It happens in court cases from time to time: Lawyers and judges discussing the meaning of a law can’t access the text they need to review.
It happened in a federal court in Rhode Island in 2004 and in the Indiana Supreme Court in 2017.
In both situations, state legislators and regulators had adopted laws and rules that required, under penalty of law, companies to do specific things to keep the public safe. The Rhode Island case was about fire protection, and the Indiana dispute was about high-tension electrical power lines. But the state officials had not spelled out the specific rules.
Instead, they required adherence to safety rules that were created and maintained by private companies – the National Fire Protection Association and the Institute of Electrical and Electronics Engineers, respectively. The legislators and regulators did not, however, include the text of these safety rules in the laws and rules they adopted.
The organizations that create the rules can make it difficult to find and use the rules. This creates problems for judges trying to interpret and apply the rules.
In Rhode Island, neither the lawyers nor the judge could find the text of the safety rules. Without the text of the rules, the judge could not determine the responsibilities of a company to pay for fire prevention equipment.
The Indiana Supreme Court decided that it was so difficult to access a safety code that people in the state might not know what they needed to do to comply or how the code affected them. In its 2017 ruling, the court expressed concern “that the Code may not be accessible to those whose property interests it implicates, now that it has been adopted by a state regulatory agency and purports to carry the force of law.”
‘Free access’ to the law
Since the early 1800s, the U.S. Supreme Court has ruled that the actual text of the law needs to be accessible to the public.
The most recent ruling was in 2020 in a case involving free access to Georgia laws. In that decision, the Supreme Court, quoting an 1886 Massachusetts case, declared that “‘Every citizen is presumed to know the law,'” and “‘all should have free access’ to its contents.”
As my research shows, federal and state judicial support for access to the law extends back over 180 years.
Despite this support, judges and lawyers – not just the general public – at times find it difficult to access documents that have the force of law and govern people’s lives and communities.
What is ‘the law,’ anyway?
Most people think of “the law” as statutes enacted by legislatures, although “the law” also includes cases decided by courts and regulations issued by agencies. All of these documents are usually readily available to the public in printed form in libraries, courthouses and offices of government agencies, as well as online.
But there are nongovernmental organizations, mainly private, that also write provisions that govern Americans’ lives.
In both the Rhode Island and Indiana situations, the texts of these very detailed and technical codes were adopted into law but were not included with the texts of the statutes or regulations. For example, the Indiana Utility Regulatory Commission required in its regulations that companies maintaining overhead communications lines follow the National Electrical Safety Code. Instead of including the code’s text, the commission stated in its regulations that it “incorporates by reference the 2002 National Electrical Safety Code.”
“Incorporate by reference” is a common phrase used in laws when legislators or regulators want to avoid adding lengthy text to a statute or regulation. It means the text referred to has the force of law as if the text were included in the statute or regulation. Anyone wanting to access the incorporated text, however, has to find it.
No text included
Legislatures and regulatory agencies rely on the expertise of private organizations to draft standards and codes that govern safety and technical requirements for numerous industries, including consumer products, energy, water, housing and building construction, paints, plastics and iron and steel products.
It is common to incorporate references to those privately created standards and codes in both state and federal law. The texts of the standards and codes are not included.
In federal regulations, there are thousands of these incorporated standards and codes.
A federal website, last updated in 2016, shows more than 24,000 standards incorporated by reference into federal regulations. That number doesn’t include any standards incorporated by reference into state laws and regulations.
In the past, to limit the physical size of published statutes and regulations, legislatures and regulatory agencies did not include the text of the incorporated standards and codes.
But even with online storage and access, where length is not a consideration, incorporation by reference continues.
It is often difficult to locate the text of these incorporated standards and codes. There is no one place where copies of these standards and codes are available. The creators of the standards and codes may provide some access. They also, however, can charge for access and limit or prohibit printing and downloading.
As shown in the Rhode Island and Indiana cases, lack of access can raise questions about the ability of people and companies to comply with the law. It is difficult to comply with the law if it is not available or is hard to obtain.
Control by copyright
The private parties who create these standards and codes claim copyright in these writings.
As copyright holders, they can control access.
For example, several creators of standards sued the nonprofit organization Public.Resource.Org, Inc., when it scanned and posted on its website numerous copyrighted standards.
In March 2022, a federal district court ruled that Public.Resource.Org was not violating copyright protections by posting standards that were incorporated into law. The ruling has been appealed.
With so many private standards incorporated into law but hard to find and access, I see parallels with the period of the New Deal in the early 1930s, when the administration of President Franklin Roosevelt issued a large number of regulations and executive and administrative orders.
At the time, there was no organized means of publishing and accessing these documents. The situation was so chaotic that even government officials did not know the law.
In one case, the government indicted several people for violation of a regulation provision. No one knew that the provision had been removed and did not exist when the people were charged. This error was not discovered until the case was on appeal before the Supreme Court, which dismissed the case in 1934.
Federal regulations are now published in an organized form and are accessible in print and online. Incorporated copyrighted standards and codes, however, remain a challenge to locate.
The Indiana Supreme Court noted that with the advent of electronic technology, “incorporating copyright-protected materials by reference seems antiquated and at odds with government’s obligation to provide meaningful access to laws.”
The court emphasized that “If the rule of law means anything, it is that persons have meaningful access to the laws they are obliged to follow, so they can conform their conduct accordingly.”
– D. R. Jones is an associate professor of law and director of the law library at the University of Memphis