Heterogeneity, Legislative History, and the Cost of Litigation: A Brief Comment On Bruhl's 'Hierarchy and Heterogeneity'

Abstract

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." 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." 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." Building on these three differences, Bruhl tentatively sketches out an argument that lower federal courts, “should be extremely wary of delving into legislative history." 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."

In this brief Comment, I 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.

Keywords: legislative history, statutory interpretation, Aaron-Andrew Bruhl, federal courts, litigation costs

JEL Classification: K30, K40, K41