The Need for Conditions Limiting the Use of Legislative History in Statutory Interpretation: Lessons from the British Courts
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THE NEED FOR CONDITIONS LIMITING THE USE
OF LEGISLATIVE HISTORY IN STATUTORY
INTERPRETATION: LESSONS FROM THE
BRITISH COURTS
SYLVIA COSTELLOE*
I. INTRODUCTION
A. The Place of Legislative Histoty Within the Debate
on Statutoty Interpretation
Statutory interpretation is of crucial importance for both lawyers
and judges.1 A notably fertile source of debate is the use of legislative
history for purposes of statutory interpretation, which gained particular
momentum in the past century.2 Proponents of the use of legislative
history in statutory interpretation argue that it is a valuable tool for
interpreting ambiguous statutes.3 On the other hand, opponents such
as Justice Scalia have argued that the only law that should govern is that
which has been passed by a majority of the House and the Senate.4 The
debate among American judges and scholars has largely centered
around whether or not the courts should be allowed recourse to the
legislative record at all,5 though it has been suggested that we develop a
more nuanced approach to the issue.6 In order to foster debate stir-
* J.D., Notre Dame Law School. The author would like to thank Professor Anthony
J. Bellia for his helpful comments on this Note.
1. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW
14 (Amy Gutmann et al. eds., 6th ed. 1998) (noting that [T] he subject of statutory inter-
pretation deserves study and attention in its own right, as the principal business ofjudges
and (hence) lawyers.).
2. Id. at 30.
3. SeeJames M. Landis, A Note on Statutory Interpretation, 43 HARV. L. Ruv. 886, 889
(1930) (Legislative history similarly affords in many instances accurate and compelling
guides to legislative meaning. Successive drafts of the same act do not simply succeed
each other as isolated phenomena, but the substitution of one for another necessarily
involves an element of choice often leaving little doubt as to the reasons governing such a
choice.).
4. Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) (quoting
Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1844)) (emphasis omitted) (We are gov-
erned by laws, not by the intentions of legislators .... The law as it passed is the will of the
majority of both houses, and the only mode in which that will is spoken is in the act
itself.' ).
5. See SCALIA, supra note 1, at 29-30 (My view that the objective indication of the
words, rather than the intent of the legislature, is what constitutes the law leads me, of
course, to the conclusion that legislative history should not be used as an authoritative
indication of a statute's meaning.).
6. JamesJ. Brudney, Below The Surface: Comparing Legislative History Usage by the House
of Lords and the Supreme Court, 85 WASH. U. L. REv. 1, 71 (2007) (arguing that we should
become more attentive to the nuances of positive reliance on legislative history, rather
than simply continuing to debate the merits of its wholesale exclusion).](ViewImageLocal?handle=hein.journals/ndlep29&div=11&collection=&method=preview&ext=.png&size=3)
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The Need for Conditions Limiting the Use of Legislative History in Statutory Interpretation: Lessons from the British Courts
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