Long ago, in a universe far, far away, David Mamet told me about his theory of jokeless punchlines. Some punchlines, he said, were so good in and of themselves that no actual buildup is required; the receiver can mentally compose the joke himself. He’s right (hell, he’s David Mamet, fer chrissakes). A few examples:
- “For a nickel, I will”
- “Your paycheck”
- “Two pounds of Metamucil and a tuba”
Normally you wouldn’t think of the US Code as a place to find punchlines like that. At least you wouldn’t unless you were a legal-information blogger desperate for a catchy opening. But consider our old friend 4 USC 1 (“Flag, stripes and stars on”), which in its most current version states:
The flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.
As I said, this is the most current version. There are extenuating circumstances, of course, and we’ll get to them. But this little gem is good for a small but relentless stream of letters to the LII questioning either our currency or our sanity, usually the latter. And so the first thing to notice is that it exactly fits a popular prejudice about law and lawyers — namely, that they use fancy language and tortuous logic to reach facially ridiculous conclusions. About half the letters we get — no doubt sent by the large percentage of the population that hates lawyers anyway — contain some sentiment along these lines. Just like a bunch of lawyers to get something so obvious so wrong. Don’t you guys ever update your stuff?
Well, yes, we do — whenever the House Office of the Law Revision Counsel does. Of course there’s a trick to this. Two tricks, actually. First, the missing stars can be found in the notes to 4 USC 1; they were added by executive order. This is still a little confusing given the way things are presented in the notes — only the most recent executive order (admitting Hawaii) is fully spelled out; the earlier order admitting Alaska is listed as superseded, but unless you’re paying close attention, you’ll wonder where the other star went.
Second, the one-star-per-state algorithm is given in 4 USC 2. These just confirm conventional statutory-research wisdom: always check the notes, and always check the sections adjacent to the one that seems most interesting. These are both good advice, of course — but they are advice that no member of the general public will have heard, or have had any reason to hear. And they give the lie to the idea that somehow the general public can’t do — or shouldn’t do — legal research. Just as well tie somebody to a chair and then complain that they can’t dance.
Some further observations:
- No doubt there are statutes that the public would find difficult to understand. And no doubt there are some where the unwary researcher would need to pay close attention to interpretive caselaw in order to find out what’s really going on. The number of stars on the flag falls into neither of these categories.
- It would be reasonable to ask why 4 USC 1 has never been amended to reflect current reality. Must be because 4 USC 2 is deemed to cover the case.
- This represents at least two failures of information design, and probably three. The first is the LII’s — unlike many sites, we choose to present the Notes separately from the text of the section. The second is an accident of section-ordering or of draftsmanship; why not give the algorithm first, or combine it with 4 USC 1 so that the present state of affairs (circa 1947) and the way forward (the algorithm) are stated side by side? The third is an inevitable consequence of search engines — the places people end up after clicking a search engine result link tend to be seen as the only places there are. As a web designer, it’s sometimes hard to figure out what to do about that.
Is this whole thing just a straw man? You bet it is. Anyone actually typing “number of stars on the flag” into Google would be rewarded with an article in Wikipedia that sets out the entire history of the flag and its many alternate versions. Several articles, actually. But I’ve always loved it as an example of what can go wrong with legal research, precisely because the fault is so obviously with the organization and presentation of the information rather than with any lack of knowledge on the part of the information-seeker. And that leads me to ask: how often is that the case, and what can be done about it?
Pretty often, and not a lot — at least with primary materials, and at least as we’ve thought about the problem in the past. A lot has been done with so-called “plain English” laws, but these generally reach only the words used and the typography with which they are presented. And it is usually presented as a consumer=protection matter, conceived mostly with respect to contracts and other documents created by private parties, and not legislation itself (though regulations do get a fair amount of attention). Seldom if ever is anything said about structure, availability of secondary sources, or information design. I’d be the first to admit that the latter would be very hard to spell out — but if the statutes related to pornography can be interpreted on an “I-know-it-when-I-see-it” basis, why not good information design too?
Taken together, I find all this a powerful argument for the creation of the kind of secondary materials that we make here at the LII – intended for lay persons with problems they are trying to understand, and sophisticated enough for (say) a practitioner entering an unfamiliar area. And figuring how we can connect these kinds of contextual or explanatory documents with the primary materials they explain is a matter for ongoing exploration and engineering. The Web makes it very easy to build structures that say “show me more detail on this” or “let me drill down”, and a lot harder to automate the process of providing meaningful context for the user who is puzzled by something he sees on a particular page. That’s the business of the Semantic Web, of advanced text-categorization tools, and of essay-writers and information architects — all things you can find here at the LII, on a good day.