Federal Legislative History and Treaty Research / Interpretation (Use of Travaux Preparatoires). ALR: International Law January 26, 2004 INTRODUCTION: • What is a legislative history? • Legislative documents preparatory to enactment that may assist in determining legislative meaning or intent. • 1) An attempt to determine the intent of the legislature when passing a particular act. • 2) A gathering of all relevant documents produced throughout the legislative process. The Traditional Scenario: • Uncover Statute (or Treaty). • Undefined Terms. • Unexpected situation/application • Ambiguous Phrase. • “Gap-Fillers” for Statutes (or Treaties implemented in the U.S.). The Challenging Pursuit: • May not find information that EXACTLY explains the meaning of a particular phrase. • WILL find information that explains the general purpose of the act. The Legislative History “Paper Trail”: 1. Congressional Bills Assigned H.R. #/ S. # 2. Committee Hearings Testimony of experts. 3. Committee Reports Often both House and Senate. 4. Committee Prints Documentation prepared by committee staff. 5. Congressional Debates Reported in Congressional Record. 6. Presidential statements Weekly Compilation of Presidential Documents. Evaluation of Leg. Resources • (1) Conference, House, and Senate Reports. • (2) Analysis of Different Version of the Bill(s). • (3) Statements by sponsors or committee members during debate. • (4) Committee prints and hearings. • (5) Presidential statements. How to find the text of the law: • Use U.S.C.A. or U.S.C.S. General Index for subject search, OR • Use the Popular Names Table for the Act [Codes/Shepards]. Legislative History – Statutory Resources: • United States Statutes at Large (Session Laws) [Chronological Arrangement]. • United States Code (Codified Laws) [Subject Arrangement]. Legislative History Resources: • Compiled Legislative Histories= • Nancy P. Johnson’s, “Sources of Compiled Legislative Histories: A Bibliography of Government Documents, Periodical Articles, and Books.” • The Union List of Legislative Histories: 47 th Congress, 1881- 101st Congress, 1990. • Monthly Catalog of United States Government Publications. • CIS Online – accessible via LEXIS/NEXIS database or Congressional Universe. • Bernard D. Reams, Jr.’s “Federal Legislative Histories: An Annotated Bibliography and Index to Officially Published Sources.” Federal vs. Treaty legislative histories (“travaux”): • Similar processes of gathering preparatory documents that might help determine the intent of the legislators (or parties, in the case of treaty interpretation). • For the legislative history of treaties, researchers in the U.S. use standard legislative history sources to locate Senate Treaty Documents, Senate Executive Reports, debates in the Congressional Record, etc… INTRODUCTION • What are some of the documents in a legislative history? • (1) Committee Reports – IMPORTANT! • (2) Legislative Floor Debates (Cong. Rec.) • (3) Hearings • (4) Presidential memoranda • (5) Previous versions of bills • (6) Other miscellaneous documents, such as Comm. Prints. INTRODUCTION • Virtually all documents available for federal government (much less for states). • Role of legislative history in statutory interpretation. - Controversial - New Textualism – Justice Scalia - History of acceptance by courts - Current situation - Wisconsin State courts LEGISLATIVE HISTORIES: • At what stage in the research process do you research the legislative history? • Usually after researching cases. • Saves time because cases might interpret statute to answer your questions. FINDING & COMPILING FEDERAL LEGISLATIVE HISTORIES: • CIS (Congressional Information Service) in paper. Indexing & abstracting service. Back to 1970. 3 parts: - Legislative History volume. *Listed by Public Law number. *Lists all documents & where they are found in microfiche collection. *Includes references to Congressional Record citations. - Index volume (subject index and various tables). - Abstract volume (describes documents). HANDLING & COMPILING FEDERAL LEGISLATIVE HISTORIES: • CIS is on LEXIS (not on Westlaw, which has other legislative history sources). • CIS on the Web: Congressional Universe. - Also the text of statutes & regulations. - Remote access. http://law.marquette.edu/cgi-bin/site.pl. - Also allows for full-text searching of documents. - Very user-friendly. MISCELLANEOUS: • Legislative History documents in USCCAN: - For selected statutes. - Partial histories. - Lists all committee reports. - Some Presidential signing statements. - Occasional other documents. - Lists additional sources (e.g. Congressional Record), but no text. How to Identify/Find Citations to documents in Leg. History: • Slip Laws/United States Statutes at Large. Cite: 110 STAT. 2104. *Since 1975, there is a legislative history summary included at the end of each slip law. House Reports [CIS# or SuDoc]: • Find citation through legislative history already conducted in CIS Index or USCCAN. • “War Crimes Act of 1996” – H.Rpt. 104-698 on H.R. 3680, July 24, 1996. • Sources: CIS96: H523-28 OR Y1.1/8:104-698. Congressional Debate: • Uncover citation through search in CIS Index, Slip Law, or USCCAN. • Sample Source: 142 Congressional Record, 104th Congress, 2nd Session – 1996. • RECORD: Dates of House/Senate considerations and page numbers for Cong. Record. Text of Proposed Bill presented. Speaker Testimony & Support. Congressional Hearings: • Citation provided through legislative history research. • Sample Title: “War Crimes Act of 1995,” hearings before the Subcommittee on Immigration and Claims, House Judiciary Committee, June 12, 1996. • Sample Source Citations: CIS96: H521-68; Y4.J89/1:104/81. Sample Miscellaneous Publication: • Listed under P.L. # legislative history as “Miscellaneous”. • Sample Citation: Weekly Compilation of Presidential Documents, Vol. 32 (1996): Aug. 21, Presidential Statement. • Look up call number in library catalog for these volumes. Vienna Convention – Interpretation of Treaties & use of “travaux preparatoires” : • Article 31 provides that a: “…treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” * Article 32 allows use of supplementary means of interpretation when confirming a “meaning resulting from the application of Art.31” or when the treaty language yields an “ambiguous or obscure meaning or a result which is manifestly absurd or unreasonable.” The Debate on the Use of “travaux preparatoires” in Treaty Interpretation: • Much like the debate at the Fed’l level. • How do you know when a treaty’s terms are unclear/unreasonable? • Vienna Convention leaves discretion to the interpreter of the rule to determine whether treaty terms are so unclear or unreasonable to require “travaux preparatoires.” • For a more detailed discussion of U.S. application – see Restatement of the Foreign Relations Law of the U.S. (3 rd) at pp. 198-200. Scalia’s view: • See generally, U.S. v. Stuart, 109 S.Ct. 1183, 1193-97 (1989): “But it is a far cry from all of this to say that the meaning of a treaty can be determined, not by a reservation attached to the President’s ratification at the instance of the Senate, nor even by formal resolution of the Senate unmentioned in the President’s ratification, but by the legislative history of the sort that we have become accustomed to using for the purpose of determining the meaning of domestic legislation.” Treaty Interpretation: • Treaties, even more often than statutes, contain ambiguities which often lead to controversy in interpretation and application. • The documents of legislative history produced during Senate consideration of treaties are a major source for clarification of the treaty text. U.S. (domestic component) of the Treaty Process: • (1) Executive branch members negotiate and sign a treaty; • (2) President submits the treaty to the Senate; • (3) Senate prints the proposed treaty (S. Treaty Doc. No.); • (4) Senate refers the proposed treaty to the Senate Foreign Relations Committee; • (5) SFR Committee gen’lly conducts hearings (S.Hrg.) and makes a recommendation to the full Senate in a report (S.Ex.Rept.No.); • (6) Senate passes a resolution of “advice and consent” to ratification of the treaty (2/3 vote of quorum of Senate); • (7) President ratifies the treaty. Documents/Sources for Treaty Interpretation in the U.S.: • Senate Treaty Documents, 1981- (Microfiche KF45.T734)(http://www.gpoaccess.gov/serialset/ cdocuments/index.html) • Senate Executive Reports – most authoritative legislative source (Law Microfiche KF30.9). • TIAS (slip form) and UST (bound) (Law KZ235.3.U55) / Treaties in Force (online/print). Documents/Sources for Treaty Interpretation in the U.S.: • CCH Congressional Index – status table of treaties pending before the Senate. • CIS Index/Abstracts/Leg.Hist. volumes – same as Fed’l Legislative Histories. • Congressional Record Index/CIS Index to US Senate Executive Docs. & Reports. Recent Treaty Actions: • Senate Treaties: http://www.senate.gov/pagelayout/legislative/d_t hree_sections_with_teasers/treaties.htm. • U.S. State Dep’t – Current Treaty Actions: http://www.state.gov/s/l/c3428.htm. • International Legal Materials (ILM) – “Recent Actions Regarding Treaties to which the U.S. is a Party” – Lexis/Westlaw/HeinOnline. • “Treaties” tab in vol. 1 (Senate) of the looseleaf Congressional Index (Law KF 35.C71). Additional Treaty Help: • Contact the U.S. Dep’t of State, Office of Treaty Affairs: (202) 647-1345. • Ask an international law librarian or experienced practitioner in int’l law for help (keep a contact list for future reference).
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