Judging Statutes: 5 Thoughts About The Use Of Legislative History

A federal judge offers a spirited defense of using legislative history in statutory interpretation.

Last week, I attended a Yale Law School alumni event at Simpson Thacher consisting of a lively and enlightening dialogue between Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the Second Circuit and Yale law professor Abbe Gluck. The discussion centered on Judge Katzmann’s new and widely acclaimed book, Judging Statutes (affiliate link), and subjects raised therein, including the lawmaking process and the proper use of legislative history by courts.

Here are five takeaways from the enlightening conversation.

1. Textualists have performed a valuable service by pointing out how legislative history can be misused — but there needs to be a balance, and the helpful uses of legislative history must be acknowledged.

According to the Georgetown Law Library’s Legislative History Research Guide, “Legislative history is a term that refers to the documents that are produced by Congress as a bill is introduced, studied and debated. These legislative documents are often used by attorneys and courts in an attempt to determine Congressional intent or to clarify vague or ambiguous statutory language.”

Textualists like Justice Antonin Scalia oppose the use of legislative history in statutory interpretation, arguing that “[w]e are governed by laws, not by the intentions of legislators…. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.” Opponents of using legislative history argue that it can be manipulated, abused, and quoted selectively. As one judge famously put it, relying on legislative history is like “looking over a crowd of people and picking out your friends.”

But legislative history can be useful at times, according to Judge Katzmann — especially the most reliable or authoritative forms of it, which he identified as the committee reports, conference committee reports, and statements of floor managers. Looking at these sources can be helpful sometimes when interpreting a statute — and, thanks to the rise of the internet, accessing these materials is easier than ever (i.e., you don’t need a Westlaw or Lexis subscription). So why should one adopt a per se rule against consulting legislative history?

2. We need enhanced education about legislative history.

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Why don’t litigators and judges use legislative history more? One problem is that many of them don’t understand it — which is why we need improved education about legislative history and the legislative process in general. Some of this is generational; many practicing lawyers and sitting judges had no exposure to these subjects in law school. But Judge Katzmann is heartened by how many law schools now offering courses in legislation and how many talented scholars — including, but not limited to, Professor Gluck — are producing scholarship in this field.

3. Whether to use legislative history is not a strictly partisan issue.

Within legal circles, legislative history is often viewed as a partisan issue because opposition to its use has been led by prominent conservatives like Justice Scalia. But as Judge Katzmann noted, if you talk to members of Congress you’ll find both Republicans and Democrats who emphasize the importance and value of legislative history. Legislators and their staff members put significant time and effort into crafting legislative history, and they want these materials to be read and used.

4. It’s not all about the courts.

Lawyers and judges sometimes forget that the judiciary isn’t the only user of legislative history. Judge Katzmann emphasized the importance that administrative agencies accord to legislative history. Sometimes an agency will look to legislative history in developing its view of a statute, and that view will then be entitled to Chevron deference by a reviewing court.

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Professor Gluck added that legislative history can be important for Congress’s institutional memory. Often a piece of proposed legislation won’t get passed the first time around, and the legislative history can be useful in seeing what was or wasn’t addressed or agreed upon when the proposed law gets revisited. Legislative history might be crafted with an eye to being read by constituents as well.

5. It’s not all about statutory text.

Nobody denies the primacy of the statutory text when interpreting and applying laws; as one attendee noted during the audience Q-and-A, “we are all textualists now.” That said, there is a long history of using extrinsic sources to interpret statutory text, as Judge Katzmann noted. Even hard-core textualists like Justice Scalia will consider such things as the overall structure of a statute, dictionary definitions of words, and statutory drafting history (i.e., the different versions of statutory language that were proposed but not enacted).

The possibility that legislative history can be abused doesn’t mean it’s without value. Interpreting statutes isn’t easy — and in going about this challenging task, courts need all the help they can get.

Book Review: Judging Statutes (by Justice John Paul Stevens)
[New York Review of Books]
Judging Statutes [Amazon (affiliate link)]