You made your case

Be prepared to defend your interpretation by resort to legislative history.

One of your authors has described legislative history as the last surviving legal fiction in American law. The notion that the members of a house of Congress were even aware of, much less voted in reliance on, the assorted floor statements and staff – prepared committee reports that are the staple of legislative-history analysis is—not to put too fine a point on it— absurd. (And of course neither chamber could, even if it wished, delegate the details of a law to a committee or a floor manager.) Here again, however, we’re advising not judges but the lawyers who appear before them. Since most judges use legislative history, unless you know that the judge or panel before which you are appearing does not do so, you must use legislative history as well. That is so, alas, even when the text of the statute seems entirely clear. You cannot rely on judicial statements that legislative history should never be consulted when the text is clear—not even when those statements come from opinions of the court before which you’re appearing. Clarity too often turns out to be in the eye of the judicial beholder.

Conducting a thorough review of the history of major legislation is often very time-consuming, hence costly. If you have a cost-conscious client and what you consider to be an irrefutable clear- statement case, you might want to defer that task (if possible) until you see what opposing legislative history the other side comes up with. If there is nothing, it’s probably a waste of time to demonstrate that the legislative history says what the statute says. But the court may not consider the text to be as crystal-clear as you do. So if money is no object, you should argue that the clarity of the text is confirmed by the legislative history.

To exemplify a legislative – history battle, let’s return to the Jackson divorce case. John Jackson’s attorney discovers that what triggered the enactment of Sec 201(e) was the Soviet Union’s announcement in February 1973 that it would adhere to the Universal Copyright Convention. In literary circles, this was seen as a cunning strategy to suppress the works of Soviet dissidents, such as Alexander Solzhenitsyn, who had not yet emigrated. If the Soviets passed legislation nationalizing all overseas rights in dissidents’ writings, then the Soviets could sue in the United States to enjoin publication of those “infringing” works. That is what it was all about originally. Nothing more.

The original bill, in March 1973, referred to “a foreign state or nation which purports to divest the author … of the United States copyright in his work.” In May 1975, the Copyright proposed extending the language to encompass any government, “including the United States or any subdivision of it.” And finally, before enactment, the language evolved into “any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright.” The legislative history of these revisions makes no mention of disabling a family court in a divorce case from awarding to a non-author spouse interests in the author spouse’s copyright. And as late as 1981 only one commentator seems to have foreseen that consequence.

So John Jackson’s attorney argues that (1) the legislature intended to protect Soviet dissidents, nor American authors seeking to deprive ex-spouses of their rightful share of marital property; (2) there is no public-policy reason to treat copyrights differently from patents or other marital property; and (3) nobody in Congress seems to have envisioned this startling result, which has more to do with the Gulag than with the Jackson’ hearth and home.

And Jill Jackson’s attorney argues that (1) the words of the statute are as clear as can be; (2) the early legislative history is largely irrelevant because whatever the purpose of the original proposal, it was purposely broadening came at the recommendation of the Copyright Office itself.

How will the case turn out? As always, that depends on how the judges react to several factors, but especially to the gravitational pull of the differing premises. Textualists will tend to rely on the words of the statute in favor of Jill. Purposivists will probably gravitate toward John’s position. Each side will try to make its premises the case’s center of gravity.

Antonin Scalia & Bryana Garner

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