Preliminary Considerations

Preliminary Considerations

A. The Materials of a Legislative History

The American legislative process consists of a complex system of specific steps through which a proposed bill must travel on its way to becoming a law. At each stage of this process, various documents, transcripts, and other materials are created that may be used later as guides to understanding the reasoning and rationale behind the creation of a law, or to persuade others of what the true meaning of a law is. Hearing transcripts, committee reports, conference reports, prints, legislative debate, presidential signing or veto messages, and the various versions of the bill itself may all be used in assessing the bill in its final form.

The various materials discussing a particular bill or law have differing values as persuasive sources. Individuals’ comments in legislative debate and in testimony given at hearings, which is the opinion of only one legislator, expert, or witness, is less persuasive than a committee report, which is the work of a group of Senators or Representatives that have carefully studied the bill. Likewise, a committee report is less persuasive than a conference report, which represents the work of members of both bodies and comes at a later stage in the progression of the bill in becoming a law. Presidential signing or veto messages, issued after the bill has been passed by Congress, may also give some insight into the intended purposes and/or effects of the bill, but may be less persuasive as they represent only the executive’s interpretation of the legislature’s work, and not the work of the legislature itself. None of these materials actually is “the law,” but they are clues as to the intended purposes of the law itself.

B. Why Research Legislative History

There are two main purposes for doing a legislative history. The first is an academic purpose. This would include writing law review articles or other scholarly publications. In this case, the researcher most likely will want to be as thorough as possible, searching through all possible sources of information to locate every reference to the particular bill that is in the record. In this way, a complete history of the bill can be developed, noting all of the various permutations that the bill went through on its way to becoming a law, and thus shedding light upon the intended scope and effect of the law itself.

The other reason for doing a legislative history is for purposes of persuading a judge that a particular law should be interpreted or applied in a certain manner. Since legislative history materials are not “the law” and are not binding authority, the attorney will have to choose her materials carefully, and present to the judge only those materials that have the most persuasive weight, such as a conference report. In this instance, hearing testimony and floor debate may not be as useful to the researcher as they would be if she were preparing an academic paper.

Because of the different reasons for doing a legislative history, the research process will vary. Someone who is looking for materials to persuade a judge may stop earlier in the process than someone who wishes to do a comprehensive legislative history. This guide will describe the materials that may be used to do a more complete legislative history, but should also be useful to the practitioner researcher, who may be able to stop researching after locating the materials in the U.S. Code Congressional and Administrative News (USCCAN) (described under Materials). If these materials are not sufficient, the practitioner may wish to continue her research using CIS and other sources (described elsewhere).

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