Heterogeneity, Legislative History, and the Costs of Litigation: A Brief Comment on Bruhl’s “Hierarchy and Heterogeneity”
Should lower federal courts rely on legislative history as a source of interpretive authority in statutory cases? And, should the answer to that question depend on a different weighing of factors than answering the same question as to the United States Supreme Court? These are two of the normative questions that Aaron-Andrew Bruhl raises in his recent Cornell Law Review article “Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court.” 97 Cornell L. Rev. 433 (2012). In addressing these questions, Bruhl argues that “[s]tatutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court.” [. . .]
In this brief Comment, I want to make two points. First, to weigh the merits of Bruhl’s ideas, we need to know the answer to the descriptive question that parallels the normative one: Are the lower federal courts in fact using legislative history? Second, if one of the principal arguments that “hierarchy” matters is that courts at different levels have different decisional capacities (such as resource differences), Bruhl’s argument depends, at some level, on empirical assumptions about the actual costs of both researching legislative history and litigation generally.
Professor Desai is Professor of Law at the University of Wisconsin Law School. The author also currently serves as a part-time Commissioner at the Foreign Claims Settlement Commission, United States Department of Justice, Washington, D.C.