Law Without History?

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Charles Ommanney/Contact Press Images
Supreme Court Justices Antonin Scalia, Ruth Bader Ginsburg, and John Paul Stevens, 2005

Robert Katzmann, who is now the chief judge of the United States Court of Appeals for the Second Circuit, has been a federal judge for over fifteen years. In his prior academic career at Georgetown Law School he studied the legislative process and engaged in projects intended to improve the relationship between Congress and the federal judiciary. He regards those two branches of government as partners, rather than rivals, in performing their constitutional roles.

His new book, Judging Statutes, explains why it is appropriate to seek to understand the intent of Congress when confronted with vague or ambiguous statutory provisions. He disagrees with Justice Antonin Scalia and the so-called textualists who would not allow judges to look at any legislative history when confronted with statutory questions. In their view all legislative history is equally irrelevant. Katzmann endorses Chief Justice John Roberts’s statement that

all legislative history is not created equal. There’s a difference between the weight that you give a conference report and the weight you give to a statement of one legislator on the floor.

In the introduction to his book Katzmann notes “the simple reality” that an enormous increase in the number of new statutes has led to a corresponding increase in the number of judicial decisions in which federal courts are called upon to interpret them as they apply in one situation or another. Now a substantial majority of the Supreme Court’s caseload involves statutory construction. And of course the work of lower federal court judges, administrative agencies, and practicing lawyers increasingly involves the interpretation of federal statutes. His topic is unquestionably important, and he has shed new light on the ongoing debate between “purposivists” and “textualists.”

A few statistics illustrate how enormous the increase in congressional activity has been. Volume 1 of the Statutes at Large, which comprise the official text of the laws enacted by Congress, contains a total of 755 pages. Those pages include all of the legislation enacted by the 1st, 2nd, 3rd, 4th, and 5th Congresses during the first decade after the Constitution’s ratification. The laws enacted by just one Congress (the 82nd) in 1951 and 1952, while I was serving on the staff of a House subcommittee, fill two volumes containing over 2,200 pages. And there are over eight thousand pages in the seven books containing the laws enacted by the 111th Congress in 2009 and 2010.

To produce the laws that were actually enacted, Congress has spent more days in session and the sessions have become longer. Moreover, those laws represent only a small fraction of the number of bills that were introduced and voted upon in both the House and the Senate. And of special relevance, the time a member spends in session may be far less productive than…


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