FREQUENTLY ASKED QUESTIONS ABOUT LEGISLATIVE HISTORY
| Q. | How do I find legislative history for federal statutes? |
| A. | The legislative histories for some statutes are collected in pre-assembled databases. For instance, Westlaw and Lexis offer the precollected legislative histories of several dozen major statutes. The Library of Congress’s index of legislative history (http:// thomas.loc.gov) is a great place to find materials about recent statutes (including drafts of bills). HeinOnline also has a good legislative history library. |
Legislative history is often spread out, making it hard to find (and very hard to find inexpensively), so consult a law librarian or an attorney with experience researching these sources. Here are two quick tips:
· Look at the annotated versions of statutes (e.g., in West’s U.S.C.A. series). The notes that accompany these annotations often cite committee reports and relevant pages in the Congressional Record or West’s legislative materials collection (U.S.C.C.A.N.).
· Pick up the research trail by searching for terms like “legislative history” and “committee report” (along with the name or citation to your statute) in databases that compile opinions, briefs, motions, and articles.
| Q. | Do I need to use legislative history in my brief or motion? |
| A. | No. Finding legislative history can be very time consuming and may not reflect a sensible investment of resources for your client when the stakes are low or when you have a formidable doctrinal or textual argument. For a routine trial motion, digging into legislative history may be overkill. When the stakes are high, however, lawyers tend to include legislative history. |
| Q. | When I am construing a state statute or a municipal ordinance, should I use legislative history? |
| A. | You should use state and municipal legislative history just as you would include clues from Congress’s legislative process—if you can find those materials. Some states and cities preserve their legislative materials, but others do not. Example 3.6 showed that a state’s legislative history can be useful. Once again, you may need to speak with a law librarian or an administrator in the state or city government to assess which records and archives exist and how to search them. In cases with great stakes, lawyers have often flown to statehouses to rummage through archives. |
| Q. | What is the range of materials that I can cite as legislative history? |
| A. | If it’s useful, cite it. That said, courts are likely to assign significant value to committee reports from the committee with primary jurisdiction over the bill. Other useful legislative materials, as noted earlier in this chapter, include amendments that the legislature adopted or rejected, as well as past versions of a statute (so that you can point out differences between the two laws). If you’re citing a less inherently reliable source, like the statement of a single legislator or hearing testimony, show why that evidence matters. |
| Q. | Is legislative history only useful to resolve an ambiguous statute? |
| A. | Legislative history can also show that the legislature acted rashly or carefully, hatefully or magnanimously, unconstitutionally or lawfully. It can show that the legislature was aware of a specific problem or that the legislature failed to consider an issue. Legislative history can also use the words of various legislators to make (or to help you think of) policy arguments. |