Under the Umbrella: Promoting Public Access to the Law

• Jurisdiction: United States,Federal
• Citation: Vol. 29 No. 1
• Publication year: 2021

Under the Umbrella: Promoting Public Access to the Law

D.R. Jones
University of Memphis Cecil C. Humphreys School of Law, drjones@memphis.edu

Under the Umbrella: Promoting Public Access to the Law

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UNDER THE UMBRELLA: PROMOTING PUBLIC ACCESS TO THE LAW

D.R. Jones^*

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TABLE OF CONTENTS

I. INTRODUCTION................................................................................................4

II. HISTORICAL SUPPORT...................................................................................10

A. WHEATON V. PETERS............................................................................10
B. BANKS V. MANCHESTER AND NASH V. LATHROP...........................11

1. Nash v. Lathrop..............................................................................12
2. Banks v. Manchester.......................................................................14

C. CALLAGHAN V. MEYERS.......................................................................17
D. OTHER NINETEENTH CENTURY CASES............................................18

III. GEORGIA V. PUBLIC.RESOURCE.ORG, INC.: REAFFIRMING AND REFINING THE GOVERNMENT EDICTS DOCTRINE.................................19

A. GEORGIA V. PUBLIC.RESOURCE.ORG, INC. DECISION...................20
B. EFFECT OF GA V. PRO........................................................................24

IV. ALTERNATIVES FOR PROMOTING ACCESS TO THE LAW.........................25

A. WORKS REFERENCED IN THE LAW BUT NOT HAVING THE FORCE OF LAW....................................................................................................26
B. STANDARDS INCORPORATED BY REFERENCE.................................28

1. American Society for Testing and Materials v. Public.Resource.Org, Inc...............................................................30
2. ASTM v. PRO: Review..................................................................35

C. MODEL CODES.......................................................................................37

1. Model Code Cases..........................................................................39
2. International Code Council, Inc. v. UpCodes............................42

a. Guidance from the Government Edicts Doctrine............43
b. Alternative Considerations - Applying Veeck....................44
c. Merger Doctrine......................................................................47
d. Fair Use.....................................................................................47
e. Summary of UpCodes............................................................49

V. AFFIRMING THE PEOPLES' NEED FOR KNOWLEDGE OF AND ACCESS TO THE LAW: CONTINUING CHALLENGES................................................49

A. THREE CENTURIES OF AFFIRMING PUBLIC NEEDS OVER COPYRIGHT HOLDER INTERESTS.......................................................50
B. THE CHALLENGES OF INCORPORATION BY REFERENCE INTO THE LAW..........................................................................................................53

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1. Access Issues: Standards Incorporated by Reference into the CFR...................................................................................................53
2. Access Issues: Standards Incorporated by Reference in State Laws and Regulations.....................................................................56
3. Access to IBR Standards - The Role of Government..............57
4. Access to IBR Standards - The Role of Innovators.................60

VI. CONCLUSION...................................................................................................61

VII. APPENDIX........................................................................................................64

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I. INTRODUCTION

It is a fundamental principle of law in the United States that the government must make laws known to people since people must obey the laws.¹ Closely bound with notice of the law is the people's need to have access to the law.² The basis for making the law known lies in the due process requirement that before the taking of "life, liberty, or property"³ a person needs notice and an opportunity to be heard.⁴ A part of this requirement is that people have "fair notice" or "warning" of the conduct that the law prohibits or requires.⁵

In order for people to know the law, it has to be available. Although everyone is presumed to know the law,⁶ this presumption does not apply "when the law in question is not contained in any official publication where laws of the enacting legislative body are normally found."⁷ As the court in United States v. Burgess stated:

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The Constitution does not say anything directly about the publication of laws. But the term "law" itself, as used in the Constitution, embodies the principle that laws must be made known to those who are required to obey them. The Constitution assumes that laws . . . must be disseminated to the public . . . . The very nature of republican government requires that the most important actions of Congress, the laws it enacts, be made known to the citizenry.⁸

The First Circuit Court of Appeals explained how both knowledge of the law and access to the law are important for due process:

Due process requires people to have notice of what the law requires of them so that they may obey it and avoid its sanctions. So long as the law is generally available for the public to examine, then everyone may be considered to have constructive notice of it; any failure to gain actual notice results from simple lack of diligence. But if access to the law is limited, then the people will or may be unable to learn of its requirements and may be thereby deprived of the notice to which due process entitles them.⁹

A powerful example of the dire consequences that can occur when a person lacks knowledge of and access to the law arose during President Roosevelt's New Deal. At the beginning of Roosevelt's administration, there was a proliferation of executive and administrative orders and federal administrative regulations.¹⁰

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In 1934, Erwin Griswold wrote in a famous and influential article of the "chaos" that anyone encountered when trying to find, access, and use any of these documents.¹¹ As an epigraph for his article, Griswold quoted Jeremy Bentham: "We hear of tyrants, and those cruel ones: but, whatever we may have felt, we have never heard of any tyrant in such sort cruel, as to punish men for disobedience to laws or orders which he had kept them from the knowledge of."¹² The quote is from Bentham's Petition for Codification in which he argues for a codification of law that would allow "each of us" to "learn, and on each occasion know, what are his rights, and what are his duties."¹³ The conditions Griswold described prompted his similar concern for the need to know the law—to know rights and duties. Griswold was especially concerned about the difficulty in identifying the new regulations because many of them affected "everyday affairs of the citizen" while others provided for criminal penalties and sanctions.¹⁴

The situation was so chaotic that even government officials did not know the law. In one case, the government indicted an individual for violation of a regulation provision.¹⁵ No one knew that the provision did not exist until the case was on appeal before the Supreme Court.¹⁶ The non-existent provision arose in another Supreme Court case, Panama Refining Co. v. Ryan, in which the

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Court expressed its displeasure with the situation.¹⁷ Griswold's article and the problems in these cases led to the creation of the Federal Register.¹⁸

The circumstances that led to the creation of the Federal Register highlighted that providing the law is more than just publishing the law. The law needs to be available for the public in a meaningfully accessible way. Bentham's quote notes the actions of a tyrant who does not allow citizens to know the law.¹⁹ Another tyrant comes to mind when considering the need for accessible law. Just making the law known by publication is not enough. The Roman Emperor Caligula imposed taxes under laws that were initially not made known to those affected.²⁰ When Caligula did publish the laws, they were not easily accessible.²¹ He had them posted, but in a way that made access difficult.²²

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Caligula's actions demonstrate control over access which can interfere with the ability of people to know and obey the law. In Banks & Brothers v. West Publishing, Justice David Brewer, in discussing people's need to know the law, observed that "[t]he laws of Rome were written on tablets and posted, that all might read, and all were bound to obedience."²³ He noted, however, that Caligula provided the law on tablets, but in such a way that they were not accessible and the citizens could not know the law.²⁴ Justice Brewer saw a critical connection between knowledge of the law and access to the law:

[I]t is a maxim of universal application that every man is presumed to know the law, and it would seem inherent that freedom of access to the laws, or the official interpretation of those laws, should be co-extensive with the sweep of the maxim. Knowledge is the only just condition of obedience.²⁵

The context for the court's discussion of knowledge of and access to the law was a case involving the question of whether a state could hold copyright in the decisions of judges.²⁶ The court determined that this control of access through copyright was inconsistent with the people's need to know the law.²⁷

Copyright is a means of controlling access. A copyright holder can control all aspects of use of a work, and even restrict or deny access to the work.²⁸ To allow copyright claims over "the law" can lead to severe restrictions on public knowledge and access. Historically, these restrictions meant that the law was accessible only to the extent the copyholder authorized publication and dissemination of the work. The public might not have access...