2 Basic Approaches to Using Legislative History

Question 1

2 basic approaches of using leg history

Answer 1

1. Hierarchical Approach

2. Reverse Engineering Process

Question 2

Hierarchical Approach

Answer 2

ranks legislative materials according to their reliability (aka likelihood that they reflect views of the legislative coalition enacting the statute)

Question 3

Hierarchical Approach: Reliable Sources

Answer 3

1. committee reports (incl. conference committee)
2. on the record speeches by sponsors & floor mgrs
3. statements by supporters and drafters

Least Reliable: post-enactment statements (whether in committee reports or speeches)

Question 4

Hierarchical Approach (sequential vs. pyramid)

Answer 4

• FOCUS: the best leg history is the history most proximate to the text (which requires an understanding of congressional process and rules)
• looking at “last decisions” made by the enacting coalition . . .
• “last decision” may be in the beginning of the process (aka committee consideration) or at the end of the process (aka conference committee)

Question 5

Example of Hierarchical Approach & Reverse Engineering Approach

Answer 5

United Steelworkers v. Weber 1979
(affirmative action plan)
- Majority Brennan - house reports, statements regarding providing opportunities to blacks where previously excluded . . . debates about permit vs. require
- Dissent Rehnquist - opening speech floor by Judiciary Chairman / Sub-com no. 5 chairman E. Cellar regarding “do nothing more than prevent discrimination against or in favor of”

U.S. v. Moreno

Civil Rights Act 1964 discussion

Question 6

Reverse Engineering Process

Answer 6

• approach to legislative history that tracks how the bill became a law, when the issue came up, why certain language got dropped/added in order to interpret the law
• takes a little more “engineering” than the hierarchical approach

Question 7

Example of Reverse Engineering Approach

Question 8

disadvantages

Answer 8

can be more vague than the statute called to interpret

used in different ways (Weber: Majority Brennan vs. Dissent Rehnquest)