2 Basic Approaches to Using Legislative History Flashcards

1
Q

2 basic approaches of using leg history

A
  1. Hierarchical Approach

2. Reverse Engineering Process

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2
Q

Hierarchical Approach

A

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

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3
Q

Hierarchical Approach: Reliable Sources

A
  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)

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4
Q

Hierarchical Approach (sequential vs. pyramid)

A
  • 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)
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5
Q

Example of Hierarchical Approach & Reverse Engineering Approach

A

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

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6
Q

Reverse Engineering Process

A
  • 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
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7
Q

Example of Reverse Engineering Approach

A
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8
Q

disadvantages

A

can be more vague than the statute called to interpret

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

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