I really do mean it about coming pretty close to the Scalia-easterbrook position about statutory interpretation. I used to think it was wicked and reactionary, but as a law clerk, especially on the district court, all you had time to do was look up the statute and the case law. I suppose that legislative history, policy purpose, whaty would be the best outcome, and what would be just, and all that stuff can be helpful if the text of the law and the interpreting precedent is unclear, which happens less often than you think -- it's often difficult to figure out, but clear once you've done it. And the law is, for practical purposes of arguing and deciding cases, what the legislature has enacted and the courts with jurisdiction have said that means.
As a litigator I'll use anything, but the best arguments are from statutory text and controlling precedent, second best from noncontrolling precedent from other appeals and Supreme Courts, or trial courts if you can't find an appellate case. I can't recall using legislative history in a brief, and that's not laziness. The judges would really be impressed. --- Jordan Hayes <jmhayes at j-o-r-d-a-n.com> wrote:
> > No, but this sort of insertion is standard,
> happens
> > all the time, and it's the sort of thing that
> makes
> > one sympathetic with the Scalia-Easterbrook
> position
> > that one should ignore "legislative history" and
> just
> > read the text of the law.
>
> So Slate (sort of) agrees with you:
>
> >>> Inserting comments into the Record is standard
> >>> practice in Congress. What's utterly
> non-standard
> >>> is implying to the Supreme Court that testimony
> >>> was live when it wasn't.
>
> Concur?
> ___________________________________
>
http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk
>
__________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com