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Article
Legislative History and Statutory Interpretation: The Relevance of English Practice
University of San Francisco Law Review (1994)
  • William S Jordan
Abstract
THE LAST DECADE has seen a remarkable change in the Supreme Court's willingness to refer to or rely upon legislative history in statutory interpretation. In 1983, Judge Patricia Wald wrote that “the ‘plain meaning’ rule . . . has effectively been laid to rest [by the Supreme Court]. No occasion for statutory construction now exists when the Court will not look at the legislative history.” In 1990, however, Judge Wald described the Court's shift toward a new “textualism,” under which the Court increasingly purports to rely upon the statutory text itself as the primary, and perhaps the only, definitive source of meaning. More recently, Peter Strauss has referred to the Court's “increasingly strident rejections of legislative history.” One element of the argument against the use of legislative history in the federal courts has been reliance upon what is often described as the English practice of refusing to consider legislative history. In speeches delivered in 1985 and 1986, Justice Scalia cited English authority in arguing for a limitation on the use of legislative history. In another context, Professor Kay of the University of Connecticut School of Law has noted that, “Support for the view that text alone creates legal rules might be drawn from the English practice of statutory interpretation.” Professor Mayton of Emory University School of Law, an opponent of the use of legislative history, asks “If a tradition of Anglo-American jurisprudence is not much of a justification for our own use of legislative history, what is?” Even supporters of the use of legislative history tend to view English practice as an obstacle they must overcome in order to legitimize their positions. Judge Wald, for example, refers to the “legitimate British ancestry” of the textualist position. Justice Breyer goes so far as to present a brief argument that the English refusal to consider legislative history is not relevant because English legislation is drafted more clearly and is more readily understood by judges than legislation in the United States. Despite any advantages they may have, however, the English courts continue to struggle with the interpretation of statutes, and commentators continue to complain about the difficulties of statutory interpretation. Thus, while the drafting may make interpretation somewhat easier, the English courts seem to face comparable problems in interpreting legislative enactments. This Article examines the relevance of English interpretative practices to the American debate over the use of legislative history in the interpretation of federal statutes. Part I begins by discussing the English approach to the general problems of statutory interpretation and the use of legislative history. Part II discusses the relevance of English practice to federal statutory interpretation in the United States. This section incorporates an analysis of the differences between the legal cultures and national characters of the two systems, and the ways in which such differences affect efforts to transplant theories or practices from one system to the other. The purpose of this effort is to place the American debate in a broader perspective in order to enhance our ability to judge the value and legitimacy of reliance upon legislative history in the interpretation of federal statutes. The relevant material supports two major conclusions. First, while the English courts take a strongly textualist approach to statutory interpretation, they have, for roughly the last century, considered extrinsic materials that are comparable to legislative history in this country. In November 1992, for example, the House of Lords explicitly approved consideration of some statements made in Parliament. Thus, modern English practice, while somewhat restrictive, does not support a refusal to consider legislative history in statutory construction. Second, various differences between the cultures, the legal and political systems, and the constitutions of the two countries are consistent with the relatively permissive use of legislative history in American federal courts and the historically restrictive attitude toward reliance upon legislative history in the English courts.
Disciplines
Publication Date
Fall 1994
Citation Information
William S. Jordan, Legislative History and Statutory Interpretation: The Relevance of English Practice, 29 University of San Francisco Law Review 1 (1994).