Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950

By Parrillo, Nicholas R. | The Yale Law Journal, November 2013 | Go to article overview

Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950


Parrillo, Nicholas R., The Yale Law Journal


ARTICLE CONTENTS  INTRODUCTION  I. THE TIMING OF NORMALIZATION     A. Quantitative Evidence     B. Qualitative Evidence  II. EXPLAINING NORMALIZATION: NEW JUSTICES WITH NEW IDEAS  III. EXPLAINING NORMALIZATION: THE NEW ADMINISTRATIVE STATE     A. The Court's Reliance on the Federal Government for Legislative        History     B. The Difficulty of Briefing Legislative History     C. The Federal Government's Unique Capacity to Brief Legislative        History     D. The Federal Government's Turn Toward Briefing Legislative        History     E. Non-Federal Lawyers Briefing Legislative History: The Importance        of Lobbyists     F. The Court's Own Internal Research     G. The Minimal Role of the Lower Courts  IV. LEGISLATIVE HISTORY AS A STATIST TOOL OF INTERPRETATION     A. Legislative History to Bless the Bureaucratic Agenda     B. The Court Learns to Fight Fire with Fire     C. The "Washington Lawyer" as Adjunct of the State and User of        Legislative History     D. Critics of Legislative History Statism: Frankfurter and Jackson  V. CONCLUSION: THEN TO NOW  APPENDIX I: METHODOLOGY  APPENDIX II: LOBBYING CONNECTIONS OF LAWYERS AND LITIGANTS ON    NON-FEDERAL BRIEFS HEAVILY CITING LEGISLATIVE HISTORY, 1938-41 

INTRODUCTION

When a legislature enacts a statute, it leaves behind a history: the revisions that lawmakers made to the bill, the things they said about it during committee deliberations and floor debates, and the public input they officially received on it from experts and other witnesses. Should a court, when interpreting the act, consider that history?

For a generation, the field of American statutory interpretation has burned with controversy over this question. The controversy is a novelty of the last twenty-five years. In the 1980s, legislative history was uncontroversial and very common. It appeared in more than half the U.S. Supreme Court's opinions on federal statutes. (1) In the high courts of leading states like New York, it likewise appeared frequently. (2) Using this material meant that judges were accustomed to engaging actively and openly with legislators' discourse and policy reasoning. Beginning in the late 1980s, however, a movement of judges and lawyers--led by Antonin Scalia--began to argue that this familiar interpretive resource was pernicious and should be banished from the judicial system. They urged a textualist method of statutory interpretation that would ignore an act's legislative history and focus more narrowly on its words. The legislative history of an act, warned Scalia and his allies, was a devil's playground: it contained such a huge number of assertions about the act's meaning, and those assertions were so contradictory and so easily inserted by manipulative politicians or lobbyists, that willful judges could always find support for whatever personal preferences they wished to impose. Adherence to the ordinary meaning of the text--the words on which lawmakers formally voted according to constitutional procedures--would do better at keeping judges accountable to the democratic will. Critics responded that Scalia was a false prophet. His method, they said, would not deliver the determinacy he promised, for text was often ambiguous (or became ambiguous when overtaken by events unforeseen by lawmakers), so textualist judges could just as easily impose their preferences, and all the more insidiously, since they would do so under the apolitical cloak of "ordinary meaning." Besides, added the critics, legislation was meaningless without reference to policy, and what better source for understanding a statute's policy than legislative history? (3)

Whichever side is right, there is no doubt that judicial practice has moved dramatically in Scalia's direction (even if his colleagues have not formally converted to his principle of complete exclusion). The proportion of U.S. Supreme Court opinions citing legislative history in statutory cases has fallen by more than half since the 1980s. …

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