Nicholas Parrillo is an Associate Professor of Law at Yale Law School who teaches administrative law, legislation, and American legal history. He recently published an article in the Yale Law Journal on legislative history, which according to the Legal History Blog, “relates the rise of the use of legislative history to the expansion of the federal bureaucracy and the emergence of a specialized regulatory bar.”
Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user — a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.