STATUTORY INTERPRETATION AND THE USES OF LEGISLATIVE HISTORY 33-653 HEARING BEFORE THE SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, OF THE COMMITTEE ON THE JUDICIARY ONE HUNDRED FIRST CONGRESS SECOND SESSION APRIL 19, 1990 Serial No. 107 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE For sale by the Superintendent of Documents, Congressional Sales Office 43 395ST XL 09/97 1031 53-005-00 GBC COMMITTEE ON THE JUDICIARY JACK BROOKS, Texas, Chairman ROBERT W. KASTENMEIER, Wisconsin BARNEY FRANK, Massachusetts HARLEY O. STAGGERS, JR., West Virginia JOHN BRYANT, Texas MEL LEVINE, California GEORGE E. SANGMEISTER, Illinois CRAIG A. WASHINGTON, Texas HAMILTON FISH, JR., New York F. JAMES SENSENBRENNER, JR., BILL MCCOLLUM, Florida GEORGE W. GEKAS, Pennsylvania WILLIAM E. DANNEMEYER, California D. FRENCH SLAUGHTER, JR., Virginia CHUCK DOUGLAS, New Hampshire TOM CAMPBELL, California WILLIAM M. JONES, General Counsel SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE ADMINISTRATION OF JUSTICE ROBERT W. KASTENMEIER, Wisconsin, Chairman GEO. W. CROCKETT, JR., Michigan HOWARD L. BERMAN, California RICK BOUCHER, Virginia GEORGE E. SANGMEISTER, Illinois CARLOS J. MOORHEAD, California HOWARD COBLE, North Carolina D. FRENCH SLAUGHTER JR., Virginia MICHAEL J. REMINGTON, Chief Counsel VIRGINIA E. SLOAN, Counsel ELIZABETH R. FINE, Counsel THOMAS E. MOONEY, Minority Counsel April 19, 1990.. CONTENTS HEARING DATE Kastenmeier, Hon. Robert W., a Representative in Congress from the State of Wisconsin, and chairman, Subcommittee on Courts, Intellectual Property, Breyer, Stephen, Chief Judge, U.S. Court of Appeals for the First Circuit........ Buckley, James L., judge, U.S. Court of Appeals for the District of Columbia Eskridge, William N., Jr., professor of law, Georgetown University Law Katzmann, Robert A., president, the Governance Institute, and visiting fellow, the Brookings Institution Ross, Stephen F., associate professor, University of Illinois Law School. Wald, Patricia M., Chief Judge, U.S. Court of Appeals for the District of LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING Breyer, Stephen, Chief Judge, U.S. Court of Appeals for the First Circuit: Buckley, James L., judge, U.S. Court of Appeals for the District of Columbia Eskridge, William N., Jr., professor of law, Georgetown University Law Ross, Stephen F., associate professor, University of Illinois Law School: Pre- 97 Wald, Patricia M., Chief Judge, U.S. Court of Appeals for the District of 8 "The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-89 Term of the U.S. Supreme Court," 39 Am. Appendix 2.-Additional statements, reports, and articles. Thomas M. Boyd, Director, Office of Policy Development, Department of Burger, Breger, Starr, and Mikva, "The Role of Legislative History in Farber, "Debating Congress's Intent in the Age of Statutes,” Trial (De- Page 339 339 342 368 387 "Scalia Takes a Narrow View In Seeking Congress' Will," Cong. Q. (March 24, 1990).... "Using and Misusing Legislative History: A Re-Evaluation of the Status of Legislative History in Statutory Interpretation," Department of Justice Report to the Attorney General (1989). 390 523 Taylor, "Deciphering Congressional Code," Legal Times, October 16, 1989, at 23, col. 2... 531 STATUTORY INTERPRETATION AND THE USES OF LEGISLATIVE HISTORY THURSDAY, APRIL 19, 1990 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE ADMINISTRATION OF JUSTICE, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met, pursuant to notice, at 10:05 a.m., in room 2237, Rayburn House Office Building, Hon. Robert W. Kastenmeier (chairman of the subcommittee) presiding. Present: Representatives Robert W. Kastenmeier, Carlos J. Moorhead, and Howard Coble. Also present: Michael J. Remington, chief counsel; Charles G. Geyh, counsel; Veronica L. Eligan, clerk; and Joseph V. Wolfe, minority counsel. OPENING STATEMENT OF CHAIRMAN KASTENMEIER Mr. KASTENMEIER. The meeting will come to order. This morning's hearing concerns an important, intriguing and yet ironically, a long ignored issue: How the Federal courts interpret acts of Congress. In a perfect world, the legislation we pass would always be clear and unambiguous, leaving to the courts the relatively simple task of applying, on a case-by-case basis, the unobscured will of Congress as embodied in the U.S. Code. Needless to say, ours is not a perfect world. Frequently, legislation contains omissions, some intentional and some not. Occasionally, legislation is marred by typographical errors. All too often, legislative language is ambiguous, either because it was inartfully drafted or because at the time it was drafted, Congress did not or could not anticipate the complete range of circumstances to which the statute would be applied. Under such circumstances, the question that arises is: How is the statute to be construed to best effectuate the will of Congress? Traditionally, the courts have looked first to the text of the statute, but have not felt constrained to stop there. In an effort to ensure that their interpretation of the text is consistent with the intent of Congress, courts have routinely looked beyond the text itself to a variety of additional sources, including committee reports, floor debates, conference reports, hearings and mark-up records. The wisdom of referring to sources of information outside of the legislative language in an effort to better divine legislative intent, |