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Abstract:
Over the past 15 years, the canons of construction have experienced a remarkable revival in the courts and the legal academy. While the role of this interpretive resource has been heavily theorized, it has until now been under-explored from an empirical standpoint. This article adopts a novel combination of empirical and doctrinal analysis to uncover the Supreme Court's complex patterns of reliance on the canons over a 34-year period. We focus on whether the canons are favored across different time periods, in particular subject matter areas, by individual justices, and in close cases. Our approach - identifying ten different interpretive resources, linking reliance on those resources to ideological outcomes, and pursuing extensive follow-up doctrinal analysis of individual cases - breaks important new ground in the analysis of judicial reasoning from an empirical perspective.

Our findings and conclusions cast serious doubt on the contentions by legal process proponents that the canons can serve as consistent or impartial guidelines to statutory meaning; they also challenge the behavioral account of canon use advanced by public choice scholars. In addition, we identify an important subset of cases in which the Rehnquist Court has relied on canons to help undermine the demonstrable legislative preferences of Congress. Overall, our results and analyses offer a sobering counterpoint to the elevated normative claims made by some justices and many scholars on the canons' behalf.

Labor, statutory interpretation, construction, canons, legal process, Supreme Court

Abstract:
This article is the first comprehensive treatment of neutrality agreements, which are themselves the most important development in Labor Law for decades. The labor movement's new approach to organizing displaces NLRB-supervised elections with negotiated agreements that provide (i) for employers to remain neutral during an upcoming union campaign, and (ii) in most instances, for employees to decide if they want to be represented through signing authorization cards rather than through a secret ballot election. The article demonstrates the substantial, perhaps predominant, role played by this new contractually based approach over the past 5-10 years; it also explains why so many employers have chosen to participate. The article then considers and rejects the principal doctrinal arguments challenging the facial validity of the neutrality and card check approach. Finally, borrowing from Thomas Kuhn's famous paradigm-based analysis of how change occurs in the natural sciences, the article responds to the argument that freedom of choice in the union representation context is best realized through the elections process, and instead contends that the government-supervised election paradigm should be substantially modified if not entirely supplanted in light of the evidentiary record over the past 30 years and the development of a credible alternative model.

Labor Law, unions, labor organizing, elections

Abstract:
This article conducts an in-depth examination of Supreme Court Justices' reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.

First, the article presents a powerful case against the conventional wisdom that legislative history is a "politicized" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions - if true - should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in "minor" cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion.

The article's second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices' use of legislative history since 1986. In the face of Justice Scalia's fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals' strategic restraint is to make their use of legislative history in remaining (mostly pro-employee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia's strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

Abstract:
This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and the "phantom legislative history" approaches. Under the crystal ball approach, the Court has effectively penalized the enacting Congress for having failed to create a detailed legislative record, even though such a record requirement could not reasonably have been anticipated at the moment of legislative deliberation and enactment. Under the phantom legislative history approach, the Court has expressed interest in considering legislative history when assessing constitutionality, but then has established and applied a legal standard for review that even a detailed legislative record could not possibly satisfy. In Part I, we trace the development of this recent judicial activism in which disrespect for Congress is a fundamental element. In Part II, we describe the Court's decisions in Kimel v. Florida Board of Regents and United States v. Morrison as examples of the crystal ball approach, and discuss the implications of this methodology for the internal operations of Congress and for the exercise of federal legislative powers. In Part III, we consider Kimel and Morrison as also illustrating the phantom legislative history approach and discuss the significant implications of this methodology for the relationship between the courts and Congress. Finally, in Part IV we invoke these two methods to help explain the contrast between the Court's asserted interest in legislative recordbuilding in the constitutional law setting and its simultaneous disdain for legislative history when construing statutes in nonconstitutional settings. Part IV also addresses how the Court's legislative history approach, especially in the Section Five area, may actually threaten traditional federalism objectives regarding the role of Congress.

constitutional law, legislation, Congress, federalism, separation of powers, employment discrimination

Abstract:
The National Labor Relations Board has managed to remain unusually detached or isolated in its decision-making even as it has come to operate in an openly partisan manner. There is a certain paradoxical quality to the coexistence of these two descriptors for Board conduct: isolation in agency performance ordinarily suggests a neutral separation from the political process whereas politicization implies a close connection to the elected branches. The explanation for this odd pairing involves a number of factors: some reflect political realities beyond the agency's ability to control, others relate to the structure of the NLRA, and still others are a function of internal agency choices. The article discusses and analyzes these various factors, drawing comparisons to labor law experience in other countries, and also contrasting the NLRB's path with that followed by two other New Deal agencies.

The Board's isolation and politicization have left it in an unfortunate position. As the agency principally charged with overseeing the development and retention of collective bargaining relationships, it seems incapable of halting or even responding to the movement away from such relationships. The dramatically reduced role played by unions and collective bargaining in the U.S. private economy is hardly attributable solely or even primarily to the workings of the legal regime. At the same time, the Board's strategic choices over a period of decades have meant that it has failed to contribute to - and may well have inhibited - a constructive response to these developments.

Abstract:
In 1992, the Law Lords (the judicial arm of the House of Lords) overruled more than two centuries of precedent when it decided in Pepper v. Hart that courts could refer to and rely on legislative history to aid in construing enacted laws. The ensuing fourteen years have witnessed a robust debate among British judges and legal scholars as to the scope and propriety of Pepper. This article offers the first empirical and comparative analysis of how Britain's highest court has used previously excluded legislative history materials in its judicial decisions.

Although the Law Lords opened the door to reliance on legislative history at a time when the U.S. Supreme Court has been clamping down on such usage, the article demonstrates that citation to parliamentary materials by the Law Lords since 1996 does not approach the levels of reliance on congressional materials currently practiced by the Supreme Court. Notwithstanding Justice Scalia's appreciable influence, Supreme Court justices continue to make use of legislative history in their opinions between three and five times more often than their counterparts in Britain. The article accounts for this divergent pattern of U.S. and British usage based on certain key differences in their respective lawmaking processes and structures — notably the disparate roles played by standing committees, the varying importance of legislative bargains following bill introduction, and the breadth of legislative history sources available under each system.

Still, despite a spirited reaction to Pepper by several judges on the Law Lords, references to legislative history have increased since 2000. Moreover, the Law Lords in two very recent decisions have gone beyond Pepper in setting forth grounds for relying on parliamentary materials. The article predicts that Britain's highest court is in the process of consolidating if not augmenting a permanent role for legislative history as an interpretive asset. The article then suggests how this development should invite a different kind of dialogue about legislative history among justices on the U.S. Supreme Court.

legislation, interpretation

Abstract:
This article contributes to an ongoing debate about the feasibility and desirability of measuring the merit of appellate judges - and their consequent Supreme Court potential - by using objective performance variables. Relying on the provocative and controversial tournament criteria proposed by Professors Stephen Choi and Mitu Gulati in two recent articles, Brudney assesses the Supreme Court potential of Warren Burger and Harry Blackmun based on their appellate court records. He finds that Burger's appellate performance appears more promising under the Choi and Gulati criteria, but then demonstrates how little guidance these quantitative assessments actually provide when reviewing the two men's careers on the Supreme Court. The article goes on to discuss more generally certain reservations about the performance measurement approach - focusing on the importance of including political and ideological factors from a separation of powers standpoint, and on the further importance of non-quantitative factors such as collegiality and career diversity (i.e., having candidates other than appellate judges).

Supreme Court, judges, separation of powers, empirical, law and society, judicial qualifications, nominations process

Abstract:
Nearly four fifths of federal court of appeals opinions are unpublished. For more than 25 years, judges and scholars have debated the wisdom and fairness of this body of "secret" law. The debate over unpublished opinions recently intensified when the Eighth Circuit held that the Constitution requires courts to give these opinions precedential value.

Despite continued controversy over unpublished opinions, limited empirical evidence exists on the nature of those opinions. Working with an especially complete dataset of labor law opinions and multivariate statistical methods, we were able to identify the factors that predict publication. Some of those factors, such as a decision to reverse the agency, track formal publication rules. Others, such as the number of judges on the panel who graduated from elite law schools or the number with expertise in the disputed subject, are more surprising. In addition, we discovered substantial evidence of partisan disagreement within unpublished opinions, suggesting that those cases are not as routine as publication rules suggest. These empirical findings should guide policy and constitutional decisions about the future of unpublished opinions.

Abstract:
This article examines and analyzes possible reasons behind the Supreme Court's declining reliance on legislative history over the past two decades. The authors report, based on a dataset of some 650 majority opinions in the area of workplace law from 1969 through 2005, that reliance on legislative history has fallen from nearly 50% during the Burger era to less than 30% in the Rehnquist years. Examining majority opinions written by individual justices over this period, the authors demonstrate that Justice Scalia has played an important role - both through overt resistance to legislative history expressed in his own opinions and through his apparent influence on the writings of several colleagues. Subject matter considerations have contributed as well: sharp declines in reliance have occurred between the Burger and Rehnquist eras for statutes that aged notably during the 36 years covered by this study. As a regulatory scheme (such as Title VII or the NLRA) advances to middle age and beyond, the Court may well conclude that other interpretive resources (such as Supreme Court precedent and agency deference) are more trustworthy or malleable in clarifying and developing the meaning of inconclusive text.

The article also reports findings that indicate the Court's reliance on legislative history is intriguingly non-ideological in direction. With respect to the Court as a whole and distinctly ideological subgroups of justices, legislative history reliance for liberal/redistributive workplace law statutes is associated with pro-employer results more often than one might expect. The authors offer several principled explanations for these findings, and suggest the Court's use of legislative history may be deliberative and coherent in ways that legislative history sceptics have not imagined.

legislation, statutory interpretation

Abstract:
Brudney, Schiavoni, and Merritt address an important debate dividing lawyers and political scientists: To what extent do extradoctrinal factors such as political party, gender, and professional experience influence judicial decisionmaking? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of judicial bias. By including every federal court of appeals decision applying the Act over a seven year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decisionmaking. These include a strong interaction between gender and political party, the influence of prior experience representing management clients under the Act, and associations based on race, religion, and educational background. At the same time, the authors place those influences in context, suggesting the complex interweaving of doctrine and personal background in shaping judicial decisions.

Abstract:
Brudney, Schiavoni, and Merritt address an important debate dividing lawyers and political scientists: To what extent do extradoctrinal factors such as political party, gender, and professional experience influence judicial decisionmaking? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of judicial bias. By including every federal court of appeals decision applying the Act over a seven-year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decisionmaking. These include a strong interaction between gender and political party, the influence of prior experience representing management clients under the Act, and associations based on race, religion, and educational background. At the same time, the authors place those influences in context, suggesting the complex interweaving of doctrine and personal background in shaping judicial decisions.

Abstract:
This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter "BLMRod") that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007.

The essay situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the compression process that generated them. The essay explores certain implications of this thematic focus. It discusses how the authors' approach may help clarify the status of legislative history as evidence of ascribed or imputed intent. It also suggests how that approach may enhance the value of legislative history when contrasted with key interpretive resources generated by the two other branches of government - i.e., the canons of construction and agency rules or adjudications.

The essay then adopts a more critical perspective toward BLMRod's treatment of the compression (lawmaking) and expansion (law-interpreting) processes. It suggests that by viewing the compression process as essentially a majority party domain, the authors undervalue important congressional conversations involving minority party members, especially although not exclusively in the Senate. Further, the essay discusses how the architecture of congressional conversations may differ across subject matter areas more than the authors' basic model seems to contemplate. Finally, the essay addresses the process of expansion, particularly BLMRod's approach to conversations among a bill's coalition of supporting members. It suggests ways in which the authors' analysis of what motivates ardent and pivotal supporters, and how courts should treat these two key groups when elaborating the meaning of text, may be in need of some refinement.

Abstract:
Debates about statutory interpretation - and especially about the role of the canons of construction and legislative history - are generally framed in one-size-fits-all terms. Yet federal judges - including most Supreme Court Justices - have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008.

The authors conclude that the Justices tend to rely on legislative history for importantly different reasons in these two fields. The Court regularly invokes committee reports and floor statements in the workplace law area for the traditional role of identifying and elaborating on the legislative bargain that Congress reached. By contrast, the Justices often rely on the legislative history accompanying tax statutes to borrow expertise from key committee actors. The Court’s use of tax legislative history for expertise borrowing purposes relates to the distinctive nature of how tax legislative history is produced, featuring regular cross-party and interbranch cooperation that is virtually unimaginable in the workplace law setting. Although most Justices have appreciated the special character of tax legislative history, Justice Scalia remains steadfast in his unwillingness to do so.

With respect to the use of canons, Brudney and Ditslear find that the Court makes comparatively heavier use of the whole act rule and related structural canons in its tax majorities. The authors suggest that the Justices may recognize the Internal Revenue Code to be more of a coherent and self-contained regulatory scheme than the series of workplace law statutes scattered across multiple titles of the U.S. Code. As for substantive canons, the Justices are much more likely to invoke tax-based judicial policy norms than to rely on canons grounded in the specifics of workplace law. The authors contend that the Court’s use of these tax law canons should be viewed as a derivative form of expertise borrowing.

Finally, Brudney and Ditslear explore the special role played by Justice Blackmun in the tax area. They demonstrate how Blackmun’s expertise in tax law and his attentiveness to its rich legislative history anchored the Court’s performance for twenty-four years. Since Blackmun’s retirement, the other Justices have been less interested in reviewing tax cases and far less willing to use legislative history when they choose to decide such cases.

The evidence that familiar interpretive resources play distinctive roles in the area of tax law contributes to a subtler and richer texture for statutory interpretation than is often captured in scholarly debates. At the same time, the authors’ results also indicate that the Court since the late 1980s has exhibited greater uniformity in its reasoning in tax law and workplace law cases. Brudney and Ditslear wonder whether the philosophical arguments favoring a less flexible approach to statutory interpretation are beginning to trump a pragmatic orientation that is more sensitive to differences among particular subject matter areas of federal law.

canons, statutory interpretation, legislation, Blackmun, textualism, legislative history, workplace, labor

Abstract:
The Supreme Court is in the midst of an extended debate regarding the proper approach to construing federal statutes. A number of Justices have engaged in heated dialogue addressing the pros and cons of textualism or intentionalism, as well as the virtues and limitations of Chevron deference. Although Justice Ginsburg has not participated in these judicial exchanges, she has adopted her own approach to the challenge of interpreting federal statutes. This Article explores Ginsburg’s approach by focusing on four opinions that construe federal criminal laws and three that interpret labor relations and anti-discrimination laws.

The Article’s central thesis is that Justice Ginsburg’s reliance on certain interpretive resources varies depending on how she views the Court’s role as an interstitial actor. In the criminal law area, Ginsburg opinions make primary use of language-based analysis and of two substantive canons - the rule of lenity and the anti-preemption canon - that operate to constrain the scope of the law, while she downplays contextual evidence of congressional or executive branch intent. By contrast, her labor and anti-discrimination opinions - although they begin with textual analysis - rely heavily on legislative history and purpose as well as on agency deference.

These stark differences in interpretive approach probably reflect in part Justice Ginsburg’s underlying policy preferences. A more important lesson of the opinions, though, is how they signify her view of the Court’s appropriate interaction with the political branches. When construing the meaning and scope of criminal law statutes, Ginsburg advances a fairly muscular institutional role for the Court. Her criminal law opinions express a constitutionally informed concern for the relatively powerless position of criminal defendants in ordinary political discourse. At the same time, the opinions often include invitations to Congress to clarify its meaning by overriding the Court’s decision. Congress responded to Ginsburg’s initial criminal law majority opinion by overriding it a mere eight months later, and the Justice understands that the political branches are quite capable of producing effective responses to criminal law majority opinions with which they disagree.

When it comes to labor relations and civil rights, Ginsburg regards the Court as a distinctly more junior partner in the lawmaking enterprise. This stance in turn signals both a greater comfort level about how interest group politics operate in a civil regulatory setting and greater skepticism regarding Congress’s ability to respond to any constructions imposed by the Court.