§ 2.90    Resolving Conflicts among Published Versions of Law

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Sometimes there are differences between a law as published in slip law form, in the Statutes at Large, and in the United States Code. A court needs to determine which version prevails so that it can interpret the law properly and you, as a drafter, need to determine which version prevails so that you can draft properly.

The order of precedence--from most authoritative to least authoritative-- is Statutes at Large, United States Code, slip law. A slip law is least authoritative because it is merely "competent" evidence of the law, as provided by section 113 of title 1, United States Code. A slip law is prepared and printed in haste. It is useful until its contents are published in bound form in the Statutes at Large, at which point it is superseded by the version contained in the Statutes at Large.

The United States Code is "prima facie" evidence of the law in the case of a non-positive-law provision and "legal" evidence of the law in the case of a positive-law provision, as provided by section 204 of title 1, United States Code. Prima facie evidence is acceptable on its face, but can be overcome by contrary evidence. Legal evidence is substantial proof, but likewise can be overcome by contrary evidence.

The Statutes at Large is also legal evidence of the law, as provided by section 112 of title 1, United States Code. It is fair to ask, then, why the Statutes at Large is more authoritative than a positive-law part of the Code, when each is legal evidence of the law. The answer is that the Statutes at Large must prevail because it shows the law untouched by later editing. The Statutes at Large is the source material used by Law Revision Counsel to prepare the Code; any differences between the Code and the Statutes at Large are due to editorial judgment by Law Revision Counsel or, perhaps, clerical or printing errors. Editorial judgment and printing errors occurring after enactment cannot be given force of law. For example, if a law attempts to amend a positive-law title in a way that cannot literally be carried out, Law Revision Counsel may decide to carry out the amendment in a manner that reflects the "probable intent" of Congress, but that decision is not controlling. Likewise, if Law Revision Counsel omits a provision from the Code entirely, in the belief that it is obsolete, that belief is not controlling. (See United States National Bank of Oregon v. Independent Insurance Agents, 508 U.S. 439 (1993).) Ultimately, it is the Statutes at Large that controls.

The bottom line is that when drafting (and, incidentally, when interpreting), you are always best off using a true compilation derived from the Statutes at Large and prepared by a reliable source. For a positive-law part of the Code, you can usually rely on the Code. For a non-positive-law part of the Code, you should not rely on the Code unless you have no choice; you should always try instead to use a true compilation derived from the Statutes at Large, even if you have to prepare it yourself.

Having said that, you should also know that even the Statutes at Large is not infallible. To establish the "conclusive" evidence of the law, you must look to the enrolled bill. Under the rule in Field v. Clark, 143 U.S. 649 (1891), sometimes referred to as the "Marshall Field doctrine," the text of the enrolled bill, as signed by the presiding officers and presented to the President, is conclusive evidence of the text as passed by Congress. If by some chance there is a discrepancy between the Statutes at Large and the enrolled bill, the enrolled bill would control. Not long ago enrolled bills were hard to come by, but they have since become readily available over the Internet. Perhaps a case will come in which you will need to refer to an enrolled bill to determine what the law actually is; not likely, but possible, at least in theory.