Research Guide

Legislative History: What? and Why?

New England Law Library
Helen Litwack, Reference Librarian
January 2006

Legislative history consists of all the legislative events which occurred in the process of enacting (or defeating) proposed legislation, including all available documentation created during this process. These include the bill, its redrafts, testimony at hearings, reports or studies commissioned by the legislature, the chronology of voting, floor debate, the executive's message upon signing the bill or vetoing it. Sometimes the phrase "legislative history" is used as a synonym for "bill tracking", that is tracing the steps that have been taken in pending legislation.

Legislative history is not primary, mandatory authority. Only enacted legislation itself is controlling law.

Legislative history is one tool a court may use to interpret ambiguous statutory language or to determine the intent of the legislature in writing the law and wording it in the way it did. This interpretive function is called "statutory construction."

The most basic canon of statutory construction is that a court should begin interpreting a statute by looking at its "plain language." However, another canon is: a statute is to be construed in light of the harm the legislature meant to remedy.

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The West topic and key number Statutes. Legislative history of act (361k217.2) will retrieve case law in which legislative history is discussed. This topic and key number can be used in a digest for the relevant jurisdiction or in a Westlaw database online.

Although federal legislation is usually quite complex and the research steps numerous, in terms of research efficiency, there is generally more documentation in existence, and those documents are more readily accessible onsite at NESL at the federal than at the state level. Furthermore, for major federal legislation, commercial publishers will often prepare legislative histories in book form or on microfiche. NESL library has several dozen of these in print or microfiche and can interlibrary loan others. Preliminary Mass. legislative history research can be done in NESL, and librarians at the State Library and Archives can help locate whatever else exists.

See NESL Research Guide, Federal Legislative History: Resources and Research Steps and NESL Research Guide, Massachusetts Legislative History: Resources and Research Steps for more detailed information.

In March, 1998, the Supreme Judicial Court said:

"Statutes are to be interpreted, not alone according to their simple, literal or strict verbal meaning, but in connection with their development, their progression through the legislative body, the history of the times, prior legislation . . . General expressions may be restrained by relevant circumstances showing a legislative intent that they be narrowed and used in a particular sense." Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 163, 691 N.E. 2d 935, 941 (1998), quoting Murphy v. Bohn, 377 Mass. 544, 548, 387 N.E. 2d 119 (1979), quoting Commonwealth v. Welosky, 276 Mass. 398, 401-402, 177 N.E., 656 (1931).

While Justice Scalia has been quite scathing in his contempt for using "so-called legislative history" in statutory construction, U.S. v. Estate of Romani, 118 S.Ct. 1478, 1489 (1998), the other Justices of the present Court have employed it to varying degrees.

ADDITIONAL READING: FEDERAL STATUTES

Treatises:
Barnes, Jeb., Overruled? : legislative overrides, pluralism, and contemporary court-Congress relations, KF425 .B37 2004, Lower mezzanine.
Berring, Robert C., Finding the law, 11th ed., KF240 .C539 1995, Reserve.
Brown, Ronald Benton, Statutory interpretation : the search for legislative intent, KF425 .B76 2002, Lower mezzanine.
Cheney, Timothy D., Who makes the law: the Supreme Court, Congress, the states, and society, KF4930 .C44 1998, Upper mezzanine.
Cohen, Morris L., Legal research in a nutshell, KF240 .C54 2003, Reserve.
Davies, Jack, Legislative law and process in a nutshell, 2nd ed., KF4933.Z9 D38 1986, Upper mezzanine.
Dickerson, Reed, The interpretation and application of statutes, KF425 .D5x 1975, Lower mezzanine.
Eskridge, William N., Dynamic statutory interpretation, KF425 .E84 1994, Lower mezzanine.
Eskridge, William, N., Legislation and statutory interpretation, KF425 .E842 2000, Reserve.
Greenawalt, Kent, Legislation : statutory interpretation : 20 questions
Hurst, James Willard, Dealing with statutes, KF425 .H87 1982, Lower mezzanine.
Irwin, Lewis G., A chill in the House : actor perspectives on change and continuity in the pursuit of legislative success, KF4945 .I79 2002, Upper mezzanine.
Jacobstein, J. Myron et. al., Fundamentals of legal research, 8th ed., KF240 .J3 2002, Reserve.
Katzmann, Robert A., Courts and Congress, KF8700 .K37 1997, Upper mezzanine.
Kravitz, Walter, Congressional Quarterly's American congressional dictionary, JK9 .K73 2001, First floor treatise.
Krehbiel, Keith, Pivotal politics: a theory of U.S. lawmaking, KF4945 .K74 1998, Upper mezzanine.
MacCormick, D. Neil, and Robert S. Summers, Interpreting statutes: a comparative study, K290 .I58 1991, Lower mezzanine.
Mammen, Christian, Using legislative history in American statutory interpretation, K425 .M36 2002, Lower mezzanine.
Mikva, Abner J., An introduction to statutory interpretation and the legislative process, KF425 .M45 1997, Reserve.
Mikva, Abner J., Legislative process, KF4945.A7 M55 2002, Reserve.
Neumann, Richard K., Jr., Legal reasoning and legal writing, 4th ed., KF250 .N48 2001, Lower mezzanine.
Popkin, William D., Materials on legislation: political language and the political process, 4th ed, KF4945.A7 P67 2005, Reserve.
Redman, Eric, The dance of legislation, KF4980 .R4, Upper mezzanine.
Scalia, Antonin, A matter of interpretation: federal courts and the law: an essay, KF4552 .S25 1997, Upper mezzanine.
Sinclair, Barbara, Unorthodox lawmaking : new legislative processes in the U.S. Congress, KF4945 .S56 1997, Upper mezzanine.
Singer, Norman J., Statutes and statutory construction, 6th ed., KF425 .S25 2000, Lower mezzanine.
Statsky, William P., Legislative analysis and drafting, 2nd ed., KF425 .S8 1984, Lower mezzanine.
Tiersma, Peter Meijes, Legal language. K213 .T54 1999, First floor treatise.

Video:
Berrring, Robert C., Commando legal research [videorecording]/ Tape 3., KF240 .B4 1989, Reserve.

Law review articles:
Citations are in Westlaw ‘Find’ format, except where indicated. Omit the date on Find.

Chomsky, Carol, Unlocking the mysteries of Holy Trinity: spirit, letter, and history in statutory interpretation, 100 CMLR 901 (2000).
Frickey, Phillip P., From the big sleep to the big heat: the revival of theory in statutory interpretation, 77 Minn. L. Rev. 241 (1992).
Note, Why Learned Hand would never consult legislative history today, 105 HVLR 1005 (1992).
O’Connor, Gary E., Restatement (First) of statutory interpretation, 7 NYUJLPP 333 (2003-2004).
Rosenkranz, Nicholas Quinn, Federal rules of statutory interpretation, 115 HVLR 2085 (2002).
Stevens, Justice John Paul, The Shakespeare canon of statutory construction, 140 U. Pa. L. Rev. 1373 (1992).
Symposium on statutory construction, 3 Vanderbilt Law Review (available on HeinOnline).
Symposium: a reevaluation of the canons of statutory interpretation, 45 Vand. Law Rev. 529 (1992) (available on HeinOnline).
Yoo, John Choon, Marshall’s Plan: the early Supreme Court and statutory interpretation, 101 YLJ 1607 (1992).


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