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.
This piece is Professor Allison Christians’s response to Professor Adam H. Rosenzweig’s article, Thinking Outside the (Tax) Treaty. Professor Rosenzweig’s article is available in the 2012 Print Archive.
In this Reply to Professor Rosenzweig’s article, I seek to affirm that the instinct to look for an international tax BATNA is a good one because the international community appears to be mired in a
negotiated-agreement-or-nothing status quo, with no clear way to save the income tax from evisceration via aggressive tax avoidance and evasion. However, I am afraid that Professor Rosenzweig’s proposed BATNA will fall by the wayside as the United States appears intent on continuing the longstanding tradition of preferring negotiated agreements that use too many sticks and not enough carrots to try to control the international tax order to its own advantage.
Professor Christians holds the H. Heward Stikeman Chair in Tax Law, McGill University Faculty of Law.
This piece is Professor Emilios Avgouleas’s response to Professor Steven L. Schwarcz’s article, Controlling Financial Chaos: The Power and Limits of Law. Professor Schwarcz’s article is available here.
With the devastating impact of the Global Financial Crisis still reverberating around the globe, the Eurozone sinking ever deeper into a sovereign debt and banking crisis, and the developed countries struggling to climb out of the recession trap they have fallen into since 2008, original thinking, like that offered by Professor Steven Schwarcz in his Wisconsin Law Review article[note]Steven L. Schwarcz, Controlling Financial Chaos: The Power and Limits of Law, 2012 Wis. L. Rev. 815.[/note] is very welcome and timely. The academic and policy-making communities share an unusually widespread consensus regarding the causes of the Global Financial Crisis. However, views on the right policies that will restore stability to the global financial system tend to differ sharply.
Professor Avgouleas holds the chair in international banking law and finance at the University of Edinburgh.