Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

22
What Does Legislative History Tell Us?

FRANK H. EASTERBROOK

Judge, United States Court of Appeals, Seventh Circuit

Legislative history is out of the doldrums. For decades judges pawed through legislative history without much theory about what they were doing or why. Judges were atheoretic, the rest of the bar largely apathetic. How times have changed! Discussions of the role of legislative history, of statutory interpretation in general, have erupted both on the bench and in the academy. For the first time in 50 years there is a sustained, interesting debate about how to understand statutes, the meat of the business in federal courts. Debate ranges over questions of political philosophy, political economy, and epistemology--as it must when the question is, What counts as law in our constitutional republic, and how do we identify that law? . . .

People of goodwill disagree about where the common weal lies. An assumption that legislation points toward, it is not so much a rule of interpretation as it is wishful thinking, coupled with a hope that judges can pick up the torch. Realistic understanding of statutes treats them as compromises. Still it may be possible to nudge the outcome a little in the direction of goodness. Can a gaggle of lawyers with no training in social science and insulation (by tenure) from the pulse of America do this? Are they authorized to do it, if they can? . . .

Justice Scalia insisted in Green v. Bock Laundry Machine Co. 1 that the legislative history of Rule 609 was neither illuminating nor relevant. . . . Justice Scalia insists that "law" lies in the enacted texts rather than in the legislators' intents. Yet this does not always lead him to disregard the history of an enactment. Well it should not, as Green shows. Rule 609(a)(1) says that a witness's criminal record may be admitted when "the court determines that the probative value of admitting this evidence outweighs its prejudicial value to the defendant." Why only the effect on "the defendant"? One possibility is that the text is garbled, and it really means "the litigant" or "the criminal

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