Victoria Nourse: Legislative History by the Rules
Victoria F. Nourse (Georgetown Law Center) has posted A Decision Theory of Statutory Interpretation: Legislative History by the Rules (Yale Law Journal, vol. 122, pp. 70-152 (2012)) on SSRN. Here is the abstract:
We have a law of civil procedure, criminal procedure, and administrative procedure, but we have no law of legislative procedure. This failure has serious consequences in the field of statutory interpretation. Using simple rules garnered from Congress itself, this Article argues that those rules are capable of transforming the field of statutory interpretation. Addressing canonical cases in the field, from Holy Trinity to Bock Laundry, from Weber to Public Citizen, this article shows how cases studied by vast numbers of law students are made substantially more manageable, and in some cases quite simple, through knowledge of congressional procedure. No longer need legislative history always be a search for one’s friends.
Call this a decision theory of statutory interpretation. This approach is based on how Congress does in fact make decisions and thus is a positive theory. Normatively, it has the advantage of privileging text without blinding judges either to relevant information or to their duty to implement Congress’s decisions, including Congress’s own decisionmaking methods. It may also have the side benefit of reducing legislative incentives to manipulate the rules or to engage in strategic behavior to induce particular statutory interpretations.
UPDATE: Larry Solum (Legal Theory Blog) says: "This is an important paper. Highly recommended. Download it while it's hot!"