1 Federal Legislative History Christopher S. O’Byrne M.L.I.S. Candidate in Law Librarianship University of Washington Information School June 28, 2006

2 1.What Is Legislative History? 2.Why and How To Use Legislative History? 3.Concerns About Using Legislative History 4.Conclusion

3 1. What Is Legislative History? Documents from the legislative process

4 For an overview of the legislative process, visit

5 Or… the 67 page version

6 Different versions of a bill can be helpful in determining intent

7 Testimony of experts and interested parties

8 Published in the Congressional Record

9 Generally considered to be the most authoritative source

10 2. Why and How to Use Legislative History Steven Breyer, “On the Uses of Legislative History in Interpreting Statutes” 65 S. Cal. L. Rev situations for using legislative history

11 [Correcting A Legislative] Drafting Error United States v. Falvey, 676 F.2d 871 (1st Cir. 1982) Federal law makes it a crime to possess “any …counterfeit coins” ALL coins? Or just U.S. currency? No one in Congress intended to protect foreign or collectible currency

12 In Sum Statutes are not always clear Research may reveal legislative intent Or provide support for your argument

13 3. Concerns About Using Legislative History Potential for manipulation Many times floor speakers are addressing only a few other members of Congress …or an empty room Comments can be entered into the record in written form “Bulleting reform” is illusory Potential to disrupt the Consitutional balance of power

14 Congressional Concerns Reports are not a product of Congress as a whole Committees, sub-committees, and two-house conferences Reports lack the holistic intent of Congress Unrepresentative materials may be accepted as authoritative

15 Bills go unread 1989 Budget Reconciliation Act Thousands of unnumbered pages tied together with rope Rep. Christopher Cox “While reading it was obviously out of the question, it's true that I was permitted to walk around the box and gaze upon it from several angles, and even to touch it.”

16 Judicial Concerns Selective citation to advance policy agendas A.K.A. “Judicial Activism”

17 It is often said that one generally finds in the legislative history only that for which one is looking Judge Harold Leventhal “[Using legislative history is like] entering a crowded cocktail party and looking over the heads of the guests for one's friends.”

18 Executive Concerns Minimizes or ignores the role of the Executive President passes upon legislation without the benefit of legislative history

19 4. Conclusion What’s the alternative? Plain Meaning Textualism False appearances of objectivity? A court cannot interpret a statute …in the absence of context. The only question is whether it will rely on a context secretly supplied from the judge's own intellect, or will use and acknowledge openly the context supplied by Congressional documents. Prof. Gregory Maggs

20 Looking Ahead: Next Class Compiling a Legislative History Print sources Electronic sources And even better… …finding Legislative Histories that someone else has already compiled!

21 THE END!

22

23 “The determination of when deference to legislative policy judgments goes too far and becomes abdication of the judicial responsibility, and when scrutiny of those judgments goes too far on the part of the judges and becomes what I think is properly called judicial activism” S. HRG. 108–135: CONFIRMATION HEARINGS ON FEDERAL APPOINTMENTS HEARINGS BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE Chief Justice John Roberts

24 S. HRG : CONFIRMATION HEARING ON THE NOMINATION OF SAMUEL A. ALITO, JR. TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES “[S]ometimes when a case of statutory interpretation comes before a court and your first look at the statute seems to produce an absurd result, let's say, or a very unjust result, then I think the judiciary has the obligation to go back and say, ‘Well, is this really what the statute means?’” Justice Samuel Alito