes the modifications) I can convert into XML the result. Akoma Ntoso compliancy levels here play a role: I could simply create the XML rendering of the new content (low, but acceptable compliancy), or could annotate in the appropriate metadata sections of both documents the modifications that were performed, as active modifications within the Act and passive modifications within the Code (this is the highest compliancy level). 

The specific action called codification is NOT related to computers or FRBR: people have been doing it for hundred of years, and it is a technical task for legal experts, not for computer experts. Since it has been done in the past without XML, I am inclined to believe that it can be done with XML as well. The Akoma Ntoso format allows you to record an number of (increasingly) informative assertions about this process. Akoma Ntoso tools may (or may not, who knows) aid in this process, but will not prevent it.  

> 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.  

Translation: new Acts are approved that further modify the Code, and may contain explicit or implicit modification instructions. Some of these directly address (the most recent expression of) the Code. These are easy to deal with: they simply generate a new expression of the Code. Others address the original Act that created a specific Expression of the Code. One must understand whether this is just a rhetorical device, a shorthand for a modification of the Code, or if it is really a modification of the Act. I don't know in the US, but in Italy it would be considered without a doubt a modification of the Act. This is a case of a modification of the modification. 

Expression A(1) of Act A affects (modifies) Code X, creating expression X(n+1) from the previous expression X(n). 
Expression B(1) of Act B modifies Act A, creating expression A(2) from the previous expression A(1).  
This creates a chain reaction that indirectly creates a new expression X(n+2) of the previous expression X(n). 

There are subtle aspects. For instance efficacy (or time of enter in force) is relevant here. If A(1) enters in force at time T1, then expression X(n+1) most probably also enters in force at time T1. But if B(1) enters in force at time T2, is X modified ex tunc (at time T1) or now (at time T2)? A well seasoned legal scholar will be able to tell and place this information in the Akoma Ntoso document. My approach is that an Akoma Ntoso file should not implicitly support a specific interpretation of subtle things, but it should record explicitly whatever interpretation a scholar is willing to produce, and even, in case of *very subtle* things, it should also be able to record multiple different interpretations by different scholars. 

So, as long as you are able to identify a sequence of specific content selections, FRBR has really no problem dealing with these situations. In fact, FRBR does not even assume that the expressions are in a sequence or connected temporally. They could be parallel (e.g. simultaneous translations of the same Act in different languages). They do not have to be authoritative (Fabio Vitali, not exactly a renowned legal scholar of the US legislation, could create his own version of a specific US Code, which most probably would be very wrong, and it would be a legitimate expression of that US Code). They do not have to be complete (a publisher could create an excerpt of the Code, removing parts that are not relevant to its purpose, and it would still be a legitimate expression of that Code). Going to an extreme, the letter "X" is a legitimate expression of the US Criminal Code, as long as an author is willing to assert that it is his interpretation of the content of the US Criminal Code. 

>  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?

Any selection of content is an FRBR expression. FRBR does provide an initial list of relationships between different expressions of the same work (Abridgement, Revision, Translation and Transcription) and another list of relationships between different expressions of different works (Successor, Sequel, Supplement, Complement, Summarization, Adaptation, Transformation, Imitation).

From my point of view, the Act transforms the Code, and each expression of the code is a revision of the previous expression. No problem here. Yet, if you feel that there are missing relationships, you are very welcome to add your own without breaking the model. 

I hope this is clear, and somewhat reassures you about the power of the model and its applicability to the legal domain, US or otherwise. 



> 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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Fabio Vitali                            Tiger got to hunt, bird got to fly,
Dept. of Computer Science        Man got to sit and wonder "Why, why, why?'
Univ. of Bologna  ITALY               Tiger got to sleep, bird got to land,
phone:  +39 051 2094872              Man got to tell himself he understand.
e-mail: fabio@cs.unibo.it         Kurt Vonnegut (1922-2007), "Cat's cradle"

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