Justice Jackson's Lament: Historical and Comparative Perspectives on the Availability of Legislative History

Abstract

Bob Berring has suggested that the forms in which legal information is published and distributed can be influential in the development of legal knowledge. This article tests the possibilities of that idea by examining the role of greater availability of legislative history information on the increased use of legislative history in the early twentieth century. The article explores the availability question in light of developments in the history of the printing and distribution of Congressional documents, while looking specifically at the impacts of late nineteenth century changes in the systems for publication and distribution of federal documents. Part II of the article introduces the primary approaches to statutory interpretation in United States courts, provides comparisons with other common law jurisdictions, and describes the publication history of Congressional committee reports and records of debates on the floor of Congress. Part III discusses uses of Congressional materials in nineteenth century courts, and how legislative history was viewed in contemporary treatises. Part IV explores possible explanations for the increased uses of legislative history by federal courts in the late nineteenth and early twentieth centuries. Part V examines the impacts of the Printing Act of 1895 and other changes in the distribution system for government publications on the greater availability of legislative history in the early twentieth century. Part VI discusses the continued applicability of concerns about availability in the twentieth-first century information environment, twenty years after Justice Jackson's lament was deemed anachronistic in light of technological advances.

Keywords: Jackson, legislative history, Bernstein, statutory interpretation