Fascinating work from Nicholas Parrillo

June 20

Nicholas Parrillo seems to be everywhere these days.

Last week Balkinization hosted a Web symposium on his justly famous book, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940, which charts the change from the use of user fees, bounties and the like to the use of salaries to compensate public officials. Heather Gerken collects all of the posts here. Though it’s not a theme that any of the participants dwelled on, I’ll add that this is the kind of historical change that poses profound questions to originalist theories of separation of powers — which of the original separation of powers rules were in some way premised on the original structure of official compensation, and what should we do now that those premises have changed?

And, meanwhile, Parrillo is also posting over at Prawfsblawg about Ajay Mehrotra’s book, Making the Modern American Fiscal State.

Finally, I’ve also at last downloaded Parrillo’s latest article in the Yale Law Journal (about six months late), which attempts to explain why legislative history rose to prominence as a tool of statutory interpretation. (As Buzzfeed would say, “The answer may surprise you!”). From the abstract:

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.

I can’t wait to see what comes next.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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