Legislative history
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LEGISLATIVE HISTORY. Introduction and Uses Victoria K. Trotta ASU Ross-Blakley Law Library. INTRODUCTION. What is ‘legislative history’? Why do we need to know about it? Where is it in the legal research cosmos? What goes into one? Why do lawyers want one? How do courts use it?.

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LEGISLATIVE HISTORY

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Legislative history

LEGISLATIVE HISTORY

Introduction and Uses

Victoria K. Trotta

ASU Ross-Blakley Law Library


Introduction

INTRODUCTION

  • What is ‘legislative history’?

  • Why do we need to know about it?

  • Where is it in the legal research cosmos?

  • What goes into one?

  • Why do lawyers want one?

  • How do courts use it?


The issue in a nutshell

The Issue in a Nutshell

“WORDS AND

WHAT THEY MEAN

ARE A LAWYER’S BIG PROBLEM”


What is legislative history

What is Legislative History?

  • “Information embodied in any legislative documents that provide the meaning and interpretation of the statute”


How are legislative histories used by the federal and state courts

How are Legislative Histories Used by the Federal and State Courts?

  • State courts differ in their use

  • Federal courts make greater use of them

  • West Digest System

    • topic: Statutes

    • keynumbers: 213 - 217.4

      • 217 “history in general”

      • 217.2 “legislative history of act”


In federal and state court

In Federal and State Court

  • General rule: Plain language

  • Resort to legislative history not necessary when language of statute is plain

  • But, when statute is ambiguous, OK to consult legislative history


Legislative history

More…..

  • But, ambiguity is not always considered a prerequisite for use of extrinsic aids - the plain meaning rule is not to be used to thwart the intent of congress by excluding…enlightenment from the legislative files


And finally

And Finally,

  • The plainer the language, the more convincing a contrary legislative history must be to overcome the natural purport of a statute’s language


Thought for the day

Thought for the Day

“I don’t care what the legislature

intended, I just want to

know what the words mean.”

Chief Justice Oliver Wendell Holmes

1899


Sources for investigating legislative histories

Sources for Investigating Legislative Histories

  • Sands [Sutherland], Statutory Construction

  • Cohen, Berring, Olson, How to Find the Law 9th ed

  • Kunz, et al, The Process of Legal Research, 4th ed

  • Jacobstein and Mersky, Fundmentals of Legal Research, 6th ed

  • Arizona Legal Research Guide


Intrinsic aids

“Intrinsic Aids”

  • Context

  • Titles, preambles, enacting clauses

  • Definition provisions, savings clauses

  • Headings, punctuation


Extrinsic aids a spectrum

“Extrinsic Aids” - A Spectrum

  • Enactment history

    • This is the stuff of a classic ‘legislative history’

    • Bill as introduced

      • highly useful

    • Amendments to the bill

      • highly useful

    • Hearings held

      • not too useful.Statements made by outsiders - nope!


More extrinsic aids

More Extrinsic Aids

  • Committee Reports - Standing

    • highly useful, esp if reasons bill is being recommended

  • Committee Members - Standing

    • some use; more than debaters

  • In most states, the standing committee merely recommends passage - not much detail!


Extrinsic aids iii

Extrinsic Aids III

  • Committee Reports - Special

    • Very useful!

  • Conference Reports

    • Very useful!


Extrinsic aids iv

Extrinsic Aids IV

  • Statements

    • By bill draftsman

      • some say yes, some say no!

    • By committee person in charge of shepherding the legislation

      • maybe!

    • By other committee persons

      • Not usually unless there appears to be consensus

    • Sponsor of the bill

      • Be somewhat skeptical!


Extrinsic aids v

Extrinsic Aids V

  • More Statements

    • Debates on the floor

      • As a general rule, too speculative

      • Court doesn’t want to rule on credibility of members

      • But, if committee person in charge of the bill, explains it, might have some weight.

    • The Feds will sometimes take debate as a whole if statements all tend to show common agreement.


Extrinsic aids vi

Extrinsic Aids VI

  • Motives of the members of the legislature

    • disregarded, unless expressed in the statute itself

  • Initiative and Referendum Explanations

    • ballot pamphlets favored

  • Executive Messages

    • As part of state’s special session; but not considered if part of signing ceremony


Extrinsic aids vii aka any port in a storm

Extrinsic Aids VII aka Any Port In a Storm

  • Pre enactment history

    • economic conditions

    • prevailing business practices

    • prior state of the laws

    • activities of pressure groups


When to research and compile

When to Research and Compile

  • Time is $$$

  • Will depend upon

    • age of statute under review

    • number of amendments to research

    • what is available and where

    • whether some research has already been put together

    • how badly does the lawyer need it?


Fantasy vs reality

Fantasy vs Reality

  • Lawyers often have unrealistic expectations of what you will find, and how much

  • What you find might itself be ambiguous or inconclusive

  • There might not be much to find!

  • Experience will help you build realistic budgets - from 30 minutes to 4+ hours, plus your hard costs


How lawyers use them

How Lawyers Use Them

  • To buttress a position, but not as primary argument

  • The statute is ambiguous as applied to the case at hand, and/or no case law exists

  • Some practice areas rely more heavily on legislative histories: tax, securities, food and drug laws

  • Risk averse might want one done as a matter of routine


Administrative law

Administrative Law

A Brief Introduction and Basic Sources


Administrative law the executive branch

Administrative Law: The Executive Branch

  • Chaos! Then, FR & CFR Acts of 1936-7; Administrative Procedures Act of 1946

  • Enabling Statutes

  • Quasi-legislative:

    • rules, regulations (EPA)

  • Quasi-judicial

    • decisions, orders (NLRB)


Administrative rules and regulations

Administrative Rules and Regulations

  • Proposed federal regulations published in the Federal Register; state in Administrative Register/Digest

  • Notice Period 30 - 90 days

  • Final regulation reprinted when adopted

  • In Arizona, some agencies blow off this requirement (can you believe it?)


Administrative rules and regs

Administrative Rules and Regs

  • Codified at the Federal level in Code ofFederal Regulation

  • Codified at the State level in Arizona Administrative Code

  • Neither is annotated

  • Indexing ranges from poor (CFR) to non-existent (AAC)

  • But! Tables from statutes to regulations!


Updating administrative regs

Updating Administrative Regs

  • CFR - quarterly recompiling and re-issuing of 25% of the entire code

  • CFR updated by List of Sections Affected (LSA) pamphlets. Points to Federal Register text

  • Arizona - quarterly updating (looseleaf interfiling). If you are lucky, first appears in Arizona Administrative Register.


Administrative regs online

Administrative Regs OnLine

  • Lexis/Nexis and Westlaw

    • CFR

    • Federal Register

  • Internet

    • CFR

    • Federal Register

    • Email daily FR table of contents!

    • Arizona Secretary of State - AAC Supplements and Register (1998)


Administrative decisions and orders

Administrative Decisions and Orders

  • Quasi-judicial function

  • Major administrative agencies have their own judicial process

  • Some are published; some aren’t

  • Federal courts will review

  • “Exhaustion of Administrative Remedies”

  • In Arizona - Lots of Luck!!!


Research options

Research Options

  • Davis, Administrative Law

  • Annotations of State/Federal statutory code compilations

  • Loose-leaf services *

  • Specialty Newsletters

  • Online services will have decisions and orders of major agencies

  • Internet, too


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