Yale Law Journal: Volume 123, Number 2 - November 2013
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About this ebook
The November issue of The Yale Law Journal (the 2nd of Volume 123, academic year 2013-2014) features articles on law and legal theory by internationally recognized scholars. Contents include:
• Article, “Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950,” by Nicholas R. Parrillo
• Essay, “Reconsidering Citizens United as a Press Clause Case,” Michael W. McConnell
• Note, “The Mens Rea of Accomplice Liability: Supporting Intentions”
• Comment, “A First Amendment Approach to Generic Drug Manufacturer Tort Liability”
• Comment, “The EU General Data Protection Regulation: Toward a Property Regime for Protecting Data Privacy”
Yale Law Journal
The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.
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Yale Law Journal - Yale Law Journal
THE YALE LAW JOURNAL
NOVEMBER 2013
VOLUME 123, NUMBER 2
Yale Law School
New Haven, Connecticut
Smashwords edition: published in 2013 by Quid Pro Books, at Smashwords.
Copyright © 2013 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher. Further information on copyright, permissions, and reprints is found at the Responses
page.
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Cataloging for Volume 123, Number 2 – November 2013:
ISBN: 978-1-61027-889-8 (ePUB)
CONTENTS
ARTICLE
Leviathan and Interpretive Revolution:
The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950
Nicholas R. Parrillo [123 YALE L.J. 266]
ESSAY
Reconsidering Citizens United as a Press Clause Case
Michael W. McConnell [123 YALE L.J. 412]
NOTE
The Mens Rea of Accomplice Liability:
Supporting Intentions
Sherif Girgis [123 YALE L.J. 460]
COMMENTS
A First Amendment Approach to Generic Drug Manufacturer Tort Liability
Connor Sullivan [123 YALE L.J. 495]
The EU General Data Protection Regulation:
Toward a Property Regime for Protecting Data Privacy
Jacob M. Victor [123 YALE L.J. 513]
About The Yale Law Journal
RESPONSES. The Yale Law Journal invites short papers responding to scholarship appearing in the Journal within the last year. Responses should be submitted to the Yale Law Journal Online at http://yalelawjournal.org/submissions.html. We cannot guarantee that submitted responses will be published. Those responses that are selected for publication will be edited with the cooperation of the author.
The Yale Law Journal is published eight times a year (monthly from October through June, excluding February) by The Yale Law Journal Company, Inc. Editorial and general offices are located in the Sterling Law Building at Yale University. POSTMASTER: Send address changes to Yale Law Journal, P.O. Box 208215, New Haven, Connecticut 06520-8215.
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PRODUCTION. Citations in the Journal conform to The Bluebook: A Uniform System of Citation (19th ed. 2010), copyright by The Columbia Law Review Association, The Harvard Law Review Association, the University of Pennsylvania Law Review, and The Yale Law Journal Company, Inc. The Journal is printed by Joe Christensen, Inc., in Lincoln, Nebraska. Periodicals postage paid at New Haven, Connecticut, and additional mailing offices. Publication number ISSN 0044-0094.
INTERNET ADDRESS. The Yale Law Journal’s homepage is located at http://www.yalelawjournal.org.
YALE LAW SCHOOL
OFFICERS OF ADMINISTRATION
Peter Salovey, A.B., M.A., Ph.D., President of the University
Benjamin Polak, B.A., M.A., Ph.D., Provost of the University
Robert C. Post, J.D., Ph.D., Dean
Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean
Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education
S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian
Megan A. Barnett, B.A., J.D., Associate Dean
Joseph M. Crosby, B.A., M.B.A., Associate Dean
Toni Hahn Davis, J.D., LL.M., Associate Dean
Mary Briese Matheron, B.S., Associate Dean
Kathleen B. Overly, J.D., Ed.D., Associate Dean
Asha Rangappa, A.B., J.D., Associate Dean
Mike K. Thompson, M.B.A., J.D., Associate Dean
FACULTY EMERITI
Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law
Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law
Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law
Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law
Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History
Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law
Geoffrey Cornell Hazard, Jr., M.A., LL.B., Sterling Professor Emeritus of Law
Quintin Johnstone, B.A., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law
Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law
Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law
John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law
Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law
Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
FACULTY
Bruce Ackerman, B.A., LL.B., Sterling Professor of Law and Political Science
Muneer I. Ahmad, A.B., J.D., Clinical Professor of Law
† Anne L. Alstott, B.A., J.D., Jacquin D. Bierman Professor in Taxation
Akhil Reed Amar, B.A., J.D., Sterling Professor of Law
Ian Ayres, J.D., Ph.D., William K. Townsend Professor of Law
Jack M. Balkin, J.D., Ph.D., Knight Professor of Constitutional Law and the First Amendment
Aharon Barak, LL.M., Dr.Jur., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)
Megan A. Barnett, B.A., J.D., Associate Dean
Seyla Benhabib, B.A., Ph.D., Professor (Adjunct) of Law (spring term)
‡ Lea Brilmayer, J.D., LL.M., Howard M. Holtzmann Professor of International Law
Richard R.W. Brooks, Ph.D., J.D., Professor (Adjunct) of Law
Robert Amsterdam Burt, M.A., J.D., Alexander M. Bickel Professor of Law (fall term)
Guido Calabresi, LL.B., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Steven G. Calabresi, B.A., J.D., Visiting Professor of Law (fall term)
Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law
Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law
Kristin A. Collins, M.A., J.D., Sidley Austin-Robert D. McLean ’70 Visiting Professor of Law
Joseph M. Crosby, B.A., M.B.A., Associate Dean
Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law
Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law
Mirjan Radovan Damaška, LL.B., Dr.Jur., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
Stephen Darwall, B.A., Ph.D., Professor (Adjunct) of Law (spring term)
Toni Hahn Davis, J.D., LL.M., Associate Dean
Drew S. Days, III, B.A., LL.B., Alfred M. Rankin Professor Emeritus of Law and Professorial Lecturer in Law
Giacinto della Cananea, Ph.D., Visiting Professor of Law (fall term)
Jan Ginter Deutsch, LL.B., Ph.D., Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law
Aaron Dhir, LL.B., LL.M., Canadian Bicentennial Visiting Professor of Law
‡ Fiona M. Doherty, B.A., J.D., Clinical Associate Professor of Law
Steven Barry Duke, J.D., LL.M., Professor of Law
Robert C. Ellickson, A.B., LL.B., Walter E. Meyer Professor of Property and Urban Law (spring term)
Edwin Donald Elliott, B.A., J.D., Professor (Adjunct) of Law
William N. Eskridge, Jr., M.A., J.D., John A. Garver Professor of Jurisprudence
* Daniel C. Esty, M.A., J.D., Hillhouse Professor of Environmental Law and Policy, School of Forestry & Environmental Studies; and Clinical Professor of Environmental Law and Policy, Law School
Owen M. Fiss, M.A., LL.B., Sterling Professor Emeritus of Law and Professorial Lecturer in Law
‡ James Forman, Jr., A.B., J.D., Clinical Professor of Law
Emmanuel Gaillard, Ph.D., Visiting Professor of Law (spring term)
Lech Garlicki, Doctorate in Legal Sciences, Habil. in Legal Sciences, Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)
Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law
Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law
† Abbe R. Gluck, B.A., J.D., Associate Professor of Law
Robert W. Gordon, A.B., J.D., Chancellor Kent Professor Emeritus of Law and Legal History
Michael J. Graetz, B.B.A., LL.B., LL.D., Justus S. Hotchkiss Professor Emeritus of Law and Professorial Lecturer in Law (fall term)
David Singh Grewal, J.D., Ph.D., Associate Professor of Law
Dieter Grimm, LL.M., Dr.Jur., Visiting Professor of Law and Peter and Patricia Gruber Fellow in Global Justice (spring term)
Henry B. Hansmann, J.D., Ph.D., Oscar M. Ruebhausen Professor of Law
Robert D. Harrison, J.D., Ph.D., Lecturer in Legal Method
† Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law
Quintin Johnstone, LL.M., J.S.D., Justus S. Hotchkiss Professor Emeritus of Law
Christine Jolls, J.D., Ph.D., Gordon Bradford Tweedy Professor of Law and Organization
‡ Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law and Professor of Psychology
Paul W. Kahn, J.D., Ph.D., Robert W. Winner Professor of Law and the Humanities
† Amy Kapczynski, M.A., J.D., Associate Professor of Law
S. Blair Kauffman, J.D., LL.M., M.L.L., Law Librarian and Professor of Law
Gregory C. Keating, J.D., Ph.D., Florence Rogatz Visiting Professor of Law (fall term)
Daniel Kevles, B.A., Ph.D., Professor (Adjunct) of Law (spring term)
Alvin Keith Klevorick, M.A., Ph.D., Deputy Dean, John Thomas Smith Professor of Law, and Professor of Economics
Jonathan Klick, Ph.D., J.D., Maurice R. Greenberg Visiting Professor of Law (fall term)
Harold Hongju Koh, A.B., J.D., Sterling Professor of International Law
† Anthony Townsend Kronman, J.D., Ph.D., Sterling Professor of Law
‡ Douglas Kysar, B.A., J.D., Joseph M. Field ’55 Professor of Law
Alexandra D. Lahav, B.A., J.D., Visiting Professor of Law (fall term)
‡ John H. Langbein, LL.B., Ph.D., Sterling Professor of Law and Legal History
Anika Singh Lemar, B.A., J.D., Visiting Clinical Associate Professor of Law
Yair Listokin, Ph.D., J.D., Professor of Law
Carroll L. Lucht, M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
Jonathan R. Macey, A.B., J.D., Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law
* Daniel Markovits, D.Phil., J.D., Guido Calabresi Professor of Law
Jerry Louis Mashaw, LL.B., Ph.D., Sterling Professor of Law (fall term)
Mary Briese Matheron, B.S., Associate Dean
Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law
Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing
Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law
Jon D. Michaels, M.A., J.D., Anne Urowsky Visiting Professor of Law
Alice Miller, B.A., J.D., Associate Professor (Adjunct) of Law (spring term)
John D. Morley, B.S., J.D., Associate Professor of Law
Angela Onwuachi-Willig, B.A., J.D., Visiting Professor of Law (spring term)
Kathleen B. Overly, B.A., J.D., Associate Dean
Andrew Papachristos, M.A., Ph.D., Associate Professor (Adjunct) of Law (fall term)
† Nicholas R. Parrillo, M.A., J.D., Associate Professor of Law
Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney
Thomas Pogge, Dipl. in Soziologie, Ph.D., Professor (Adjunct) of Law (spring term)
Robert C. Post, J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law
J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney
Claire Priest, J.D., Ph.D., Professor of Law
George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship
Asha Rangappa, A.B., J.D., Associate Dean
William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law
Judith Resnik, B.A., J.D., Arthur Liman Professor of Law
Deborah L. Rhode, B.A., J.D., Florence Rogatz Visiting Professor of Law (fall term)
Cristina Rodríguez, M.Litt., J.D., Professor of Law
Roberta Romano, M.A., J.D., Sterling Professor of Law
Carol M. Rose, J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law (fall term)
Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)
‡ Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law
Albie Sachs, Law, Ph.D., Visiting Professor of Law and Gruber Global Constitutionalism Fellow (fall term)
David Schleicher, M.Sc., J.D., Irving S. Ribicoff Visiting Associate Professor of Law (spring term)
Peter H. Schuck, M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus and Professor (Adjunct) of Law (fall term)
‡ Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law and Social Sciences
Alan Schwartz, M.A., LL.B., Sterling Professor of Law
Ian Shapiro, J.D., Ph.D., Professor (Adjunct) of Law (fall term)
Scott J. Shapiro, J.D., Ph.D., Charles F. Southmayd Professor of Law and Professor of Philosophy
Reva Siegel, M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law
† James J. Silk, M.A., J.D., Clinical Professor of Law
John G. Simon, LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law
Robert D. Sloane, Dipl., J.D., Visiting Professor of Law (spring term)
Robert A. Solomon, B.A., J.D., Clinical Professor Emeritus of Law
Kate Stith, M.P.P., J.D., Lafayette S. Foster Professor of Law
Alec Stone Sweet, M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies
Mike K. Thompson, M.B.A., J.D., Associate Dean
Tom R. Tyler, M.A., Ph.D., Macklin Fleming Professor of Law and Professor of Psychology
Patrick Weil, M.B.A., Ph.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Fellow in Law (fall term)
James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law
Ralph Karl Winter, Jr., M.A.H., LL.B., Professor (Adjunct) of Law (spring term)
Michael J. Wishnie, B.A., J.D., Deputy Dean for Experiential Education, William O. Douglas Clinical Professor of Law, and Director, Jerome N. Frank Legal Services Organization
John Fabian Witt, J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law
Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law
Gideon Yaffe, A.B., Ph.D., Professor of Law and Professor of Philosophy
Noah D. Zatz, M.A., J.D., Florence Rogatz Visiting Professor of Law
Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law
Peer Zumbansen, LL.M., Ph.D., Visiting Professor of Law (spring term)
* On leave of absence, 2013–2014.
† On leave of absence, fall term, 2013.
‡ On leave of absence, spring term, 2014.
LECTURERS IN LAW
Emily Bazelon, B.A., J.D.
Gregg Gonsalves, B.S.
Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law
Lucas Guttentag, A.B., J.D.
Su Lin Han, M.A., J.D.
Jamie P. Horsley, M.A., J.D.
Margot E. Kaminski, B.A., J.D.
Hope R. Metcalf, B.A., J.D.
James E. Ponet, M.A., D.D.
Yael Shavit, B.A., J.D.
Robert D. Williams, B.A., J.D.
VISITING LECTURERS IN LAW
Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)
Yas Banifatemi, Ph.D., LL.M.
Richard Baxter, M.A., J.D., John R. Raben/Sullivan & Cromwell Visiting Lecturer in Accounting
Stephen B. Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law
Lincoln Caplan, A.B., J.D.
Susan L. Carney, B.A., J.D.
Robert N. Chatigny, A.B., J.D.
Timothy C. Collins, B.A., M.B.A.
Victoria A. Cundiff, B.A., J.D.
Brian T. Daly, M.A., J.D.
Karl (Tom) Dannenbaum, M.A., J.D.
Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law
Gregory Fleming, B.A., J.D.
Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law
Stephen Fraidin, A.B., LL.B.
Peter T. Grossi, Jr., M.A., J.D.
Benjamin W. Heineman, Jr., B.Litt., J.D.
Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow
Andrew J. Pincus, B.A., J.D.
Megan Quattlebaum, B.A., J.D.
Eric S. Robinson, M.B.A., J.D.
Charles A. Rothfeld, A.B., J.D.
Sarah Russell, B.A., J.D.
John M. Samuels, J.D., LL.M.
Paul Schwaber, M.A., Ph.D.
Michael S. Solender, B.A., J.D.
Sidney H. Stein, A.B., J.D.
Stefan R. Underhill, B.A., J.D.
John M. Walker, Jr., B.A., J.D.
Ashbel T. Wall II, B.A., J.D.
Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950
NICHOLAS R. PARRILLO
[cite as 123 YALE L.J. 266 (2013)]
ABSTRACT. 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.
AUTHOR. Associate Professor of Law, Yale Law School. For valuable conversations about the project, I thank Bruce Ackerman, Ian Ayres, James Q. Barrett, Joseph Blocher, James Brudney, Aaron-Andrew Bruhl, Josh Chafetz, Robert Ellickson, Daniel Ernst, William Eskridge, Heather Gerken, Abbe Gluck, Bob Gordon, Oona Hathaway, Daniel Ho, Christine Jolls, Dan Kahan, John Langbein, Robert Lieberman, Yair Listokin, John Manning, David Marcus, Jerry Mashaw, Tracey Meares, Thomas Merrill, Robert Post, Edward Purcell, Cristina Rodríguez, Susan Rose-Ackerman, Ted Ruger, Reuel Schiller, Alan Schwartz, Peter Strauss, Adrian Vermeule, Jim Whitman, and John Witt; and audiences for talks at Duke, Stanford, Yale, and the annual meeting of the American Society for Legal History. The quantitative aspect of the project was made possible by the work of several excellent and dedicated research assistants: Allyson Bennett, Glenn Bridgman, Halley Epstein, Miles Farmer, Andrew Hammond, Tian Huang, Steven Kochevar, Stephen Petrany, Emily Rock, Clare Ryan, and Karun Tilak. For aid in obtaining sources, I thank the staffs of the Yale Law Library (particularly Sarah Kraus), the Harvard Law Library, the Columbia University Center for Oral History, the Library of Congress, the Franklin D. Roosevelt Presidential Library, the Harry S. Truman Presidential Library, the Margaret I. King Library at the University of Kentucky, the William L. Clements Library at the University of Michigan, and the National Archives; and Kim Dixon, Karen Needles, Doug Norwood, and Susan Strange. Glenn Bridgman generously shared data with me from his own research project. Alex Hemmer and his fellow members of the Yale Law Journal performed valuable work in editing and publishing the piece. I am grateful to Yale Law School for financial support. All errors are my own.
All data produced for this project is available online at the Yale Law Journal’s website (http://www.yalelawjournal.org).
INTRODUCTION
When a legislature enacts a statute, it leaves behind a history: the revisions that lawmakers made to the bill, the things they said about it during committee deliberations and floor debates, and the public input they officially received on it from experts and other witnesses. Should a court, when interpreting the act, consider that history?
For a generation, the field of American statutory interpretation has burned with controversy over this question. The controversy is a novelty of the last twenty-five years. In the 1980s, legislative history was uncontroversial and very common. It appeared in more than half the U.S. Supreme Court’s opinions on federal statutes.¹ In the high courts of leading states like New York, it likewise appeared frequently.² Using this material meant that judges were accustomed to engaging actively and openly with legislators’ discourse and policy reasoning. Beginning in the late 1980s, however, a movement of judges and lawyers—led by Antonin Scalia—began to argue that this familiar interpretive resource was pernicious and should be banished from the judicial system. They urged a textualist method of statutory interpretation that would ignore an act’s legislative history and focus more narrowly on its words. The legislative history of an act, warned Scalia and his allies, was a devil’s playground: it contained such a huge number of assertions about the act’s meaning, and those assertions were so contradictory and so easily inserted by manipulative politicians or lobbyists, that willful judges could always find support for whatever personal preferences they wished to impose. Adherence to the ordinary meaning of the text—the words on which lawmakers formally voted according to constitutional procedures—would do better at keeping judges accountable to the democratic will. Critics responded that Scalia was a false prophet. His method, they said, would not deliver the determinacy he promised, for text was often ambiguous (or became ambiguous when overtaken by events unforeseen by lawmakers), so textualist judges could just as easily impose their preferences, and all the more insidiously, since they would do so under the apolitical cloak of ordinary meaning.
Besides, added the critics, legislation was meaningless without reference to policy, and what better source for understanding a statute’s policy than legislative history?³
Whichever side is right, there is no doubt that judicial practice has moved dramatically in Scalia’s direction (even if his colleagues have not formally converted to his principle of complete exclusion). The proportion of U.S. Supreme Court opinions citing legislative history in statutory cases has fallen by more than half since the 1980s.⁴ The number of citations per statutory case has fallen even more steeply.⁵ At the state level—where legislatures have recently begun publishing legislative history far more extensively than in the past—courts have drawn upon textualist ideas to limit the new material’s use.⁶ Even leading defenders of legislative history concede parts of the textualist critique and look back with some embarrassment on how freely and easily the federal courts used such material twenty-five years ago.⁷ [M]any contemporary courts,
when they do cite legislative history, seem to apologize
for doing so.⁸
We are living through what appears to be an interpretive revolution. But we do not fully understand what (for better or worse) we are losing by it. That is because we do not have an adequate account of how and why judicial reliance upon legislative history—the once-dominant method that is now under attack—came to dominance in the first place. Further, an account of legislative history’s rise would provide us with a better understanding of how interpretive revolutions happen, which may be useful knowledge for those who want to consummate the present revolution and for those who want to prevent its consummation. The task of this Article is to provide that account.
To be sure, we do have a partial sense of the story, in some of its general outlines. Originally, English and American judges cited no legislative history, for none was available. In the early modern era, the English Houses of Parliament not only refrained from recording or publishing their debates but actually prohibited their publication, for the members feared the scrutiny of the crown and viewed themselves as an elite body that should be insulated from immediate popular pressure.⁹ With no tradition of legislative openness in the mother country, the American colonial assemblies also did not publish their deliberations.¹⁰
Eventually, however, English and American judges did have to confront the question of whether to use legislative history, for as both societies became more democratic, such material came to be published copiously. In 1771, Parliament began permitting publication of its debates, and by the mid-1800s, the famous Hansard company received public subsidies to publish them in great detail.¹¹ In the United States, Congress published its journal (a skeletal procedural record)¹² from 1789 onward and soon began allowing private printers to publish its floor debates. These early reports were sometimes incomplete, irregular, and even biased, but this changed in 1850 when the Congressional Globe became semi-official, publishing a complete and timely verbatim transcript, supported by a congressional subsidy.¹³ Eventually Congress started doing the same thing itself, establishing the in-house Congressional Record in 1873.¹⁴ The Record of the 46th Congress (1879-81) ran to 10,000 pages; of the 56th (1899-1901), to 10,000 again; of the 66th (1919-21), to 22,000; and of the 76th (1939-41), to 38,000. Meanwhile, Congress’s committees began publishing reports on all the public bills they sent to the floor. The House made such reports mandatory in 1880, and Senate committees were issuing them on the majority of bills by about 1900.¹⁵ These committee reports, combined with informative documents that committees ordered printed, made up a Serial Set
that totaled 2,000 volumes by 1880, added another 2,000 by 1900, another 4,000 by 1920, and another 2,500 by 1940. And shortly after 1900, the committees began frequently publishing their hearings: the annual number stood at about 100 in 1900 and jumped into the range of 500-650 per year for 1910, 1920, 1930, and 1940.¹⁶ (The penchant for publishing did not extend to the state legislatures: even in the 1940s, almost none of them had ever recorded their floor debates or committee hearings, or issued substantive reports of standing committees.¹⁷)
Thus, English courts and U.S. federal courts had to decide whether to use the legislative history that was proliferating. The English judges shut their eyes to it. They had imposed an exclusionary rule in the era before 1771, when publication of parliamentary deliberations had been illegal, and they maintained that rule even as reports of the debates became lawful and available.¹⁸ American judges and treatise-writers followed the English rule from the late 1700s through the mid-1800s.¹⁹ Then, in the 1870s and 1880s, U.S. federal judges in a handful of cases made small, incremental departures from the rule. Next, in 1892, the U.S. Supreme Court in Church of the Holy Trinity v. United States²⁰ relied upon committee reports (among other interpretive tools) to override what it admitted to be the literal meaning of an act of Congress.²¹ Holy Trinity would become the leading case for a new American rule that legislative history was permissible in statutory interpretation.²² Meanwhile, English judges—plus those of Commonwealth countries like Canada and Australia—held fast to the exclusionary rule. They relaxed it only in the 1980s or later, and even now, they do not use legislative history as much as American courts.²³
So much we know. What we lack is an account of how legislative history went from being a permissible tool of American statutory interpretation to being the normal, routine, and expected tool that it had become by the time of Scalia’s attack. One might assume that, in an adversary system, permissibility automatically leads to normalization. That is, once the judiciary says it will consider a certain kind of source, lawyers will instantly compete with each other to cite ever more of that source. But nobody has proven that assumption with respect to legislative history. And it may well be wrong. The opinion in Holy Trinity itself did not consciously reject the English rule; it simply ignored it without comment. And, as some leading present-day scholars point out, legislative history is more (perhaps far more) difficult and costly for lawyers to research than other legal sources, such as case law and statutory text.²⁴ Given the offhand quality of Holy Trinity and the headaches of using the source it made permissible, we must ask: why did this case become a landmark—a license for a method that has cost millions of billable hours—instead of being forgotten as an obscurity?
What we need is an account of legislative history’s rise as a matter of practical, workaday lawyering and opinion-writing. Or, to speak in more academic terms, we need an institutional account. Who were the lawyers and judges who started the pattern of routinely using a source often considered intractable? How did they manage to do it? What drove them?
The existing literature does not answer this question, though it does provide some valuable background and a few pieces of the puzzle. There has been major work on the intellectual history (as distinct from the institutional history) of judicial use of legislative materials. This work focuses on leading cases, treatises, and law review articles from the first half of the 1900s. It shows how the federal judiciary widened the scope of permissibility on an incremental basis, to include more categories of legislative documents, and it traces changes in high theory about the value of legislative history in interpretive thinking.²⁵ These intellectual developments play a role in the institutional story that I tell below.
In addition, there have been several quantitative studies of legislative history usage, though mostly confined to the period from the 1950s to the present.²⁶ One of the most careful of these studies finds that the percentage of Supreme Court statutory opinions using legislative history rose between the 1950s and 1980s and plummeted thereafter. Crucially, the level in the 1950s was substantially higher than it is today.²⁷ Thus, our threshold question is how the Court even got to the level of the 1950s. By then, legislative history had already become normal. (Indeed, the first edition of a standard manual on appellate advocacy in 1950 said that an advocate in the federal courts . . . cannot afford to ignore legislative history
and should routinely check
it.²⁸)
There have been four quantitative studies of U.S. Supreme Court citations that reach back into the pre-1950 era and include legislative history.²⁹ Taken together, these studies suggest a surge—perhaps a radical one—in the Court’s usage sometime in the 1930s or 1940s. But they do not allow us to state the point with confidence or precision. All four have major limitations in method or scope: two fail to control for the number of statutory cases,³⁰ a third draws cases from only four years within the whole period 1925-50,³¹ and the fourth focuses exclusively on tax law.³² Also, only one of the four studies focuses mainly on legislative history, and only one (not the same one) focuses mainly on the pre-1950 period, so none of the four pay much attention to the pre-1950 shift toward legislative history that seems to appear in their datasets.³³ Further, all four studies focus mainly on the Court’s opinions, saying little to nothing about the role of lawyers in bringing this hard-to-use source to the fore.³⁴ A satisfying institutional account demands more work.
I begin that work in Part I, setting forth quantitative data on Supreme Court use of legislative history in every fifth year from 1900 to 1950, including (1) the number of cites per statutory case and (2) the proportion of statutory cases with any cites. The first metric is low through 1935, then suddenly increases four-fold in 1940, entering a range that becomes the new normal
through 1950. Similarly, the second metric creeps up to 20% by 1935 but then more than doubles (to 44%) in 1940, again entering a range that becomes the new normal
(and is comparable to the data from prior studies on the 1950s). In other words, the use of legislative history became normalized very suddenly, sometime in 1935-40. I then present comparable