Example 8.2
Takeaway point 8.2: Use legislative history to reveal a statute’s invisible meaning and to let elected officials make your client’s policy arguments.
Let’s look at one more prototypical example of building a legislative history argument.
It relies on a larger array of legislative history clues than the prior example. In April 1992, Hannah Bruesewitz — then an infant — received a vaccine for diphtheria, tetanus, and pertussis. Within twenty-four hours, she began experiencing recurring seizures. Her parents filed a claim in a special federal court that had been established to award quick, fixed payments when a vaccine caused harm (i.e., a strict liability system). That court, however, denied the Bruesewitzes’ claims, finding insufficient evidence that the vaccine had caused Hannah’s seizures. Hannah’s parents then filed a lawsuit based on state tort law, alleging that the vaccine had caused their daughter’s condition.Thetrial and appellate courts,however,barred these claims, holding that the National Childhood Vaccine Injury Act of 1986 conflicted with — and therefore blocked under the doctrine of federal preemption — the parents’ state law claims. Here, the vaccine maker uses legislative history to argue that Congress intended to preempt state-law claims like those filed by Hannah’s parents.Source: Brief for the vaccine’s manufacturer in Bruesewitz v. Wyeth, 131 S. Ct. 1068 (2011).
Once again, legislative history is used as an argument in the alternative. Litigants argue that the text is clear but that even if the court doesn’t agree, the legislative history also supports the client’s position.
WARNING! Don’t begin sentences with unseemly numbers and abbreviations: the term “H.R.
Precisely because some judges doubt the insightfulness of legislative history, you can and should try to find statements from courts themselves that validate either specific uses of legislative history or, as the lawyers do here, the very document on which their brief relies. As Example 8.1 explains, committee reports — in which the legislative committee that hammered out the details of a bill describes what the committee did and why it did so — tend to be one of the most valuable types of legislative history.
Sometimes statutes are silent about an issue, but that silence can nevertheless influence a lawsuit. One common way that litigants spar over the meaning of silence is the doctrine of “implied preemption,” which applies when a federal law nullifies state law or common law without specifying that it has done so. And as this passage shows, legislative history can reveal the sounds of silence. In other words, this sentence uses legislative history to make a thinly veiled policy argument.
The lawyers’ approach with this block quote is an ideal way to convince judges to read the passage: promise them a payoff, such as information that “[d]irectly address[es] the question presented in this case.” Moreover, the block quote emphasizes the critical sentence, making it easier for judges to skim the lengthy quote. If you use a block quote, this one exemplifies the way to present it.
In purporting to explain the statute, the brief actually does something else: it again uses Congress’s words to advance a compelling policy argument, namely that the other side’s position would endanger public health.