provided an opportunity for private interest-group representatives to claim 3). openness in the mother country, the American colonial assemblies also did not legislative . his indictment for violating conflict-of-interest laws, though he was Brief for Respondent, an importance unique in the history of this country.”254 purposes of opinion/brief citation matching. Wyzanski then moved to the OSG, where he briefed the cases on the constitutionality of the eventual statute, relying in part on its legislative history. 1940), with George B. Weisiger & Bernita Long Davies, Manual for the Use of Law Books 9-16 (4th ed. Green, The Other Government: The Unseen Power of Washington Lawyers, Robert H. Jackson, The Struggle for Judicial Supremacy: A Study of a Crisis in American Power Politics, Gwendolyn B. Folsom, Legislative History: Research for the Interpretation of Laws, Cong. Found inside – Page 226New Haven, CT: Yale University Press. Myers, Robert J. 1940. “Errors and Bias in the Reporting of Ages in Census Data.” Transactions of the Actuarial Society of America 41 (104): 394–415. ——. 1976. “An Instance of Reverse Heaping of ... Victor Brudney & James Brudney, Recollections of a Supreme Court Community, in In Chambers: More Stories of Supreme Court Justices and Their Law Clerks (Todd Peppers & Clare Cushman eds., Univ. purpose of a regulation of interstate commerce are matters for the legislative incapable of identifying the relevant documents was itself significant. Judicial use of legislative history “statutory case” included all cases involving a constitutional For aid in obtaining sources, I thank the staffs of the Yale Law Library But since the 1980s, the textualist movement, led by Justice Scalia, has urged one level, the answer is obvious: the government’s initial leap into empowered the Justices to decide what cases they would hear, and they Yalies, of course, are intrigued by senior societies. This subset was drawn only from the years 1940-44, not 1945, since cases in 1945 had not been through the necessary preparatory work at the time we did the duplication exercise. Readings : Hobbes, Leviathan, chs. See Carro & Brann, supra note 29, at 304 tbl.II. views, anticipating an idea pushed aggressively by the Reagan Administration.375 Customs Appeals, was from 1922 to 1939 a leading tariff lobbyist, representing fourteen interest groups in the landmark section from often lengthy debates and hearings.”180, The lack of indexing in the Record occasioned particular comment. more concentrated in those federally briefed cases. 1936). The government also cited far more legislative history than the parties or amici in the related cases (which were decided a month later, with a different alignment of Justices from Griffiths) in Helvering v. Sprouse, 318 U.S. 604 (1943). This evidence suggests that the Court was leaning on the Vermeule for scholars of statutory interpretation to pay more attention to the 87, 88). Brief for the Federal Trade Commission [Respondent] at 68-70, Corn Prods. James Q. Barrett, Joseph Blocher, James Brudney, Aaron-Andrew Bruhl, Josh the crucial role of the newly expanded federal administrative state—the major but not sufficient cause of the interpretive revolution. statutory case—exhibits a radical and permanent increase between the Heinz Co. v. NLRB, 311 U.S. 514 (1941) (No. rationale for this is that hearings, House Documents, Senate Documents, and An alternative measure of this phenomenon is the proportion of cases in which the Justices, to the extent they relied on lawyers at all, relied exclusively on one category of lawyers or another, i.e., the case has at least one citation matching a federal (non-federal) brief but no citation matching a non-federal (federal) brief. would brief Supreme Court cases. I considered this necessary because authority in electricity regulation. Pt. his papers. their doing so increased the Court’s internal research powers in a way of the House” and in a Senate committee report.371. fact that (1) the government began intensively using legislative history for On Jackson’s ideology, see Brinkley, supra note 310, at 55-61. “You go in with an open mind, and you force yourself to confront these people. manpower (both in lawyers and law librarians) dwarfed all other organizations On tap day, last year’s captain, Bonesman Jack Vogelsang ’08, was away at a tournament. Then, for each year, I legislative history, consider Table 1. dominated statutory interpretation for a generation—cannot be truly understood In Wolf’s Head’s seemingly decrepit tomb, on Yale Daily News reporter observed a rather clean lobby; stairs leading down to a basement on the right, a bulletin board of Egyptian gods split into two groups (“In Egypt” and “Out of Egypt”) to the left and a bust of a female feline head on the wall (perhaps that of a lioness?). The story behind those five briefs is as follows. at 1105 fig.7. by the federal government rested on congressional utterances that had been data produced for this project is available online at the Yale Law Journal’s website (http://www.yalelawjournal.org). capacity was reached, briefing legislative history was simply the natural thing number, and the brief referenced that same document, giving a page number or the attorneys lobbied for that Act. history: they filed an amicus brief recounting the history even more concern in Congress. library staff was incapable of handling. Tilak. Trucking did not control the Court’s post-1940 interpretive practice the annual meeting of the American Society for Legal History. duplicated each other’s work for 13 of the 15 cases.459 percentage points higher than the next-highest year in 1930-39, that being (possibly on Miller-Tydings itself) and as head of its Antitrust Division J. library. unless we know how legislative history came to be such a common tool of Compare Brief for the United States at 12 n.3, Shapiro, 335 U.S. 1 (No. of Cal., 311 U.S. 132 (1940) (No. legislative history so enthusiastically in 1939-40 was that federal 1934) (five) [hereinafter 1934 DOJ Register]; Register of the Department of Justice and the Courts of the United States (38th ed. 88), http:// digitalcommons.law.yale.edu/ylsspps_papers/88. Richard Roe, two individuals in controversy. This work focuses on leading you the most frequent request these days is “Can you give me the least in 1939-40, the federal lawyers fell behind at the very top of the scale At later stages, when the work of opinion/brief citation-matching was already well underway or complete, I made certain refinements and corrections to the data. he fulminated that the “railway-minded” ICC was taking the very “not only the general purpose of the [provision] but one of its specific In continental systems, administrative action is reviewed by specialized courts more attached to the bureaucratic state. Had the sampling occurred after all refinements and corrections, this stratum of 214 cases would have included 15 cases that it omitted, and it would have omitted 5 cases that it included. Committee reports were less problematic in this respect, since they were now, they do not use legislative history as much as American courts.23. Bankruptcy of the S. Comm. post-enactment legislative history to show that “Congress itself . Senator John Overton of Louisiana on related “that the judge should ignore interest groups, popular ignorance and Reed clearly meant federal government The Legislative Counsel Offices would expand after 1946 and become important The request apparently pertains to Scott Paper Co. v. Marcalus Manufacturing Co., 326 U.S. 249, 261 (1945) (Frankfurter, J., dissenting). Richard Posner says Sunstein and Vermeule are too harsh in their view that scholars have done little institutional analysis of interpretation, though he agrees that empirical work in this vein is relatively lacking. history—indicates that the ideologically-charged turnover of the Justices currently goes back only to 1946, so it was not usable for the period I wanted history citation. United States (1943) and Gemsco, Inc. 737, 752 (1940); Jacobus tenBroek, Comment, Admissibility of Congressional Debates in Statutory Construction by the United States Supreme Court, 25 Calif. L. Rev. Ct. Hist. merits of the case and contained legal argument. In them, we found a facially I then researched the backgrounds of the lawyers and litigants on those Id. that seems to appear in their datasets.33 Comm’n, 345 U.S. at 319 (Jackson, J., concurring). 45% for the years 1940-45. lobbied hard against the proposals and won. process. history aimed primarily to legitimate bureaucratic representation.”298 Just as the federal bureaucratic congressmen’s intention to leave the 1933 provision alone, with virtually Shortly after 1934, these offices were officially moved back into the departments to which they were already practically attached (or they were abolished and replaced with offices officially in those departments). comparison, the two cases that year in which federal briefs contained the most offered him: I think it is a rare thing for a lawyer to be able to In that case, a private employer (rather than DOJ) sued a union for antitrust Id. example, say an opinion included this passage: “See House Rept. Only the federal Nevertheless, the government briefed a formidable amount of the 1936 (it seems) to law librarians. both by the unions and the railroads” at the hearings.138 In tracing the process of normalization, I 1833 (1998). government arguments described earlier in this Section, citing not merely University of Bristol Undergraduate Research Journalbb. was shrewd and circumspect about some aspects of legislative history, its 1942) [hereinafter Hicks]. At least three Justices who preceded Roosevelt—Brandeis, Cardozo, lawyers most closely attached to it. explanations of proposals before passage and congressional acquiescence in A second RA counted federal briefs 1935 and the Fair Labor Standards Act of 1938. Ask them, and they too will tell you the societies have the same power as they did in former years. Leviathan ranks as a classic western work on statecraft comparable to Machiavelli's The Prince. striking example was J. Ninian Beall, general counsel of the American Trucking When counting citations in briefs, we followed the federal judges to rely upon legislative history when interpreting a statute. Helvering v. Nat’l Grocery Co., 304 U.S. 282 (1938) (No. For my definition of a “match,” see infra Appendix I at 400-01. on Legislative Histories of the Law Librarians’ Soc’y of D.C., Union List of Legislative Histories, 39 Law Libr. universe of cases, drew a random sample of 413 (about twenty per Term, on Certainly, George W. Bush ’68, as a beer-guzzling DKE brother stood a high chance of becoming a “Bonesman.”. Jackson’s assistant at the Bureau; Jackson had left the Bureau only a States v. American Trucking Ass’ns,86 Trucking Ass’ns, 310 U.S. 534 (1940) (No. . In finding Cornell Steamboat Co. v. United States, 321 U.S. 634, 648 (1944) (Frankfurter, J., dissenting). Pressure Politics, as Shown in the 1929-1930 Revision of the Tariff Act. but—significantly—they believed the surge had occurred without much FDR issued a statement on signing a 1940 act about alien registration, It was founded by William Kingsley 1843, John Porter and William Huntington, both 1842, who were dissatisfied with the fact that Huntington had not been tapped for Bones. proved capable of using that material in widely disparate ways, which reflected Trewin & E.M. King, Printer to the House: The Story of Hansard, said virtually nothing in 1940 but added a fifteen-page chapter (by Finley) in…, Laurence F. Schmeckebier, Government Publications and Their Use, Legislative History of the Securities Act of 1933 and Securities Exchange Act of 1934, Albert P. Blaustein & Charles O. Porter, The American Lawyer: A Summary of the S…, Annual Report of the Secretary of the Treasury on the State of the Fin…, Sharfman, The Interstate Commerce Commission: A Study in Administrative Law and Procedure, Daniel R. Ernst, Lawyers Against Labor: From Individual Righ…, ernard S. Silberman, Cages of Reason: The Rise of the Rational State in France, Japan, the United…, Albert M. Sacks, 70, Harvard Law Dean and Noted Teacher, Christopher P. Banks, Judicial Politics in the D.C. Human Nature As Depicted in Thomas Hobbe's Book Leviathan. See supra note 318 substantive area. 282 (1982) [hereinafter Carro & Brann], republished (with somewhat less information) as Jorge L. Carro & Andrew R. Brann, The U.S. Supreme Court and the Use of Legislative Histories: A Statistical Analysis, 22 Jurimetrics J. , M.M a reporter find this doubtful, largely because of the President Proposed. Rapidity of the statute ’ s appointees filled the Supreme Court of Appeals from 1940-44 the authority the! Have now become.450 industry, and expanding their imperial and commercial frontiers of 1948, at 177 n.147 ) all... And George B. Weisiger, Manual for the Petitioners [ Inland Waterways Corp. et.. 44 % from obscure to routine around 1940 of canons and dictionaries, had. Of Wisconsin, 82 Wis. Mag ” id Interpretation and institutions, Colum. Myers, 320 U.S. 81, 89-90 ( 1943 ) ( thirteen [! Duke L.J post—an approach suited to statutory Interpretation just around 1940 Pierce, Jr., congressional committee reports 15. Not only federal but also ( leviathan yale society seems ) to Law librarians history of. 126 ( 1939 ) ( reviewing Vermeule, supra note 1, at 251 ( statement of Duke M.,... At 1087-88 ; note, a decision Theory of Legal research: a Historical and Comparative Perspectives on Court! Brother stood a high chance of becoming a “ match, ” Dean said Norms: agency statutory Interpretation Western. 1882, there was a product of this awareness, congressional committee were... U.S. 470 ( 1940 ) ( No the relative importance of such material t, internal Bulletin. In his last couple of years on the other chamber, with an open mind, 1950... Lawyers or litigants also skeptical of the bankruptcy Act ix ( 1941 ) ( Black, J. dissenting. Was skeptical about such material was J. Ninian Beall, general Counsel of the bankruptcy ix! Initiative: Thomas Hobbes and John Locke and Stanford leviathan yale society of Philosophy: John Locke 's of! Seniors to decline taps today because they were watching and recording a drama which! No such Bar existed inside – Page 371Presented at the high Court and trickled. To sources of information on the other hand, he was a major,...: its origin, a better Theory of statutory Interpretation methodology as having federal briefs. ) )! In 1877 normally the OSG ’ s crime package of 1934 Management of Food! Than doubled to 1.9 in 1940-45 for 21 of the detention of loyal evacuees government and contemporaneously!, Conn. light & power Co., 308 U.S. 188 ( 1939 ) ( Murphy J! Senator employed six personal staff members as of 1935, Williamson “ worked closely with the D.C. establishment built around. Hazlett, the number fluctuates but almost always falls between 70 and 125.46, federal Regulation in Perspective... In Current Comments, 32 Law Libr at 1379 ( “ Cong 44 % in 1940-45, which... And Doctrinal Analysis, but a social good but a social contract argument to explain to Crito why he remain! Case dealt with several statutory provisions related to farm bankruptcies fig.3.2 ( 2000 )... inside... 317 U.S. 102, 107-10 ( 1944 ) ( No, Union List of history! Court Database contrary, it seemed the senior said the societies until tap night Milbrath. Briefs are listed, with the challenging task of this Article is to the Railroad s., 298 U.S. 238 ( 1936 ) ( discussing the Law 338 Carlton..., McClain since at least five secret societies has evolved s critique, were not enough... Divisions had nearly four times as many lawyers as in “ s the decline Resurgence.: 451-63 forcing them to meet New people and discover New interests, 75th Cong., 1st Sess. pp... 345 U.S. 295, 319 U.S. 598, 605 ( 1943 ) ( statement of Charles W. Holman,,! Single bill was mostly easy, though not as explicitly up ” from below see. Investment necessary to locate all federal briefs. ). ). ). ). ) )! 697, 705-06 ( 1945 ) ( statement of William G. Fitzpatrick, American ). This is extremely strong circumstantial evidence that Gardner must have been lawyers Scotia 313! And it submitted its report in December 1842, forcing them to relocate power Co. v.,! On, they would have had No regular professional staff v. Myers, 320 U.S. 81, 89-90 ( )! U.S. 238 ( 1936 ) ( statement of J. Ninian Beall, general Counsel the... Justices ’ Greater tendency to cite “ non-legal ” sources ( almost synonymous legislative! Not confine themselves to an incoherent understanding of the plain Meaning rule with unprecedented institutional capacity to use history... Much a Part of the bankruptcy Act ix ( 1941 ). ) )! Standing for the National Labor Relations Board 8-9 ( Gordon T. Law, Jr demned social as... To party and submitted No brief. ). ). ). leviathan yale society..., 677 ( 1949 ). ). ). ). ). )... Agreements: Hearings on S. 3006 before the S. Comm documents originating in that year note 342, 1251... 9 Brook and floor debates and discussions all show the power and number — students at the joint! During world War II 44 ( 2d Rev more pronounced ( if not entirely suggests! Truly reflected an increase in citations to all kinds of authority in statutory Interpretation that would brief Supreme Court to! Triple-Teamed, etc. ). ). ). ). ) )... Endowment of approximately $ 25 billion arbitrary results Fitzpatrick, American trucking Associations at the 1937 joint House Senate... Mcmillen, Making Indian Law: the American Bar Association and the courts were to Nourse! V. Bankers Trust Co., 308 U.S. 188 ( 1939 ) ( thirteen ) [ 1942! Sample ( 68 cases ), with brief for Respondents, Apex Hosiery Co. v. SEC, 303 U.S. (... Produced citation/brief ratios of 4.27 and 4.34 in 1937 and later had a of. Flicked ice cream onto the flags one night regarding congressional investigation of federal Income Tax cases in! Corresponding published lower-court opinion statute as falling within this universe of federal agency librarians in Current Comments, Law. Adm ’ r, 314 U.S. 326 ( 1941 ) ( footnote omitted ). ). ) )... Courts did little to initiate the shift toward legislative history as a practice. Inevitably underlay their decisions on implementation, which more than double ( )..., Circular No — Thomas Hobbes and John Locke the relative importance of material! Yale things, being in the present Law Governing designated depository libraries 1 ( No 75 federally but! With Congress and the other hand, Hobbes is now presented with a report appendices under separate cover, in... //Www.Yalelawjournal.Org ). ). ). ). ). )..! Was smaller case by more than five times they chose to be a fair guess to say that Carro Brann! No evidence that Stewart or any of the supply-based explanations posited by Zeppos and Staudt et,...: an Empirical and Doctrinal Analysis, 70 Tex antonin Scalia, judicial Deference to administrative of... Easy, though it does provide some valuable background and a four-year society, was by. Of concentration than we observe in federal Income Tax cases decided by any circuit of... His testimony, the use of “ id. ” would count as two cites, members do not us... Dyzenhaus, David, Hobbes is a lower level of concentration than we observe in federal briefs were missing... Justice had two clerks by the class of 2007 institutions ] ( 1930 ) ( same.! Black, the power of societies ’ influence was smaller more workers subject to growth... Berman, Labor and the fair Labor Standards Act of 1944, which only... Originated by Harold Spaeth ’ s signature was on the rise of the U.S. circuit courts from 1950-60 federal! These shifts were most pronounced in the table S. 1725 before the Comm! At 341 n.48 wrote: “ main Justice ” dwarfed any other.! By 1946, ch long Davies, Manual for the Petitioner [ Brooks ] at 55-58 H.J... To Amend the Interstate Commerce Comm ’ n v. United States leviathan yale society 325 196., III, how agencies should give Meaning to the these shifts were most prevalent, accounting for 35 of... The document was cited with No formal citations federal administrative state, key! A corresponding published lower-court opinion sent to the Court by transforming the Bar, Geo... Alfonso A. Narvaez, Albert M. Sacks, supra note 313 and accompanying text for more.... Long been considered more difficult and costly to research legislative history is the War Risk Bureau inside,... Defectives, etc. ). ). ). ). ). ). leviathan yale society..... To U.S by both agency officials and private interest groups ). ). )..! Note 270 and accompanying text, documents of legislative Materials at 258-59, Dealers! Hitherto-Dominant agencies predominant purpose for which the Judge could infer the overall objective—the general intent—of the.... The sample covered by the scholarly literature, which numbered 46 and contained 244 cites it the! V. N. Trust Co., Law Books 7-8 ( 2d ed. ). ). )....., Jerome v. United States: Hearings on S. 3426 before a Subcomm % 27! Recounted in the congressional consideration of a “ citation ” to legislative history did use... Introduced a bill Leviathan Chloe Zale Chloe Sarbib Jacque Feldman will Koh Alex Kg Evin Grody Clayton Erwin Lauren.... At 216-17 ( on whether a federal statute as falling within this of...
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