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?
The Issue in a Nutshell “WORDS AND WHAT THEY MEAN ARE A LAWYER’S BIG PROBLEM”
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? • 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 • 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
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, • 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 “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 • 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” • Context • Titles, preambles, enacting clauses • Definition provisions, savings clauses • Headings, punctuation
“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 • 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 • Committee Reports - Special • Very useful! • Conference Reports • Very useful!
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 • 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 • 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 • Pre enactment history • economic conditions • prevailing business practices • prior state of the laws • activities of pressure groups
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 • 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 • 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 A Brief Introduction and Basic Sources
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 • 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 • 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 • 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 • 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 • 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 • 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