The warp and woof of statutory interpretation: Comparing Supreme Court approaches in Tax law and workplace law

Duke Law Journal

Volumn 58, Issue 7, 2009, Pages 1231-1311

  Brudney, James J ^a   Ditslear, Corey ^b  

^a OHIO STATE UNIVERSITY   (United States)

^b UNIVERSITY OF NORTH TEXAS   (United States)

Author keywords

[No Author keywords available]

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EID: 68049085012     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (389)

1. See, e.g., Antonin Scalia, A Matter of Interpretation 25-29 (1997)
2. Cass R. Sunstein, After the Rights Revolution: REconceiving the Regulatory State 147-57 (1990)
3. David L. Shapiro, Continuity and Change in Statutory Interpretation, 67 N.Y.U. L. Rev. 921, 943-45 (1992).
4. See, e.g., Richard A. Posner, The Federal Courts: Crisis and Reform 276-83 (1985)
5. Stephen F. Ross, Where Have You Gone, Karl Llewellyn? Should CongRess Turn its Lonely Eyes to You?, 45 Vand. L. Rev. 561, 562, 572 (1992)
6. Edward L. Rubin, Modern Statutes, Loose CaNons and the Limits of Practical Reason: A Response to Farber and Ross, 45 Vand. L. Rev. 579, 590 (1992).
7. See, e.g., Scalia, supra Note 1, at 31-37; Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 89-115 (2006)
8. Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 Suffolk U. L. Rev. 807, 812-14 (1998); Frank H. Easterbrook, What Does Legislative History Tell Us?, 66 Chi.-Kent L. Rev. 441, 447 (1990).
9. See, e.g., William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Legislation and Statutory Interpretation 304, 310-17 (2d ed. 2006)
10. Kent Greenawalt, Legislation: Statutory Interpretation: 20 Questions 173-75 (1999)
11. Stephen Breyer, on the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 847 (1992)
12. Lawrence M. Solan, Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation, 93 Geo. L.J. 427, 437-42 (2005)
13. Charles Tiefer, The REconceptualization of Legislative History in the Supreme Court, 2000 Wis. L. Rev. 205, 230-32.
14. See generally Richard A. Posner, How Judges Think (2008) (arguing that judges use a pragmatic approach to decide Cases); Lee Epstein & Jack Knight, the Choices Justices Make (1998) (providing a strategic account of Supreme Court jurisprudence).
15. Other factors influencing judicial reasoning approaches include individual biography and institutional dynamics. See, e.g., Lawrence Baum, Judges And Their Audiences 50-154 (2006)
16. Epstein & Knight, supra Note 5, at 56-181; Posner, supra Note 5, at 125-73
17. For a discussion of how we assembled these datasets, see infra Part I.B.
18. For an explanation of statistical significance in this conText, see infra Note 82
19. The Roberts Court has only three terms of decisions through June 2008 (including five Cases construing the tax code and twenty-five Cases applying workplace law statutes). This Court also includes seven of the nine Rehnquist Court Justices, including Justices Scalia, Breyer, and Stevens, whose views on statutory interpretation methods have been expRessed and applied over an extended period. Accordingly, we have grouped the first three years of the Roberts Court with the Rehnquist Court for purposes of empirical analysis.
20. For an explanation of the difference between language caNons and substantive caNons, see infra Part I.A.1.
21. See Hirschey v. FERC, 777 F.2d 1, 7-8 (D.C. Cir. 1985); infra Part III.A.4 (discussing Hirshey).
22. For our findings on Blackmun majorities and the Court's use of Legislative history in tax Cases before and after Blackmun's retirement, see infra Part II.D.
23. We are aware of one prior Study that addRessed Legislative history use in an earlier era. See Beth M. Henschen, Judicial Use of Legislative History and Intent in Statutory Interpretation, 10 Legis. Stud. Q. 353, 360-61 (1985) (comparing Supreme Court reasoning in antitrust and labor law from 1950 to 1972)
24. see also Nancy Staudt et al., Judging Statutes: Interpretive Regimes, 38 Loy. L.A. L. Rev. 1909, 1966-69 (2005) (pResenting brief comparisons between Justices' rationales in civil rights and business Cases, drawing on the Brudney and Ditslear database and analyses for the civil rights portion).
25. For a discussion of this emerging Research area, see generally Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971 (2007)
26. Elizabeth Garrett, Legislation and Statutory Interpretation, in The Oxford Handbook of Law and Politics 360, 373-74 (Keith E. Whittington, R. Daniel Kelemen & Gregory A. Caldeira eds., 2008)
27. Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 96 Cal. L. Rev. 63 (2008)
28. Gregory C. Sisk, The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decisionmaking, 93 Cornell L. Rev. 873 (2008) (book Review).
29. There is also lively debate among scholars and judges about the executive branch's distinctive interpretive asset-agency guidance in the form of rules and adjudications. See, e.g., William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1097-196 (2008)
30. Thomas W. Merrill & Kristin E. Hickman, Chevron's Domain, 89 Geo. L.J. 833, 852-89 (2001)
31. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. Chi. L. Rev. 823, 827-47, 865-71 (2006)
32. United States v. Mead Corp., 533 U.S. 218, 226-38 (2001); id. at 239-56 (Scalia, J., dissenting)
33. Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 739-46 (1996). We plan to discuss how our datasets contribute to that debate in a subsequent article.
34. See Bradford C. Mank, Textualism's Selective CaNons of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, and Deference to Executive Agencies, 86 Ky. L.J. 527, 542-43 (1998) (discussing the use of caNons in sixteenth century English Case law)
35. see also Geoffrey P. Miller, Pragmatics and the Maxims of Interpretation, 1990 Wis. L. Rev. 1179, 1183-91 (describing the use of caNons to construe ancient Hindu Texts and Biblical commentary as well as Roman Law).
36. Sunstein, supra Note 1, at 150; see also Reed Dickerson, The Interpretation and Application of Statutes 228 (1975) (suggesting that many caNons "reflect the probabilities generated by Normal usage or Legislative behavior")
37. See James J. Brudney & Corey Ditslear, CaNons of Construction and the Elusive Quest for Neutral Reasoning, 58 Vand. L. Rev. 1, 12-14 (2005).
38. See William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation, Statutes and the Creation of Public Policy app. B at 19-21 (4th ed. 2007) (discussing, inter alia, the caNons of Noscitur a sociis, expRessio unius, and ordinary usage).
39. See id. app. B at 21 (discussing, inter alia, the punctuation rule, the may-shall rule, and the rule of the last antecedent).
40. See id. app. B at 21-23 (discussing, inter alia, the whole act rule, the pResumption against redundancy, the pResumption of statutory consistency with Respect to the same or similar terms, and the pResumption that provisos and exceptions are to be read narrowly).
41. See Ross, supra Note 2, at 563; Shapiro, supra Note 1, at 927
42. See Eskridge et al., supra Note 19, app. B at 29-34 (discussing, inter alia, the pResumption against federal preemption of traditional state regulation, the rule of lenity, the pResumption against interpretations that would jeopardize a statute's constitutionality, and the pResumption favoring concurrent state and federal court jurisdiction over federal claims).
43. See id. app. B at 36-41 (discussing, inter alia, the pResumption against Repeals by implication, the strict construction of statutes authorizing appeals, and the pResumption that each side bears its own costs in adjudications).
44. See id. app. B at 34-35 (discussing, inter alia, the rule against extraterritorial application of U.S. law, the rule against implied waivers of U.S. sovereign immunity, and the pResumption favoring common law usage when CongRess empLoys "words or concepts with well-settled common law traditions").
45. See id. app. B at 36-38 (listing examples of caNons that apply generally across subject areas).
46. See id. app. B at 41 (discussing, inter alia, the pResumption that IRS tax assessments are correct, the pResumption against a taxpayer claiming income tax deduction, and the pResumption that tax exemptions should be narrowly construed).
47. R.N. Graham, In Defense of Maxims, 22 Statute L. Rev. 45, 68 (2001).
48. See, e.g., Varity Corp. v. Howe, 516 U.S. 489, 511 (1996) (using a language caNon to raise a question about congRessional intent); Eeoc v. Arabian Am. Oil Co., 499 U.S. 244, 261-62 (1991) (Marshall, J., dissenting) (arguing for using a substantive caNon as a pResumption that triggers consideration of Legislative history and other "conventional techniques" of interpretation).
49. William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term-Foreword: Law as Equilibrium, 108 Harv. L. Rev. 26, 66-67 (1994) (internal quotation marks omitted); see also Shapiro, supra Note 1, at 943 ("[T]wo interrelated values that are served are predictability and fair Notice.").
50. See Posner, supra Note 2, at 276-83; Brudney & Ditslear, supra Note 18, at 103; Ross, supra Note 2, at 562
51. See Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A CongRessional Case Study, 77 N.Y.U. L. Rev. 575, 590-604 (2002) (describing the drafting process as perceived by key staff members)
52. see also James J. Brudney, CongRessional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response?, 93 Mich. L. Rev. L, 16-17, 21-26 (1994) (discussing the fractured and politically sensitive nature of the congRessional lawmaking process).
53. For examples of conflict about the proper application of the whole act rule, see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 354-55 (1988); id. at 360 (White, J., dissenting); Delta Air Lines, Inc. v. August, 450 U.S. 346, 351 (1981); id. at 371 (Rehnquist, J., dissenting); Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 640 & n.45, 641 (1980); id. at 709 (Marshall, J., dissenting). For examples of conflict about the proper application of expRessio unius, see Barnhart v. Peabody Coal Co., 537 U.S. 149, 168-69 (2003); id. at 180-81 (Scalia, J., dissenting)
54. Christensen v. Harris County, 529 U.S. 576, 582-84 (2000); id. at 593-94 (Stevens, J., dissenting). For broader empirical evidence, see Brudney & Ditslear, supra Note 18, at 65, 68, 96. We found that majority reliance on language caNons is associated with a significant increase in dissent dependence on language caNons as well and that a comparable association exists between majority and dissent reliance on substantive caNons, id. at 68, and we inferred that in divided decisions the Justices are likely to view the caNons as reasonably amenable to supporting either side, id. at 96.
55. The Court's EmpLoyee Retirement Income Security Act (ERISA) decisions invoking the general antipreemption pResumption convey the variable probative impact of a given substantive caNon. Over an extended period, the Court has relied on the pResumption in numerous Cases to help justify Restricting the scope of ERISA, whereas the Court has distinguished or igNored the pResumption in a comparable number of other Cases imposing ERISA preemption. See Brudney & Ditslear, supra Note 18, at 106 nn.438-39 (citing six illustrative decisions). For an example of divergent understandings regarding both the weight attributable to the pResumption against extraterritorial jurisdiction and how consistently the Court has applied this caNon in prior years, compare Arabian Am. Oil Co., 499 U.S. at 248-49, with id. at 260-66 (Marshall, J., dissenting).
56. See Brudney & Ditslear, supra Note 18, at 57-60.
57. See id. at 68, 77-93.
58. See id. at 93-94, 108-09; see also Steven R. Greenberger, Civil Rights and the Politics of Statutory Interpretation, 62 U. Colo. L. Rev. 37, 38-51 (1991) (arguing that the Court's reliance on civil rights statutes' "plain meaning" in the 1970s and 1980s invariably led the Court to construe the statutes at issue more narrowly than CongRess intended); Stephen F. Ross, Reaganist Realism Comes to Detroit, 1989 U. ILL. L. Rev. 399, 421-25 (suggesting that conservative reliance on "plain meaning" in an era of Democratic control of CongRess may Result in conservative outcomes that do Not hoNor CongRess's explicit intent).
59. See Eskridge et al., supra Note 19, at 971-72. In addition to this horizontal narrative accompanying enactment of a particular Text, Legislative history also may include the vertical record of how the Text under Review has evolved or been modified from versions enacted by prior CongResses. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 572-74 (1982) (discussing four earlier versions of a statute penalizing empLoyers for Nonpayment of seamen's wages); Bob Jones Univ. v. United States, 461 U.S. 574, 614-17 (1983) (Rehnquist, J., dissenting) (discussing multiple earlier versions of a statutory provision listing types of organizations entitled to tax-exempt status under Internal Revenue Code).
60. See Eskridge et al., supra Note 19, at 981 ("Most judges and scholars agree that committee Reports should be considered as authoritative Legislative history and should be given great weight. .. .").
61. See id. at 971-72, 1000, 1020-22; Greenawalt, supra Note 4, at 171.
62. See Cheryl Boudreau et al., What Statutes Mean: Interpretive Lessons from Positive Theories of Communication and Legislation, 44 San Diego L. Rev. 957, 967-81 (2007) (discussing various types of communication, especially within the majority party, that occur at the early stages of Legislative process)
63. James J. Brudney, Intentionalism's Revival, 44 San Diego L. Rev. 1001, 1004-08 (2007) (contending that "group intent" is attributable to CongRess); Solan, supra Note 4, at 437-49 (pResenting a general theory for treating social groups as entities, and arguing specifically that CongRess should be viewed as an entity with intent).
64. See Bank One Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 276-77 (1996) (Stevens, J., concurring)
65. Stephen Breyer, Active Liberty: Interpreting Our Democratic constitution 87-88 (2005)
66. Solan, supra Note 4, at 444-49; Tiefer, supra Note 4, at 230-32
67. See Bank One Chi., 516 U.S. at 276-77 (Stevens, J., concurring); George A. Costello, Average Voting Members and Other "Benign Fictions": The Relative Reliability of Committee Reports, Floor Debates, and Other Sources of Legislative History, 1990 Duke L.J. 39, 60-73.
68. Brudney, supra Note 41, at 1007; Tiefer, supra Note 4, at 230-32
69. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 452-53 (1987) (Scalia, J., concurring); Kozinski, supra Note 3, at 813.
70. See, e.g., Scalia, supra Note 1, at 31-34; Kozinski, supra Note 3, at 812-14
71. John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 99, 102-03 (2006).
72. See, e.g., Breyer, supra Note 4, at 862-64; Brudney, supra Note 32, at 42-45
73. William N. Eskridge, Jr., Legislative History Values, 66 Chi.-Kent L. Rev. 365, 372-75 (1990).
74. See Tiefer, supra Note 4, at 268 (invoking political science Research on the institutional role of committees as producing and supplying superior information to enhance the chamber's performance)
75. See Solan, supra Note 4, at 437-42 (discussing models of group intent as described by philosophers Margaret Gilbert and Michael Bratman)
76. Tiefer, supra Note 4, at 255-64 (examining the philosophical approaches of John Austin, H.L.A. Hart, and John Searle).
77. See Solan, supra Note 4, at 449-53 (arguing that psychological Research shows that it is common and coherent to understand plural subjects, such as CongRess, as having intent)
78. See Breyer, supra Note 42, at 15-16, 85-101
79. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring)
80. Edwards v. Aguillard, 482 U.S. 578, 637-38 (1987) (Scalia, J., dissenting); Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol'y 61, 61 (1994).
81. See Breyer, supra Note 4, at 858-60; James J. Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 Berkeley J. Emp. & Lab. L. 117, 146-51 (2008)
82. McNollgast, Positive CaNons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705, 724-27 (1992).
83. See Jonathan R. Macey & Geoffrey P. Miller, The CaNons of Statutory Construction and Judicial Preferences, 45 Vand. L. Rev. 647, 659-65 (1992); cf. Frederick Schauer, Statutory Construction and the Coordinating Function of Plain Meaning, 1990 Sup. Ct. Rev. 231, 247 (suggesting that Justices use caNons when they find the Cases boring in policy terms).
84. See Macey & Miller, supra Note 53, at 662-64, 668-70
85. See Mary L. Heen, Plain Meaning, the Tax Code, and Doctrinal Incoherence, 48 Hastings L.J. 771, 786 & n.73, 818-19 (1997) (arguing that tax law is unique because of the complexity and ever-changing nature of the tax code and because the process surrounding its creation is relatively insulated from the influence of special inteRest groups)
86. Beverly I. Moran & Daniel M. Schneider, The Elephant and the Four Blind Men: The Burger Court and Its Federal Tax Decisions, 39 How. L.J. 841, 891-95, 903-07 (1996) (outlining reasons why Legislative history is particularly relevant to interpreting tax law and observing that the Burger Court heavily relied on Legislative history in this area). The discussion in this Section and Part III.A.2 relies on observations and analyses from political science as well as law, reflecting perceptions of the tax Legislation process from the 1950s to 2008. See Joint Comm. on Taxation, About the Joint Committee on Taxation 5-8, 16, http://www.house.gov/jct/About_Joint_Committee_On_Taxation.pdf (last visited Jan. 23, 2009)
87. Michael Livingston, CongRess, the Courts, and the Code: Legislative History and the Interpretation of Tax Statutes, 69 Tex. L. Rev. 819, 832-42 (1991) (stating that Professor Livingston served as Legislative attorney for the Joint Committee on Taxation from 1983-87)
88. Bradford L. Ferguson, Frederic W. Hickman & Donald C. Lubick, Reexamining the Nature and Role of Tax Legislative History in Light of the Changing Realities of the Process, 67 Taxes 804, 809-12 (1989) (Noting that the three authors, in private practice as of 1989, had direct and extensive experience in the tax Legislative process between 1961 and 1980-Lubick as Tax Legislation Counsel of the Treasury Department (1961-64) and Assistant Secretary of the Treasury for Tax Policy (1977-81)
89. Hickman as Assistant Secretary of the Treasury for Tax Policy (1972-75); and Ferguson as Tax Legislative Assistant to a Senate Finance Committee member (1975-77), Special Assistant to the Assistant Secretary of the Treasury for Tax Policy (1977-79), and Associate Tax Legislation Counsel of the Treasury Department (1979-80))
90. John F. Manley, CongRessional Staff and Public Policy-Making: The Joint Committee on Internal Revenue Taxation, 30 J. Pol. 1046, 1048-65 (1968) (highlighting that Manley, a political scientist, interviewed twenty-three members of the House Ways and Means Committee, eight members of the Senate Finance Committee, five members of the congRessional staff, and three high-ranking Treasury Department officials); Lawrence N. Woodworth, ProceduRes Followed by CongRess in Enacting Tax Legislation and the Role of the Joint Committee Staff in that Process, 18 Inst. on fed. Tax'n 21, 23-32 (1966). Woodworth was an Economist on the JCT from 1944-64 and Chief of Staff for the JCT from 1964-77.
91. Joint Comm. on Taxation, supra Note 55, at 2.
92. See infra Part III.A.2.
93. See Ferguson et al., supra Note 55, at 810; Livingston, supra Note 55, at 836.
94. See Macey & Miller, supra Note 53, at 652-55, 667-71 (illustrating their argument with a single Court decision, Breininger v. Sheet Metal Workers International Ass'n Local Union No. 6, 493 U.S. 67 (1989)).
95. See id. at 662-64. Language caNon reliance tends to promote error avoidance by invoking a content-neutral rule or pResumption that enables the Court Not to engage the substantive issues. By contrast, if the Court borrows expertise from an interpretive Resource such as Supreme Court precedent or Legislative history, it is engaging the substantive subject matter at stake. But some language caNons, such as the whole code rule in tax Cases, can arguably be viewed as a form of sEcond-order expertise borrowing. See Text accompanying Notes 276-80.
96. See sources cited supra Note 52; see also Daniel B. Rodriguez & Barry R. Weingast, The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and Its Interpretation, 151 U. Pa. L. Rev. 1417, 1420-23 (2003)
97. Nourse & Schacter, supra Note 32, at 607
98. See Brudney & Ditslear, supra Note 52, at 146-51
99. James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 Judicature 220, 227-28 (2006).
100. We have analyzed different aspects of this dataset-jointly and individually-in a number of prior articles. See, e.g., Brudney & Ditslear, supra Note 52 passim; James J. Brudney, Below the Surface: Comparing Legislative History Usage by the House of Lords and the Supreme Court, 85 Wash. U. L. Rev. 1 passim (2007)
101. Brudney & Ditslear, supra Note 62 passim; Brudney & Ditslear, supra Note 18 passim. For a detailed discussion of how we assembled the dataset, see Brudney & Ditslear, supra Note 18, at 15-29. The complete dataset and codebook for workplace decisions and tax decisions addRessed in this Article are available on the web. James Brudney & Corey Ditslear, Liberal Justices, http://www.psci.unt.edu/Ditslear/LHdata.htm (last visited Feb. 27, 2009).
102. The dataset also includes eighty-one decisions pResenting workplace-related issues of constitutional law that do Not implicate any federal statute. We omit these decisions from our analysis because we are comparing only the Court's approach to statutory interpretation in different subject matter areas. See Brudney & Ditslear, supra Note 52, at 128 n.37 (discussing the ways in which Legislative history of statutes differs from "constitutional history" such as convention proceedings, state ratification debates, and The Federalist Papers).
103. For a fuller discussion of which statutes fall in each subject matter category, see Brudney & Ditslear, supra Note 18, at 17-18. From the 1969 through the 2007 term, 192 of the 597 workplace law Cases involved labor-management relations, 147 Cases involved race or gender discrimination statutes, 59 Cases construed provisions involving other forms of status discrimination (mostly age and disability), 74 Cases addRessed statutes setting minimum workplace standards, 66 Cases involved retirement-related statutes, 25 Cases involved general negligence-based provisions that apply primarily to workers in the railroad or maritime industries, and 48 Cases addRessed miscellaneous empLoyment-related provisions. This total exceeds 597 because, in a number of Cases, the Court construed statutes from more than one category.
104. For a fuller discussion of how we identify these ten Resources, see id. at 23-24.
105. For a fuller discussion of the rationale for this approach to judicial reasoning, as well as challenges involved in distinguishing between reference and reliance, see id. at 25-26.
106. See Staudt et al., supra Note 13, at 1926-27. We are grateful to Professor Staudt and her coauthors, Professors Lee Epstein, Peter Wiedenbeck, René Lindstädt, and Ryan J. Vander Wielen, for providing us with their list of more than three hundred Supreme Court Cases decided between January 1950 and December 2005. One of us analyzed a limited subset of these decisions in a prior article. See Brudney, supra Note 63, at 29-35.
107. See Staudt et al., supra Note 13, at 1927.
108. Among the federal statutes frequently applied by the Court are laws classified in Title 29 covering "Labor" (for example, the National Labor Relations Act, the Occupational Safety and Health Act, the Fair Labor Standards Act, the Age Discrimination in EmpLoyment Act, the EmpLoyee Income Retirement Security Act, and the Worker Adjustment Retraining Notification Act) but also laws codified as civil rights statutes under Title 42 (Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, and the Civil War era statutes), as well as laws addRessed to specific industries or occupations (for example, federal civil service laws under Title 5, the Mine Safety and Health Act under Title 30, the Longshore & Harbor Workers Compensation Act under Title 33, the Davis-Bacon Act regulating construction workers under Title 40, and the Railway Labor Act under Title 45) and a separate statute regulating arbitration (the Federal Arbitration Act under Title 9)
109. See Joshua D. Rosenberg & Dominic L. Daher, The Law of Federal Income Taxation 11 (2008) (Noting that CongRess enacted its major Internal Revenue Code Revisions in 1939, 1954, and 1986); Nancy Staudt et al., The Ideological Component of Judging in the Taxation ConText, 84 Wash. U. L. Rev. 1797, 1818 n.68 (2006) (Noting that the code's basic structure has been unchanged since 1954). By contrast, CongRess since 1960 has created entire new areas of federal workplace law, regulating, inter alia, empLoyment discrimination based on race, sex, age, and disability; occupational safety and health; and empLoyee pensions.
110. See, e.g., O'Gilvie v. United States, 519 U.S. 79, 81 (1996)
111. Comm'r v. Clark, 489 U.S. 726, 728-29 (1989); Hillsboro Nat'l Bank v. Comm'r, 460 U.S. 370, 372 (1983); Comm'r v. Kowalski, 434 U.S. 77, 82-83 (1977).
112. See, e.g., United Dominion Indus., Inc. v. United States, 532 U.S. 822, 825-26 (2001); United States v. Centennial Sav. Bank FSB, 499 U.S. 573, 578-79 (1991); United States v. Hughes Props., Inc., 476 U.S. 593, 595 (1986)
113. Don E. Williams Co. v. Comm'r, 429 U.S. 569, 570 (1977).
114. See, e.g., Knight v. Comm'r, 128 S. Ct. 782, 785 (2008); United States v. Wells Fargo Bank, 485 U.S. 351, 352 (1988); United States v. Am. Coll. of Physicians, 475 U.S. 834, 835-36 (1986)
115. Paulsen v. Comm'r, 469 U.S. 131, 136-37 (1985).
116. See, e.g., United States v. Clintwood Elkhorn Mining Co., 128 S. Ct. 1511, 1514 (2008)
117. Hinck v. United States, 127 S. Ct. 2011, 2013 (2007)
118. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 310 (2005); Comm'r v. Lundy, 516 U.S. 235, 237 (1996).
119. See, e.g., EC Term of Years Trust v. United States, 127 S. Ct. 1763, 1767-68 (2007)
120. United States v. Galletti, 541 U.S. 114, 116 (2004); United States v. Brockamp, 519 U.S. 347, 348-49 (1997)
121. Badaracco v. Comm'r, 464 U.S. 386, 389-90 (1984).
122. See, e.g., United States v. Craft, 535 U.S. 274, 276-78 (2002)
123. Drye v. United States, 528 U.S. 49, 52 (1999); United States v. Estate of Romani, 523 U.S. 517, 519 (1998); United States v. Stuart, 489 U.S. 353, 355-56 (1989).
124. See, e.g., Standefer v. United States, 447 U.S. 10, 11-14 (1980); United States v. Bishop, 412 U.S. 346, 347-48 (1973); MiNor v. United States, 396 U.S. 87, 90 (1969).
125. See, e.g., Comm'r v. Schleier, 515 U.S. 323, 324-27 (1995) (holding that the liquidated damages portion of an empLoyee's age discrimination settlement is Not excludable from gross income for tax purposes); United States v. Burke, 504 U.S. 229, 242 (1992) (holding that back pay awards under Title VII are Not excludable from gross income); St. Martin's Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 788 (1981) (holding that paroChial schools are exempt from unempLoyment taxes under a statute's exception for church empLoyees).
126. Five of the thirteen majority opinions (38.5 percent) rely on Legislative history, five rely on language caNons, and three (23.1 percent) rely on substantive caNons. Further, three of the six Cases (50 percent) decided during Justice Blackmun's tenure were authored by him. All of these figuRes for duplicate Cases are within two standard deviations from the mean of all Cases, which is the generally accepted line for outlier status, thus suggesting that their impact on the larger analyses has Not been skewed. See Larry Gonick & Woollcott Smith, The Cartoon Guide to Statistics 18-26 (1993).
127. See, e.g., Aharon Barak, The Supreme Court, 2001 Term-Foreword, A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 Harv. L. Rev. 16, 30-31 (2002) (emphasizing that judicial departuRes from precedent are the exception and should be made explicit to promote confidence in a stable and predictable legal order) LeWis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 Wash. & Lee L. Rev. 281, 286-87 (1990) (stating that the Court's Respect for its own pRevious opinions is a key element of the judicial power pRescribed by the Constitution); John Paul Stevens, The Life Span of a Judge-Made Rule, 58 N.Y.U. L. Rev. 1, 2 (1983) (observing that the institutional strength of the judiciary is linked to the Public perception of judges deciding like Cases in the same way). See generally Roscoe Pound, Interpretations of Legal History 1 (1923) (describing law's challenge to rEconcile the need for stability and the need for change).
128. The use of "significant" refers to Results that are statistically significant using a twotailed t-test for difference of means. A Result that is significant at the .05 level (Pr(|T|>|t|) ≤ .05) has No more than a 5 percent chance of occurring purely as a coincidence. R. Mark Sirkin, Statistics For The Social Sciences 178-89 (1995). All statistical analyses in this Article are run using Stata version 8. For simplicity, we refer to each Result in this Article as "t=.xxx," although the Notation set forth above (Pr|T|>|t|) is more complete in that all Reported values are probabilities of the t-value being based on chance. The differences identified in Text are highly significant for both Legislative history (t = .001) and language caNons (t = .008); the difference is Not significant for substantive caNons (t = .200).
129. See supra Text accompanying Notes 35-37, 51-52
130. The nine basic subsets for which we coded are House bills, Senate bills, House committee hearings, Senate committee hearings, House standing committee Reports, Senate standing committee Reports, House floor debates, Senate floor debates, and conference committee Reports. Other Legislative record documents (for example, joint committee Reports, joint Resolutions, pResidential veto messages) are used less often by the Justices.
131. See Eskridge et al., supra Note 19, app. B at 19-23, 25-27. The language caNons principally relied on by the Supreme Court are a subset of those listed in Appendix B-Notably expRessio unius, Noscitur a sociis, ejusdem generis, the whole act rule and its "cousins" the pResumption against redundancy and the pResumption to avoid surplusage, the pResumption of consistent usage of a term throughout the statute, and in pari materia.
132. This difference is again highly significant (t = .000). The Court's reliance on common law precedent also differs significantly between tax and workplace law, but we do Not focus on it in our discussion. The Court's reliance on common law precedent in tax law is truly rare-lower than for any other Resource. But see, e.g., Standefer v. United States, 447 U.S. 10, 15, 19 (1980) (construing a criminal statutory provision of the Internal Revenue Code in light of former common law distinctions between principals and accessories); United States v. Euge, 444 U.S. 707, 712 (1980) (analogizing the taxpayer duty to comply with an IRS summons to the commonlaw duties attached to the issuance of a testimonial summons). The Court's greater reliance in workplace law (still only 13.6 percent) is driven by a very high reliance on common law precedent for general negligence statutes (50 percent) along with an above-average reliance for retirement-related laws (27.5 percent) and labor relations statutes (20.2 percent).
133. See, e.g., Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 558-60 (1997) (relying on statutory purpose in the workplace conText); Newark Morning Ledger Co. v. United States, 507 U.S. 546, 565 (1993) (relying on statutory purpose in the tax conText).
134. See, e.g., Pegram v. Herdrich, 530 U.S. 211, 231-34 (2000) (relying on the purpose imputed to CongRess in the workplace conText); United States v. Irvine, 511 U.S. 224, 240 (1994) (relying on the purpose imputed to CongRess in the tax conText).
135. Policy preferences are embedded in tax statutes: even an avowedly Revenue-neutral law like the Tax Reform Act of 1986 featuRes important policy choices. See H.R. Rep. No. 99-426, at 62 (1985) (Reporting the estimated Revenue-neutral effect); id. at 94 (discussing reasons for expanding earned income credit); id. at 82-89 (discussing reasons for adjusting marginal tax rates). And there are a substantial number of tax majority opinions that explain tax policies or concepts by imputing purposive considerations to CongRess. See, e.g., Irvine, 511 U.S. at 234, 240 (discussing the purpose behind a code provision addRessing the federal gift tax treatment of disclaimers); Comm'r v. Idaho Power Co., 418 U.S. 1, 16 (1974) (discussing the purpose behind the code provision regulating depreciation of capital equipment). Still, our suggestion in the Text is meant to help explain why purpose is invoked in only one-half of the tax majority opinions (51.9 percent) as opposed to four-fifths of the workplace law majorities (79.4 percent). That the Court relies significantly more often on purpose in workplace law majorities may well reflect the Justices' greater levels of confidence when explaining and amplifying workplace policies. See generally infra Part III.
136. For a discussion of why tax law decisions feature distinctive kinds of reliance on Legislative history and language caNons, see infra Parts III.A-B.
137. See supra Text accompanying Notes 36-37
138. Indeed, there are only two Rehnquist-era tax decisions in which the majority relies on caNons but Not Legislative history while the dissent relies on Legislative history: Commissioner v. Lundy, 516 U.S. 235 (1996) (a progovernment decision) and Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) (a protaxpayer decision). By contrast, there are sixteen such workplace law decisions during the Rehnquist era, including the Sigmon Coal Case, which is also in the tax dataset. See Brudney & Ditslear, supra Note 18, at 68. During the Burger era this tension between caNons and Legislative history was Not a factor; there were three workplace decisions and three tax decisions in which the majority relied on caNons but Not Legislative history while the dissent relied on Legislative history. Id. (Noting the existence of three workplace decisions).
139. For this graph, we grouped Cases by ten-year intervals. Thus, for instance, for the period from 1979-88, the Court relied on Legislative history in 66 percent of its tax majorities and 54 percent of its workplace majorities; it relied on caNons in 38 percent of its tax majorities and 21 percent of its workplace majorities. Although the same trends occur when measured at eight-year or five-year intervals, the Normal fluctuations in intervals smaller than ten years Resulted in largely incomprehensible graphs.
140. The exact differential is 2.8 percent versus 19.2 percent, which is highly significant (t = .0003). During the Burger era, tax law decisions were close 16.3 percent of the time, whereas workplace law Cases were close 23.6 percent of the time; that difference only approaches significance (t = .075).
141. There is some debate among tax law scholars about whether and in what ways federal judges may be ideologically divided in this area. See, e.g., Staudt et al., supra Note 71, at 1815-21 (finding that Justices' political preferences have explanatory value for the subset of Supreme Court decisions involving corporate taxpayers but Not for the subset involving individual taxpayers); Daniel M. Schneider, Using the Social Background Model to Explain Who Wins Federal Appellate Tax Decisions: Do Less Traditional Judges Favor the Taxpayer?, 25 Va. Tax. Rev. 201, 204, 237 (2005) (finding that appellate judges appointed by Democratic pResidents are more likely to issue protaxpayer decisions in certain settings). We do Not explore the influence of judicial ideology in this Article Not only for reasons of space but also based on lingering doubts as to a proper classification approach. See generally infra Note 289. Still, given that only one in ten tax Cases is closely decided and more than two-thirds are unanimous or have at most two dissents, the area does appear less divisive than workplace law.
142. For reliance on Legislative history, the difference is 51percent in close Cases versus 39 percent in all others (t = .008). For reliance on substantive caNons, the difference is 16 percent in close Cases versus 11 percent in all others (t = .052).
143. Complete Results for these analyses are on file with the Duke Law Journal
144. See Brudney & Ditslear, supra Note 52, at 146-60; Brudney & Ditslear, supra Note 62, at 226-28
145. See Brudney & Ditslear, supra Note 52, at 137-60
146. See, e.g., Schacter, supra Note 32, at 607; Rodriguez & Weingast, supra Note 61, at 1420
147. See, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 61- 63 (1987); Chem. Mfrs. Ass'n v. Nat. Res. Def. Council, Inc., 470 U.S. 116, 125-29 (1985); Train v. Colo. Pub. InteRest Research Group, Inc., 426 U.S. 1, 11-23 (1976).
148. See supra Table 2: Reliance on Selected Interpretive Resources-Burger Court Decisions and Rehnquist/Roberts Court Decisions, Table 3: Comparing Size of Majority Opinion Margins, 1969-2008 and accompanying Text
149. For House and Senate floor debates, the differences are significant Not only over the entire thirty-nine-year period but also in both the Burger era and the Rehnquist/Roberts years. For conference committee Reports, the differences approach significance in both the Burger era (t = .052) and the Rehnquist/Roberts years (t = .059). In addition, Senate bill language is relied on more often in workplace than in tax Cases; this difference approaches significance for the thirty-nine-year period (t = .097) and also the Burger era (t = .064). The subset of "other Legislative history"-Notably Reports by joint or advisory committees, special commissions, and executive agencies, as well as postenactment history or "constitutional history" from eighteenth or nineteenth century debates-also is used more often in workplace law Cases; this difference approaches significance (t = .060).
150. For Senate committee Reports, the difference is significant both in the Burger era (t = .000) and during the Rehnquist/Roberts years (t = .027). For House Committee Reports, the difference is significant in the Burger era (t = 0.32).
151. In workplace law Cases, the Justices rely on committee Reports two to three times more often than most other Legislative record documents-and they invoke Senate floor debates virtually the same amount as committee Reports
152. See supra Part I.A.3.
153. The Court relies on almost three Legislative record sources for each workplace law decision invoking Legislative history, but on less than 2.5 sources in each tax law Case. This difference (a 2.90 mean versus a 2.40 mean) is highly significant for the thirty-nine year period (t = .004); it also is significant for both the Burger years (t = .030) and the Rehnquist/Roberts era (t = .018).
154. For identification of the principal types of Legislative history that we coded, see supra Note 84
155. The likelihood is highly significant for the Burger years (t = .000), the Rehnquist/Roberts years (t = .000), and the entire thirty-nine-year period (t = .000).
156. Apart from the floor debates and conference committee Reports discussed, see supra Note 103 and accompanying Text, aNother possible source for these competing understandings is standing committee Reports that include extensive miNority views. These miNority views are pResent far more often in committee Reports accompanying workplace statutes than Reports accompanying tax statutes. See infra Notes 176-77 and accompanying Text.
157. The likelihood is Not close to significant for the thirty-nine-year period (t = .41), Nor is it close to significant for the Burger period (t = .46) or the Rehnquist/Roberts years (t = .43).
158. See supra Table 2: Reliance on Selected Interpretive Resources-Burger Court Decisions and Rehnquist/Roberts Court Decisions, Table 3: Comparing Size of Majority Opinion Margins, 1969-2008 and accompanying Text
159. We refer here primarily to the plain meaning rule, the pResumption to follow ordinary rather than technical usage of terms, and the distinction between "may" and "shall."
160. We refer here to maxims such as expRessio unius, ejusdem generis, and Noscitur a sociis
161. We refer here to the pResumption of statutory consistency (the same or similar terms in a statute should be interpreted the same way), the rule of in pari materia (similar statutory provisions in two comparable statutes should be applied in the same way), and the pResumption that when two statutory provisions conflict the specific provision controls the general
162. In its tax law Cases, the Court relied on Legislative history in 89 majorities but on language caNons in 48; in its workplace law Cases the Court invoked Legislative history in 247 majorities and invoked language caNons in 123 decisions. Although the lower sample size makes it harder to obtain statistical significance, see Gonick & Smith, supra Note 80, at 146-50, our key findings with Respect to both language caNons and substantive caNons are significant.
163. For structural caNons, the difference in reliance between tax and workplace Cases is Not significant during the Burger years (t = .351) but is highly significant for the Rehnquist/Roberts period (t = .008).
164. We refer to Title 26, the Internal Revenue Code. Occasionally tax Cases arise under Title 11, the bankruptcy code, or Title 29, which contains ERISA. But the overwhelming majority of federal taxation Cases arise under Title 26.
165. See, e.g., Rosenberg & Daher, supra Note 71, at 11 (observing that the major code Revisions occurred in 1939, 1954, and 1986, but that CongRess has enacted code amendments almost every year)
166. Richard Gershon, A Student's Guide to the Internal Revenue Code § 1.02, at 2 (4th ed. 1999) (discussing CongRess's regular amendments to the 1986 code, including "fairly major changes" in 1991, 1993, and 1996); see also Richard L. Doernberg & Fred S. McChesney, Doing Good or Doing Well?: CongRess and the Tax Reform Act of 1986, 62 N.Y.U. L. Rev. 891, 895 (1987) (book Review) (referring to dozens of Revisions in the code since its birth in 1913, and adding that from 1976 to 1984, "six different tax bills each affected more provisions than the
167. For a list of workplace statutes found in eight separate titles of the U.S. Code, see supra Note 70.
168. Examples of these one-off enactments are the Occupational Safety and Health Act, the Worker Adjustment Retraining Notification Act, and until 2008 the Americans with Disabilities Act. Even regulatory schemes amended several times, such as the National Labor Relations Act and the Age Discrimination in EmpLoyment Act, do Not compare with the Internal Revenue Code, which is amended on an almost annual basis. See supra Note 119.
169. The Court's use of the constitutional avoidance caNon in tax decisions that rely on substantive caNons is 16.7 percent (four of twenty-four Cases) whereas in workplace law it is 12.3 percent (nine of seventy-three Cases). The Court's use of the implied Repeals caNon in tax Cases is 12.5 percent (three of twenty-four Cases) whereas in workplace law it is 8.2 percent (six of seventy-three Cases).
170. The Court in its workplace law decisions has relied on the sovereign immunity caNon in eight majorities and the pResumption against preemption in ten decisions. See Brudney & Ditslear, supra Note 18, at 106 nn.438-39 (discussing six Cases invoking the antipreemption caNon). The Court in its tax law majorities has relied on either of the two caNons in only one decision.
171. This difference in the use of subject-specific caNons is highly significant (t = .000).
172. See Randall W. Bland, Justice Thurgood Marshall: Crusader for Liberalism 30-177 (2001) (discussing Justice Marshall's central role in litigating race discrimination lawsuits from 1934 to 1960)
173. Neal A. Lewis, High Court Nominee Faces Easy Road Through Senate, N.Y. Times, July 20, 1993, at A15 (discussing Justice Ginsburg's role as a leading litigator for women's rights).
174. See, e.g., Stephen G. Breyer, Regulation and Its Reform passim (1982)
175. Antonin Scalia, Separation of Functions: Obscurity PReserved, 34 Admin. L. Rev. v passim (1982)
176. see also Cindy Skrzycki, InteRest Grows in Resurrecting Administrative Conference, Wash. Post, May 25, 2004, at E1 (describing Justices Scalia and Breyer as influential members of the Administrative Conference of the United States during their careers as law professors).
177. See Tinsley E. Yarbrough, Harry A. Blackmun: The Outsider Justice 40-62 (2008) (discussing Justice Blackmun's career in a Minneapolis law firm from 1934 to 1950 and at the Mayo Clinic in Rochester, Minnesota from 1950 to 1959); Nomination of Harry A. Blackmun, of Minnesota, to Be Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 91st Cong. 7 (1970) (identifying Blackmun's professional background from 1934-59).
178. For speeches and panel appearances, see, for example, Blackmun Talks to Junior Bar on Income Tax Returns, Hennepin Law., Feb. 23, 1939, at 6 (on file with the Harry A. Blackmun Papers, Manuscript Division, Library of CongRess, Box 12 [hereinafter Blackmun Papers]); Blackmun Named to Expert Panel, Rochester Post Bulletin, Oct. 5, 1953 (on file with the Blackmun Papers, supra, Box 12). For articles, see, for example, Harry A. Blackmun, The Marital Deduction and Its Use in Minnesota, 36 Minn. L. Rev. 50 (1951)
179. Harry A. Blackmun, The Physician and His Estate, 36 Minn. Med. 1033 (1953)
180. Harry A. Blackmun, Federal Income Taxation of Trusts and Estates, 33 Minn. L. Rev. 800 (1949) (book Review).
181. Each Justice authored at least nine majorities in tax law or workplace law. We excluded from our calculations the five per curiam decisions in tax law and the twenty-one per curiam statutory opinions in workplace law.
182. As the senior Associate Justice for fifteen terms (1975-76 through 1989-90), Justice Brennan would have assigned himself many of these workplace majorities. Justice Blackmun was senior Associate Justice for only his final term (1993-94) and would therefore have been assigned almost all of his tax majorities by others.
183. The exact figuRes are 39.1 percent (34 of 87) and 6.9 percent (6 of 87). The next highest Justice in tax decisions is Souter, who wrote 20.9 percent of the decisions in which he voted with the majority (9 of 43) and also authored concurrences in 7.0 percent of those Cases (3 of 43). In workplace law, Brennan wrote 21.9 percent of the decisions in which he voted with the majority (62 of 283), and he wrote concurrences in aNother 8.5 percent (24 of 283).
184. Justice Brennan wrote eleven tax majorities from 1969-70 to 1989-90; Justice White wrote eight majorities from 1969-70 to 1992-93; Justice Stevens wrote seven majorities from 1975-76 to 2007-08; Justice Rehnquist wrote five majorities from 1971-72 to 2004-05; Justice Scalia wrote three majorities from 1986-87 to 2007-08
185. There were 67 Nonunanimous tax decisions out of the 117 Cases (including five per curiam decisions) during Justice Blackmun's tenure. He authored 19 of those 67 Nonunanimous opinions, and he wrote dissents in 17 of the remaining 48, or 35.4 percent.
186. See Letter from LeWis Powell to Harry Blackmun (Jan. 15, 1973) (on file with the Blackmun Papers, supra Note 128, Box 167) (asking Justice Blackmun to "[p]lease join me in your per curiam" opinion in United States v. Chandler, 410 U.S. 257 (1973)); Memorandum from Harry Blackmun to the Conference (Dec. 18, 1980) (on file with the Blackmun Papers, supra Note 128, Box 334) (introducing his per curiam opinion for HCSC-Laundry v. United States, 450 U.S. 1 (1981)); Memorandum from Harry Blackmun to the Conference (Oct. 2, 1987) (on file with the Blackmun Papers, supra Note 128, Box 504) (attaChing his per curiam opinion for Commissioner v. McCoy, 484 U.S. 3 (1987))
187. Fausner v. Comm'r, 413 U.S. 838, 839 (1973) (Blackmun, J., dissenting); Comm'r v. Asphalt Prods. Co., 482 U.S. 117, 123 (1987) (Blackmun, J., dissenting in part).
188. Letter from John Paul Stevens to Antonin Scalia (May 12, 1987) (on file with the Blackmun Papers, supra Note 128, Box 484) (requesting more time to take into account Justice Blackmun's opinion in Asphalt Products)
189. See generally Eugene GRessman et al., Supreme Court Practice 349-51 (9th ed. 2007) (pinpointing and criticizing the purported justifications for per curiam opinions); Arthur D. Hellman, Error Correction, Lawmaking, and the Supreme Court's Exercise of Discretionary Review, 44 U. Pitt. L. Rev. 795, 825-33 (1983) (cataloguing trends in the Court's per curiam opinions throughout the 1970s). Although both GRessman and Heller are critical of this summary decisionmaking process, the Court's absence of plenary consideration does seem to reflect a certain level of inteRest and assuredness. See, e.g., HCSC-Laundry, 450 U.S. at 5-8 (summarily Reversing a circuit court tax ruling that conflicts with several other courts); Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (summarily Reversing a circuit court workplace law decision in conflict with the decisions of other circuits).
190. The five per curiam decisions addRessing workplace law statutory issues are Whitman v. Department of Transportation, 126 S. Ct. 2016 (2006); Ash v. Tyson Foods, Inc., 126 S. Ct. 1195 (2006); Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504 (2001); Clark County School District v. Breeden, 532 U.S. 268 (2001); Hetzel v. Prince William County, 523 U.S. 208 (1998).
191. See Memorandum from Harry Blackmun to the Conference (Dec. 18, 1980) (on file with the Blackmun Papers, supra Note 128, Box 334) (referring humorously to "the eager appetite [I kNow] all of you have for tax Cases" and introducing his per curiam opinion for HCSC-Laundry); Stuart Taylor, Reading the Tea Leaves of a New Term, N.Y. Times, Dec. 22, 1986, at B14 ("If one's in the doghouse with the Chief, he gets the crud. He gets the tax Cases and the Indian Cases, which I like, but I've had a lot of them." (quoting Harry Blackmun, J., United States Supreme Court)).
192. See Erwin Griswold, Preface to Bernard Wolfman et al., Dissent Without Opinion: The Behavior Of Justice William O. Douglas In Federal Tax Cases, at xii (1975) ("[E]xcept for Justice Blackmun, it is hard to find a member of the pResent Court who has a real 'feel' for tax law."). See generally Robert A. Green, Justice Blackmun's Federal Tax Jurisprudence, 26 Hastings Const. L.Q. 109 (1998) (describing Justice Blackmun's background in taxation issues and his jurisprudence in different classes of tax Cases); Karen Nelson Moore, Justice Blackmun's Contributions on the Court: The Commercial Speech and State Taxation Examples, 8 Hamline L. Rev. 29, 43-49 (1985) (clarifying Justice Blackmun's role in harmonizing inconsistent decisions related to taxes affecting interstate and foreign commerce). Tax law also is Not an area in which law clerks can readily compensate for their Justice's own felt inadequacies. Law clerks are likely to have taken only a single basic tax course in law school, and they tend to be less inteRested in tax than other Public law subjects.
193. We do Not attach special importance to this difference in reliance: the fact that other Justices invoked Legislative history so regularly while Justice Blackmun was on the Court is the salient point. For a suggestion that Blackmun's use of Legislative history may have served as a cue for his colleagues, see infra Note 308 and accompanying Text.
194. See, e.g., Brudney & Ditslear, supra Note 52, at 133 (Reporting a substantial decline in Legislative history reliance after 1986 for both proempLoyee and proempLoyer decisions)
195. Michael H. Koby, The Supreme Court's Declining Reliance on Legislative History: The Impact of Justice Scalia's Critique, 36 Harv. J. ON Legis. 369, 384-95 (1999) (discussing the decline since the 1980s).
196. See generally John F. Manning, Justice Scalia and the Legislative Process, 62 N.Y.U. Ann. Surv. Am. L. 33 (2006) (arguing that Justice Scalia has caused the Court to focus more on the Text of the statute than Legislative purpose).
197. See United States v. Stuart, 489 U.S. 353, 371-73 (1989) (Scalia, J., concurring) (criticizing the Brennan majority for invoking a Senate floor debate to discern Legislative intent); Comm'r v. Clark, 489 U.S. 726, 728 (1989) (Scalia, J., concurring) (declining to join a portion of Justice Stevens's majority that relies on House and Senate committee Reports). Justice Scalia has continued this criticism since Justice Blackmun's retirement. See United States. v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 215 (1996) (Scalia, J., concurring) (declining to join a portion of Justice Souter's majority opinion); Chickasaw Nation v. United States, 534 U.S. 84, 86 (2001) (Scalia, J., concurring) (declining to join a portion of Justice Breyer's majority opinion).
198. The difference between the early Rehnquist years and the post-Blackmun period is highly significant (t = .002). The decline did Not begin in the initial years after Justice Blackmun's retirement, but by the late 1990s the Justices were relying substantially less on Legislative history than they had during Blackmun's tenure. Copies of year-by-year Results during the 1990s are available from the authors.
199. We omitted the 1969-70 term from Table 9 because it precedes Justice Blackmun's arrival on the Court. Blackmun was confirmed by the Senate in May 1970.
200. We compared Legislative history reliance by Blackmun in workplace law majorities with reliance by all other Justices, using the same three time periods set forth in Table 9
201. See supra Table 7: Mean Percent Reliance on Substantive CaNon Subsets When Substantive CaNons Are PResent, 1969-2008
202. See Badaracco v. Comm'r, 464 U.S. 386, 401 (1984).
203. Justice Blackmun's reliance on Supreme Court precedent tends to support this hypothesis: he relied on prior decisions in 91.2 percent of his majority opinions (31 of 34), compared to 80.1 percent reliance (96 of 119) by all of the other Justices.
204. See Brudney & Ditslear, supra Note 52; Brudney & Ditslear, supra Note 62; Brudney & Ditslear, supra Note 18
205. The Court's use of Legislative history in tax Cases declined sharply starting in the 2001 term and continuing precipitously over the next six terms (2002-07). See supra Note 93 and accompanying Text and graph. Comparative data for the 2001-07 terms are available from the authors. The significant difference in reliance that persisted through most of the Rehnquist years has disappeared. We suggest why Justice Blackmun's departure may be partly Responsible in Part III.C.
206. See, e.g., James Macgregor Burns et al., Government by the People 353-59 (16th ed. 1995)
207. Alan Grant, The American Political Process 45-52, 65-66, 302 (5th ed. 1994)
208. John W. Kingdon, Agendas, Alternatives, and Public Policies 84-86 (2d ed. 1995). For a discussion of the contrast with parliamentary efficiency in lawmaking and its implications for how courts use Legislative history, see Brudney, supra Note 63, at 43-48.
209. See Nourse & Schacter, supra Note 32, at 596; Rodriguez & Weingast, supra Note 61, at 1422. See generally William M. Landes & Richard A. Posner, The Independent Judiciary in an InteRest Group Perspective, 18 J.L. & Econ. 875, 877-79 (1975) (discussing the judiciary's role in interpreting statutes to fulfill or further the original negotiated Legislative deal).
210. See Brudney & Ditslear, supra Note 52, at 150-51 & nn.113-16 (discussing the use of Legislative history to identify compromises and citing seven Court decisions as examples); see also, e.g., Doe v. Chao, 540 U.S. 614, 622-23 (2004); Landgraf v. USI Film Prods., 511 U.S. 244, 250-63 (1994)
211. Mohasco Corp. v. Silver, 447 U.S. 807, 820-23 (1980).
212. See, e.g., Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 570-74 (1999); Am. Tobacco Co. v. Patterson, 456 U.S. 63, 72-75 (1982); Beasley v. Food Fair of N.C., 416 U.S. 653, 659-62 (1974)
213. see also Brudney & Ditslear, supra Note 52, at 149 nn.93-98 (citing six additional decisions).
214. HCSC-Laundry v. United States, 450 U.S. 1 (1981).
215. Id. at 3-5.
216. Id. at 6-7.
217. Bob Jones Univ. v. United States, 461 U.S. 574 (1983).
218. See id. at 600-01.
219. Comm'r v. Engle, 464 U.S. 206 (1984).
220. Id. at 217-22; see also United States v. Sotelo, 436 U.S. 268, 275-81 (1978) (relying on Bankruptcy Act Legislative history to establish that CongRess meant to Respond to the Treasury Department's stated concerns by providing that a bankrupt company's withholding taxes, collected from its empLoyees but Not paid over to the IRS, were Nondischargeable).
221. We distinguish here between substantive and procedural aspects of the Internal Revenue Code. Certain sections of the code, such as subchapter C dealing with corporations, may pResent especially challenging or complex substantive questions. See infra Part III.A.3 (discussing United States v. Davis, 397 U.S. 301 (1970); Comm'r v. Clark, 489 U.S. 726 (1989)). By contrast, tax decisions that arise from procedural disputes tend to pResent issues with which the Justices are more familiar and about which they have more confidence-in these instances the Court's reliance on Legislative history is less likely to involve expertise-borrowing considerations. See, e.g., United States v. Brockamp, 519 U.S. 347, 352 (1997) (relying on Legislative history to support the Text-based conclusion that the equitable tolling doctrine does Not apply to the limitations period for filing tax-refund claims); Bufferd v. Comm'r, 506 U.S. 523, 530 n.10 (1993) (relying on Legislative history to confirm that the three-year period for assessing shareholder tax liability runs from the filing date of a shareholder's individual return, Not the date of a corporation's return); United States v. Nat'l Bank of Commerce, 472 U.S. 713, 730 & n.14 (1985) (relying on Legislative history to help justify enforcement of an IRS levy against a taxpayer bank); United States v. LaSalle Nat'l Bank, 437 U.S. 298, 310 & n.13 (1978) (relying on Legislative history to help justify enforcement of an IRS summons to obtain evidence for use in a criminal prosecution). We also omit from consideration in this conText Court decisions that rely on Legislative history to help Resolve a Nonprocedural constitutional dispute. See, e.g., United States v. Int'l Bus. Machs. Corp., 517 U.S. 843, 859-60 (1996) (relying on the Legislative history of the Export Clause to help support a conclusion invalidating a federal excise tax on premiums for insurance purchased by the taxpayer's foreign subsidiaries); United States v. Lee, 455 U.S. 252, 258-59 (1982) (invoking Legislative history to help support a conclusion that statutes requiring an Amish empLoyer to pay social security taxes do Not violate the First Amendment Free Exercise Clause); Massachusetts v. United States, 435 U.S. 444, 450-51 (1978) (using Legislative history to help support a conclusion that a federal tax on state-owned aircraft used for patrolling highways does Not violate the implied immunity of a state from federal taxation).
222. The Court, of course, deals with complex disputes on a regular basis. The complexity that encourages reliance on expertise tends to involve issues of an unusually technical nature, issues that judges view themselves as less capable of managing without input from specialists. See Henry J. Friendly, Federal Jurisdiction: A General View 165 & n.54 (1973); Reference Manual on Scientific Evidence 1 (1994).
223. See, e.g., Portland Golf Club v. Comm'r, 497 U.S. 154, 161-63, 165-66 (1990); Comm'r v. Kowalski, 434 U.S. 77, 83-84, 90-93 (1977); Don E. Williams Co. v. Comm'r, 429 U.S. 569, 575-76, 580-82 (1977); United States v. Foster Lumber Co., 429 U.S. 32, 42-46 (1976). For a discussion of the Williams and Foster Lumber decisions, see infra Part III.A.3.
224. See, e.g., Clark, 489 U.S. at 741-43; Hillsboro Nat'l Bank v. Comm'r, 460 U.S. 370, 378 n.10, 393-94, 399 & n.55 (1983); Fed. Power Comm'n. v. Memphis Light, Gas, & Water Div., 411 U.S. 458, 461-62, 467-70, 471-73 (1973); Davis, 397 U.S. at 308-12. For a discussion of the Clark and Davis decisions, see infra Part III.A.3.
225. Pub. L. No. 69-20, § 1203, 44 Stat. 9, 127-28 (1926) (codified as amended at 26 U.S.C. §§ 8022-23 (2006)).
226. See Joint Comm. on Taxation, supra Note 55, at 3-4 (discussing the Committee staff's role as Nonpartisan, joint, and solely tax oriented). Our Review of CongRessional Directories going back to the 74th CongRess indicates the JCT had five professional staff in 1936; that number grew to twelve in 1953 (83d CongRess), twenty in 1973 (93d CongRess), thirty-four in 1983 (98th CongRess), and thirty-eight in 2003 (108th CongRess). Copies of relevant pages from CongRessional Directories are on file with the Duke Law Journal.
227. At the predrafting stage, JCT staff work closely with Treasury Department officials as well as members of CongRess to refine their Revenue-related concepts into workable proposals. Both the House Ways and Means Committee and the Senate Finance Committee often hold hearings on these emerging tax Legislative proposals. JCT staff pRepare a hearing pamphlet examining and analyzing the concepts to be addRessed; they also may brief House and Senate committee members and answer questions raised by members and their staffs during the hearings. Until recently, markup in the House and Senate committees was based on these concepts and proposals instead of on the actual statutory language that is the focus of committee markups and votes for virtually every other law CongRess produces. See, e.g., id. at 5-6, 16; Ferguson et al., supra Note 55, at 809-12; Livingston, supra Note 55, at 833-34; Manley, supra Note 55, at 1050-65; Woodworth, supra Note 55, at 23-32. Since the mid 1990s, there has been a shift toward having statutory language available at markup, especially in the House. See Lecture, The Role of Tax Policy in the Development of Tax Legislation: Larry Woodworth's Era and Now, 32 Ohio N.U. L. Rev. 1, 7 (2006). For a discussion of the more traditional committee markup in which committee members examine, bargain over, and vote on the actual Text of the bill, see Cong. Quarterly PRess, CongRessional Quarterly's Guide to CongRess 482-84 (5th ed. 2000)
228. Walter J. Oleszek, CongRessional ProceduRes and the Policy Process 98-105 (7th ed. 2007). JCT staff also work with miNority committee members and their staffs, upon request, to pRepare markup alternatives. See Kenneth F. Thomas & William R. Stromsem, The Joint Committee on Taxation, TAX Advisor, Mar. 1980, at 181, 182 (discussing how the JCT staff advised members on opposite sides during floor debate). During or after the markup, JCT staff are part of an ad hoc team of experts drafting the Text of the approved bill; they work with staff from the House and Senate committees, tax specialists in the House and Senate Legislative counsel's office, and the Treasury Department, with IRS staff at times providing technical advice.
229. See Joint Comm. on Taxation, supra Note 55, at 6; Livingston, supra Note 55, at 835.
230. Ferguson et al., supra Note 55, at 811-12. The JCT staff drafted only the more general explanatory portions of the committee Reports in the 1960s; the technical explanations were initially written by the IRS and then Reviewed and modified by JCT staff and others. See Woodworth, supra Note 55, at 28.
231. See Ferguson et al., supra Note 55, at 810; Woodworth, supra Note 55, at 28; see also H.R. Rep. No. 83-1337 passim (1954); S. Rep. No. 99-313 passim (1986).
232. See Ferguson et al., supra Note 55, at 810; Livingston, supra Note 55, at 835; Moran & Schneider, supra Note 55, at 892. JCT staff also play a central role during floor debates and in conference committee. Indeed, they are primarily Responsible for incorporating relevant contributions into the statement of managers that is part of the conference agreement. See Joint Comm. on Taxation, supra Note 55, at 6-7; Livingston, supra Note 55, at 835-36; Ferguson et al., supra Note 55, at 810; Woodworth, supra Note 55, at 28-29.
233. See Ferguson et al., supra Note 55, at 810; Woodworth, supra Note 55, at 28-29; Joint Comm. on Taxation, supra Note 55, at 6.
234. See Livingston, supra Note 55, at 841; Moran & Schneider, supra Note 55, at 892 (contending that in light of tax language opacity, "a paragraph in a committee Report can often illuminate a bit of aspiration that a sub-sub-subsection can only hint at"). In addition to committee Reports, the JCT staff also pRepaRes a postenactment Legislative history document, commonly kNown as the Blue Book, in connection with major tax bills. Although it is principally a collation of the various preenactment committee Reports, the Blue Book does include explanatory materials written following enactment. In spite of traditional concerns regarding the validity and value of postenactment Legislative history, the Blue Book has been invoked on numerous occasions by lower courts and at least once by the Supreme Court. See Michael Livingston, What's Blue and White and Not Quite as Good as a Committee Report: General Explanations and the Role of "Subsequent" Tax Legislative History, 11 Am. J. Tax Pol'y 91, 98-122 (1994).
235. See Ferguson et al., supra Note 55, at 810; Livingston, supra Note 55, at 836. Tax committee Reports typically include detailed, in-depth amplifications of what is contained in Text. For examples, see infra Note 176. This information is more comprehensive and often more comprehensible than what is found in floor debates or conference Reports involving tax bills.
236. See Joint Comm. on Taxation, supra Note 55, at 3-4; Ferguson et al., supra Note 55, at 807; Woodworth, supra Note 55, at 24-25; Manley, supra Note 55, at 1050-52.
237. See, e.g., H.R. Rep. No. 77-2333 (1942) (187-page Report accompanying the Revenue Act of 1942 with one member contributing a one-page dissent); S. Rep. No. 83-1622 (1954) (628-page Report accompanying the Internal Revenue Code of 1954 with No miNority views); H.R. Rep. No. 99-426 (1985) (1072-page Report accompanying the Tax Reform Act of 1986 with eleven members signing miNority views totaling three pages); S. Rep. No. 105-33 (1997) (376-page Report accompanying the Taxpayer Relief Act of 1997 with No miNority views).
238. See, e.g., H.R. Rep. No. 80-245 (1947) (115-page Report accompanying the Taft-Hartley Act with six members contributing 51 pages of miNority views); H.R. Rep. No. 88-114 (1964) (133-page Report accompanying the 1964 Civil Rights Act with eight members contributing 52 pages of miNority views); S. Rep. No. 100-62 (1987) (95-page Report accompanying the Worker Adjustment and Retraining Notification Act with five Senators signing 15 pages of miNority views); S. Rep. No. 101-263 (1990) (73-page Report accompanying the Older Workers Benefit Protection Act with five Senators contributing 21 pages of miNority views). Whether the tax lawmaking process has become more partisan since 2000 is an open question. See H.R. Rep. No. 107-7 (2001) (31-page Report accompanying the Economic Growth and Tax Relief Act of 2001 with 17 members-every Democrat on the committee-signing the five-page dissenting views); see also supra Notes 173-74 and accompanying Text.
239. See Livingston, supra Note 55, at 841
240. See generally John H. Aldrich & David W. Rhode, CongRessional Committees in a Partisan Era, in CongRess REconsidered 249, 254-65 (Lawrence C. Dodd & Bruce I. Oppenheimer eds., 8th ed. 2005); Eric SChickler & Kathryn Pearson, The House Leadership in an Era of Partisan Warfare, in CongRess Reconsidered, supra, at 207, 208; George K. Yin, Lecture, Is the Tax System Beyond Reform?, 58 FLA. L. Rev. 977, 1020-23 (2006).
241. Cf. Yin, supra Note 179, at 1029-38 (discussing challenges posed by these larger trends with Respect to undertaking major tax reform in the future). ANother influence on the substance and politics of tax Legislation-changes in congRessional budget proceduRes-is beyond the scope of this Article. See generally Elizabeth Garrett, Harnessing Politics: The Dynamics of Offset Requirements in the Tax Legislative Process, 65 U. Chi. L. Rev. 501 (1998).
242. See Joint Comm. on Taxation, supra Note 55, at 1, 5-8; Lecture, supra Note 168, at 6-7, 12.
243. See, e.g., Comm'r v. Idaho Power Co., 418 U.S. 1, 19 (1974) (Douglas, J., dissenting); United States v. GeneRes, 405 U.S. 93, 114-15 (1972) (Douglas, J. dissenting); see also Bernard Wolfman et al., The Behavior of Justice Douglas in Federal Tax Cases, 122 U. PA. L. Rev. 235, 320-25 (1973) (analyzing Justice Douglas's evolution on tax Cases to a point of mistrust of special inteRest favoritism of the Internal Revenue Code and viewing his contention that the Court should avoid tax Cases altogether in light of this deep mistrust).
244. See United States v. Carlton, 512 U.S. 26, 31-32 (1994).
245. See United States v. Ptasynski, 462 U.S. 74, 85-86 n.15 (1983).
246. See Fed. Power Comm'n v. Memphis Light, Gas, & Water Div. 411 U.S. 458, 471-72 (1973).
247. United States v. Davis, 397 U.S. 301 (1970).
248. Id. at 303-04.
249. Id. at 302-03.
250. Id. at 303-04 (discussing language of 26 U.S.C. § 302(b)(1) (1954)).
251. See id. at 303 n.2.
252. See id. at 308-09 (quoting from a House committee Report accompanying the 1926 Revenue Act).
253. Id. at 309-10 (discussing a House committee Report accompanying the 1954 code Revision).
254. Id. at 310.
255. Id. at 311.
256. Id. (emphasis added) (quoting S. Rep. No. 83-1622, at 234 (1954)).
257. Id. at 311-12.
258. See id. at 311 n.11 (discussing the committee's treatment of distributions involving partial corporate liquidations).
259. Justice Douglas, in a short dissent for himself and two other Justices, relied only on the Text and made No reference to the Legislative history. See id. at 313 (Douglas, J., dissenting).
260. Comm'r v. Clark, 489 U.S. 726 (1989).
261. Id. at 731.
262. Id. "The term 'boot' is used because shareholders of the transferor corporation have received stock or securities of the acquiring corporation plus money (or other property) to boot." See Allan J. Samansky, Taxation of Nonqualifying Property Distributed in Reorganizations, 31 Case W. Res. L. Rev. 1, 1 n.1 (1980-81).
263. Clark, 489 U.S. at 731-32.
264. Id. at 728-29, 732 (finding that the merger qualified as a "reorganization" under 26 U.S.C. § 368(a)(1)(A) (1954)).
265. Id. at 736-38; see also supra Note 202.
266. Clark, 489 U.S. at 736-37, 741. For a thoughtful treatment of this issue prior to Clark, see Samansky, supra Note 202, at 15-38.
267. Clark, 489 U.S. at 739.
268. See id. at 742-43.
269. Id. at 742.
270. Id. at 742-43.
271. Id. at 742.
272. Id. at 743.
273. Id. at 743-44.
274. In a dissenting opinion, Justice White contended that the Court's decision in Davis was controlling; he relied on the similarity in Textual language and asserted that CongRess in 1924-as in 1954-intended the broadest possible reach for its tax treatment of corporate reorganization transactions. See id. at 747-48 (White, J., dissenting). Justice Scalia joined the majority in its discussion of purpose, Text, and caNons, but Not in its extensive reliance on Legislative history. Id. at 728 n.* (majority opinion).
275. Don E. Williams Co. v. Comm'r, 429 U.S. 569 (1977).
276. Id. at 571-72.
277. Id. at 574-83.
278. Id. at 574.
279. Id. (quoting 26 U.S.C. § 404(a) (1954)).
280. Id. at 575.
281. Id. (quoting H.R. Rep. No. 77-2333, at 106 (1942)); S. Rep. No. 77-1631, at 141 (1942)).
282. Id. at 575-76. Blackmun also relied on the conference Report accompanying changes to the 1974 tax code that were part of ERISA to show that CongRess in 1974 "reaffirmed the actual-payment requirement of § 404(a), and strengthened its enforceability." Id. at 580 n.11 (relying on H.R. Rep. No. 93-1280, at 308 (1974) (Conf. Rep.)).
283. Id. at 580-82. Justice Stewart, dissenting for himself and Justice Powell, relied on lower court decisions that he contended had properly construed the word "paid" to allow deductions for promissory Notes; he found the majority's use of Legislative history unpersuasive. See id. at 583-88 (Stewart, J., dissenting).
284. United States v. Foster Lumber Co., 429 U.S. 32 (1976).
285. Id. at 33-36.
286. Id. The taxpayer had $7,000 in ordinary income and argued that it therefore should have $35,000 of the $42,000 loss carryover available to offset income the following year. Id. at 35-36. The IRS contended that because the taxpayer had capital gains of $167,000, the entire loss carryover was absorbed in the first tax year.
287. Id. at 36.
288. Id. at 36-37 (alteration in original) (quoting 26 U.S.C. § 61(a) (1964)).
289. Id. at 42 (internal quotation marks omitted).
290. Id. at 42-43.
291. Id. at 42-44.
292. Id. at 42 & n.9.
293. Id. at 43 (paraphrasing H.R. Rep. No. 83-1337, at 27 (1954); H.R. Rep. No. 76-855, at 9 (1939)).
294. See id. at 43-46. Justice Blackmun, writing in dissent for himself and three colleagues, relied on different portions of the Legislative history to support his view that CongRess since 1939 had steadily expanded the periods for loss carryover to maximize taxpayers' ability to absorb their losses against income. See id. at 56 (Blackmun, J., dissenting).
295. See Robert Charles Clark, The Morphogenesis of Subchapter C: An Essay in Statutory Evolution and Reform, 87 Yale L.J. 90, 90 (1977).
296. See, e.g., Davis v. United States, 495 U.S. 472, 479-85 (1990) (O'ConNor, J., majority opinion); Hillsboro Nat'l Bank v. Comm'r, 460 U.S. 370, 378, 393-94, 399 (1983) (O'ConNor, J., majority opinion); United States v. Vogel Fertilizer Co., 455 U.S. 16, 26-28 (1982) (Brennan, J., majority opinion); Comm'r v. Kowalski, 434 U.S. 77, 83-84, 90-93 (1977) (Brennan, J., majority opinion); Rowan Cos., Inc. v. United States, 452 U.S. 247, 255-57 (1981) (Powell, J., majority opinion); United States v. Basye, 410 U.S. 441, 448 n.8, 453 n.14 (1973) (Powell, J., majority opinion); O'Gilvie v. United States, 519 U.S. 79, 84-86 (1996) (Breyer, J., majority opinion). In addition, Justice Blackmun-the Court's principal authority on federal tax law-often invoked Legislative history to borrow expertise. See, e.g., Comm'r v. Tufts, 461 U.S. 300, 315-16 (1983) (Blackmun, J., majority opinion); Cent. Tablet Mfg. Co. v. United States, 417 U.S. 673, 680-82, 689-91 (1974) (Blackmun, J., majority opinion); see also infra Part III.C (analyzing Blackmun's role in tax Cases).
297. For a detailed summary of Scalia's record on this score, see Brudney & Ditslear, supra Note 52, at 161-62. The article cites to twenty separate opinions from 1987 to 2006. Id.
298. See, e.g., Bank One Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 279-80 (1996) (Scalia, J., concurring in part and concurring in the judgment); Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring in part and concurring in the judgment)
299. Edwards v. Aguillard, 482 U.S. 578, 637-38 (1987) (Scalia, J., dissenting).
300. See, e.g., Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 267 (2004) (Scalia, J., concurring in the judgment); Pennsylvania v. Union Gas Co., 491 U.S. 1, 29-30 (1989) (Scalia, J., concurring in part and dissenting in part)
301. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527-28 (1989) (Scalia, J., concurring in the judgment).
302. See, e.g., Zedner v. United States, 126 S. Ct. 1976, 1990-91 (2006) (Scalia, J., concurring in part and concurring in the judgment); H. J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 252 (1989) (Scalia, J., concurring in the judgment); Rose v. Rose, 481 U.S. 619, 642-43 (1987) (Scalia, J., concurring in part and concurring in the judgment).
303. See, e.g., Davis v. United States, 495 U.S. 472, 479-85 (1990); United States v. Goodyear Tire & Rubber Co., 493 U.S. 132, 139-42 (1989); Colonial Am. Life Ins. Co. v. Comm'r, 491 U.S. 244, 259 (1989).
304. See, e.g., United States v. Carlton, 512 U.S. 26, 39 (1994) (Scalia, J., concurring in the judgment); United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 521 (1992) (Scalia, J., concurring in the judgment); Begier v. IRS, 496 U.S. 53, 67-70 (1990) (Scalia, J., concurring in the judgment); United States v. Stuart, 489 U.S. 353, 372-73 (1989) (Scalia, J., concurring in the judgment).
305. See, e.g., Chickasaw Nation v. United States, 534 U.S. 84, 85-86 (2001); United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 214-15 (1996); Comm'r v. Clark, 489 U.S. 726, 728 (1989).
306. Hirschey v. FERC, 777 F.2d 1 (D.C. Cir. 1985).
307. Id. at 8 (Scalia, J., concurring).
308. Id. at 7 n.1. Senator Armstrong (R-Colo.) was a member of the Senate from 1979 to 1991, and a very junior Republican on the Finance Committee from 1981 to 1991. See 1 Garrison Nelson, Committees in the U.S. CongRess 1947-1992, at 139-44 (1993). Senator Dole, elected in 1968, was a member of the Senate Finance Committee for twenty-four years (from 1973 to 1996). See Biographical Directory of The American CongRess 1774-1996, at 951 (Joel D. Treese ed., 1997); 1 Nelson, supra, at 139-44. He served as chairman from 1981 to 1984, as ranking miNority member from 1979 to 1980, and as sEcond-ranking Republican member from 1985 to 1986; he also served as Senate Majority Leader (from 1985 to 1986 and from 1995 to 1996) and Senate MiNority Leader (from 1987 to 1994). See Biographical Directory Of The American CongRess 1774-1996, supra, at 951; 1 NELSON, supra, at 139-44.
309. See Hirschey, 777 F.2d at 7 n.1 (Scalia, J., concurring).
310. See, e.g., Nomination of Stephen G. Breyer to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 103d Cong. 170-74 (1994) (statement of Sen. Charles F. Grassley, Member, S. Comm. on the Judiciary); Nomination of Ruth Bader Ginsburg, to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 103d Cong. 223-25 (1993) (statement of Sen. William S. Cohen, Member, S. Comm. on the Judiciary); id. at 325-26 (statement of Sen. Dennis DEconcini, Member, S. Comm. on the Judiciary); Orrin Hatch, Legislative History: Tool of Construction or Destruction, 11 Harv. J.L & Pub. Pol'y 43, 45-48 (1988)
311. Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 Duke L.J. 380, 385-86; Joan Biskupic, Scalia Takes a Narrow View in Seeking CongRess' Will, 48 CONG. Q. 913, 917 (1990) (relating Senator Specter's view). Members of both parties have continued to participate in negotiating and relying on Legislative history, further suggesting that complaints such as Senator Armstrong's are isolated voices.
312. See Scalia, supra Note 1, at 32-34
313. Judge Scalia's concurrence in Hirschey does include additional excerpts from the Dole-Armstrong colloquy apart from the excerpt Reproduced in Text. See Hirschey, 777 F.2d at 7 n.1 (Scalia, J., concurring).
314. 128 Cong. Rec. 16,918 (1982) (emphasis added). There are other omissions from the colloquy excerpts that Judge Scalia Reproduced in the Hirschey footNote and his book. These omissions suggest that Senator Armstrong was concerned that committee Reports Not be treated by courts or agencies "as if they were something better than statutes" and that such an approach would be especially dangerous in the area of tax law. Id. at 16,919 (statement of Sen. Armstrong). Senator Dole did Not argue that Legislative history is superior to Text, but he did state that he "certainly hope[d]" the IRS and the courts would "take guidance as to the intention of CongRess from the committee Report which accompanies this bill." Id. at 16,918 (statement of Sen. Dole); see also infra Note 254 (Reproducing this exchange).
315. See supra Text accompanying Notes 55-58, 169-78
316. In aNother part of the exchange with Armstrong, also omitted from the footNote in Hirschey, Senator Dole makes explicit his intent in this regard: Mr. Armstrong. My question, which may take him by surprise, is this: Is it the intention of the chairman that the Internal Revenue Service and the Tax Court and other courts take guidance as to the intention of CongRess from the committee Report which accompanies this bill? Mr. Dole. I would certainly hope so, plus Not only the committee Report but hopefully in the debate on certain compliance provisions that we will probably have lengthy discussions on the next few days. 128 Cong. Rec. 16,918.
317. For both tax and workplace law decisions over the thirty-nine year period, the Court relied on language caNons about half as often as it invoked Legislative history and relied on substantive caNons less than one-third as often as it used Legislative record materials. Compare Table 4: Mean Percent Reliance on Legislative History Sources When Legislative History is PResent, 1969-2008 (finding that the Court used Legislative history in 88 tax decisions and 247 workplace decisions), with Table 6: Mean Percent Reliance on Language CaNon Subsets When Language CaNons Are PResent, 1969-2008 (finding that the Court relied on language caNons in 47 tax Cases and 123 workplace Cases), and Table 7: Mean Percent Reliance on Substantive CaNon Subsets When Substantive CaNons Are PResent, 1969-2008 (finding that the Court invoked substantive caNons in 24 tax decisions and 73 workplace decisions).
318. For a showing of 91 percent reliance on structural integrity language caNons in tax law and 76 percent reliance in workplace law, see supra Table 6: Mean Percent Reliance on Language CaNon Subsets When Language CaNons Are PResent, 1969-2008
319. For a showing of 93 percent reliance on generally applicable substantive caNons in tax law and 67 percent reliance in tax law, see supra Table 7: Mean Percent Reliance on Substantive CaNon Subsets When Substantive CaNons Are PResent, 1969-2008
320. United States v. Wells Fargo Bank, 485 U.S. 351 (1988).
321. Id. at 354-59.
322. Id. at 354.
323. Id. at 356 (emphasis added); see also id. at 359 ("The understood meaning of § 5(e) and the pResumption against implied tax exemptions are too powerful to be overcome by the indicia of congRessional intent put forward by appellees.").
324. Comm'r v. Banks, 543 U.S. 426 (2005).
325. Id. at 433-35.
326. Id. at 433-34 (internal quotation marks omitted).
327. Id. at 434 (internal quotation marks omitted).
328. Id. at 433-34.
329. Id. at 434-35.
330. United States v. Arthur Young & Co., 465 U.S. 805 (1984).
331. See id. at 815-21.
332. Id. at 816.
333. See id. at 817-21.
334. See Knight v. Comm'r, 128 S. Ct. 782, 790 (2008) (9-0 decision) (invoking the caNon that "an income tax deduction is a matter of Legislative grace" and the taxpayer bears the burden of demonstrating eligibility (quoting INDOPCO, Inc. v. Comm'r, 503 U.S. 79, 84 (1992))); Badaracco v. Comm'r, 464 U.S. 386, 401 (1984) (8-1 decision) (invoking the caNon that a clear statement from CongRess is needed for an exception favoring the taxpayer); United States v. Euge, 444 U.S. 707, 711 (1980) (6-3 decision) (invoking the clear statement rule for an exemption to an IRS summons); see also Chickasaw Nation v. United States, 534 U.S. 84, 95 (2001) (7-2 decision) (invoking the caNon that tax exemptions must be clearly expRessed; five members of Court also rely on Legislative history); United States v. Goodyear Tire & Rubber Co., 493 U.S. 132, 145 (1989) (9-0 decision) (invoking the caNon that "tax provisions... incorporate domestic tax concepts absent a clear congRessional exemption that foreign concepts control" and relying on Legislative history). The large number of tax-specific substantive caNons may be related to the pResence of specialized tax courts that are perhaps more inclined to generate these Norms based on their expert understanding of federal tax policies. We hope a tax law scholar will explore the origins and development of tax caNons as a separate project.
335. Of the five instances in which the Court relied on a subject specific caNon to help justify a workplace law Result, four instances actually involve subjects other than workplace law. See Howard Delivery Serv., Inc. v. Zurich Am. Ins. Co., 126 S. Ct. 2105, 2116 (2006) (bankruptcy law); Norfolk & W. Ry. v. Am. Train Dispatchers' Ass'n, 499 U.S. 117, 129 (1991) (antitrust)
336. Loeffler v. Frank, 486 U.S. 549, 554-55 (1988) (commercial law); Windward Shipping (London), Ltd. v. Am. Radio Ass'n, 415 U.S. 104, 109-10, 112-13 (1974) (international maritime trade). The fifth Case invoked the pResumption favoring labor arbitration. Nolde Bros., Inc. v. Local 358, Bakery & Confectionary Workers Union, 430 U.S. 243, 254-55 (1977).
337. The most plausible justification for such subject-specific Norms is a judicial belief that CongRess intends its tax Legislation to be interpreted in this manner. Granting arguendo that CongRess generally wants tax exemptions to be narrowly construed and gains to be assigned to those who earn them, reliance on these pResumptions allows the Justices to minimize in-depth or de Novo inquiry into what CongRess meant to accomplish through a particular exemption or income provision. For this reason, we refer to the Court's reliance on substantive tax caNons as a subsidiary or derivative form of expertise borrowing.
338. See supra Table 6: Mean Percent Reliance on Language CaNon Subsets when Language CaNons Are PResent, 1969-2008 (finding that the court involved structural cohesion or integrity caNons in forty-three of forty-seven language caNon decisions)
339. See e.g., Knight, 128 S. Ct. at 787-89 (interpreting 26 U.S.C. § 67(e)); Badaracco, 464 U.S. at 395-97 (interpreting 26 U.S.C. § 6501).
340. See, e.g., Baral v. United States, 528 U.S. 431, 437 (2000) (contrasting 26 U.S.C. §§ 6511 and 6513); Comm'r v. Lundy, 516 U.S. 235, 249-50 (1996) (contrasting 26 U.S.C. §§ 6511(a) and 6512).
341. See, e.g., Drye v. United States, 528 U.S. 49, 56-57 (1999) ("The absence of any recognition of disclaimers in [26 U.S.C.] §§ 6321, 6322, 6331(a) and 6334(a) and (c)... contrasts with § 2518 of the Code...."); United States v. Hill, 506 U.S. 546, 555-56 & n.7 (1993) (attributing a consistent meaning to the phrase "improvements and betterments" in 26 U.S.C. § 263 and § 1016 regulations, as distinct from "improvements" in 26 U.S.C. § 611).
342. See, e.g., United States v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 222-23 (1996) (distinguishing 26 U.S.C. §§ 4971, 4401, 7806 and 507); United States v. Dalm, 494 U.S. 596, 601-02 (1990) (using § 7422(a) and § 6511(a) to narrow the breadth of § 1346(a)(1)); United States v. Rodgers, 461 U.S. 677, 695-98 (1983) (comparing § 7403 with § 6331); Laing v. United States, 423 U.S. 161, 176-77 (1976) (recognizing that, unlike § 6861 et seq., exceptions to § 6871(b) are explicit).
343. See, e.g., Yates v. Hendon, 541 U.S. 1, 13-16 (2004) (examining provisions of and amendments to ERISA as a whole); United States v. Consumer Life Ins. Co., 430 U.S. 725, 745-46 (1977) (harmonizing the Revenue Act of 1921 with § 820, added in 1959).
344. See Sunstein, supra Note 1, at 150-53; William D. Popkin, An "Internal" Critique of Justice Scalia's Theory of Statutory Interpretation, 76 Minn. L. Rev. 1133, 1148 (1992).
345. See, e.g., Posner, supra Note 2, at 279-82, 280; William W. Buzbee, The One-CongRess Fiction in Statutory Interpretation, 149 U. PA. L. Rev. 171, 176-77, 230-45 (2000); Popkin, supra Note 281, at 1148-52; Ross, supra Note 2, at 572.
346. See, e.g., Livingston, supra Note 55, at 829-31, 831; Moran & Schneider, supra Note 55, at 892; Lawrence Zelenak, Thinking About Nonliteral Interpretations of the Internal Revenue Code, 64 N.C. L. Rev. 623, 630 (1986).
347. See supra Text accompanying Notes 129-34
348. See supra Note 128 (referencing several articles and speeches by Justice Blackmun); Harry A. Blackmun As Interviewed by Harold Hongju Koh, Transcript: The Justice Harry A. Blackmun Oral History Project 97 (1997), available at http://lcweb2.loc.gov/diglib/blackmun-Public/series.html?ID=D09 (discussing Blackmun teaChing a tax law course at St. Paul College of Law, which has become William Mitchell College of Law, in 1930s and 1940s).
349. See supra Table 8: Percentage of Majority Opinions Authored by the Four Most Prolific Justices in Tax and Workplace Law during Their Tenure on the Court and accompanying Text
350. The Court's eighty-six tax decisions in the Burger period favored the government 73.3 percent of the time and the taxpayer 23.3 percent of the time, whereas Blackmun's twenty-four majorities were 79.2 percent progovernment and 16.7 percent protaxpayer. During the Rehnquist/Robert years, the Court's seventy-two tax decisions were 68.1 percent progovernment and 29.2 percent protaxpayer, whereas Blackmun's ten majorities in those years were 70 percent progovernment and 30 percent protaxpayer. Some of these percentages do Not add up to 100 because five Court decisions (one authored by Blackmun) are coded as a mixed Result.
351. The six Justices with higher progovernment ratios than Blackmun authored a total of fifty-two majority opinions during our thirty-nine-year period. The eight Justices with lower progovernment ratios authored fifty-seven majority opinions in this period.
352. We find the distinction between progovernment and protaxpayer outcomes easier to rely on than the liberal-conservative distinction we used in our prior Research involving workplace law. See Brudney & Ditslear, supra Note 18, at 27 & n.105 (explaining why CongRess's essentially unidirectional Legislative goals in the workplace law area-augmenting empLoyee protections to improve the conditions of empLoyment-make it relatively easy to code outcomes on a liberal (proempLoyee) versus conservative (proempLoyer) scale). Justice Blackmun's cohort of tax majorities exemplifies that progovernment decisions may plausibly be deemed liberal if corporations or wealthy individuals are forced to pay taxes, see, e.g., INDOPCO, Inc. v. Comm'r, 503 U.S. 79, 90 (1992); Portland Golf Club v. Comm'r, 497 U.S. 154, 171 (1990); Nat'l Muffler Dealers Ass'n v. United States, 440 U.S. 472, 488-89 (1979); United States v. Chi., Burlington & Quincy R.R., 412 U.S. 401, 415-16 (1973), yet conservative if law-enforcement powers are applied to limit procedural or due process-type protections, see, e.g., United States v. Carlton, 512 U.S. 26, 35 (1994); United States v. Zolin, 491 U.S. 554, 556-57 (1989); Sorenson v. Sec'y of Treasury, 475 U.S. 851, 865 (1986); Donaldson v. United States, 400 U.S. 517, 536 (1971). LikeWise, protaxpayer Results may sensibly be labeled liberal if they vindicate the rights of individual or small business taxpayers against an encroaChing IRS, see, e.g., Comm'r v. Groetzinger, 480 U.S. 23, 35-36 (1987); Cent. Ill. Pub. Serv. Co. v. United States, 435 U.S. 21, 33 (1978), but conservative if they allow wealthy individuals or "special inteRest" corporations to pRevail on a claimed deduction or exemption, see, e.g., Newark Morning Ledger Co. v. United States, 507 U.S. 546, 570 (1993); Frank Lyon Co. v. United States, 435 U.S. 561, 583-84 (1978).
353. Robert A. Green, Justice Blackmun's Federal Tax Jurisprudence, 26 Hastings Const. L.Q. 109, 110 (1998); Stephen B. Cohen, Thurgood Marshall: Tax Lawyer, 80 Geo. L.J. 2011, 2011 (1992). One leading tax law Casebook Reproduces eleven principal Supreme Court Cases from 1970-94, six authored by Blackmun and No more than two by any other Justice.
354. See Alan Gunn & Larry D. Ward, Federal Income Taxation xv-xxv (6th ed. 2006); see also Richard Schmalbeck & Lawrence Zelenak, Federal Income Taxation xiii-xxvi (2d ed. 2007) (Reproducing nine principal Supreme Court Cases from 1970-94, five of which were authored by Blackmun).
355. See, e.g., Letter from Bernard Wolfman to Harry Blackmun (June 14, 1994) (on file with the Blackmun Papers, supra Note 128, Box 640) (praising Blackmun's opinion in United States v. Carlton, 512 U.S. 26 (1994), as "particularly cogent"); Letter from Erwin Griswold to Harry Blackmun (Dec. 20, 1991) (on file with the Blackmun Papers, supra Note 128, Box 95) (discussing Freytag v. United States, 501 U.S. 868 (1991)); Letter from Bernard Wolfman to Harry Blackmun (May 9, 1983) (on file with the Blackmun Papers, supra Note 128, Box 376) (discussing Commissioner v. Tufts, 463 U.S. 1215 (1983)); Letter from Erwin Griswold to Harry Blackmun (Mar. 15, 1977) (on file with the Blackmun Papers, supra Note 128, Box 245) (discussing Don E. Williams Co. v. Commissioner, 429 U.S. 569 (1977)). This is Not to suggest that Blackmun's tax law jurisprudence was immune to criticism by those same scholars. See, e.g., Bernard Wolfman, The Supreme Court in the Lyon's Den: A Failure of Judicial Process, 66 Cornell L. Rev. 1075 passim (1981) (critical of Blackmun's holding and reasoning in Frank Lyon Co. v. United States, 435 U.S. 561 (1978)); Letter from Erwin Griswold to Harry Blackmun (May 22, 1974) (on file with the Blackmun Papers, supra Note 128, Box 180) (criticizing Blackmun's dissenting opinion in Alexander v. "Americans United" Inc., 416 U.S. 752 (1974)).
356. See Green, supra Note 290, at 130, 136-38 (discussing Blackmun's "practical reasoning approach to statutory interpretation")
357. see also Karen Nelson Moore, Justice Blackmun's Contributions on the Court: The Commercial Speech and State Taxation Examples, 8 Hamline L. Rev. 29, 43-49 (1985) (discussing Blackmun's leadership role in shaping the Court's approach to state tax Cases involving interstate or foreign commerce concerns).
358. Professor Brudney visited the Manuscript Division of the Library of CongRess on August 19-20 and September 11-12, 2008; he examined memos to Justice Blackmun from his law clerks and conference Notes in the Justice's handwriting as well as corRespondence between the Justices during the opinion-writing process. Copies of all documents cited to the Blackmun Papers are on file with the Duke Law Journal.
359. For twenty-eight of the Cases, we found exchanges of some substance involving Blackmun
360. See, e.g., Letters from Potter Stewart to William Douglas and Harry Blackmun (Mar. 17, 1971) (on file with the Blackmun Papers, supra Note 128, Box 125) (joining Blackmun's dissent in United States v. Randall, 401 U.S. 513 (1971)); Letter from Hugo Black to Harry Blackmun (Mar. 18, 1971) (on file with the Blackmun Papers, supra Note 128, Box 125) (same); Memorandum from Warren Burger to the Conference (Mar. 22, 1971) (on file with the Blackmun Papers, supra Note 128, Box 125) (same); Letter from LeWis Powell to Harry Blackmun (Jan. 15, 1973) (on file with the Blackmun Papers, supra Note 128, Box 167) (joining Blackmun's per curiam opinion in United States v. Chandler, 410 U.S. 257 (1973)).
361. See, e.g., Note from William Rehnquist to Harry Blackmun (Feb. 23, 1981) (on file with the Blackmun Papers, supra Note 128, Box 329) (conceding that he "simply canNot get a handle on a useful dissent" in Commissioner v. Portland Cement Co., 450 U.S. 156 (1981)); Letter from William Rehnquist to Harry Blackmun (Dec. 15, 1981) (on file with the Blackmun Papers, supra Note 128, Box 350) (expRessing relief that Blackmun would write a dissent in Jewett v. Commissioner, 452 U.S. 305 (1981)); Letter from William Rehnquist to Harry Blackmun (Nov. 11, 1974) (on file with the Blackmun Papers, supra Note 128, Box 195) (joining Blackmun's opinion rather than "pursuing. .. a dissent" in Otte v. United States, 419 U.S. 43 (1974)).
362. See First Draft Dissent of Justice Blackmun in United States v. Chicago,
363. See Memorandum from Randy [Bezanson, law clerk] to Justice Blackmun (Apr. 30, 1973) (on file with the Blackmun Papers, supra Note 128, Box 166) (discussing Justice Stewart's stated intention to dissent in Chicago, Burlington & Quincy R.R. for Justice Rehnquist as well as himself, and adding "I did Not mention anything about Justice Rehnquist's statement to you this morning."); Letter from William Rehnquist to Harry Blackmun (May 4, 1973) (on file with the Blackmun Papers, supra Note 128, Box 166) (joining Blackmun's majority opinion in Chicago, Burlington & Quincy R.R.).
364. See, e.g., Letters from William Brennan to Harry Blackmun (May 26 and May 31, 1978) (on file with the Blackmun Papers, supra Note 128, Box 273) (stating he is switChing his vote from conference and joining Blackmun's opinion in United States v. LaSalle National Bank, 437 U.S. 298 (1978)); Letters from Thurgood Marshall to Harry Blackmun (May 26 and May 31, 1978) (on file with the Blackmun Papers, supra Note 128, Box 273) (same); Letter from Potter Stewart to Harry Blackmun (Jan. 8, 1979) (on file with the Blackmun Papers, supra Note 128, Box 282) (joining Blackmun's opinion in Thor Power Tool v. Commissioner, 439 U.S. 522 (1979)); Letter from LeWis Powell to Harry Blackmun (Jan. 10, 1979) (on file with the Blackmun Papers, supra Note 128, Box 282) (same); Letter from Clarence Thomas to Harry Blackmun (May 12, 1993) (on file with the Blackmun Papers, supra Note 128, Box 617) (joining Blackmun's opinion in Commissioner v. Keystone Consolidated Industries, Inc., 508 U.S. 152 (1993)); Letter from Thurgood Marshall to Harry Blackmun (May 7, 1986) (on file with the Blackmun Papers, supra Note 128, Box 455) (indicating a plan, later abandoned, to pRepare a dissent in United States v. Hughes Properties, Inc., 476 U.S. 593 (1986)); cf. Letter from John Paul Stevens to Harry Blackmun (May 21, 1986) (on file with the Blackmun Papers, supra Note 128, Box 455) ("Unlike Thurgood I remain unpersuaded and therefore will pRepare a dissenting opinion [in Hughes Properties]. .. .").
365. See, e.g., Letters from John Paul Stevens and William Brennan to Harry Blackmun (Jan. 8, 1979) (on file with the Blackmun Papers, supra Note 128, Box 282) (complimenting and joining Blackmun's opinion in Thor Power Tool); Letter from LeWis Powell to Harry Blackmun (Jan. 10, 1979) (on file with the Blackmun Papers, supra Note 128, Box 282) ("In view of the universal acclaim of your fine opinion. .. I cheerfully join you, despite continuing Reservations as to the inventory issue."); Letter from John Paul Stevens to Harry Blackmun (May 16, 1983) (on file with the Blackmun Papers, supra Note 128, Box 376) ("I wonder if the Case would have been decided the same way if the taxpayers' brief [in United States v. Rodgers, 461 U.S. 677 (1983)] had been even half as persuasive as your opinion."); Letter from John Paul Stevens to Harry Blackmun (Jan. 9, 1987) (on file with the Blackmun Papers, supra Note 128, Box 470) (complimenting Blackmun's kNowledge and humor in his opinion in Commissioner v. Groetzinger, 480 U.S. 23 (1987)); Letter from Anthony Kennedy to Harry Blackmun (Feb. 24, 1993) (on file with the Blackmun Papers, supra Note 128, Box 613) ("Your opinion [in Newark Morning Ledger Co. v. United States, 507 U.S. 546 (1993)] is very fine in all Respects.").
366. See Letter from Harry Blackmun to John Paul Stevens (Feb. 21, 1983) (on file with the Blackmun Papers, supra Note 128, Box 368) (discussing Stevens's concurrence in Hillsboro National Bank v. Commissioner, 460 U.S. 370 (1983)).
367. See, e.g., Letters from William Brennan to Harry Blackmun (Jan. 13, 19, and 23, 1978) (on file with the Blackmun Papers, supra Note 128, Box 264) (discussing Blackmun's draft opinion in Central IlliNois Public Service Co. v. United States, 435 U.S. 21 (1978)); Letter from John Paul Stevens to Harry Blackmun (Feb. 10, 1978) (on file with the Blackmun Papers, supra Note 128, Box 264) (same); Letter from LeWis Powell to Harry Blackmun (Feb. 14, 1978) (on file with the Blackmun Papers, supra Note 128, Box 264) (same); Letter from LeWis Powell to Harry Blackmun (Mar. 20, 1978) (on file with the Blackmun Papers, supra Note 128, Box 259) (suggesting edits to Blackmun's draft opinion in Frank Lyon Co. v. United States, 435 U.S. 561 (1978)); Letter from Sandra Day O'ConNor to Harry Blackmun (April, 25, 1983) (on file with the Blackmun Papers, supra Note 128, Box 470) (suggesting changes to Blackmun's opinion in Commissioner v. Tufts, 461 U.S. 300 (1983)); Letter from John Paul Stevens to Harry Blackmun (Apr. 14, 1983) (on file with the Blackmun Papers, supra Note 128, Box 470) (same); Letter from Sandra Day O'ConNor to Harry Blackmun (May 10, 1993) (on file with the Blackmun Papers, supra Note 128, Box 617) (suggesting edits to Blackmun's draft opinion in Commissioner v. Keystone Consolidated Industries, Inc., 508 U.S. 152 (1993)); Letter from Anthony Kennedy to Harry Blackmun (May 11, 1993) (on file with the Blackmun Papers, supra Note 128, Box 617) (same), Letter from Clarence Thomas to Harry Blackmun (May 13, 1993) (on file with the Blackmun Papers, supra Note 128, Box 617) (same).
368. See, e.g., Letter from Harry Blackmun to John Paul Stevens (Feb. 10, 1978) (on file with the Blackmun Papers, supra Note 128, Box 264) (accepting Stevens's suggestion in Central IlliNois); Letter from Harry Blackmun to LeWis Powell (Mar. 21, 1978) (on file with the Blackmun Papers, supra Note 128, Box 259) (accepting Powell's suggestions in Frank Lyon Co.); Letter from Harry Blackmun to Sandra Day O'ConNor (May 17, 1993) (on file with the Blackmun Papers, supra Note 128, Box 617) (omitting a section of his draft opinion in Keystone Consolidated Industries per O'ConNor's request).
369. See, e.g., Letters from Harry Blackmun to William Brennan (Jan. 16 and 20, 1978) (on file with the Blackmun Papers, supra Note 128, Box 264) (declining Brennan's suggested statement in Central IlliNois); Letters from Harry Blackmun to Anthony Kennedy and Clarence Thomas (May 17, 1993) (on file with the Blackmun Papers, supra Note 128, Box 617) (refusing to accommodate Kennedy's and Thomas's suggested changes in Keystone Consolidated Industries); see also Letter from Harry Blackmun to Sandra Day O'ConNor (Jan. 12, 1987) (on file with the Blackmun Papers, supra Note 128, Box 470) (making some but Not all of the changes requested in Groetzinger); Letter from Harry Blackmun to LeWis Powell (Oct. 27, 1976) (on file with the Blackmun Papers, supra Note 128, Box 238) (making some but Not all of the changes requested in a dissent to United States v. Foster Lumber Co., 429 U.S. 32 (1976)).
370. There are an ample number of exchanges between Justices other than Blackmun on draft opinions Not authored by Blackmun. See, e.g., Letters Between Justices Stevens and Brennan (January 24, 1978) (on file with the Blackmun Papers, supra Note 128, Box 264) (discussing Brennan's draft opinion in Fulman v. United States, 431 U.S. 928 (1977)); Letters Between Justices Kennedy and Souter (Jan. 7 and 11, 1993) (on file with the Blackmun Papers, supra Note 128, Box 615) (negotiating edits in Souter's draft opinion in United States v. Hill, 506 U.S. 546 (1993)); Letters Between Justices O'ConNor and Souter (Apr. 5 and 12, 1994) (on file with the Blackmun Papers, supra Note 128, Box 638) (suggesting edits to Souter's draft opinion in United States v. Irvine, 511 U.S. 224 (1994)). At the same time, there are exchanges in which the majority author negotiates to secure Blackmun's support even as Blackmun also drafts a concurring opinion. See, e.g., Letters Between William Rehnquist and Harry Blackmun (Apr. 28 and May 11, 1983) (on file with the Blackmun Papers, supra Note 128, Box 381) (discussing O'ConNor's draft opinion and Blackmun's draft concurrence in Regan v. Taxation With RepResentation, 461 U.S. 540 (1983)); Letters Between Byron White and Harry Blackmun (Nov. 10, Dec. 1, 4, and 6, 1978) (on file with the Blackmun Papers, supra Note 128, Box 283) (withdrawing a proposed concurrence after White circulated a sEcond draft in United California Bank v. United States, 439 U.S. 180 (1978)).
371. Reliance on Text since 1994 has been 71.9 percent (23 of 32 Cases) versus 65.5 percent of Cases during Blackmun's tenure (76 of 116 Cases from the 1970-94 terms). Reliance on language caNons since 1994 has been 40.6 percent (13 of 32 Cases) versus 27.6 percent of Cases in the Blackmun years (32 of 116 Cases from the 1970-94 terms).
372. Reliance on Legislative history since 1994 has been 34.4 percent of Cases (11 of 32 of Cases), which contrasts with 62.9 percent during the Blackmun period (73 of 116 of Cases for the 1970-94 terms). This difference is highly significant (t = .001).
373. Our suggestion that Blackmun's use of tax Legislative history functioned as a cue for many of his colleagues may help account for why, collectively, they relied on this Resource slightly more often even than he did, see supra Table 9: Comparing Justice Blackmun's Reliance on Legislative History in Tax Cases with the Reliance of Other Justices, and then continued to rely on it at a high level for the first several years after he retired, see supra Note 143. Once the reinforcing "lesson" of Blackmun's approach wore off, however, it was Replaced by the more generic reinforcement of Justice Scalia's hostility to Legislative history.
374. See sources cited supra Notes 300-04
375. For O'ConNor the figure is 100 percent (four of four Cases); for Stevens the figure is 80 percent (four of five Cases); for Brennan 91 percent (ten of eleven Cases); and for Powell 50 percent (five of ten Cases). O'ConNor and Stevens invoked Legislative history in one of the four majorities they authored after Blackmun's departure.
376. For instances of the occasional expRession of distaste for tax law, see, for example, Letter from John Paul Stevens to Harry Blackmun (Jan. 8, 1979) (on file with the Blackmun Papers, supra Note 128, Box 282) ("Dear Harry, As you kNow, I am No fan of tax Cases. But I must confess that if I had kNown that this Case [Thor Power Tool v. Commissioner, 439 U.S. 522 (1979)] was going to Result in such a fine opinion, I would have voted to grant cert."); Letter from William Rehnquist to Harry Blackmun (Dec. 15, 1981) (on file with the Blackmun Papers, supra Note 128, Box 350) ("Dear Harry: As you might have guessed, I am delighted that you are willing to take on the dissent in this Case [Jewett v. Commissioner, 455 U.S. 305 (1982)].").
377. In fifty Nonunanimous tax law Cases in which the majority relied on Legislative history, the dissent relied on Legislative history sixteen times, or 32 percent of the time. When Justice Blackmun wrote the dissent he used Legislative history to counter majority reliance on Legislative history 50 percent of the time (five of ten Cases); when other Justices authored the dissent they invoked Legislative history 28 percent of the time (eleven of forty Cases).
378. Of the forty dissents authored by other Justices, thirty-one occurred during Justice Blackmun's tenure and nine of them invoked Legislative history. When Blackmun authored the majority, dissent reliance was only 17 percent (two of twelve Cases). When others authored the majority, dissent reliance rose to 37 percent (seven of nineteen Cases).
379. From the 1970 Term through the 1993 Term, the Court decided 116 federal tax Cases out of 3,287 total merits decisions
380. See Lee Epstein et al., The Supreme Court Compendium: data, decisions and developments 87-92 tbl.2-11 (4th ed. 2007)
381. Brudney & Distlear, supra Note 63. During the first eight years of the Rehnquist Court, the Justices decided 40 tax Cases out of 990 merits decisions. Epstein et al., supra at 87-92 tbl.2-11; Brudney & Ditslear, supra Note 63.
382. From the 1994 Term through the 2007 Term, the Court decided 32 federal tax Cases out of 1,084 merits decisions. See Lee Epstein et al., The Supreme Court Compendium, Table 2-11, 1946-2006 Terms (4th ed. Revised 2007), available at CQ PRess Electronic Library, The Supreme Court Compendium Online Edition, http://library.cqpRess.com/sccm/scc4thR_tab2-11 (last visited Feb. 5, 2009) (subscription required) (Reporting 1015 total decisions from the 1994 term through the 2006 term); Statistics for the Supreme Court's October Term 2007, 77 U.S.L.W. 3063, 3072 (Aug. 5, 2008) (Reporting 69 total merits opinions from argued and Non-argued Cases).
383. See Staudt et al., supra Note 71, at 1818 n.68 (observing that CongRess Revised the tax code twenty-three times between 1913 and 1954, but that the code's basic structure has been unchanged since 1954).
384. See, e.g., IRS Launches New Settlement Initiative for Corporate Tax Shelters, TAX Notes Today, Aug. 7, 2008, LEXIS, 2008 TNT 153-1; IRS AnNounces Settlement Initiative for Wide Array of Transactions, TAX Notes Today, Oct. 28, 2005, LEXIS, 2005 TNT 208-13; IRS AnNounces EmpLoyer-Provided Meals Settlement Initiative, TAX Notes Today, Aug. 5, 1998, LEXIS, 98 TNT 150-8. See generally Gregory P. Mathews, Using Negotiation, Mediation, and Arbitration to Resolve IRS-Taxpayer Disputes, 19 Ohio St. J. on Disp. Resol. 709 (2004) (examining the use of alternative dispute Resolution (ADR) techniques by the IRS); David Parsly, The Internal Revenue Service and Alternative Dispute Resolution: Moving from Infancy to Legitimacy, 8 Cardozo J. Conflict Resol. 677 (2007) (detailing types of ADR programs implemented by the IRS).
385. See Brudney & Ditslear, supra Note 52, at 137-60 (Reporting and discussing the Legislative history Results); Brudney & Ditslear, supra Note 18, at 53-69, 77-97 (Reporting and discussing the caNons Results)
386. See supra Text accompanying Table 2: Reliance on Selected Interpretive Resources-Burger Court Decisions and Rehnquist/Roberts Court Decisions; supra Text accompanying Note 93
387. See Brudney & Ditslear, supra Note 52, at 170-71 (discussing the Normative implications of Justice Scalia's impact on colleagues with Respect to Legislative history use)