Now that that process is over I am beginning to work on the first update, due out in July. As I work through that I will post issues as they are relevant to particular chapters. I have also been working hard - and making good progress - toward putting the treatise on Google Book Search. It is not certain that it will be on, and as a legal treatise that is updated twice a year it poses special problems, but it is a possibility. If it does get on Google Book Search, there is a nifty new tool Google developed that will make it directly accessible from this blog and from The Patry Copyright Blog. I have also been making good progress about getting the legislative history of the 1976 Act scanned and freely available on line- the entire history from 1955 on, including all of the 1950s Copyright Office studies and roundtable discussions, all Copyright Office reports, all Congressional reports, all Congressional hearing transcripts, and floor statements. I have already assembled the materials myself in hard copy. Once scanned and online, this too would be directly accessible from this blog or my other one.
Combined with Westlaw, this will make the treatise more widely available as a research tool, and that is the next news. The treatise is now on Westlaw. I didn't know it was until Louis Bonham emailed me today. Even then, I couldn't find it. The file name is "PATRYCOPY." I have asked that it be placed intuitively in West's directories, but I am not holding my breath. In the meantime, there are a number of ways to find it. Here are four:
Topical Materials by Area of Practice
Intellectual Property
Forms, Treatises, CLEs and Other Practice Material
Patry on Copyright (PATRYCOPY)
Forms, Treatises, CLEs and Other Practice Material
Texts & Treatises in TEXTS & TP-ALL
Patry on Copyright (PATRYCOPY)
Westlaw PRO and Westlaw Libraries
Westlaw PRO Topical Products
Intellectual Property
All Intellectual Property Analytical Library
Patry on Copyright (PATRYCOPY)
Westlaw PRO and Westlaw Libraries
Westlaw PRO Analytical Products, Forms & Libraries
Topical Analytical Products
Intellectual Property
All Intellectual Property Analytical Library
Patry on Copyright (PATRYCOPY)
6 comments:
I had a chance to read your chapter "The straw man of legislative history: a textualist power play," and thought that you did a good job of arguing against the "straw man" argument that all committee reports, etc. are fabricated and untrustworthy. I think you are you right that Scalia's "polemical" attacks on legislative history are often exaggerated and perhaps even misleading.
But, ultimately, your argument does not reach the central contention of the textual approach; that statutory language must be interpreted by reference to the public's understanding of statutory language, rather than to a legislator's. It may very well be the case, as you cogently argue, that committee reports are fair expositions regarding the meaning of the statute meant to give an honest analysis of that statute. But textualists just do not care about that or "legislative intent," but instead seek the meaning of the words the legislature has used.
I also was not persuaded by the argument that, "[C]pnference committee reports are voted on. Indeed, that is the sole way a conferenced bill is voted on; along with the accompanying report. At least in the case of conference committee reports, then, the vote objection is simply wrong." That a bill is accompanied by explanatory material does not suggest to me that the explanatory material is voted upon; rather, it tells me that that material only aids in the legislator's understanding of the actual that is being voted upon. But even assuming that reports are voted upon, you state that they are not presented to the President; that enough is alone for me to object to their use.
You also mention that 28 year olds write many judicial opinions, but again, the textualist position regarding a legal text (whether it is a statute or a case) is unconcerned with who actually read it or wrote it. Rather, textualists are concerned with enacted texts that have survived the procedural hurdles to becoming law (or becoming a case). I do not care if no Justice reads a Court opinion before its release, nor do I care if no Congressmen reads a statute before its enactment. Texts become law by being subjected to a process, not by being read (one would of course hope that legislators and judges do try to read texts before releasing them, but that is a separate issue).
Andy, thanks for your comments. On the conference committee report issue, the vote is technically on the report itself, that is the explanatory material, atatched to which is the statutory material. Congress is very much voting on the explanatory material, and that material is a bicameral product. It is not presented to the President true enough, but so what? The President's role in signing has nothing to do with what the statute means; it is merely a formality (albeit a necessary) one that has nothing to do with interpretation.
On the larger point, textualists' missing step is the meaning they ascribe to the words is derived from the text alone. So let's take an example from the Copyright Act, which in Section 102(a) extends copyright only to "original" works of authorship. What does "original" mean here? Would you look to a dictionary that was written for an entirely different (and non-legal purpose) or to the committee reports, which explain the term? "Original" here clearly has a specialized meaning even though it is an ordinary word. And why not look at the committee report in such a case? The issue is non-partisan and one where even Scalia's polemical fears couldn;t possibly apply? At bottom I am at a complete loss why judges (or anyone reading a text) would want to have the least, rather than the most information.
"At bottom I am at a complete loss why judges (or anyone reading a text) would want to have the least, rather than the most information."
I do not think there is anything necessarily wrong with looking at legislative history; the textualist's complaint is that that history should not be treated as an authoritative statement of Congress.
Also I do not understand why the veto power might be dismissed as a "formality." There are things in the committee reports that are not in the statute, and the framers contemplated that the most politically accountable person in government would have the power to reject legislation deemed unwise. If we treat things in the committee reports that have no basis in the statute as law, that process is skirted -- this does not seem like the type of process I'd dismiss as a "formality."
Ultimately, all a committee report tells me is what the legislators' might have understood statutory terms to mean, but does not tell me what those terms actually mean. If a statute uses the word "up," and the committee report says "all legislators understand that 'up' means 'down'," that does not convince me that "up," as used in the statute, must be interpreted to mean "down." All it tells me is that the legislators had in mind a different understanding of of the word "up" from the understanding persons subject to the statute would have. Additionally, the fact that "up" actuallys mean "down" could have drastic consequences. If a statute actually means "down" rather than "up," its consequences could be totally different. I want the President to know what he's signing, and hidden meaning in committee reports, unpresented to the President, should not be able to change the meaning of the word "up" to "down."
And, I still do not accept that committee reports are voted on. The heads of both houses certify to the President that the bill as presented has been passed by both houses. They do not certify that the bill and the report have been so passed. If 535 legislators vote on a committee report in an informal process, I just don't care about that or see why it's relevant. What matters is what is actually certified as having passed both houses, not what an analysis of the legislature's internal procedures might reveal was "really" voted upon. The argument that committee reports are somehow voted upon within the meaning of Article 1, Section 2, cl 7, is a novel one, and I hope you understand my hesitancy to accept it.
Also, I would not necessarily extrapolate your experiences regarding copyright legislation to all legislation. I work in a field (tax) which involves the most lobbying and the most distortion of legislative materials imaginable.
Also, regarding interpretation, you write:
"So let's take an example from the Copyright Act, which in Section 102(a) extends copyright only to "original" works of authorship. What does "original" mean here? Would you look to a dictionary that was written for an entirely different (and non-legal purpose) or to the committee reports, which explain the term?"
Is it really that hard to try to interpret a statute according to what a reasonable member of the public might understand the term to mean, rather than by reference to committee reports? Do textualists' heads explode because they eschew committee reports?
Ask yourself how you would interpret the copyright act if you never saw the legislative history and no one let you look at it. That is how I would interpret it.
I think the answer is that textualists' would get the answer profoundly wrong by not looking at the legislative history. Not all words that appear ordinary are; they are used in technical ways, and that you can only learn by looking at the legislative history.
I suppose we shoudl just agree to disagree. I work with the most technically complex statute (the Internal Revenue Code) on a daily basis. I don't feel any need to psychoanalyze the legislators and staff members who wrote the code in interpreting it; rather, I look to the code, related statutes, case law, and administrative guidance in shaping my analysis. (Although, any good tax lawyer is of course obliged to pluck out statements from legislative history to help a client reduce tax if there are favorable comments in that history not otherwise found in the statute.)
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