One of These Things Is Not Like the Others: Legislative History in the U.S. Courts of Appeal

Abstract

“In the past few decades, however, we have developed a legal culture in which lawyers routinely—and I do mean routinely—make no distinction between words in the text of a statute and words in its legislative history.” Justice Scalia, A Matter of Interpretation[1] How accurate is Justice Scalia’s characterization of American legal culture? Has runaway purposivism erased the distinction between statutory text and legislative history? Most scholars of statutory interpretation say no—although at one point legislative history seemed poised to dominate statutory interpretation, Justice Scalia and othertextualists have succeeded in defending the primacy of text. In arriving at this answer, the intellectual conversation has focused onstatutory interpretation at the Supreme Court. But Justice Scalia’s assertion sweeps far beyond the Court; it is a claim about “legal culture”. So the question remains: how has legislative history fared outside of the Supreme Court? In this paper, I aim to begin answering a small piece of this question by investigating the evolution of the use of legislative history in the circuit courts. I counted all of the citations to legislative history made by the circuit courts between 1950 and 2006. This data reveals the degree to which the circuit courts’ usage patterns either confirm or reject Justice Scalia’s claim about the prevalence of legislative history in statutory interpretation. [1]Antonin Scalia, Common Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 18-23 (Amy Gutman ed., 1997).