This Article derives a new approach towards the use of legislative history to interpret statutes by adapting and applying the law of evidence. Courts use legislative history as hearsay evidence: out-of-court statements used for the truth of the matter asserted. Evidence law includes many exceptions under which hearsay becomes admissible. One such exception, the implied assertion exception, can be applied to courts' use of legislative history. Under this framework, legislative history can illuminate the interpretive enterprise, while many of the problems identified by opponents of legislative history are mitigated. After presenting the development of the implied assertion doctrine in evidence law, this Article demonstrates the efficacy of this approach through three case studies from recent Supreme Court statutory interpretation opinions--General Dynamics v. Cline, Hobby Lobby v. Burwell, and King v. Burwell. The resulting doctrinal proposal exemplifies a novel approach to legislative history that can be extended to other evidence law doctrines.
Noah Marks & Jessica Ranucci, The Implied Assertion Doctrine Applied to Legislative History, 21 Lewis & Clark Law Review 1135-1174 (2017)
Library of Congress Subject Headings
Legislative histories, Law--Interpretation and construction, Judicial process, Evidence (Law)