A decision theory of statutory interpretation: Legislative history by the rules

Yale Law Journal

Volumn 122, Issue 1, 2012, Pages 70-152

  Nourse, Victoria F ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 84867723788     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (428)

1. Legislative history, whether followed or not, has featured in some of the more prominent controversies of the day, from the constitutionality of the Patient Protection and Affordable Care Act, see Liberty Univ. v. Geithner, 671 F.3d 391, 425 (4th Cir. 2011).
2. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring in the judgment) ("I think it entirely appropriate to consult all public materials, including... the legislative history of [Rule 609(a)(1)'s] adoption, to verify that what seems to us an unthinkable disposition... was indeed unthought of.... ")
3. James J. Brudney, Confirmatory Legislative History, 76 Brook. L. Rev. 901 (2011) (discussing the Roberts Court's current confirmatory use of legislative history)
4. James J. Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 Berkeley J. Emp. & Lab. L. 117 (2008) (identifying an overall decline in legislative history but providing empirical data showing that the Court continues to use legislative history).
5. As Judge Posner long ago complained: "[T]he creation and interpretation of statutes are now paramount concerns of the legal profession.... But about the nature of the legislative process... the typical law school curriculum is practically silent. " Richard A. Posner, Book Review, 74 Va. L. Rev. 1567, 1567 (1988) (reviewing William N. Eskridge, Jr. & Phillip P. Frickey, Cases and Materials on Legislation: Statutes and the Creation of Public Policy (1988) (emphasis added). While theories of statutory interpretation have flourished since this statement, it remains the case that focus on congressional process is rare if not nonexistent in the legal academy.
6. The terms "decision theory" and "rule-based decision theory" are used interchangeably in this Article. It is important to note, particularly for political scientists, that the term "decision theory" has been used in other contexts far different from the way it is used here. For example, this Article does not offer a welfarist, cost-benefit analysis of decisionmaking. See Thomas W. Merrill, Faithful Agent, Integrative, and Welfarist Interpretation, 14 Lewis & Clark L. Rev. 1565, 1574 (2010) (characterizing Adrian Vermeule's theory as an "institutional choice" welfarist approach)
7. Caleb Nelson, Statutory Interpretation and Decision Theory, 74 U. Chi. L. Rev. 329 (2007) (reviewing Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (2006) (describing Vermeule's cost-benefit approach as a "decision theory"). Nor is this Article's approach associated with the heuristics movement or behavioral decision theory.
8. See Samuel Issacharoff, Behavioral Decision Theory in the Court of Public Law, 87 Cornell L. Rev. 671 (2002).
9. You will find related ideas occasionally strewn about the professional literature but never theorized as such. See, e.g., Larry M. Eig & Yule Kim, Statutory Interpretation: General Principles and Recent Trends, in Statutory Construction and Interpretation: General Principles and Recent Trends; Statutory Structure and Legislative Drafting Conventions; Drafting Federal Grants Statutes; and Tracking Current Federal Legislation and Regulations 1, 45 (The Capitol. Net ed., 2010) (suggesting that temporal proximity and relevance rules can trump the standard hierarchy of legislative history).
10. A welcome exception to ignorance of congressional procedure is Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. L. Rev. 573 (2008), which assesses the influence of congressional resolutions that do not have the status of law. This Article deals with a far greater range of congressional actions, including those having the status of law.
11. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
12. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
13. see also Dakota S. Rudesill, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 Wash. U. L. Rev. 699, 706-08 (2010) (providing an empirical study showing a "virtual non-existence of legislative work experience" among judges and top legal faculty members). There are of course well-known exceptions to the rule of judicial inexperience in legislatures, such as Justice Stephen Breyer, Judge Robert A. Katzmann, and former Judge Abner Mikva.
14. Kenneth A. Shepsle, Analyzing Politics: Rationality, Behavior, and Institutions 374 (2d ed. 2010) (arguing that "[p]rocedures are required to cut through all this instability, " given that "there is no equilibrium to majority voting").
15. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
16. Kenneth A. Shepsle & Barry R. Weingast, Positive Theories of Congressional Institutions, in Positive Theories of Congressional Institutions 5, 7 (Kenneth A. Shepsle & Barry R. Weingast eds., 1995).
17. See John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287, 1315 (2010) ("Second-generation textualism seems to embrace the legislative process, with all its foibles. ").
18. Jeremy Waldron, Law and Disagreement 77 (1999).
19. Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65 Chi.-Kent L. Rev. 123, 152 (1989).
20. Section II. D (arguing that reliance on losers' history-statements of those who opposed a bill-is equivalent to confusing a dissenting for a majority opinion). To be sure, there are statements by courts that "[t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation. " Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394 (1950). And yet this advice, as we will see later, is often acknowledged but rejected.
21. The House and Senate rules can be easily found online. Karen L. Haas, Rules of the House of Representatives, One Hundred Twelfth Congress, Office of the Clerk of the U.S. House of Representatives (Jan. 5, 2011), http://clerk.house.gov/legislative/house-rules.pdf.
22. Rules of the Senate, Committee on Rules & Admin., U.S. Senate, http://www.rules.senate.gov/public/index.cfm?p=Rules Of Senate Home (last visited Mar. 27, 2012).
23. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
24. see McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705, 741 (1992) [hereinafter McNollgast, Positive Canons]
25. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
26. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
27. See James Willard Hurst, Dealing with Statutes 32-33 (1982).
28. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
29. 491 U.S. 440 (1989).
30. 443 U.S. 193 (1979).
31. 490 U.S. 504 (1989).
32. 401 U.S. 424 (1971).
33. 143 U.S. 457 (1892).
34. 437 U.S. 153 (1978).
35. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
36. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2089 (2002) (arguing that Congress should pass a set of federal rules of statutory interpretation).
37. See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162 (2002) [hereinafter Elhauge, Preference-Eliciting]
38. Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 Colum. L. Rev. 2027 (2002) [hereinafter Elhauge, Preference-Estimating].
39. On the distinction between interpretation and construction, see Robert W. Bennett & Lawrence B. Solum, Constitutional Originalism: A Debate 3-4 (2011).
40. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
41. Jerry L. Mashaw, Norms, Practices, and the Paradox of Deference: A Preliminary Inquiry into Agency Statutory Interpretation, 57 Admin. L. Rev. 501, 502-03 (2005) ("[A]gencies are, by necessity, the primary official interpreters of federal statutes.... ").
42. See, e.g., Glen Staszewski, Introduction to Symposium on Administrative Statutory Interpretation, 2009 Mich. St. L. Rev. 1, 3-4 (describing Michael Herz as arguing for a purposivist view and Staszewski as arguing for a textualist view in the context of administrative agency interpretation).
43. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
44. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
45. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
46. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
47. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
48. This may come as a surprise to some decision theorists, but they should consider that rules may be a form of preference aggregation preferable to voting or ideological scores. Recent work in philosophy and PPT suggests that coherent preference aggregation can be achieved by other means, such as "a premise-based or sequential priority procedure. " Christian List& Philip Pettit, Group Agency 58 (2011). For criticisms of standard voting-based models, see Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice To Improve Public Law 99 (1997), which criticizes some positive political theorists' approach as "enormously information demanding" and offering "a tool that [judges] cannot use. "
49. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
50. See Miriam R. Jorgensen & Kenneth A. Shepsle, A Comment on the Positive Canons Project, 57 Law & Contemp. Probs. 43, 46-47 (1994). As even those who are enthusiastic about rational choice models have argued, these models posit simple assumptions that may be wildly inconsistent with empirical reality and need new ideas as well as data to keep them alive.
51. Terry M. Moe, The Revolution in Presidential Studies, 39 Presidential Stud. Q. 701, 710 (2009) ("[T]he players in these formal models are optimizers whose assumed capacities for calculation and information processing are typically light years beyond those of real people. ").
52. Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 872 (1930).
53. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., The Foundation Press 1994) (1958).
54. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
55. William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509 (1998).
56. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997).
57. Kenneth A. Shepsle, Commentary, Congress Is a "They, " Not an "It": Legislative Intent as Oxymoron, 12 Int'l Rev. L. & Econ. 239, 239 (1992).
58. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
59. Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies 99-100 (1989)
60. Stanley Fish, Play of Surfaces: Theory and the Law, in Legal Hermeneutics: History, Theory & Practice 297, 300-01 (Gregory Leyh ed., 1992).
61. Jeremy Waldron, Law and Disagreement 77 (1999).
62. This may come as a surprise to some decision theorists, but they should consider that rules may be a form of preference aggregation preferable to voting or ideological scores. Recent work in philosophy and PPT suggests that coherent preference aggregation can be achieved by other means, such as "a premise-based or sequential priority procedure. " Christian List& Philip Pettit, Group Agency 58 (2011). For criticisms of standard voting-based models, see Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice To Improve Public Law 99 (1997), which criticizes some positive political theorists' approach as "enormously information demanding" and offering "a tool that [judges] cannot use. "
63. One might also argue that the term "decision" is a metaphor. My defense is that this is a better metaphor than others since it reduces distracting debates over matters such as whether we should be looking for legislators' states of mind or whether legislative history is subjective as opposed to objective.
64. Aristotle, The Poetics, in Aristotle in 23 Volumes § 1457b (W.H. Fyfe trans., Harvard Univ. Press 1932), http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext %3A1999.01.0056%3Asection%3D1457b.
65. Jeremy Waldron, Law and Disagreement 77 (1999).
66. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
67. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 864-65 (1992) (arguing that members' motives or purposes need not be unanimous to ascribe a purpose or intent to the group).
68. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
69. See James D. Cox & Thomas Lee Hazen, Corporations 129 (2d ed. 2003) ("A corporation cannot see or know anything except by the eyes or intelligence of its officers. " (quoting Factors' & Traders' Ins. Co. v. Marine Dry Dock & Shipyard Co., 31 La. Ann. 149, 151 (1879).
70. See James D. Cox & Thomas Lee Hazen, Corporations 129 (2d ed. 2003) ("A corporation cannot see or know anything except by the eyes or intelligence of its officers. " (quoting Factors' & Traders' Ins. Co. v. Marine Dry Dock & Shipyard Co., 31 La. Ann. 149, 151 (1879).
71. William A. Gregory, The Law of Agencyand Partnership 133 (3d ed. 2001) (citing Anderson v. Walthal, 468 So. 2d 291, 294 (Fla. Dist. Ct. App. 1985)
72. Ouachita Equip. Rental Co. v. Trainer, 408 So. 2d 930, 935 (La. Ct. App. 1981) ("The general rule is that the knowledge of an agent is to be imputed to the principal. ").
73. Jeremy Waldron, Law and Disagreement 77 (1999).
74. Jeremy Waldron, Law and Disagreement 77 (1999).
75. This may come as a surprise to some decision theorists, but they should consider that rules may be a form of preference aggregation preferable to voting or ideological scores. Recent work in philosophy and PPT suggests that coherent preference aggregation can be achieved by other means, such as "a premise-based or sequential priority procedure. " Christian List& Philip Pettit, Group Agency 58 (2011). For criticisms of standard voting-based models, see Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice To Improve Public Law 99 (1997), which criticizes some positive political theorists' approach as "enormously information demanding" and offering "a tool that [judges] cannot use. "
76. See Michael E. Bratman, Faces of Intention: Selected Essays on Intention and Agency 111 (1999) ("To understand shared intention, then, we should not appeal to an attitude in the mind of some superagent; nor should we assume that shared intentions are always grounded in prior promises. ").
77. Oliver Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899) ("We do not inquire what the legislature meant; we ask only what the statute means. ").
78. Of course, it makes good sense to argue, as Professor Manning has, that we should not reduce Congress to the statements of a single proponent or committee. John F. Manning, Textualism as a Nondelegation Doctrine, 97 Colum. L. Rev. 673, 675 (1997). Congress could not constitutionally give its de jure power to legislate to a committee or to a single senator or House member. But this does not mean that courts may ignore Congress's decisions about its own texts, when the alternative is to impose the judiciary's own meaning. The answer to that question requires a constitutional theory.
79. See Victoria Nourse, Misunderstanding Congress (Sept. 12, 2012) (unpublished book manuscript) (on file with author).
80. Kent Greenawalt, Legislation: Statutory Interpretation: 20 Questions (1999)
81. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
82. Jeremy Waldron, Law and Disagreement 77 (1999).
83. In acknowledging that decisions may be intentional, I am not asking that judges imagine or reconstruct intentions as states of mind. A judge with a gap in a statute has to construct an answer to the problem. As today's originalists have made clear, construction is the legal effect of a term and may differ from its original meaning. So, too, in statutory interpretation, the judge must seek the legal effect of Congress's decisions in the case of ambiguity. This does not require judges to project themselves into the political situation by imaginative effort, but to know the rules of the game and when those rules will help them make a judgment about the legal effect of a statute.
84. Michael E. Bratman, Shared Cooperative Activity, 101 Phil. Rev. 327, 340 (1992) ("A joint activity can be cooperative down to a certain level and yet competitive beyond that.... [In playing chess,] [y]ou and I do not intend that our subplans mesh all the way down. But you and I do intend that our subplans mesh down to the level of the relevant rules and practices. Our chess playing... is jointly intentional, and it involves shared cooperation down to the cited level. "). I thank Larry Solum and Greg Klass for pointing this work out to me.
85. See James Willard Hurst, Dealing with Statutes 32-33 (1982).
86. Ward Farnsworth, Dustin F. Guzior & Anup Malani, Ambiguity About Ambiguity: An Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 272 (2010).
87. James J. Brudney & Corey Ditslear, Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect, 29 Berkeley J. Emp. & Lab. L. 117 (2008) (identifying an overall decline in legislative history but providing empirical data showing that the Court continues to use legislative history).
88. Michael Abramowicz & Emerson H. Tiller, Citation to Legislative History: Empirical Evidence on Positive Political and Contextual Theories of Judicial Decision Making, 38 J. Legal Stud. 419, 436-38 (2009) (finding both that Democratic appointees generally place more weight than Republican appointees on legislative history, and that judges of both parties on three-judge panels are more likely to cite legislative history when more Democratic appointees are on the panel).
89. See James Willard Hurst, Dealing with Statutes 32-33 (1982).
90. see also Dakota S. Rudesill, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 Wash. U. L. Rev. 699, 706-08 (2010) (providing an empirical study showing a "virtual non-existence of legislative work experience" among judges and top legal faculty members). There are of course well-known exceptions to the rule of judicial inexperience in legislatures, such as Justice Stephen Breyer, Judge Robert A. Katzmann, and former Judge Abner Mikva.
91. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
92. See Steven J. Burton, Elements of Contract Interpretation § 1.3.2-1.3.3, at 21-34 (2009) (comparing objective and subjective interpretive regimes in contract interpretation). The contract analogy in statutory interpretation is at best incomplete: there are rules governing the parties "contracting" for statutes, which have no precise analogue in standard contract law. However, this is not to say that, for some purposes, the analogy may not be apt.
93. For a more incisive analysis, see the rejection of this debate in Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347 (2005). I expect that a good deal of this debate may emanate from contract scholarship.
94. See Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 Geo. L.J. 1119, 1138-42 (2011).
95. See Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 26 (2006) ("[I]f textualism's description of interpretation had much in common with legal realism, its aspirations for the judiciary had much in common with legal formalism. ")
96. Caleb Nelson, Statutory Interpretation and Decision Theory, 74 U. Chi. L. Rev. 329 (2007) (reviewing Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (2006) (describing Vermeule's cost-benefit approach as a "decision theory"). Nor is this Article's approach associated with the heuristics movement or behavioral decision theory.
97. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
98. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
99. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
100. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutesand the Creation of Public Policy 996 (4th ed. 2007)
101. There are obviously many versions of positive political theory and its application to law. See, e.g., Emerson H. Tiller, Resource-Based Strategies in Law and Positive Political Theory: Cost-Benefit Analysis and the Like, 150 U. Pa. L. Rev. 1453 (2002) (focusing on decision resources as a prominent aspect of positive political theory). I emphasize the two approaches appearing later in this paragraph because these are the most prominent among legal scholars of statutory interpretation.
102. John A. Ferejohn & Barry R. Weingast, A Positive Theory of Statutory Interpretation, 12 Int'l. Rev. L. & Econ. 263, 265 (1992)
103. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
104. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
105. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
106. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
107. Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
108. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
109. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
110. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
111. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
112. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
113. This may come as a surprise to some decision theorists, but they should consider that rules may be a form of preference aggregation preferable to voting or ideological scores. Recent work in philosophy and PPT suggests that coherent preference aggregation can be achieved by other means, such as "a premise-based or sequential priority procedure. " Christian List& Philip Pettit, Group Agency 58 (2011). For criticisms of standard voting-based models, see Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice To Improve Public Law 99 (1997), which criticizes some positive political theorists' approach as "enormously information demanding" and offering "a tool that [judges] cannot use. "
114. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
115. This may come as a surprise to some decision theorists, but they should consider that rules may be a form of preference aggregation preferable to voting or ideological scores. Recent work in philosophy and PPT suggests that coherent preference aggregation can be achieved by other means, such as "a premise-based or sequential priority procedure. " Christian List& Philip Pettit, Group Agency 58 (2011). For criticisms of standard voting-based models, see Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice To Improve Public Law 99 (1997), which criticizes some positive political theorists' approach as "enormously information demanding" and offering "a tool that [judges] cannot use. "
116. In other work, I will have to defend the larger empirical proposition that decision theory can in fact simplify the use of legislative history by appellate courts at a systemic level.
117. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 423, 431-32 (2005).
118. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
119. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
120. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
121. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
122. See William N. Eskridge, Jr., Dynamic Statutory Interpretation44-47 (1994) (discussing Bock Laundry).
123. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
124. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
125. John F. Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2479-80 (2003) [hereinafter Manning, Absurdity Doctrine] (discussing Bock Laundry)
126. John F. Manning, Clear Statement Rules and the Constitution, 110 Colum. L. Rev. 399, 415-17 (2010) (discussing Public Citizen)
127. John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003, 2011-13 (2009) [hereinafter Manning, Federalism] (discussing Holy Trinity)
128. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
129. John F. Manning & Matthew C. Stephenson, Legislation and Regulation 4-17 (2010) (TVA).
130. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring) (offering a reading of a statute based on "ordinary usage" and "most compatible with the surrounding body of law into which the provision must be integrated-a compatibility which, by a benign fiction, we assume Congress always has in mind").
131. One might object that Congress does not in fact follow its own rules. In the case I have described, however, it does not follow that the original rule evasion is not incorporated into the final majoritarian decision. If a conference committee adds material to identical bills, that would violate the House and Senate rules. A member voting on such a bill with altered language would assume, per the rules, that the addition was immaterial. This approach follows the rules that a member would follow in making his or her vote. The rule-based decision approach thus incorporates knowledge of rule evasion within the proper majoritarian response to that evasion.
132. 491 U.S. 440 (1989).
133. 5 U.S.C. app. § 3(2)(B) (2006).
134. For the sake of full disclosure, as an appellate litigator at the Department of Justice, I was involved in briefing FACA cases in the courts of appeals at the time. Later, I was interviewed by the ABA, accorded a "well qualified" rating, and recommended by the Justice Department to sit on the Seventh Circuit Court of Appeals.
135. Public Citizen, 491 U.S. at 477-78 (Kennedy, J., concurring in the judgment).
136. Public Citizen, 491 U.S. at 477-78 (Kennedy, J., concurring in the judgment).
137. Public Citizen, 491 U.S. at 477-78 (Kennedy, J., concurring in the judgment).
138. Public Citizen, 491 U.S. at 477-78 (Kennedy, J., concurring in the judgment).
139. See Charles Tiefer, Congressional Practice and Procedure: A Reference, Research, and Legislative Guide 780-83 (1989) (noting that a bill goes to conference when the bodies have reached a "stage of disagreement" and both chambers adopt motions to request a conference and appoint conferees).
140. Public Citizen, 491 U.S. at 461 ("[T]he Senate bill that grew into FACA defined 'advisory committee' as one 'established or organized' by statute, the President, or an Executive agency. " (quoting S. 3529, 92d Cong. §§ 3(1), (2) (2d Sess. 1972).
141. Public Citizen, 491 U.S. at 461 ("[T]he Senate bill that grew into FACA defined 'advisory committee' as one 'established or organized' by statute, the President, or an Executive agency. " (quoting S. 3529, 92d Cong. §§ 3(1), (2) (2d Sess. 1972).
142. Rules of the House of Representatives, H.R. Doc. No. 111-157, R. XXII (9), at 37 (2011) [hereinafter House Rules, 112th Cong.] ("The introduction of any language presenting specific additional matter not committed to the conference committee by either House does not constitute a germane modification of the matter in disagreement. ")
143. Standing Rules of the Senate, S. Doc. No. 112-1, R. XXVIII (2a), at 52 (2011) [hereinafter Senate Rules, 112th Cong.] ("Conferees shall not insert in their report matter not committed to them by either House, nor shall they strike from the bill matter agreed to by both Houses")
144. See Charles Tiefer, Congressional Practice and Procedure: A Reference, Research, and Legislative Guide 780-83 (1989) (noting that a bill goes to conference when the bodies have reached a "stage of disagreement" and both chambers adopt motions to request a conference and appoint conferees).
145. See Charles Tiefer, Congressional Practice and Procedure: A Reference, Research, and Legislative Guide 780-83 (1989) (noting that a bill goes to conference when the bodies have reached a "stage of disagreement" and both chambers adopt motions to request a conference and appoint conferees).
146. See Charles Tiefer, Congressional Practice and Procedure: A Reference, Research, and Legislative Guide 780-83 (1989) (noting that a bill goes to conference when the bodies have reached a "stage of disagreement" and both chambers adopt motions to request a conference and appoint conferees).
147. See Charles Tiefer, Congressional Practice and Procedure: A Reference, Research, and Legislative Guide 780-83 (1989) (noting that a bill goes to conference when the bodies have reached a "stage of disagreement" and both chambers adopt motions to request a conference and appoint conferees).
148. The bill may be lit up like a Christmas tree with earmarks, see Rebecca M. Kysar, Listening to Congress: Earmark Rules and Statutory Interpretation, 94 Cornell L. Rev. 519, 534-36 (2009), and there will be little incentive for members to object because each has his or her own individual earmark and thus his or her own violation of the rule. As I have already noted, see supra note 86, whether Congress does in fact follow its rules does not undermine the principle that courts should assume that a faithful agent would follow the rules. Certainly, if we assume members know the surrounding body of law, we can assume that they know their own rules.
149. I propose this as a principle to resolve ambiguity, not to supplant the statute's text. Critics will claim that congressional procedures, like all legislative history, violate the Bicameralism Clause. Congress's rules, of course, are promulgated pursuant to constitutional authority to regulate their own institution. U.S. Const. art. I, § 5, cl. 2. This does not mean that they are law in the sense of the Bicameralism Clause, since each house passes its own rules and they are never submitted to the President. Like all canons, the principles proposed here are based on presumptions about congressional behavior, but these canons are far more likely to be realistic and effective since they depend upon already-endogenous rules.
150. U.S. Const. art. I, § 5, cl. 2.
151. My claim is not that Congress must follow its rules or that courts should make Congress follow its own rules. My claim is that, when faced with a difficult case of ambiguity, courts using the First Principle may give language the legal effect demanded by the congressional rules, in some cases obviating difficult interpretive decisions. By assuming that a member of Congress reading the conference report was entitled to assume that "utilize" did not substantially change "establish, " the court defers to Congress without the need to engage in complex analyses. Decision theory does not require, for example, that a member actually raise a point of order under the rules.
152. Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 462 (1989) ("The phrase 'or utilized'... appears to have been added simply to clarify that FACA applies to advisory committees established by the Federal Government in a generous sense of that term, encompassing groups formed indirectly by quasi-public organizations such as the National Academy of Sciences 'for' public agencies as well as 'by' such agencies themselves. ").
153. Statutory history is the history of the statute's text as opposed to any committee report or floor statement commenting on the text.
154. H.R. Rep. No. 92-1403 (1972) (Conf. Rep.). As the Supreme Court noted, the rather short conference report supports the notion that the conferees could not have meant "utilize" in the legalist sense since the conferees explicitly exempted contractors. Id. at 10, quoted in Public Citizen, 491 U.S. at 462 ("The Act does not apply to persons or organizations which have contractual relationships with Federal agencies nor to advisory committees not directly established by or for such agencies. "). There are also indications that the Conference may have added "utilize" to cover presidential transitions. This would, in fact, reconcile the majority and this proposed principle's reading with an interpretation of "utilize" that gives it a meaning (transitions are covered) but rejects the extensive meaning of "use. "
155. Both scholars and judges have noted their concern that lawyers lack sufficient experience or knowledge of congressional practice to fully understand legislative history. See Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation 113 (2006) (questioning whether parties and judges "lack the comprehensive background knowledge of the legislative process necessary to assess the significance and weight of the sources")
156. The bill may be lit up like a Christmas tree with earmarks, see Rebecca M. Kysar, Listening to Congress: Earmark Rules and Statutory Interpretation, 94 Cornell L. Rev. 519, 534-36 (2009), and there will be little incentive for members to object because each has his or her own individual earmark and thus his or her own violation of the rule. As I have already noted, see supra note 86, whether Congress does in fact follow its rules does not undermine the principle that courts should assume that a faithful agent would follow the rules. Certainly, if we assume members know the surrounding body of law, we can assume that they know their own rules.
157. Although a systematic study must await another article, there is at least anecdotal evidence that courts misunderstand (or are unaware of) the rules governing conference reports, which generally do not allow significant changes to legislation agreed upon in House and Senate bills prior to conference. See, e.g., Small v. United States, 544 U.S. 385, 406-07 (2005) (Thomas, J., dissenting) (indicating that the conference committee change was significant enough to cover foreign convictions even though the language passed by the House and the Senate stated "federal" and "state" offenses)
158. Am. Fed'n of Gov't Emps. v. Gates, 486 F.3d 1316, 1325 (D.C. Cir. 2007) (interpreting a last-minute conference change as a "statutory elephant (in the sense of having a huge impact)"). At the very least, some courts appear to ignore Congress's rules when interpreting language added in conference (as in Public Citizen).
159. Sec'y of the Interior v. California, 464 U.S. 312, 322 (1984) (interpreting language added in conference without regard to conference rules).
160. In re Silicon Graphics Inc. Sec. Litig., 183 F.3d 970, 977 (9th Cir. 1999).
161. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
162. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
163. 490 U.S. 504 (1989).
164. 443 U.S. 193 (1979).
165. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
166. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
167. Fed. R. Evid. 609.
168. 490 U.S. at 509-10.
169. I do not mean to single out Justice Stevens
170. Justice Rehnquist appears in the next example. It is fairly easy to find opinions that make simple mistakes about congressional procedure, for example, failing to distinguish conference committee reports as the text of the bill as opposed to the joint explanation to the conference committee, which is the legislative history of the conferees' agreed-upon text. See, for example, CSX Transportation, Inc. v. Alabama Department of Revenue, 131 S. Ct. 1101, 1108 (2011), which cites joint explanation materials as material from the "Conference Report, " indicated as S. Conf. Rep. No. 94-595 at 165-66.
171. Simpson v. United States, 435 U.S. 6, 17-18 (1978) (Rehnquist, J., dissenting) (criticizing the majority for giving equal weight to the author's statement and to the conference report).
172. 490 U.S. at 512 n.11.
173. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
174. For another case in which the Court relied upon non-legislative materials, see Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 569-70 (2005).
175. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
176. The reference here is to the Judge Harold Leventhal quip that those who look to legislative history tend to look for their friends. See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983) ("[C]iting legislative history is still... akin to 'looking over a crowd and picking out your friends.'" (quoting a conversation with Judge Leventhal).
177. 490 U.S. at 523.
178. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
179. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
180. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
181. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
182. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
183. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
184. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
185. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
186. 120 Cong. Rec. 40,480 (1974) (statement of Rep. Elizabeth Holtzman).
187. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
188. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
189. United Steelworkers v. Weber, 443 U.S. 193, 209 (1979).
190. United Steelworkers v. Weber, 443 U.S. 193, 209 (1979).
191. United Steelworkers v. Weber, 443 U.S. 193, 209 (1979).
192. United Steelworkers v. Weber, 443 U.S. 193, 209 (1979).
193. Section 703(a) provided that it was an "unlawful employment practice for an employer" to "discriminate against any individual with respect to his... employment, because of such individual's race. " 42 U.S.C. § 2000e-2(a) (1976). Section 703(d) provided that it was an "unlawful employment practice for any employer, labor organization, or joint labormanagement committee... to discriminate against any individual because of his race... in admission to... any program established to provide apprenticeship or other training. " 42 U.S.C. § 2000e-2 (1976).
194. Weber, 443 U.S. at 201.
195. Weber, 443 U.S. at 201.
196. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
197. George Schatzki, United Steelworkers of America v. Weber: An Exercise in Understandable Indecision, 56 Wash. L. Rev. 51, 67 (1980) (criticizing Justice Brennan's opinion for overstating "enormously the meaning of the legislative history").
198. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutesand the Creation of Public Policy 996 (4th ed. 2007)
199. Weber, 443 U.S. at 231-54 (Rehnquist, J., dissenting).
200. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutesand the Creation of Public Policy 996 (4th ed. 2007)
201. Weber, 443 U.S. at 231.
202. Section 703(j) provided that nothing contained within Title VII required an employer or union to "grant preferential treatment to any individual or to any group because of... race... in comparison with the total number or percentage of persons of such race... in any community, State, section, or other area. " 42 U.S.C. § 2000e-2(j) (2006).
203. Cloture was voted on June 10, 1964, see 110 Cong. Rec. 13,327 (1964); section 703(j) is reprinted in the precloture bill at 110 Cong. Rec. 13,315 (1964). Standing Rules of the Senate, S. Doc. No. 88-1, R. XXII, at 24 (1963) (providing for the closing of debate upon a vote of (then) two-thirds of the Senate present and voting).
204. 110 Cong. Rec. 13,315 (1964) (reporting substitute bill including section 703(j). The original bill was H.R. 7152, 88th Cong. (1963).
205. 443 U.S. at 231 (Rehnquist, J., dissenting).
206. H.R. Rep. No. 88-914, pt. 1, at 1 (Nov. 20, 1963).
207. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
208. See 443 U.S. at 232-34 (Rehnquist, J., dissenting).
209. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
210. Weber, 443 U.S. at 235 (Rehnquist, J., dissenting).
211. Weber, 443 U.S. at 235 (Rehnquist, J., dissenting).
212. There is also a good bit of damning evidence in the pre-cloture debate that supports Justice Rehnquist, but, as even he notes, this debate quieted down substantially after the insertion of section 703(j). This suggests that section 703(j) resolved the problem. Of course, the "problem" itself may remain contested
213. Justice Brennan would argue that the problem was the federal government requiring a racially balanced workforce, and Justice Rehnquist would argue that it was any racially balanced workforce, "voluntary" or not.
214. William N. Eskridge, Jr., Philip P. Frickey & Elizabeth Garrett, Cases and Materials on Legislation: Statutesand the Creation of Public Policy 996 (4th ed. 2007)
215. 443 U.S. at 247-48 (Rehnquist, J., dissenting).
216. 443 U.S. at 247-48 (Rehnquist, J., dissenting).
217. The "last act" was the Mansfield-Dirksen substitute introduced first in May, and later amended on June 10, 1964, the date cloture was invoked. That substitute included section 703(j). See 110 Cong. Rec. 13,315 (1964). The Senate bill was later accepted by the House; there was no conference.
218. See generally 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, 41-42 (recounting the standard hierarchy).
219. William N. Eskridge, Jr., Textualism, the Unknown Ideal?, 96 Mich. L. Rev. 1509 (1998).
220. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
221. See generally 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, 41-42 (recounting the standard hierarchy).
222. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
223. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
224. Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).
225. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
226. Church of the Holy Trinity, 143 U.S. at 458.
227. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
228. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
229. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
230. See, e.g., Blanchard v. Bergeron, 489 U.S. 87 (1989). In Blanchard, the question was whether a contingent fee agreement would cap attorneys' fees under 42 U.S.C. § 1988. The Court relied upon a Senate committee report proximate to the floor debate, which spoke to the question of contingent fee agreements, at least to the extent of citing district court cases on that topic. Id. at 91-92. The Senate report, S. Rep. No. 94-1011 (1976), dated June 29, 1976, was the most specific committee report on the issue, see id. at 6, but not the last report, see H. Rep. No. 94-1558 (1976), which was dated September 15, 1976. Nor was the committee report the "last act" on the bill, as there was a debate in the Senate, a filibuster, 122 Cong. Rec. 31,471, 31,487 (Sept. 21, 1976) (filing a cloture motion), more debate from September 21, 1976 through September 27, 1976, 122 Cong. Rec. 32,383, 32,388, 32,394, 32,405 (Sept. 27, 1976), followed by House acceptance of the Senate bill after debate, 122 Cong. Rec. 35,578 (Oct. 1, 1976). To determine whether the committee report should control, one would have to review this evidence.
231. 490 U.S. 504 (1989).
232. 491 U.S. 440, 452-54 (1989).
233. My claim here is not that such a reading always makes this task easier but only that the interpreter should first check whether the conference report speaks to the issue in the case. If not, then one will have to go to the debate on the conference report, then if that is not relevant, to the debate to determine whether there was an amendment, and to any committee reports, to find where the precise language entered the relevant bill.
234. See, for example, the debate about the Civil Rights Act of 1964. Charles & Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act(1985).
235. Griggs v. Duke Power Co., 420 F.2d 1225, 1239-40 (4th Cir. 1970), rev'd in part, 401 U.S. 424 (1971).
236. As can be seen from my analysis, one need not reach a conclusion on so-called disparate impact based on my interpretation of this particular case. Section 703(j), which is the subject of the later, and much more controversial Weber case, is effectively trumped in "testing" situations by the more specific language of section 703(h), since section 703(j) was in fact included in the substitute negotiations, prior to the insertion of the Tower amendment's refashioning of section 703(h).
237. 401 U.S. at 427-28.
238. 401 U.S. at 427-28.
239. 401 U.S. at 427-28.
240. See Westlaw, http://www.westlaw.com (follow "Directory" hyperlink; then follow "U.S. Federal Materials" hyperlink; then follow "Legislative History" hyperlink; then follow "US GAO Legislative Histories" hyperlink; then enter "88-352" in the "Public Law No." search box) (last visited Aug. 20, 2012). The number eighty-eight is the sum of Part 1 (twentyseven screens), Part 2 (twenty-six screens), Part 3 (nineteen screens), and Part 4 (sixteen screens).
241. 110 Cong. Rec. 13,503-05, 13,724 (1964).
242. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
243. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
244. This does not undercut my later claim, in Part IV, about game theory and Congress's general lack of attention to judicial precedent. In this case, electoral and anticipatory interests are aligned; if you oppose a bill, you have electoral reasons to do so; those electoral reasons give you an incentive to create ambiguity that may allow your preferred outcome to be reached in the courts.
245. See, for example, the debate about the Civil Rights Act of 1964. Charles & Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act(1985).
246. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
247. 110 Cong. Rec. 13,320-22 (1964) (statement of Sen. Tower objecting to cloture).
248. In Motorola, a hearing examiner in Illinois ruled that a general ability test in considering applicants for assembly-line jobs was discriminatory on the theory that the test was unfair to "culturally deprived and... disadvantaged groups. " Myart v. Motorola, Inc., No. 63C-127 (Ill. Fair Emp't Practices Comm'n Feb. 27, 1964).
249. In Motorola, a hearing examiner in Illinois ruled that a general ability test in considering applicants for assembly-line jobs was discriminatory on the theory that the test was unfair to "culturally deprived and... disadvantaged groups. " Myart v. Motorola, Inc., No. 63C-127 (Ill. Fair Emp't Practices Comm'n Feb. 27, 1964).
250. In Motorola, a hearing examiner in Illinois ruled that a general ability test in considering applicants for assembly-line jobs was discriminatory on the theory that the test was unfair to "culturally deprived and... disadvantaged groups. " Myart v. Motorola, Inc., No. 63C-127 (Ill. Fair Emp't Practices Comm'n Feb. 27, 1964).
251. In Motorola, a hearing examiner in Illinois ruled that a general ability test in considering applicants for assembly-line jobs was discriminatory on the theory that the test was unfair to "culturally deprived and... disadvantaged groups. " Myart v. Motorola, Inc., No. 63C-127 (Ill. Fair Emp't Practices Comm'n Feb. 27, 1964).
252. In Motorola, a hearing examiner in Illinois ruled that a general ability test in considering applicants for assembly-line jobs was discriminatory on the theory that the test was unfair to "culturally deprived and... disadvantaged groups. " Myart v. Motorola, Inc., No. 63C-127 (Ill. Fair Emp't Practices Comm'n Feb. 27, 1964).
253. 110 Cong. Rec. 13,320-22 (1964) (statement of Sen. Tower objecting to cloture).
254. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
255. 110 Cong. Rec. 13,504 (1964) (emphasis added).
256. See, for example, the debate about the Civil Rights Act of 1964. Charles & Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act(1985).
257. 110 Cong. Rec. 13,504 (1964).
258. 110 Cong. Rec. 13,504 (1964).
259. 110 Cong. Rec. 13,504 (1964).
260. 110 Cong. Rec. 13,504 (1964).
261. 110 Cong. Rec. 13,504 (1964).
262. See 110 Cong. Rec. 13,492-93 (1964); see also Griggs v. Duke Power Co., 401 U.S. 424, 436 n.12 (1971) ("This language indicates that Senator Tower's aim was simply to make certain that job-related tests would be permitted. ").
263. Griggs, 401 U.S. at 434-36 (citing the Clark-Case memorandum, statements of Senators disagreeing with Motorola, and statements of Senators Case and Humphrey)
264. Griggs v. Duke Power Co., 420 F.2d 1225, 1234-35 (4th Cir. 1970) (relying on Senator Tower's statements with respect to the first failed Tower amendment, the Clark-Case memorandum drafted two months prior to the amendment, and Senator Humphrey's statement on the second amendment passed on June 13, 1964).
265. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
266. See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 394-95 (1951).
267. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
268. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
269. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 423, 431-32 (2005).
270. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
271. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
272. William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 Yale L.J. 331, 348 (1991) (implicitly indicting textualism by arguing that Congress is more likely to overrule textualist Supreme Court decisions).
273. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
274. See, e.g., Sedima S.P.R.L. v. Imrex Co., 473 U.S. 479, 525 (1985) (Powell, J., dissenting) (chiding the majority for relying upon statements of bill opponents)
275. Bowsher v. Merck & Co., 460 U.S. 824, 851 (1983) (White, J., concurring in part and dissenting in part) (relying upon statements of an opponent of the bill to construe extent of act)
276. NLRB. v. Fruit & Vegetable Packers, 377 U.S. 58, 85-88 (1964) (Harlan, J., dissenting) (relying on opponents of the bill for the conclusion about whether a statute barred secondary boycotting)
277. Davis v. Washington, 512 F.2d 956, 964 n.59 (D.C. Cir. 1975) (citing a party's citation of language from a bill opponent's (Senator Tower) failed amendment).
278. Voutsis v. Union Carbide Corp., 452 F.2d 889, 891 n.1 (2d Cir. 1971) (citing Senators Russell and Tower, opponents of the Civil Rights Act of 1964, on the Senate's concern that states play a role in enforcing the Act).
279. Abner J. Mikva, Reading and Writing Statutes, 48 U. Pitt. L. Rev. 627, 632 (1987) (describing how he voiced his opposition to RICO in "hyperbolic terms" and that those "remarks have been used ever since as legislative history to prove the broad scope of RICO"). Obviously, a more careful empirical analysis would be required to reveal the extent to which this is done on a regular basis.
280. The Fourth Circuit majority opinion relied upon Senator Tower's statement for the proposition that all professionally developed tests were appropriate, but the amendment was voted down and necessitated a compromise that placed the actual amendment in the bona fide merit system section of the law. Griggs v. Duke Power Co., 420 F.2d 1225, 1234-35 (4th Cir. 1970), rev'd in part, 401 U.S. 424 (1971).
281. Green v. Bock Laundry Mach. Co., 490 U.S. 504, 516-17 (1989). Senator McClellan had persistently pushed for the "all felony impeachment" rule for witnesses, which is precisely what the conference rejected, imposing a balancing test.
282. Bank One Chi., N.A. v. Midwest Bank & Trust Co., 516 U.S. 264, 278 (1996) ("That the [legislative] history could have altered my opinion is evidenced by the fact that there are significant cases, such as Green v. Bock Laundry Machine Co., 490 U.S. 504 (1989), in which the study of history did alter my original analysis. "). In my view, Justice Stevens misread the conference committee joint explanation when he emphasized that Rule 609 did not cover nonparty witnesses. The joint explanation makes quite clear that the rule covers witnesses; it is just that the joint explanation indicated what was not in the statute: that prejudice to the witness's own reputation in the community (such as a confidential informant might claim), as opposed to prejudice to the party offering the witness, was not to be considered.
283. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
284. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
285. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
286. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
287. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
288. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
289. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
290. Adams, John Joseph, (1848-1919), Biographical Dictionary of the U.S., http://bioguide.congress.gov/scripts/biodisplay.pl?index=A000040 (last visited Nov. 22, 2011). Adams was a graduate of Columbia University and a Democrat.
291. Adams, John Joseph, (1848-1919), Biographical Dictionary of the U.S., http://bioguide.congress.gov/scripts/biodisplay.pl?index=A000040 (last visited Nov. 22, 2011). Adams was a graduate of Columbia University and a Democrat.
292. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
293. 15 Cong. Rec. 5358 (1884) (statement of Rep. O'Neill).
294. These objections suggested that drafters were damned if they did and damned if they didn't. If they amended the bill to narrow it to a particular "class" of workers, it might invite constitutional litigation just as it would if they were to expand the exemptions, since exemptions were the classic trigger for "class legislation" claims. V.F. Nourse & Sarah A. Maguire, The Lost History of Governance and Equal Protection, 58 Duke L.J. 955, 972, 987 (2009) (analyzing the origins of "class legislation" arguments).
295. 15 Cong. Rec. 5358 (1884) (emphasis added).
296. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
297. 16 Cong. Rec. 1632 (1885) (statement of Sen. Morgan).
298. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
299. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
300. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
301. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
302. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
303. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
304. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
305. For the distinction between legalist and prototypical meanings, see Victoria F. Nourse, Two Kinds of Plain Meaning, 76 Brook. L. Rev. 997 (2011).
306. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
307. 16 Cong. Rec. 1635 (1885).
308. 16 Cong. Rec. 1635 (1885).
309. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
310. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
311. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
312. Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and History in Statutory Interpretation, 100 Colum. L. Rev. 901 (2000).
313. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
314. See 16 Cong. Rec. 1633 (1885) (statement of Sen. Blair).
315. See 16 Cong. Rec. 1633 (1885) (statement of Sen. Blair).
316. Griggs v. Duke Power Co., 420 F.2d 1225, 1234 (4th Cir. 1970), rev'd in part, 401 U.S. 424 (1971)
317. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
318. See, e.g., Parker v. Franklin Cnty. Cmty. Sch. Corp., 667 F.3d 910, 917 (7th Cir. 2012) (using Senator Tower's attempt to limit the reach of the civil rights bill as an element of context).
319. "People who can instruct us in morals and religion and in every species of elevation by lectures... are not prohibited. " 16 Cong. Rec. 1633 (1885) (statement of Sen. Morgan).
320. By "soft" textualism, I mean those textualists who seek in legislative history a confirmation of plain meaning. See James J. Brudney, Confirmatory Legislative History, 76 Brook. L. Rev. 901 (2011).
321. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
322. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
323. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
324. See, e.g., Cont'l Can Co. v. Chi. Truck Drivers, Helpers & Warehouse Workers Union, 916 F.2d 1154, 1156 (7th Cir. 1990) (noting that the conference report included no reference to the interpretive question as if this indicates significance or absence of information); id. ("Section 4203(d)(2), language common to the two versions, was not mentioned in the Conference Committee's report. "). To know what the Conference Report's silence means (if anything), one must look to the bills passed by the House and the Senate.
325. H.R. Rep. No. 93-1597, at 9 (1974) (Conf. Rep.).
326. H.R. Rep. No. 93-1597, at 9 (1974) (Conf. Rep.).
327. H.R. Rep. No. 93-1597, at 9 (1974) (Conf. Rep.).
328. H.R. Rep. No. 93-1597, at 9 (1974) (Conf. Rep.).
329. H.R. Rep. No. 93-1597, at 9 (1974) (Conf. Rep.).
330. 437 U.S. 153 (1978).
331. 437 U.S. 153 (1978).
332. Bill Heniff, Jr., Overview of the Authorization-Appropriations Process, in Congressional Authorizations and Appropriations: How Congress Exercises the Power of the Purse through Authorizing Legislation, Appropriations, Earmarks, and Enforcing the Authorization-Appropriations Process 1, 4 (The Capitol. Net ed., 2010). For exceptions to the practice.
333. Bill Heniff, Jr., Overview of the Authorization-Appropriations Process, in Congressional Authorizations and Appropriations: How Congress Exercises the Power of the Purse through Authorizing Legislation, Appropriations, Earmarks, and Enforcing the Authorization-Appropriations Process 1, 4 (The Capitol. Net ed., 2010). For exceptions to the practice.
334. Bill Heniff, Jr., Overview of the Authorization-Appropriations Process, in Congressional Authorizations and Appropriations: How Congress Exercises the Power of the Purse through Authorizing Legislation, Appropriations, Earmarks, and Enforcing the Authorization-Appropriations Process 1, 4 (The Capitol. Net ed., 2010). For exceptions to the practice.
335. 437 U.S. 153 (1978).
336. Stevan A. Tomanelli, Appropriations Law: Principles and Practice 30-31 (2003).
337. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Considered, 3 Vand. L. Rev. 395, 401 (1950).
338. see also Dakota S. Rudesill, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 Wash. U. L. Rev. 699, 706-08 (2010) (providing an empirical study showing a "virtual non-existence of legislative work experience" among judges and top legal faculty members). There are of course well-known exceptions to the rule of judicial inexperience in legislatures, such as Justice Stephen Breyer, Judge Robert A. Katzmann, and former Judge Abner Mikva.
339. Mathew D. McCubbins & Daniel B. Rodriguez, Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon, 14 J. Contemp. Legal Issues 669, 671 (2005) (remarking upon the appropriations canon's "impoverished analysis of the appropriations process, " and concluding that it is "unjustified as a matter of positive political theory").
340. Mathew D. McCubbins & Daniel B. Rodriguez, Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon, 14 J. Contemp. Legal Issues 669, 671 (2005) (remarking upon the appropriations canon's "impoverished analysis of the appropriations process, " and concluding that it is "unjustified as a matter of positive political theory").
341. Mathew D. McCubbins & Daniel B. Rodriguez, Canonical Construction and Statutory Revisionism: The Strange Case of the Appropriations Canon, 14 J. Contemp. Legal Issues 669, 671 (2005) (remarking upon the appropriations canon's "impoverished analysis of the appropriations process, " and concluding that it is "unjustified as a matter of positive political theory").
342. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 189 (1978).
343. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 189 (1978).
344. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 189 (1978).
345. Bill Heniff, Jr., Overview of the Authorization-Appropriations Process, in Congressional Authorizations and Appropriations: How Congress Exercises the Power of the Purse through Authorizing Legislation, Appropriations, Earmarks, and Enforcing the Authorization-Appropriations Process 1, 4 (The Capitol. Net ed., 2010). For exceptions to the practice.
346. Sandy Streeter, The Congressional Appropriations Process: An Introduction, in Congressional Authorizations and Appropriations, at 29 (noting that authorization bills and appropriations "perform different functions and are to be considered in sequence. First the authorization is enacted and then appropriations provides the funding. ").
347. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
348. Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 800 (1983).
349. Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 800 (1983).
350. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
351. It is generally agreed that, under the Rules of Proceedings clause, U.S. Const. art. I, § 5, cl. 2, Congress may set its own rules and as a result may abrogate those rules, although under the rules, doing so would require a two-thirds majority in the Senate. On the entrenchment question and the Rules of Proceedings clause, see Aaron-Andrew P. Bruhl, Using Statutes To Set Legislative Rules: Entrenchment, Separation of Powers, and the Rules of Proceedings Clause, 19 J.L. & Pol. 345 (2003). Bruhl's piece also shows how Congress has in fact "added" to its rules through what he calls "statutized rules, " whereby statutes provide various procedures, such as fast-track procedures for trade agreements.
352. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
353. One of the classic "folk tales" of conference committees is that members routinely "air drop" in language that is unavailable to other members. This folk account comes, I suspect, from the practice involving appropriations bills, which are must-pass legislation and which, under the Budget Act, are not subject to normal procedures. Even, however, if this were true, it would provide no reason for a court not to hold Congress to its rules, as one of the salutary side benefits of such an approach might well be that there would be less contravention of the rules.
354. 151 Cong. Rec. 30,744 (2005) (statement of Sen. Levin) ("Senator Warner and I strongly objected to a procedure so totally destructive of bedrock legislative process. ").
355. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
356. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
357. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
358. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
359. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 423, 431-32 (2005).
360. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
361. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
362. See, e.g., W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88-89 & 89 n.4 (1991) (resolving whether "attorney's fees" under 42 U.S.C. § 1988 include expert fees by comparing § 1988 with a host of other fee statutes, the assemblage of which certainly requires time and expense).
363. See, e.g., W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88-89 & 89 n.4 (1991) (resolving whether "attorney's fees" under 42 U.S.C. § 1988 include expert fees by comparing § 1988 with a host of other fee statutes, the assemblage of which certainly requires time and expense).
364. John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 423, 431-32 (2005).
365. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
366. See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162 (2002) [hereinafter Elhauge, Preference-Eliciting]
367. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
368. Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. Rev. 575, 575 (2002) (suggesting, based on an empirical study, that "although drafters are generally familiar with judicial rules of construction, these rules are not systematically integrated into the drafting process").
369. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
370. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
371. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2089 (2002) (arguing that Congress should pass a set of federal rules of statutory interpretation).
372. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
373. I call this the "Coasian" principle of legislative instability: when there is an electoral dominance effect, Congress will circumvent even the most carefully wrought and complex administrative structures. A simple example of this is the passage of mandatory minimum sentences after the creation of the complex Sentencing Commission scheme. Paul G. Cassell, Too Severe?: A Defense of the Federal Sentencing Guidelines (and a Critique of Federal Mandatory Minimums), 56 Stan. L. Rev. 1017, 1044-48 (2004) (criticizing the mandatory minimum laws passed by Congress as "redundant" of the Sentencing Guidelines).
374. Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 Stan. L. Rev. 1833, 1880 (1998).
375. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
376. see also Dakota S. Rudesill, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 Wash. U. L. Rev. 699, 706-08 (2010) (providing an empirical study showing a "virtual non-existence of legislative work experience" among judges and top legal faculty members). There are of course well-known exceptions to the rule of judicial inexperience in legislatures, such as Justice Stephen Breyer, Judge Robert A. Katzmann, and former Judge Abner Mikva.
377. see also Dakota S. Rudesill, Closing the Legislative Experience Gap: How a Legislative Law Clerk Program Will Benefit the Legal Profession and Congress, 87 Wash. U. L. Rev. 699, 706-08 (2010) (providing an empirical study showing a "virtual non-existence of legislative work experience" among judges and top legal faculty members). There are of course well-known exceptions to the rule of judicial inexperience in legislatures, such as Justice Stephen Breyer, Judge Robert A. Katzmann, and former Judge Abner Mikva.
378. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 866 (1984).
379. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
380. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Amy Gutmann ed., 1997) (arguing that courts should never use legislative history).
381. See Jonathan T. Molot, The Rise and Fall of Textualism, 106 Colum. L. Rev. 1, 26 (2006) ("[I]f textualism's description of interpretation had much in common with legal realism, its aspirations for the judiciary had much in common with legal formalism. ")
382. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
383. Salience effects (where the parties focus on one term because it is available) may produce the appearance that one text is central or plain when there is other text or another meaning of the text that only appears relevant when looking at the legislative history. On salience bias, see Lee Ross & Craig A. Anderson, Shortcomings in the Attribution Process: On the Origins and Maintenance of Erroneous Social Assessments, in Judgment Under Uncertainty: Heuristics and Biases 138-39 (Daniel Kahneman, Paul Slovic & Amos Tversky eds., 1982), which notes that "whenever some aspect of the environment is made disproportionately salient or 'available' to the perceiver... that aspect is given more weight in causal attribution".
384. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
385. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
386. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
387. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
388. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
389. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
390. Robert A. Katzmann, Statutes, 87 N.Y.U. L. Rev. 637, 645 (2012) ("[T]here has been scant consideration given to what I think is critical as courts discharge their interpretative task-an appreciation of how Congress actually functions. ").
391. David R. Mayhew, Congress: The Electoral Connection (1974).
392. Lewis A. Froman, Jr., Congressmen and Their Constituencies (1963)
393. John W. Kingdon, Congressmen's Voting Decisions (3d ed. 1989)
394. Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking 219-24 (1998)
395. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
396. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
397. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
398. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
399. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
400. See Tim Groseclose & Nolan McCarty, The Politics of Blame: Bargaining Before an Audience, 45 Am. J. Pol. Sci. 100, 101 (2001) ("Almost all models of bargaining ignore the possibility that the two primary negotiators want to send signals to a third party. ").
401. see also James D. Fearon, Domestic Political Audiences and the Escalation of International Disputes, 88 Am. Pol. Sci. Rev. 577 (1994) (discussing vertical and horizontal considerations of democratic states conducting foreign policy).
402. See Tim Groseclose & Nolan McCarty, The Politics of Blame: Bargaining Before an Audience, 45 Am. J. Pol. Sci. 100, 101 (2001) ("Almost all models of bargaining ignore the possibility that the two primary negotiators want to send signals to a third party. ").
403. Victoria Nourse, After the Reasonable Man: Getting over the
404. See Tim Groseclose & Nolan McCarty, The Politics of Blame: Bargaining Before an Audience, 45 Am. J. Pol. Sci. 100, 101 (2001) ("Almost all models of bargaining ignore the possibility that the two primary negotiators want to send signals to a third party. ").
405. Victoria Nourse, After the Reasonable Man: Getting over the Objectivity/Subjectivity Question, 11 New Crim. L. Rev. 33, 36 (2008).
406. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
407. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
408. A "dominant" effect in game theory is an alternative that beats out all available alternatives. Peter C. Ordeshook, Game Theory and Political Theory: An Introduction 115-16 (2003).
409. Daniel B. Rodriguez & Barry R. Weingast, The Paradox of Expansionist Statutory Interpretations, 101 Nw. U. L. Rev. 1207, 1219-22 (2007) [hereinafter Rodriguez & Weingast, Paradox]
410. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
411. This may come as a surprise to some decision theorists, but they should consider that rules may be a form of preference aggregation preferable to voting or ideological scores. Recent work in philosophy and PPT suggests that coherent preference aggregation can be achieved by other means, such as "a premise-based or sequential priority procedure. " Christian List& Philip Pettit, Group Agency 58 (2011). For criticisms of standard voting-based models, see Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice To Improve Public Law 99 (1997), which criticizes some positive political theorists' approach as "enormously information demanding" and offering "a tool that [judges] cannot use. "
412. 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, 1442-48 (2003) [hereinafter Rodriguez & Weingast, New Perspectives].
413. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
414. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
415. Fans of PPT should refer to Part IV for a more detailed analysis. My basic point is twofold. First, the anticipation-response version of PPT (typically referred to as game theory and associated with William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992) needs to contend with the fact that members may have no incentive to respond to the institution down the line because electoral incentives dominate their decision (no one was ever elected because they wrote statutes clear enough to survive appellate review).
416. See, for example, the debate about the Civil Rights Act of 1964. Charles & Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act(1985).
417. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
418. U.S. Const. art. I, § 7, cl. 2.
419. Keith Krehbiel, Pivotal Politics: A Theory of U.S. Lawmaking 219-24 (1998)
420. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
421. Moreover, as a matter of rule relevance, there is evidence to suggest that the cases I discuss are not unrepresentative. Barbara Sinclair reports that, from the 1960s to the 1990s, over three-quarters of all major legislation went to conference committee, see Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress91 (4th ed. 2012).
422. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
423. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
424. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
425. see Kenneth A. Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 Am. J. Pol. Sci. 27, 27 (1979) (offering a model of legislative behavior that results in "equilibrium")
426. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
427. McNollgast, Legislative Intent: The Use of Positive Political Theory in Statutory Interpretation, 57 Law & Contemp. Probs. 3, 5 (1994) [hereinafter McNollgast, Intent].
428. In this piece, I do not attempt to offer a positive theory of a "costly" action, but rather suggest that any such theory must view a costly action as one in the context of the rules and, as existing signaling theory in part suggests, in terms of whether one is advocating for or against the bill. So, for example, admissions against interest-statements against an advocate's or opponent's own position-are more reliable than statements supporting one's own position.