By Ashley Ahlbrand • May 05, 2014•Writers in Residence
A couple of months ago, I posted about the importance of building strong research skills in administrative law. In that post I mentioned that this is a legal research skill practitioners commonly find to be deficient in their summer clerks and new hires. With summer employment and graduation coming quickly, I thought this month’s post could cover another commonly identified legal research deficiency: Legislative Histories.
The What & The Why
To begin, a legislative history consists of “the background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” Black’s Law Dictionary (9th ed. 2009). The purpose behind a legislative history is to determine legislative intent. As we all know, statutes can often be construed in multiple ways, so a legislative history is used to determine what the legislators’ true intent was when drafting the legislation.
It's not really a huge surprise that the ability to compile a legislative history is so often noted as a research deficiency; it's not an assignment that often comes up in law school courses or summer employment, and, while the same types of documents are sought each time, the composition of each legislative history will always be unique. The best tip anyone can give you as you prepare to compile a legislative history is to know the tools available to help you accomplish this task.
The first thing to look for – and really this goes for any legal research task if you’re uncertain how to proceed – is a research guide. Many different organizations, from government websites to law school libraries, offer research guides to help you get started compiling legislative histories. Here are a few good examples:
- Law Library of Congress - Federal Legislative History
- Indiana University Maurer School of Law - Federal Legislative History Research
- Georgetown - Legislative History Research Guide
- LLSDC - Federal Legislative History Research: A Practitioner's Guide to Compiling the Documents and Sifting for Legislative Intent
These research guides not only explain what goes into a legislative history, but they will also often direct you to where you can locate these various documents, both electronically (when available) and in print.
Databases and Websites
While research guides can guide you through the process of compiling legislative histories, there are also several good databases and websites to help you track down the necessary legislative documents. Many subscription databases, such as Westlaw, Lexis, HeinOnline, ProQuest Congressional, and ProQuest Legislative Insight, offer “pre-packaged” compiled legislative histories for major legislation, such as the Patient Protection and Affordable Care Act; when a compiled history is not available, they also offer access to the requisite documents you would need to compile a history on your own. If you can afford these services – great! But if not, there other websites available that make it relatively easy to compile legislative histories yourself – and they’re free! First and foremost, check out Congress.gov. If you have ever used THOMAS.gov, Congress.gov is its successor, and will completely replace THOMAS by the end of the year. A website of the Library of Congress, Congress.gov gives you easy access to current bills and legislation dating back to 1973.* Running a search for a bill, you will receive not only the text of the bill, but also links to any committee reports, debates of Congress, etc. – in other words, the documents that make up a legislative history!
Of course, while a great deal of government documents are now available online, not all are. If you need to find legislative materials in print to complete your legislative history, consult with a federal depository library. The Federal Depository Library Program (FDLP), begun in 1813, distributes U.S. government documents to participating libraries across the country. These can be documents from all three branches of government and can consist of multi-volume sets, pamphlets, CDs, and more. Federal depository libraries must make their government documents collections available for public use, so no matter where you are, chances are you’re relatively close to a depository library. The FDLP website provides a map to help you locate depository libraries in your area.
State Legislative Histories
One final note on legislative histories: While many resources are available to guide you through compiling a legislative history on federal law, if you find yourself compiling a legislative history on state legislation, things can get a little trickier. This can be especially true if you’re in a jurisdiction that does not keep a record of typical legislative history material (for example: your jurisdiction may not publish its congressional debates). If this is the case, there are still ways to piece together a legislative history; you just might have to be more creative. I would again recommend looking for an online research guide to aid your efforts. Many law school libraries have created such guides to their own states’ legislative histories. A helpful resource in this respect is a research guide from the Law Library at Indiana University Maurer School of Law, State Legislative History Research Guides; this particular guide serves as a directory to legislative histories and related resources for each state.
There is a reason that the ability to compile a legislative history is so frequently noted as a research deficiency: It’s not easy! You have to know what to look for and where to find it, and as I’ve said, the available documents can vary both by piece of legislation and by jurisdiction. The sites I’ve mentioned can be excellent tools for completing a legislative history project, but there’s one tool I haven’t mentioned that is a universally helpful tool, no matter the legal research task at hand: If you’re ever in doubt, or simply stuck, ask a law librarian!
* Coverage back to 1973 is metadata only (bibliographical-type information on the legislation, such as bill name, dates, sponsors, etc.). Full-text coverage begins in 1993, and digital access to the Congressional Record begins in 1995.