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.”1 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.”2 He points to three kinds of differences among courts: “(1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic pedigree.”3 Building on these three differences, Bruhl tentatively sketches out an argument that lower federal courts “should be extremely wary of delving into legislative history.”4 In particular, one factor Bruhl focuses on is the resource disparities that “make the use of legislative history more problematic the lower one goes in the legal hierarchy.”5
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.
Let’s turn to the first point. In literal terms, the answer to the question of whether lower federal courts use legislative history is of course “yes.” So, perhaps more precisely, the question is whether the lower federal courts rely on legislative history infrequently enough to change the weighing of factors in Bruhl’s analysis. For if the lower courts are already deciding most cases without resort to legislative history, many of the potential benefits of a conscious policy of having them do so are significantly reduced, while one possible rule-of-law cost of treating the lower courts differently from the Supreme Court—public confidence that all judges in our system are engaged in the same task— remains the same. Bruhl alludes to scholarly work that is beginning to answer the descriptive question of how the interpretive process is actually operating at the lower-court level, but he argues that the “substantial value [of the positive work] cannot be fully realized without a normative framework that will let us evaluate whether lower courts are doing well and, perhaps, tell them how to do better.”6 My point is just the opposite: the force of any normative argument that the lower federal courts should rely on legislative history less than the Supreme Court depends in part on whether they are already doing this.7 For if the lower courts are already relying less on legislative history, the benefits of advocating that they do so are largely limited to a justification of existing practice. On the other hand, telling lower federal courts to interpret statutes differently from the Supreme Court would contradict the common American conception of what courts do,8 something that might (again, another unanswered empirical question) undermine confidence in the courts.9
My second point also has the merits of Bruhl’s normative argument turn on empirics. Bruhl notes that courts at different levels of the judicial hierarchy enjoy different levels of resources. Bruhl thus appears to assume that properly researching legislative history requires resources and that a court with more resources will do a better job than one with fewer resources.10 As he mentions briefly, this includes the resources that the parties and their lawyers bring to a case.11 In contrast to the run-of-the-mill case in the lower federal courts, most Supreme Court cases involve a bevy of sophisticated lawyers and amicus briefs, along with, the overwhelming majority of the time,12 the Solicitor General of the United States, the premier appellate litigation shop in the country.13
If we view Bruhl’s proposal through this lens, we can see that the proposal might have a distributive impact.14 At the Supreme Court level, even if the parties are not equally matched in terms of resources, it is probably the rare case when both sides (including the amici) cannot comprehensively research and analyze the relevant legislative history. In contrast, lower down the hierarchy, a disparity in overall resources might well lead to a disparity in the resources necessary to research legislative history properly. If so, this disparity can skew the law systematically in favor of “the haves.”15
To understand why this might be, consider a schematic scenario in which one party (or one type of party) systematically has the resources to research legislative history and the other does not.16 For simplicity’s sake, let’s call the former “the richer party.” Assume further that the plain meaning of the statute is arguably ambiguous between two meanings, M1 and M2, but that without any legislative history the court would resolve the ambiguity in favor of M1. Assume further that in both cases the legislative history directly supports M2 and that, if confronted with the legislative history, the court would resolve the statutory ambiguity in favor of M2. More importantly (and perhaps controversially), let us assume that M2 is in fact “the correct answer” (whatever that might mean). So, my scenario assumes that with legislative history, the court decides the case correctly, and without it, the court gets it wrong.
We might then compare two stylized examples, one in which the richer party favors M1 (the hypothetically “wrong” result) and the other in which the richer party favors M2 (the hypothetically “correct” result). If the richer party favors M2, then that party will likely cite the legislative history that it finds. At that point, the lower-court judge is at least on notice that the legislative history might actually matter, thereby possibly leading the judge to inquire further, even if the poorer party fails to do so. Of course, given my starting assumptions, it won’t matter, since the judge will simply find that the legislative history does in fact favor M2 and rule in favor of the richer party. If the richer party favors M1, however, the only party with the information that the legislative history supports M2 has no incentive to disclose that fact, and the court might thus never even consider the legislative history, thereby interpreting the statute with meaning M1 and (again) deciding the case in the richer party’s favor.17 Since I’m assuming for the limited purposes of this brief Comment that legislative history leads to better results (i.e., M2 is in fact a better interpretation than M1),18 a rule that barred legislative history in the lower courts altogether would of course exacerbate the problem broadly by leading the judge to get it “wrong” (i.e., deciding in favor of M1) in both cases. On the other hand, from the standpoint of distributive equity, one might argue that getting it “wrong” in both cases results in a better system overall: allowing lower courts to rely on legislative history leads to the richer party winning every time (i.e., the court would decide in favor of M1 if the richer party favors M1 and in favor of M2 if the richer party favors M2).
Even if one cares about this inequity, though, to determine the likelihood of it occurring requires some more concrete information about the actual costs of both researching legislative history and litigation in general.19 If researching legislative history is both cheap enough in absolute terms and, at the same time, a small enough proportion of the overall costs of litigation in a particular court, then this might well be a nonissue. On the other hand, if the cost of researching and analyzing legislative history is either high enough that certain types of parties simply do not have the resources to do it at all or a large enough proportion of the overall costs of litigation given the stakes in a given case, it might matter.20
* Professor of Law, 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. The opinions expressed here are those of the author and do not reflect those of the United States Department of Justice. Thanks to Andy Coan and Aaron-Andrew Bruhl for helpful comments.
WLR Online: Volume 2013, No. 3