Example 3.6

Takeaway point 3.6: Use legislative history in your Statement of Facts to make the legislature’s motives, statements, or process part of your client’s story.

Legislative history can appear in your Statement to help readers grasp a statute’s purpose.

In 1996, the Massachusetts legislature passed a statute that effectively withheld lucrative government contracts from most companies that conducted any business with Burma/Myanmar, a country with a poor human rights record. During the lawsuit, Massachusetts maintained that the law was intended to “dissociate” Massachusetts from Myanmar; it disputed that the law was intended to pressure Myanmar in any meaningful way. A business group (NFTC) challenged the law and sought to show that the law both infringed on the exclusive power of the federal government to regulate foreign affairs and tried to influence foreign policy, which the Supreme Court had previously restricted states from doing.

Source: Statement of Facts from the brief challenging Massachusetts’s law, from Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).

This phrase suggests that Massachusetts either (1) failed to research the case diligently or (2) misrepresented its intentions. Either conclusion hurts Massachusetts.

Notice that the source of these statements might not be legislative debates: these quotes might have come from speeches on the campaign trail or a quote in a newspaper. Nevertheless, this brief weaponizes these great quotes to show that Massachusetts legislators all but make the NFTC’s case: they envision the law as their own version of foreign policy.

Not only is the legislative history substantively helpful, but it also furnishes colorful language that makes the point more effectively than the NFTC could have otherwise done. For instance, the word “dabbling” implies a lack of seriousness, an encroachment into unfamiliar territory, or both.

The double “nor” serves as a lovely rhetorical flourish. Moreover, this sentence shows that silence in the legislative record can suggest that certain issues did not motivate the legislature. One of Massachusetts’s alternative arguments was that it was acting as a “market participant”; this sentence anticipates that argument, and suggests that Massachusetts’s concerns about participating effectively (or ethically) in the market are an after-the-fact rationalization by the Commonwealth.