Use Of Legislative History Research Articles

A Preliminary Examination of the Use of Legislative History By The United States Tax Court

Using data from 1958-2017 divided into two thirty-year periods, this paper examines the use of legislative history by the United States Tax Court. The rapid increase of the use of legislative history from 1958-1987 is coupled with a near mirror-image reversal of its use from 1988-2017. The paper explores two key events which have may have caused this decline – 1) the Supreme Court 1984 decision in Chevron USA, Inc. v. NRDC and 2) the 1987 appointment of Justice Antonin Scalia to the Court. Data visualizations and analysis are provided to examine the impact of the Chevron effect and Scalia effect.

Chief Justice Webster

The Supreme Court has a love affair with the dictionary. Half of its decisions in the 2018 term cited a dictionary, often as the primary or exclusive means of defining a term in the statute. The Solicitor General may long have been the “tenth Justice,” but in the 21st century the Chief Justice of the Supreme Court may as well be, not John Roberts, but Noah Webster. The Court’s obsession with dictionaries as the arbiter of statutory meaning is a recent phenomenon. A review of cases from 50 or 100 years ago reveals no such focus. The Court’s increased use of dictionaries may stem from the idea – very much in vogue today in some quarters – that courts are not to make law but simply “call balls and strikes.” Looking up a term in the dictionary can seem like the height of judicial restraint. A court that does so isn’t consciously or subconsciously imposing its own ideology on a statute; it’s just turning to a trusted neutral source. That impression is misleading. Dictionaries are not the neutral, commonly-accepted panacea the Court seems to suppose. In this Article, I discuss a historical test case for the use of dictionaries to interpret legal documents. In the early 2000s, patent law flirted with the use of dictionaries to define the terms of patent claims, a process akin to statutory interpretation. The Federal Circuit (the national patent court) unanimously abandoned that experiment after only three years, for a simple reason: it was a disaster. The lessons of patent law’s brief flirtation with dictionary primacy in claim construction suggest that it’s a bad idea to turn to dictionaries to interpret statutes. That’s true for several reasons. Dictionaries aren’t designed to give what courts want: a single definitive meaning (or complex of considerations) that define what the law is. Dictionaries deliberately define terms expansively and in self-contradictory ways, seeking to capture all possible meanings of a term, not to pick among them. They don’t take legal nuance into account, and they can’t incorporate a background pattern of behavior or centuries of precedent against which Congress may have adopted a term. The use of legislative history is often attacked as a cover for judicial activism, but in fact it is the dictionary that provides the easiest cover for activist decisions that depart from Congressional intent and precedent. Dictionaries can literally justify any plausible meaning of a term. Courts that turn to them are doing exactly what they purport to disdain: picking the meaning of a statute based on their own personal preferences.

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

This paper addresses whether textualist objections to the use of legislative history in statutory interpretation apply with equal force to judicial reliance upon The Federalist in constitutional adjudication. The Federalist is susceptible to many of the same concerns as is legislative history. Hamilton’s, Madison’s, and Jay’s essays certainly not “enacted;” the ratifying conventions voted on the constitutional text, not on essays published during the ratification debates. Judges, moreover, have no basis for thinking that a constitutionally sufficient number of ratifiers assented to The Federalist’s intricate and often-lengthy essays, in whole or in part. Finally, textualists subscribe to an objective theory of interpretation, pursuant to which interpreters ask what a reasonable lawmaker, familiar with the relevant interpretive conventions, would have believed that he or she was voting for. Because a reasonable ratifier surely would not have understood The Federalist to be an authoritative expression of constitutional intent or meaning, a modern interpreter may not read it that way either.Even if not authoritative, however, The Federalist may still have persuasive value as a detailed, contemporaneous exposition of the Constitution by authors who were intimately familiar with its legal and political context. Of course, because The Federalist was a piece of political advocacy whose contents may at times reflect the exigencies of political debate, an interpreter must always examine its assertions for consistency with all surrounding contextual evidence. In short, to borrow from another interpretive context, when a textualist judge relies on The Federalist in constitutional adjudication, he or she must give it whatever weight is justified by “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”

Chevron and Legislative History

The Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. presupposes that when Congress leaves indeterminacy in an organic act, that indeterminacy reflects an implicit delegation of power to the agency to fill in the details of statutory meaning. Accordingly, a reviewing court must accept the agency's interpretation if reasonable. At its threshold the Chevron test requires the reviewing court to use the traditional of statutory to determine if Congress expressed a clear intention concerning the interpretive question or, by virtue of indeterminacy, left the question for agency resolution. In the era in which it decided Chevron, the Court felt free to use legislative history to help determine whether Congress had directly spoken to the question at issue in the case. In the years since Chevron, the Court's understanding of the traditional tools of statutory interpretation has changed. Contrary to its practice at the time of Chevron, the Court has made it flatly impermissible for interpreters to rely on legislative history in a way that contradicts the text of the statute. This Article argues that the Court's new approach to legislative history precludes the Court's use of that tool of construction to resolve indeterminacy under the Chevron doctrine. If as Chevron suggests, an administrative statute's indeterminacy presumptively reflects a legislative intention to delegate broad policy-making discretion to the responsible agency, then the reviewing court's use of legislative history to narrow that discretion contradicts the implemental design of the statute by narrowing the delegation effectuated by the text.

Congressional Government Rebooted: Randomized Committee Assignments & Legislative Capacity

Congress’s stature and relative role in governance are in the midst of a long-term decline. To mitigate this trend, this article proposes a novel change to the branch’s institutional design: replacing the current committee assignment system with the random assignment of members to committees. I argue that this reform would greatly enhance Congress’s internal capacity, altering the roles that party organizations, expert or deliberative committees, interest groups, and political minorities play in the policymaking process. Random committee assignment could also impact Congress-Court dynamics, encouraging greater use of legislative history in statutory interpretation and promoting a more deferential judicial posture in assessing the constitutionality of statutes. Finally, random assignment could facilitate greater congressional involvement in administration, particularly concerning committee oversight of executive agencies and use of the post-Chadha legislative veto.

Nebraska Legislative History

This article discusses the use of legislative history in Nebraska to determine the legislative intent of a statute. When confronted with an ambiguous statute, Nebraska appellate courts have often construed it by reference to the statute’s legislative history. Nebraska courts have repeatedly relied on such documents as the introducer’s statement of intent, the committee statement, the committee hearings, floor debates, bill versions, amendments, statements from the governor, and other information found in the Legislative Journals.

Comparative Approaches to the Use of Legislative History in Statutory Interpretation

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 U.S. law. It develops arguments based on 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.

Using Legislative Histories to Determine Legislative Intent in New Jersey

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.

Introduction to Special Issue: Determining Legislative Intent in State Courts, Selected Methods and Sources

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.

Idaho Legislative Histories Revealed

Idaho appellate courts are quite willing to examine the legislative history of a statute, and they do cite various legislative history materials to support their decisions. This article provides a description of the passage of a bill in the Idaho Legislature, discusses the historical and recent use of legislative history by the Idaho Supreme Court and Court of Appeals, describes the types of legislative history materials available, and provides contact information for legislative history resources.

Resorting to Extrinsic Aids: North Dakota Legislative History Research

This analysis of the use of legislative history in North Dakota includes the following: a brief introduction to the function of legislative history generally, and to the legislative process in North Dakota; a preview of selected statutes and case law; an examination of the materials utilized in legislative history research and the availability of those materials; and contact information for North Dakota libraries, archives, and legislative research services.

Interpreting Treaties for the Benefit of Third Parties: The “Salvors” Doctrine” and the Use of Legislative History in Investment Treaties

Interpreting Treaties for the Benefit of Third Parties: The “Salvors” Doctrine” and the Use of Legislative History in Investment Treaties

Citation to Legislative History: Empirical Evidence on Positive Political and Contextual Theories of Judicial Decision Making

Abstract We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit modestly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political‐ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative history by legislators who share political party affiliation with the colleagues and superiors of the authoring judge than legislators sharing the same political party affiliation as the authoring judge himself. These findings are consistent generally with positive political and contextual theories of judicial...

Why Supreme Court Justices Use Legislative History: An Empirical Investigation

Much of the political science literature on judicial behavior has focused on the impact of ideology on how judges vote. Legal scholars, however, have been slow to embrace empirical scholarship that fails to emphasize the impact of legal constraints and the means by which judges reason their way to particular outcomes. This paper attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique - namely, the use of legislative history to determine the purpose and meaning of a statute. We examine all Supreme Court opinions decided from the 1953 through 2006 terms involving frequently interpreted federal statutes. These statutes varied in their formal legal characteristics, such as age, length, obscurity, and the extent to which they had been amended. We use logit regression analysis to evaluate the impact of these formal characteristics, as well as ideological characteristics of judges and their opinions, on the likelihood that a justice will resort in a given opinion to the use of legislative history. Our results suggest that a combination of legal and ideological factors best explains how and why justices on the modern Supreme Court have employed this interpretive technique.

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 pro-employee) 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

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.

Lawmaking Made Easy

This essay addresses one justification for the familiar argument that judges should robustly construe statutes to accommodate unforeseen or otherwise unprovided-for factual, moral, and legal contexts — even if doing so cannot be squared with the statutes' original meaning. On one account, legislative supremacy is affirmatively promoted by such countertextual judicial policy-making because Members of Congress prefer for judges to assume some of the responsibility for “hard policy questions.” And if judges practice a dynamic approach to interpretation, Congress can accomplish more of its objectives in the public interest. If that is what Congress wants, then a faithful agent should presumably adopt interpretive techniques that advance that objective. This argument has found a home in many areas of public law, including discussions of the non-delegation doctrine, federal common law, and the use of legislative history in statutory interpretation. Although this essay takes no position on the merits of those underlying practices, it seeks to highlight a culture of argument that presupposes that, where lawmaking is concerned, more is better. The essay contends that the more-is-better position contradicts a central premise of our constitutional structure — the view, expressed in Article I’s bicameralism-and-presentment requirements, that it should be difficult to pass legislation without a broad political consensus behind its enactment.

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

In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain's highest court has used previously excluded legislative history materials in its judicial decisions. Although the Law Lords opened the door to reliance on legislative history at a time when the U.S. Supreme Court has been clamping down on such usage, the article demonstrates that citation to parliamentary materials by the Law Lords since 1996 does not approach the levels of reliance on congressional materials currently practiced by the Supreme Court. Notwithstanding Justice Scalia's appreciable influence, Supreme Court justices continue to make use of legislative history in their opinions between three and five times more often than their counterparts in Britain. The article accounts for this divergent pattern of U.S. and British usage based on certain key differences in their respective lawmaking processes and structures — notably the disparate roles played by standing committees, the varying importance of legislative bargains following bill introduction, and the breadth of legislative history sources available under each system. Still, despite a spirited reaction to Pepper by several judges on the Law Lords, references to legislative history have increased since 2000. Moreover, the Law Lords in two very recent decisions have gone beyond Pepper in setting forth grounds for relying on parliamentary materials. The article predicts that Britain's highest court is in the process of consolidating if not augmenting a permanent role for legislative history as an interpretive asset. The article then suggests how this development should invite a different kind of dialogue about legislative history among justices on the U.S. Supreme Court.

Severability, Inseverability, and the Rule of Law

Severability doctrine is intimately connected to a number of critical issues at the heart of the Constitution's separation of powers, including the debates over competing paradigms of statutory interpretation and interpretive practices (e.g., textualism, dynamic statutory interpretation, the use of legislative history, public choice theory); the appropriate scope of judicial review; non-delegation; and key elements of the Article III jurisdictional requirements. Yet despite its centrality to the balance of powers between courts and the lawmaking branches, severability doctrine has never emerged as a topic of sustained theoretical inquiry. This is a fundamentally troubling oversight. Using the McCain-Feingold campaign finance reform legislation as a framing device, I argue that the Supreme Court's current severability jurisprudence is long outdated and that it fails to account for the constitutional requirements within which it must be crafted and the more prudential concerns that ought to animate it. In contrast to current doctrine, which treats severability and inseverability clauses as giving rise only to a rebuttable presumption and relies entirely on textually-extrinsic sources to guide severability determinations, I contend that, when confronted with an unambiguous legislative directive to either sever or entirely invalidate a statute, federal courts are bound by structural and substantive constitutional norms to give full effect to these statutory provisions. When Congress fails to address severability, principles of judicial restraint point toward holding statutes severable in the absence of a countervailing clear statement. With McCain-Feingold currently before the Supreme Court - and with a sharp division over severability among the special panel's judges - the Justices now have a golden opportunity to correct eighty years of fundamentally misguided doctrinal development.

The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its 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.