Revisiting the Use of Legislative History in Statutory Interpretation

A central issue in the contemporary debate about how statutes ought to be interpreted is the proper role of legislative history. The use of legislative history in statutory interpretation is often seen as problematic, in part because the legislative process, involving many different legislators with different points of view, provides contradictory information about a statute's meaning. Scholars of very different normative stripes - including textualists, purposivists, and those who eschew reliance on legislators' will altogether - raise questions about the historical reconstruction of legislative intent. Indeed, a common conclusion in the literature on statutory interpretation is that legislative history can be used to rationalize any point of view, leading some to conclude that it is useless to the enterprise of statutory interpretation.In this Article, we revisit this enduring conversation about the proper place, if any, of legislative history in statutory interpretation. Our perspective is distinct from traditional arguments in that it relies on a different underlying theoretical foundation and, significantly, a positive political theory of statute creation. This theory, in turn, provides both a theory of legislative rhetoric and of statutory interpretation.We apply our approach to reading legislative history to the passage and interpretation of the Civil Rights Act of 1964. Part I of this Article presents our positive political theory of legislative decision making, on which our characterization of coalitional strategies and statute making is based. In Part II, we analyze a set of critical events in the legislative history of the Civil Rights Act of 1964. We next consider, in Part III, how courts, in pursuing expansionary constructions in the early years following the Act's passage, relied on the legislative history produced by ardent supporters of the Act. Lastly, in Part IV, we suggest how our approach to interpreting legislative history helps shed light on the politics of civil rights, on theories of legislation and statutory interpretation, and on the patterns of modern American politics and social policy. Our objective, in the end, is to draw from our approach, and from a revisionist view of the Civil Rights Act, lessons of general applicability for the interpretation of the legislative history of statutes. This project, then, presages further analytical work on the puzzles of legislation and its interpretation.

This article deals with the use of legislative history documents by New Jersey state courts. New Jersey's position with respect to the admissibility of legislative histories evolved over time; a major shift occurred in the 1950s, when the courts began permitting the use of legislative history documents as extrinsic evidence of legislative intent when a statute was unclear. Today, New Jersey courts make regular use of the documents comprising a legislative history when confronted with unclear legislative enactments. A basic outline of the legislative process in New Jersey and a description of the types of New Jersey legislative history documents provide context to the section on the judicial use of legislative histories as extrinsic evidence of legislative intent in the process of statutory interpretation. A list of the major electronic sources of New Jersey legislative history material is also supplied.

for “Liberal Justices’ Reliance on Legislative History: Principle, Strategy, and the Scalia Effect” This article conducts an in-depth examination of Supreme Court Justices’ reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates. First, the article presents a powerful case against the conventional wisdom that legislative history is a “politicized” resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions—if true—should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in “minor” cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The article’s second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices’ use of legislative history since 1986. In the face of Justice Scalia’s fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals’ strategic restraint is to make their use of legislative history in remaining (mostly proemployee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia’s strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect

In many legal systems the significance to be attributed to legislative history in the context of statutory interpretation remains unsettled. The following article explores this matter with regard to German, UK and US law. It develops arguments based in legal theory, constitutional law, and law and economics and thus affords deeper insight into the current discussion on legal methods on both sides of the Atlantic. At the same time, the topic is used to promote the further development of comparative legal methodology.Please visit the website of the American Journal of Comparative Law to obtain the printed version of this article.

Judges and legislators alike have expressed a desire for more certainty on how and when legislative history should be used, both in the interpretation of statutes and to ascertain intent. This is an evolving area of the law, and states appear to be taking the lead in experimenting with methods to provide clarity to what has traditionally been a murky issue. These changes will have an impact on researchers in the future. The articles included in this issue were selected to demonstrate a range of approaches in the areas of legislative process, the history of courts and legislatures addressing the need for and use of legislative history in confronting the uncertainties that inevitably arise in the application of laws, and resources available in each state.

The study addresses the issue of using legislative materials (legislative history) to interpret the law. This issue is considered from the point of view of the so-called derivational theory of legal interpretation formulated in Polish legal theory. The derivational theory of legal interpretation is treated as a framework and a starting point for developing an integrated theory of legal interpretation in Polish legal theory. The analyses contained in the article are theoretical in nature and apply a theoretical-legal method. The main thesis of the study is that the use of legislative materials should be included in the derivational model of interpretation, but with the application of the principle of their subsidiarity and the principle of assumed unanimity. The derivational theory is a comprehensive theory that formulates a normative (prescriptive) model of interpretation. The interpretive directives that make up this model refer to factors external to the actual legislator (in particular the rules of language) in order to objectify the interpretation process. It may seem that from the point of view of the derivational theory, the use of legislative history and the intent of the actual legislator for legal interpretation should be rejected. However, a closer analysis reveals that this is a false conclusion. One of the fundamental assumptions of the derivational theory is the postulate of striving for the greatest possible objectivity in the interpretation result. The subsidiary use of legislative materials may contribute to such objectification when reference to factors external to the actual legislator fails – it is inconclusive. However, the subsidiary use of legislative history is only possible if the analysis of legislative materials is conclusive, i.e. if it is possible to determine the clear legislative intent in accordance with the principle of assumed unanimity.

Judicial Use of Legislative History and Intent in Statutory Interpretation

Chevron and Legislative History

The Supreme Court’s 1892 decision in Holy Trinity Church versus United States that Eveline Feteris had chosen for her study demonstrating the importance of pragma-dialectical theory is a most prominent case in law theories. The case that goes back to 1892 is considered as being a classical case (in the US) of the debate whether judges should interpret statutes and the Constitution in a literal way or not. More technically speaking, the debate is about whether judges interpreting statutes should consult legislative history as a reliable and necessary interpretative source. The feature that had made Holy Trinity so prominent was that it is the first majority opinion of the Supreme Court to give legislative history sufficient weight to trump contrary statutory text. Among the manifold argument against the legislative-history position, there are two which are particularly important: First, according to the textualist position, statutes themselves are the law, reliance on legislative history encourages the assumption that legislative intent is the law and that statutes are merely evidence of that intent. Secondly, legislative intention is a meaningless concept because collective bodies do not have necessarily a coherent intention; consequently, consulting legislative history produces bad statutory interpretation. Against these assertions, defenders of the legislative history position usually argue that the constitutional provisions are prescriptive in their nature, however, these provisions do not forbid judges to use any particular method of statutory interpretation. And, hence, an interpretation as judge Brewer in the Holy Trinity case had offered it is most legitimate. For obvious reasons, Feteris’ demonstration is set out on the ground of the legislative-history position. A textualist position could hardly accept that argumentation theory would ever contribute to the solution of the Holy Trinity case. In the first part of her paper, Feteris describes the role of ‘‘the judge in the application of legal rules and his burden of justification when he wants to make an exception to

Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court

Lawmaking Made Easy

Congressional Government Rebooted: Randomized Committee Assignments & Legislative Capacity

Textualism and the Role of <i>The Federalist</i> in Constitutional Adjudication

The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law