Scalia

[Alan Gunn]

At 08:15 AM 2/28/2000 -0500, Robin Charlow wrote:
>He was asked about not using legislative history for statutory
>interpretation during a visit to Hofstra some years ago.  His response
>was that it is relevant because it is some indication of what people
>generally (just coincidentally, some of those who voted on the measure)
>think statutory terms mean--in the way a dictionary of the period is
>relevant in defining statutory terms--but that it's so manipulated as to
>be unreliable. [snip]

        This is a very serious concern. There is at least one case in my field
(tax) where a former committee staffer admitted putting things into a
committee report because he knew that Congress would never vote to approve
them if they were in the bill. Much legislative history is junk. But not
all, which is why I think Justice Scalia goes much too far. Congress has
reasons for what it does, and referring to legislative
history--cautiously--is one way of figuring out what those reasons are. One
need not rule legislative history completely inadmissible to avoid giving
it undue deference. Years ago, people used to say, only partly in jest,
that it was necessary to look at the statute only if the legislative
history was ambiguous. Thanks in large part to Justice Scalia, those days
are gone, and a good thing, too. But we may have swung too far in the other
direction. (Tax, though, is now a special case, because the Treasury is so
fond of legislative history that it incorporates nearly all of it in the
regulations--and the courts do defer to the regs.)


Alan Gunn
Notre Dame Law School