2 Basic Approaches to Using Legislative History Flashcards
2 basic approaches of using leg history
- Hierarchical Approach
2. Reverse Engineering Process
Hierarchical Approach
ranks legislative materials according to their reliability (aka likelihood that they reflect views of the legislative coalition enacting the statute)
Hierarchical Approach: Reliable Sources
- committee reports (incl. conference committee)
- on the record speeches by sponsors & floor mgrs
- statements by supporters and drafters
Least Reliable: post-enactment statements (whether in committee reports or speeches)
Hierarchical Approach (sequential vs. pyramid)
- 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)
Example of Hierarchical Approach & Reverse Engineering Approach
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
Reverse Engineering Process
- 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
Example of Reverse Engineering Approach
disadvantages
can be more vague than the statute called to interpret
used in different ways (Weber: Majority Brennan vs. Dissent Rehnquest)