Here are some issues I am thinking about for Chapter 2, which covers statutory interpretation. The issues are: Could a majority of the Supreme Court hold for itself and coercively for the lower courts, that use of legislative (appreciating that "use" is a vague term) is off-limits in all or some circumstances, or is such a position merely the personal preference of a particular judge? If the Court has such coercive power, what is the source of that power?
A friend who is a federal judge thinks that Scalia’s views on the use of legislative history are not an attempt to coerce others through stare decisis to go along. This raises the question of whether statements by the Court about methodology of interpretation are a "holding" entitled to some precedential weight. Professor Nicholas Rosenkranz, in his epic article "Federal Rules of Interpretation," 115 Harv. L. Rev. 2085, 2144-4145 & n. 267 (2002), says this:
"[A]crucial institutional fact about the Supreme Court is that it comprises nine competing perspectives. To the extent that any given canon persuades some but not all Justices, its value as a component of an interpretive regime is severely diminished. For example, textualism, with its aversion to legislative history, offers a potential economic boon: by ruling inadmissible countless reams of hearing transcripts, committee reports, and so forth, textualism promises cheaper and more efficient lawyering and judging. But, crucially, this benefit can only be achieved when all nine Justices are textualists. So long as at least one can be swayed by legislative history, it will be worthwhile for lawyers to research and argue from it.
Indeed, the Justices do not seem to treat methodology as part of the holding of case law. For example, many cases feature clear majorities that explicitly ratify the use of legislative history. But Justice Scalia never concedes that he is bound to that methodology by stare decisis."
"[267] For instance, Justice Scalia writes:
Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor), nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 390 (2000) (Scalia, J., concurring in the judgment). Does this suggest that he views choice of interpretive methodology not merely as an inalienable component of the judicial power but rather as an inalienable prerogative of each individual Article III judge? Or do the policies underlying stare decisis not apply to interpretive methodology?"
Presumably, Professor Rosenkranz’s question is raised by Justice Scalia’s use of "I" rather than some more general, perhaps imperative terminology. If this is the case, I am happy because I certainly believe that judges should be free not to resort to legislative history; my objection is to the view that they are somehow precluded from doing so under all or some circumstances. (The use to which legislative history is then put is a quite different question). And if he is right about Scalia not regarding the Court’s statements on the use of legislative history as being accorded any weight, then his own statements for the majority (or any other Justice’s for that matter), may be freely ignored too under the what’s sauce for the goose is sauce for the gander cannon of construction.
Why I think this is an issue is that one comes across lower court opinions stating that the Court has told them they shall not resort to legislative history, and fill in the blanks here for the exceptions. Such lower courts then cite selective statements from selective opinions, especially this remark by Justice Kennedy from Exxon Mobil Corp. v. Allapath Services, Inc., 545 U.S. 546, 568-569 (2005):
"As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms. Not all extrinsic materials are reliable sources of insight into legislative understandings, however, and legislative history in particular is vulnerable to two serious criticisms. First, legislative history is itself often murky, ambiguous, and contradictory. Judicial investigation of legislative history has a tendency to become, to borrow Judge Leventhal's memorable phrase, an exercise in " ‘looking over a crowd and picking out your friends.’ " See Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L.Rev. 195, 214 (1983). Second, judicial reliance on legislative materials like committee reports, which are not themselves subject to the requirements of Article I, may give unrepresentative committee members-or, worse yet, unelected staffers and lobbyists-both the power and the incentive to attempt strategic manipulations of legislative history to secure results they were unable to achieve through the statutory text. We need not comment here on whether these problems are sufficiently prevalent to render legislative history inherently unreliable in all circumstances, a point on which Members of this Court have disagreed."
This passage acknowledges that there is disagreement on the Court about the general reliability of legislative history (and presumably therefore its usefulness) – I seriously doubt any member of the Court with negative views of legislative history have so much as lifted a finger to empirically study the issue rather than spout off uninformed prejudice masquerading as experience (and it should be noted that the three dissenters had a very different view of the usefulness of the particular legislative history at issue)- but I wonder if there is an indication here that if a majority of the Court could be cobbled together, a coercive ban might be possible. There are some who think such coercive power is inherent in merely being the "Supreme Court" over the "inferior courts," that the power derives from the Court’s self-created "supervisory powers," or, pragamtically, will occur because the lower courts will want to do things the "right" way, as set forth by the Court. Has anyone researched these issues?
Monday, February 26, 2007
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9 comments:
The "more imperative terminology" appears in a textbook on statutory interpretation: "Justice Scalia argues that the new textualism and its disregard of legislative materials is required by the rule in Article 1, Section 7 of the Constitution.... Judicial practice of relying on committee reports violates Article I, Section 7 for the same reason the legislative veto did: it amounts to lawmaking by congressional subgroups..." WIlliam N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 236-37 (2d ed., 2006). In a discussion of the Tanner Lectures and other texts by Scalia, the authors cite for this point, inter alia, Scalia's concurrence in Bank One Chicago v. Midwest Bank & Trust Co., 516 U.S. 264, 279 (1996). Actually, in Bank One he only invokes Art. I, Sec. 1, and he does so to note that "the Constitution forbids" congressional delegation of lawmaking powers to the committees, attacking Justice Stevens' notion in his concurring opinion that "most members [of Congress] are content to endorse the views of the responsible committees."
As far as I can tell, Eskridge et al. never directly reach the question of the precedential value of methods of interpretation. Nevertheless, their discussion of competing approaches and the dynamic interplay among the branches in formulating more or less meaningful and effective statutory schemes is rich. (They do go on to note substantial criticism leveled against the rule they ascribe to Scalia, by the way.)
As for reliability, Eskridge et al. state, "Recent empirical evidence suggests that congressional committees are relatively representative of their chamber and are monitored not only by the chamber majority but also by whistle-blowers in the minority" (311). They cite Thomas Gilligan & Keith Krehbiel, Organization of Informative Committees by a Rational Legislature," 34 Am. J. Pol. Sci. 531 (1990); Keith Krehbiel, Information and Legislative Organization (1991); and their own ch. 3.
Here is a pertinent, if dated, discussion of this topic at 2A Sutherland Statutory Construction § 48A:4 (6th ed.), excerpted from Frederick J. de Sloovère, Preliminary Questions in Statutory Interpretation, 9 NYU L. Q. Rev. 407, 426-27 (1932) (footnotes omitted):
[W]hether rules of construction are treated as mandatory or not in no way affects their qualified applicability. Thus if rules of construction were treated more scientifically as judicial precedents as found and applied in actual cases, there would be a tendency toward a more careful objective analysis of problems of interpretation and more scientific and effective application of principles of interpretation as part of the judicial process. This is the view of Hardcastle, and in line with the judicial custom of treating such canons similarly at law and in equity. That "rules of interpretation have only a qualified force" is in no way affected by regarding them as rules of law, for their relevancy or application, not unlike any rules of substantive law, depends solely upon judicial experience. Cases are not reversed because lower courts select the wrong principles either of substantive law or of construction, if correct conclusions are reached. That cases be worked out properly upon the proper law or that cases be interpreted by well-reasoned application of principles of construction is none the less highly desirable from the standpoint of predictability. A singular difficulty, however, in establishing a particular principle of statutory construction as a legal precedent by a line of decisions is that seldom do two statutes arise with the same terminology, substantially similar facts, identical problems of interpretation, involving the same interpretative rules or principles. It seems clear, therefore, that the application of principles of traditional law as found in courses of decisions (establishing precedents) requires (1) an interpretation of existing law in order to make a choice, (2) a finding that the relevant facts are identical or different, in the case or cases in which the rule or principle is found and in the case to which the rule or principle is applicable, and (3) if different, the interpretation of the principle so chosen, by way of analysis or analogy, in further detail for application to the case at hand. Consequently, since choosing the right principles of construction for a given case, like the choice of principles of substantive law, depends rather upon judicial experience and knowledge of law than upon any objective criteria, their correlation upon theory and precedent is as tenable in the one situation as in the other.
I guess I'm on a roll with Scalia. See this recent LA Times article.
"Does this suggest that he views choice of interpretive methodology not merely as an inalienable component of the judicial power but rather as an inalienable prerogative of each individual Article III judge? Or do the policies underlying stare decisis not apply to interpretive methodology?"
When he was on the lower court, Scalia stated that though he was opposed to the use of legislative history, he could not ignore it given that the Supreme Court routinely used it.
Thus, I do not think he would argue that the choice to use it or not use it is an inalienable power of an A3 judge, but only the inalienable power of a justice :).
Andy, your view coincides with my federal judge friend's, yet Scalia has made a number of comments as has his former clerk Professor John Manning, suggesting that there are constitutional prohibitions on resort to legislative history.
"Andy, your view coincides with my federal judge friend's, yet Scalia has made a number of comments as has his former clerk Professor John Manning, suggesting that there are constitutional prohibitions on resort to legislative history."
I agree that there are constitutional problems with the resort to legislative history, and if i were a SCOTUS justice I would never use it, but what is a lower judge to do? If the Supreme Court says use legislative history, they can hardly ignore the Court -- perhaps that is simply implicit in the constitution's recognition that the judicial power is vested in the Supreme Court and that other courts are "inferior"?
Andy, what if a majority opinion of the SCOTUS says lower courts shouldn't use legislative history? That's the question; namely, whether such pronouncements are binding.
I think there are many, many majority opinions that say that courts cannot look to legislative history. But, particularly over the last 50 years, there are many, many majority opinions that do look to legislative history.
My gut reaction -- and I'm not a federal courts expert by any means -- is that if the Court consistently stated that the lower courts could not use legislative history, and a lower court used it anyway, the Court would reverse it only if it got the substantive result wrong (e.g. "The appellate Court erred in holding that "X" means "Y"; rather, had it focused on the statute, it would find that "X" means "Z"). I don't think there is anything to "reverse" if the lower courts uses LH, unless the use of LH was somehow part of the controversy (e.g., to play with Judge Kozinski's fanciful example, if Congress said that any individual could bring an action for monetary damages against a judge who used LH, then the Court might affirmatively state that lower courts *cannot* use LH), but failing such exceptional circumstances, I do not think the Court's method of interpretation is binding, even if all 9 justices are textualists (or purposivists). that's just my 2 cents.
i should mention that I have glanced ehre and there at your treatise and think it's terrific (tax regulations codified at 26 CFR 1.861-18 borrow from copyright law, and in construing those regulations, I had occasion to spend some time examining the copyright act. i wish your treatise were available on westlaw a few months ago!).
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