Fire — Good or Bad?

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4 Responses

  1. Dave Hoffman says:

    Not sure on the merits. But as to the process question “fire good or bad,” I’d following President Obama’s lead and try to make peace with it.

  2. Edward Swaine says:

    Jon, you’re the expert on this — wouldn’t all statutes be construed against the arsonist? One would hate to be Mrs. O’Leary’s cow. (I know, maybe Daisy didn’t do it.)

    Assume, alternatively, that all legislative history spontaneously combusted on its own. That’s still different than instances today in which legislators had the opportunity to establish such history but did not. Would that make a difference — so that, for example, a Senator might testify as to what was in a committee report?

    I guess the purer question is whether we would prefer that a disaster befall ancient legislative histories (that were still good law) of which no other evidence can be mustered — consider, maybe, the ATS — or a world in which they could not be created at all.

  3. The Quiet Lawyer says:

    I’d put them to the flames (metaphorically). As Max Radin put it some 80 years ago, legislatures do not exist to have an intent — they are there to pass laws, which is a pretty specific act. If the legislature wants something treated like a law, then let them meet the constitutional formalities (passage by both houses of the legislature and approval of the executive). Nothing prohibits the legislature from making the commentary a part of the act, for example.

    Besides which, people ought to be able to learn the legal duties imposed on them by reading the statute, without having to worry about being blindsided by something planted in a committee report.

  4. Guest says:

    “If you had the choice, would you put all legislative history to the fire?”

    No; because it’s common sense that legislative history has functions beyond manipulative usages in certain kinds of proceedings.