Tuesday, March 01, 2016

The Persistence of Memory (recalling Salvador Dali and Antonin Scalia)

Mark Tushnet

Both the majority and dissent in today's decision in Lockhart v. United States contain discussions of what both call legislative history, with nary a comment from anyone about the possible impropriety of "relying on" legislative history in statutory interpretation cases. What's left of the "assault" on legislative history? Maybe the claim that legislative history can never be used to overcome clear statutory text (though it's not clear to me that anyone worth taking seriously seriously advanced that claim), and a criticism of the badly phrased footnote ("a footnote!," Justice Scalia might have exclaimed, as he did about Footnote Four in Carolene Products [I'm paraphrasing his comment]) in Overton Park, saying that because the legislative history is ambiguous, "it is clear that we must look primarily to the statutes themselves to find the legislative intent." (Note though that the reference to "the statutes themselves" comes embedded in a commitment to internationalist/purposivist interpretation, not textualist interpretation.)

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