Gerken's Book Asks, "What Good is Legislative History?"

What Good is Legislative History?
Justice Scalia in the Federal Courts of Appeals
By Joseph L. Gerken, Reference Librarian University at Buffalo Law Library

1 volume | 376 pp | $82.00
ISBN: 0-8377-3232-8 | ISBN 13: 978-0-8377-3232-9
William S. Hein & Co., 2007

Book Description: From his opening sentence ("Justice Antonin Scalia hates legislative history") and analysis of more than 250 Circuit Court decisions referencing Justice Scalia's criticism of legislative history, Gerken weaves the web of Justice Scalia's influence on the judicial system with his approach to statutory interpretation (today known as "Textualism") in which Scalia believes courts should focus on the text of a law, and not on extrinsic sources, which are as likely to mislead as to enlighten.

In opinion after opinion Gerken points to Justice Scalia's castigation of his colleagues and practitioners for relying on material that he considers misleading and unreliable as a basis for interpreting statutes. While his opinions and writings in secondary sources have drawn a good deal of attention, Scalia's approach to statutory interpretation has spawned a new generation of Textualist judges throughout the Federal Courts of Appeals, with Scalia being the "lighting rod" for what many consider to be an ultra-conservative movement.

Inasmuch as Scalia has had an impact in many areas of the Court system, however, his beliefs have not been accepted at the highest level of our Judiciary - the U.S. Supreme Court. In decision after decision the Court has turned to legislative history when such sources are deemed relevant, while Scalia's criticism of legislative history is almost always expressed in concurring or dissenting opinions.

Of course, this raises the ultimate question, which Gerken aims to explain throughout this work: What do Federal Courts of Appeals judges do when presented with legislative history in support of a statutory argument? On the one hand, courts follow precedent and they look to majority and not minority opinions to define that precedent. One would therefore expect lower courts to reject Scalia's viewpoint. On the other hand, given the attention he has drawn and the recent judicial appointments under the Bush Administration, it would not be surprising if judges adopted his Textualist approach simply because they agree with his ideas.

In addition to the main focus of the work, Gerken also includes chapters explaining the history of legislative history as well as the evolution of the Supreme Court's attitude toward legislative history.

Gerken's work is an invaluable contribution to scholarly research on our judiciary, and should be among the Constitutional Law holdings of almost all libraries.