George Yin, a retired UVA law professor (bio here) has published an article that takes on some of the conventional wisdom of jurists and scholars who reject or are at least suspicious of legislative history as useful for statutory interpretation. Those jurists (including most prominently the late Justice Scalia) and scholars often are considered textualists, although that is a broader category than those who reject or are suspicious of legislative history. Yin calls the subcategory “new textualists” or sometimes just textualists. Yin’s article is George K. Yin, Textualism, Textualism, the Role and Authoritativeness of Tax Legislative History, and Stanley Surrey (December 4, 2022). Law and Contemporary Problems, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4286174.
Here is the SSRN Abstract description of the article:
When Stanley Surrey died in 1984, the school of thought sometimes known as the “new textualism” that has gained such influence in the United States over the last three decades had not yet emerged. Surrey would have been very interested in this development. As revealed in his recently published memoirs, he had extensive first-hand experience with the tax legislative process and recognized early on the connection between that process and statutory interpretation. He would have been surprised by some of the assumptions about the process underlying the new textualist claims as well as recent empirical findings about the process reported by scholars.
This essay aims to fill in some of Surrey’s missed engagement. Drawing on his memoirs and other sources, the essay describes aspects of the tax legislative process—the preparation of tax statutes and legislative history—of significance to statutory interpretation and the positions of the new textualists. Importantly, the description is at the granular level at which Surrey experienced it, material not generally included in standard political science or legal scholarship on the topic. After considering the on-the-ground realities of the tax legislative process, this essay contends that in interpreting tax statutes, courts should rely upon both textual canons and other common tools of judicial interpretation (questioned by recent scholar-empiricists) and legislative history (questioned by textualists). The essay also explains why, contrary to the claims of textualists, committee reports are authoritative evidence of statutory meaning.
Yin’s article is particularly directed to interpretation of federal tax statutes (i.e., principally the Codes in 1939, 1954 and 1986 iterations). Yin is former Chief of Staff of the Joint Committee on Taxation, which is heavily involved in the tax legislative process and in producing legislative history. He knows the process and knows that the claims these textualists make about legislative history are not true for tax legislation.
The process Yin describes for tax legislation--but apparently perhaps to a lesser degree for other legislation-- involves both tax legislation experts (the JCT) and each House’s legislative counsel who bring statutory drafting expertise to the table that the tax Committees and their members usually lack.
I have written on the use of legislative history before. See the following that I think relate to the topics in Yin’s new article:
- Relevant excerpts from John A. Townsend, Federal Tax Procedure (2022 Practitioner Edition), TOC and pp. 8-24, here. (Note that these excerpts do not include Chevron and related deference issues and will be updated in the 2023 Edition.)
- Yet Another Confluence of Legal Interpretation and Fact Finding--Legislative History (Federal Tax Procedure Blog 1/20/19), here.
- Excellent Law Review Article on Statutory Interpretation and Use of Legislative History (Federal Tax Procedure Blog 8/21/16), here.
Justice Scalia particularly disdained “subsequent” legislative history, most prominently in the tax context the JCT’s Blue Books published after significant tax legislation to describe the legislation. On that point, see
- Is the JCT Blue Book More Persuasive than a Law Review Article? (Federal Tax Procedure Blog 4/27/21), here.
Finally, Yin's article is a good introduction for more recent tax afficionados to Stanley Surrey who was a true giant in the tax law.
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