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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 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:
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