Nicholas Parrillo is an Associate Professor of Law at Yale Law School who teaches administrative law, legislation, and American legal history. He recently published an article in the Yale Law Journal on legislative history, which according to the Legal History Blog, “relates the rise of the use of legislative history to the expansion of the federal bureaucracy and the emergence of a specialized regulatory bar.”
Here is the abstract of his article posted on SSRN:
A generation ago, it was common and uncontroversial for federal judges to rely upon legislative history when interpreting a statute. But since the 1980s, the textualist movement, led by Justice Scalia, has urged the banishment of legislative history from the judicial system. The resulting debate between textualists and their opponents — a debate that has dominated statutory interpretation for a generation — cannot be truly understood unless we know how legislative history came to be such a common tool of interpretation to begin with. This question is not answered by the scholarly literature, which focuses on how reliance on legislative history became permissible as a matter of doctrine (in the Holy Trinity Church case in 1892), not on how it became normal, routine, and expected as a matter of judicial and lawyerly practice. The question of normalization is key, for legislative history has long been considered more difficult and costly to research than other interpretive sources. What kind of judge or lawyer would routinize the use of a source often considered intractable?
Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user — a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.
Wally Gobetz, Washington DC: Capitol Hill: United States Capital, Flickr Photostream (June 6, 2009), www.flickr.com/photos/wallyg/3777337913/lightbox/
Whether you are tracing a statute’s history for your summer internship or for a paper you are writing, you will want to use a new tool the library recently acquired, Proquest’s Legislative Insight. Often researching legislative histories can be cumbersome and time consuming. Legislative Insight promises to streamline the process by digitizing and by publishing online the majority of full text publications associated with a legislative history. These documents include all versions of enacted and related bills, Congressional Record excerpts, and committee hearings, reports, and documents. Legislative Insight also includes other related material such as committee prints, CRS reports and Presidential signing statements. Furthermore, Legislative Insight offers a research citation page that not only links to the full text of the associated primary source publications, but allows the user to do a Search Within from that very page that searches the full text of all the associated publications with one-click.
To access Legislative Insight from off-campus, you first need to implement the proxy instructions.
Recently, the Brooklyn Law School Library added CQ Almanac to its CQ Press Electronic Library subscription. For those of you who are unfamiliar with CQ Press, originally known as Congressional Quarterly Press, it is a highly regarded publisher of Capitol Hill news, congressional member profiles, legislative tracking services, specialty publications, congressional transcripts and much more. The CQ Almanac, originally published in 1946, publishes the legislative history of every major piece of legislation that Congress considers during a session. The histories are arranged thematically and are cross indexed for reference.
The electronic version combines sixty years of congressional reporting into one source making researching a piece of legislation or a policy matter much more efficient than before. You can research an issue by browsing by subject, by browsing by congressional session, or by performing a key word search. One of the great new features of CQ Almanac online edition is its Policy Tracker. The Policy Tracker allows you to explore a specific policy to see how it has evolved over the years. For example, if you are researching animal rights, you can click on the Policy Tracker link and then browse the topics alphabetically, eventually finding the topic “Animal Rights and Animal Research.” Under the selected topic, you will see a list of the all the major pieces of animal rights legislation passed, since the inception of the CQ Almanac, which is 1946. You can explore each piece of legislation individually and see how animal rights have evolved over the past sixty years.
To access the online version of the CQ Almanac, go to the Brooklyn Law School Library’s Electronic Resources page and click on the link for the CQ Press Electronic Library. When you arrive at the CQ Press Electronic Library page, click on the link to the CQ Almanac. If you are accessing this site from off campus, you will need to implement the proxy instructions on your home computer or lap top.