Codification, Re-Codification, and Alternate Future History

Sometimes when you are reading science fiction you find that the story’s future is in our past.   What could have happened clearly didn’t because that future is over. The emotionally satisfying convention here is to treat the story as an alternate future history, an alternate timeline. This way we can continue to enjoy classics like Robert Heinlein’s Door into Summer, despite the lack of cold sleep in 1970.

A lot of people use the easy method to determine whether the writer must have been describing a time line that branched off from our own. They will notice—without error—that the ‘90’s are over. There are other, more subtle ways to catch on to the creation of invisible timelines. Space law can help you out here.

Michael Flynn’s Firestar series contains those kinds of clues. The books are set in the near-future for the time he wrote them; but in 2016, we are looking at the 1990’s in the rearview mirror. The books are a rollicking read, a bit of a soap opera, and sprawl from the New Jersey suburbs to orbital construction. The series tells the tale of a commercial titan who kickstarts the industrialization of space out of fear that an asteroid might hit Earth. This being fiction, it’s a good thing she does, because….. Let’s just say it’s good someone’s getting ready for the sky to fall.

When I read the books, I’d been working at the FAA for years, helping draft regulations to implement what is popularly referred to as the Commercial Space Launch Act, which was then located, sensibly enough, in Title 49 of the United States Code in chapter 701 (aka 49 USC ch. 701). That was a sensible place because Title 49 applies to transportation, including, among other modes of transport, aviation. With the synergies between air and space, the co-location was entirely reasonable.  I started at the Department of Transportation (before we got transferred to the FAA) in 1994, immediately after the statute was codified as chapter 701 in Title 49, so I always thought of it as Chapter 701.

Anyway, back to Firestar.   Our heroes are recruiting youngsters for space (and fixing the education system while they’re at it), building rockets in Brazil, selecting the first person to pilot the new vehicle, and making mysterious references to the U.S. government’s application of Chapter 35. In my defense, I was engrossed in the story and didn’t rush off to look up this Chapter 35, and even if I’d thought to do so, what title would I have looked in? Then it happened. I got to the part where the unduly burdensome government shows up to enforce Chapter 35. What is Chapter 35? It’s the Commercial Space Launch Act. But Flynn was not wrong. He was just in an alternate timeline.

I felt like a dummy. How could I have missed that’s what Chapter 35 would be about? (Again, in my defense, perhaps I was hampered by too much knowledge: any U.S. entity must obtain an FAA license, regardless of where it’s launching from, including Brazil, and the characters were acting like they’d escaped the clutches of Chapter 35. And, if you want to set up a foreign subsidiary, you need to get through ITAR to talk to yourself.) When Congress first passed the Commercial Space Launch Act in 1984, the act didn’t get codified—that is, it didn’t get put into the United States Code. Instead, it got tacked on to the end of Title 49 as a note, which according to this , constituted an editorial classification. Where was this little note, known only as 49 U.S.C. § 2601 et seq., located? In Chapter 35.

The law didn’t stay as a lowly note forever.  In 1994, the Commercial Space Launch Act not only underwent, without substantive effect, a plain language refresher, it obtained its own place in the Code as Chapter 701. And there it stayed for the longest time. In 2010, the editorial persons in charge of such things moved the law again, this time to Chapter 509 of Title 51, with other space laws, thus re-codifying it. (It is not correct that Title 51 was selected to match Area 51. 51 was merely the next available number. Or so they say.)   The obvious take away for legal practitioners is that when searching for FAA regulations, notices, policy statements, licenses, and more, we must look not only to the newest location of the Commercial Space Launch Act, but to earlier ones as well.

But to get back to the point of this discussion: Firestar takes place in 1999. In that universe, the Commercial Space Launch Act still resides in Chapter 35. In other words, no one codified this law, and an alternate universe sprang into being. The story was in our past, the writer’s future, and no longer matches our reality, so it’s alternate future history. I hope this is clear.

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For those interested in the more mundane nuggets of information buried here:

1. 1984—Congress passes the Commercial Space Launch Act, Pub. L. 98-575, 98 Stat. 3055, which ends up in 49 U.S.C. § 2601 et seq.
2. 1994—Congress, in Pub. L. 103-272, 108 Stat. 1329, codifies the law in Chapter 701 of Title 49
3. 2010—Congress, in Pub. L. 111-314, 124 Stat. 3440, re-codifies the law in Chapter 509 of Title 51