Legislative History

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       Introduction and Uses

        Victoria K. Trotta
   ASU Ross-Blakley Law Library

 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

What is Legislative History?

                     “Information
                     embodied in any
                     legislative documents
                     that provide the
                     meaning and
                     interpretation of the
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

   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
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
   Committee Members - Standing
    – some use; more than debaters
   In most states, the standing committee
    merely recommends passage - not much
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
Extrinsic Aids VI

   Motives of the members of the legislature
    – disregarded, unless expressed in the statute
   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
    – 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
 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
 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
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

 Proposed federal regulations published in
  the Federal Register; state in Administrative
 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 of
  Federal 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
 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

 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
 Loose-leaf services *
 Specialty Newsletters
 Online services will have decisions and
  orders of major agencies
 Internet, too

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