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1/ As legal researchers know, federal statutes relating to the judiciary are organized under Title 28 of the U.S. Code. For one commonly cited example, the provision for diversity jurisdiction in the U.S. district courts is 28 U.S.C. §1332.
2/ Judicial statutes have not always been so well-organized or easy to find, however. This thread will detail some of the most significant developments in the organization of these federal laws since 1789.
3/ When Congress passed the first statutes under the Constitution, including the Judiciary Act of 1789, they were sent to the secretary of state, who was directed to publish them in at least 3 newspapers as well as to send copies to members of Congress and state authorities.
4/ In 1795, Congress for the first time passed a law authorizing the secretary of state to have a full set of U.S. laws printed, including an index. The Laws of the United States, published by Richard Folwell, consisted of 12 volumes covering 1796-1815.
5/ Over the ensuing years, Congress passed other laws providing for the printing and distribution of U.S. statutes. These laws also provided for the laws to be published in newspapers.
6/ In 1845, Boston publishers Little & Brown were authorized to begin printing the Public Statutes at Large, to contain, in chronological order, all public acts, private acts, and treaties since 1789.
7/ The first five volumes of Statutes at Large, covering public acts 1789-1845, were published by 1846. Volumes 6-8 contained all private acts, Indian treaties, and foreign treaties since 1789.
8/ In 1846, Congress declared the Little & Brown edition “competent evidence” of federal law in all federal and state courts “without any further proof or authentication.” This was the first time that any legal weight had been accorded to published compilations of statutes.
9/ The U.S. government took over publication of Statutes at Large in 1874 and continues to publish it today. Volume 126, published in 2018, contains laws passed through the end of the 112th Congress (more recent laws are available online).
10/ Despite the presence of Statutes at Large, no collection of statutes organized by subject existed until the 1870s. Lawyers and judges had to search multiple volumes of statutes, some of which had been repealed, superseded, or modified, making research confusing.
11/ In 1866, Congress authorized the president to appoint 3 commissioners to “revise, simplify, arrange, and consolidate all statutes of the United States.” The result was the Revised Statues of 1874, enacted into law as “evidence of the laws and treaties therein contained.”
12/ The Revised Statutes divided the laws into 74 titles, with laws concerning the judiciary forming Title XIII. The composition of judicial districts and circuits and the meeting times and places of federal courts, for example, were now gathered in one place.
13/ The 1874 Revised Statues were found to be riddled with errors, however, which Congress had to correct. The RS was published in 1875 with an appendix of corrections already attached. Many more errors were discovered later, however.
14/ A second edition of the Revised Statutes was published in 1878. Although the RS was still considered legal evidence of the laws, original acts passed by Congress after 12/1/1873 would control in case of a discrepancy. Supplements to the RS were published in later years.
15/ In 1897, Congress created another commission charged with revising and codifying federal criminal laws. The commission’s mandate was expanded to include judicial statutes and then to all statutes of a general and permanent nature.
16/ The criminal code produced by the commission was enacted into law in 1909. The judicial statutes were enacted as the Judicial Code of 1911 (36 Stat. 1087). The rest of the commission’s work was not enacted.
17/ The 1911 Code expressly repealed portions of the RS and repealed all prior acts or parts of acts that were embraced by the code’s provisions. It contained 301 sections divided into 14 chapters.
18/ Most significantly, the 1911 Code abolished the U.S. circuit courts, which had been the nation’s main trial courts since 1789 and had appellate jurisdiction until the creation of U.S. courts of appeals in 1891. Their jurisdiction was transferred to the U.S. district courts.
19/ In 1919, work on what became the U.S. Code began. Several versions of the compilation failed to pass Congress because of errors. Eventually the work was turned over to the West Publishing Co. and Edward Thompson Co., which already published annotated statutes.
20/ Congress passed the U.S. Code in 1926. The Code was originally intended to repeal all prior laws, but the bill as passed provided that the Code neither repealed any law nor created any new law and was only prima facie evidence of the law.
21/ The 1926 Code contained 50 titles, the statutes relating to the judiciary contained in Title 28. The sections within Title 28 cross-referenced the sections of the Judicial Code of 1911 where appropriate.
22/ Congress provided in 1929 for new editions of the U.S. Code to be printed not more often than every 5 years. A new edition was published in 1934 and then every 6 years thereafter, most recently in 2018. Annual supplements are published in the years between new editions.
23/ In 1944-1948 the Judicial Code was revamped to correct errors and omissions and improve organization. On June 25, 1948, the Judiciary Code of 1948 was enacted into positive law (62 Stat. 869), creating the structure of Title 28 of the U.S. Code that exists in substance today.
24/ The 1948 revision made some substantive changes to the law. Many of the new provisions related to jurisdiction and venue. For example, diversity jurisdiction was expanded by including the District of Columbia and territories within the definition of “state.”
25/ The Judicial Code of 1948 also created the modern positions of chief judge of the U.S. district courts and U.S. courts of appeals. It formally added the District of Columbia as a judicial district and circuit and regularized the names of those courts.
26/ The new code made other administrative changes, such as ceasing the practice of setting the terms of the district courts by statute, providing that they were to be set by order of the court.
27/ Other changes were aimed at modernizing and simplifying language. District attorneys were renamed U.S. attorneys. The U.S. circuit courts of appeals were renamed the U.S. courts of appeals. The Conference of Senior Circuit Judges became the Judicial Conference of the U.S.
28(!)/ The U.S. Code has grown substantially since 1926. It currently includes Titles 1-52 and 54, and 27 titles have been enacted into positive law. The organization of Title 28 has remained substantially the same since 1948. /end
