Example 8.1

Takeaway point 8.1: Use legislative history — especially committee reports and earlier drafts or versions of the legislation — to corroborate your client’s reading of a statutory provision.

The following passage focuses on two important types of legislative history: committee reports and bills that preceded the final act. Those two types of materials are often powerful clues of what a statute means.

We revisit the case that assessed whether a foreign group that allegedly tortured and killed a U.S. citizen was liable under the federal Torture Victims Protection Act (TVPA), which makes any “individual” liable for violations of the law. The Palestinian Authority’s lawyers argue here that, based on the word “individual,” Congress intended for the TVPA to apply only to human beings — not to groups.

Source: Palestinian Authority’s brief from Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012).

This section followed the brief’s textual arguments: legislative history is best used as a backup argument.

When interpreting legislation (and clauses in the U.S. Constitution), courts often scour drafts of the law (bills and amendments) for evidence of what the final language means. Prior enacted versions of a law are referred to as “statutory history.” Both resources can provide valuable clues about a statute’s meaning.

These citations refer to bills that were proposed in the House of Representatives (H.R. 4756) and the Senate (S. 2528). The bills appear in the Congressional Record, which logs the events that occur on the floor of each chamber of Congress.

Many judges deride citations to the statement of a single legislator, saying that cherry-picking helpful language is like looking for “a friend in a crowd.” Here, however, the lawyers expertly contextualize the quotation, noting that the House counsel opined on how to achieve Leach’s goal and that the committee then unanimously adopted this language.

Use precedent to validate legislative history.

The lawyers use textual and doctrinal arguments (as well as legislative history) to counter the other side’s legislative history argument. You do not need to fight fire with fire; you help your cause when you remain flexible and invoke varied authorities to rebut the other side’s arguments.

As we have seen throughout the book, lawyers try to end sections with strong points or punchy quotes. The “crystal clear” remark comes from a committee report, lending credibility to this great quotation.