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.
Launched by Cornell’s Legal Information Institute, the Journal of Open Access to Law (JOAL) is a peer reviewed multidisciplinary journal that publishes articles on the topic of open access to law. JOAL is an international forum. Topics of interest to the journal include: the relationship between open-access legal information and technology; governance of new models of legal publishing; and the technical challenges and economic opportunities created by open access to law and public sector information. Some articles published in the first volume include an article entitled, The Rise of the Internet and its Impact on the Openness of the Justice System in Mainland China: Improvements and Limitations, by Zhuozhen Duan, an article entitled, The Meaning of ‘Free Access to Legal Information’: A Twenty Year Evolution, by Graham Greenleaf, Andrew Mowbray, and Philip Chung, and an article entitled, A Right to Access Implies A Right to Know: An Open Online Platform for Research on the Readability of Law by Michael Curtotti and Eric McCreath.
Commenting on blog posts requires an account.
Login is required to interact with this comment. Please and try again.
If you do not have an account, Register Now.