| 1. | Some judges treasure legislative history, some ignore it. Assess the preferences of your judge before you spend time building arguments around legislative history. Even its critics, however, concede that most judges rely on it and that lawyers should cite it in their motions and briefs. |
| 2. | In general, legislative history is most effective when lawyers use it to resolve an ambiguous statute or to discuss the legislature’s goals, thereby legitimizing policy arguments. (Policy arguments are discussed more extensively in Chapter 9.) |
| 3. | Use legislative history to back up your primary argument. |
| 4. | When you want to use legislative history to show what a statute means, consider making your legislative history look like a textual or doctrinal argument, such as by juxtaposing the final language of a statute against earlier drafts of the same statute or by citing cases that relied on legislative history rather than by citing the legislative history itself. |
| 5. | Legislative history usually proves nothing, but it can provide important or persuasive hints about a statute. Chapter 7 referred to the canons of interpretation as clues; legislative history also provides clues about what the legislature intended. |
| 6. | Learn which types of legislative history courts favor (e.g., committee reports and juxtapositions of the final statute against earlier bills) and which types they tend to doubt (e.g., comments from individual legislators who did not even introduce the legislation). The legislative history that best advances a client’s goal, however, will vary from case to case, so use legislative history creatively. And even an individual member’s statement is better than nothing. |
| 7. | When you use legislative history for atmospheric effect — such as to show that Congress was worried about a specific problem — consider including it in your Statement of Facts rather than in your Argument. (See Chapter 3). |