TAMING A DRAGON:
LEGISLATIVE HISTORY IN LEGAL ANALYSIS
The use of legislative history in statutory interpretation and analysis has been an area of intensive inquiry since the 1980’s. The debate has been vigorous and has led to the development of sophisticated arguments by both the advocates of the use of legislative history and textualists critical of its use. While the debate has been ongoing, changes in technology have made it easier than ever to access detailed legislative history for both state and federal statutes. This article discusses the impact of both the debate and the technological developments that make legislative records increasingly available. The article contends that the use of legislative history is here to stay in legal analysis for a variety of reasons, with increased availability being a driver of its continued use. The article provides examples both of the increasing availability of legislative materials online and the benefits to legal analysis that can accrue from a prudential and restrained approach to the use of such materials. The article argues that while legislative history is likely here to stay as part of statutory analysis, the textualist critique still has value. The article proposes incorporating a key insight from the textualist critique into the use of legislative history, namely that the statutory text be viewed as the authoritative statement of the law and that legislative history can serve as evidence of the law’s background and purpose. Outside of circumstances of statutory ambiguity or absurdity of results, the normal use of legislative history should be constrained by the text and its plain meaning. In this way, the dragon of legislative history can be tamed.
- Legislative History,
- Statutory Interpretation,
- Legislative Intent
Available at: http://works.bepress.com/mark_deforrest/2/