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STATUTORY INTERPRETATION AND THE USES OF

LEGISLATIVE HISTORY

33-653

HEARING

BEFORE THE

SUBCOMMITTEE ON

COURTS, INTELLECTUAL PROPERTY,
AND THE ADMINISTRATION OF JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

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
WASHINGTON 1990

For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402

43 395ST

XL

09/97

1031

53-005-00 GBC

COMMITTEE ON THE JUDICIARY

JACK BROOKS, Texas, Chairman

ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
JOHN CONYERS, JR., Michigan
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
PATRICIA SCHROEDER, Colorado
DAN GLICKMAN, Kansas

BARNEY FRANK, Massachusetts
GEO. W. CROCKETT, JR., Michigan
CHARLES E. SCHUMER, New York
BRUCE A. MORRISON, Connecticut
EDWARD F. FEIGHAN, Ohio
LAWRENCE J. SMITH, Florida
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia

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
CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois

F. JAMES SENSENBRENNER, JR.,
Wisconsin

BILL MCCOLLUM, Florida

GEORGE W. GEKAS, Pennsylvania
MICHAEL DEWINE, Ohio

WILLIAM E. DANNEMEYER, California
HOWARD COBLE, North Carolina

D. FRENCH SLAUGHTER, JR., Virginia
LAMAR S. SMITH, Texas

CHUCK DOUGLAS, New Hampshire
CRAIG T. JAMES, Florida

TOM CAMPBELL, California

WILLIAM M. JONES, General Counsel
ROBERT H. BRINK, Deputy General Counsel
ALAN F. COFFEY, JR., Minority Chief 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
JOHN BRYANT, Texas

RICK BOUCHER, Virginia

GEORGE E. SANGMEISTER, Illinois
WILLIAM J. HUGHES, New Jersey
MIKE SYNAR, Oklahoma
MEL LEVINE, California

CARLOS J. MOORHEAD, California
HENRY J. HYDE, Illinois

HOWARD COBLE, North Carolina

D. FRENCH SLAUGHTER JR., Virginia
HAMILTON FISH, JR., New York
F. JAMES SENSENBRENNER, JR.,
Wisconsin

MICHAEL J. REMINGTON, Chief Counsel

VIRGINIA E. SLOAN, Counsel
CHARLES G. GEYH, Counsel

ELIZABETH R. FINE, Counsel

THOMAS E. MOONEY, Minority Counsel
JOSEPH V. WOLFE, Minority Counsel

April 19, 1990..

CONTENTS

HEARING DATE

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Ross, Stephen F., associate professor, University of Illinois Law School: Pre-
pared statement...

97

Wald, Patricia M., Chief Judge, U.S. Court of Appeals for the District of
Columbia Circuit: Prepared statement.

8

Appendix 2.-Additional statements, reports, and articles.

Thomas M. Boyd, Director, Office of Policy Development, Department of
Justice: Prepared statement..

Burger, Breger, Starr, and Mikva, "The Role of Legislative History in
Judicial Interpretation: A Discussion Between Judge Kenneth W. Starr
and Judge Abner J. Mikva," 1987 Duke L.J. 361-86 (1987)...
Costello, "Sources of Legislative History as Aids to Statutory Construc-
tion," Cong. Res. Service (1989)...

Farber, "Debating Congress's Intent in the Age of Statutes,” Trial (De-
cember 1989).

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,

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