Faculty Scholarship Digest
On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise. (See Archives)
James J. Brudney, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 DUKE L.J. 1231 (2009) (w/Corey Ditslear).
This article is the latest entry in a series of empirical studies Brudney and his co-author have conducted using a database of Supreme Court workplace law decisions. This piece compares the Court’s use of legislative history and of the canons of construction in two very different doctrinal areas: workplace law and tax law. The article establishes significant differences between the Courts’ use of these methodologies in decisions in these areas. The Court has been significantly more likely over the past 30 years to use legislative history in tax law than workplace law and, the authors show, tend to use it in tax law more for “expertise-borrowing,” as opposed to workplace law, where it is more frequently used by the Court to explain legislative compromises. In recent years, in particular with Justice Blackmun (a tax expert and frequent author of tax opinions) departing the Court, the difference in frequency in the use of legislative history across these areas has vanished.
As to canons of construction, Brudney and his co-author find the Court significantly more likely to use language canons in tax cases than workplace cases, though there too the difference in recent years is less than in an earlier period. Beyond the rich and interesting detail of these and other discoveries, the article offers evidence that debates about methods of statutory interpretation require more than a thumbs up or thumbs down. Brudney and his co-author suggest that interpretive techniques may have different values in different areas of the law. The author’s identify a number of reasons why this is so and suggest the Court may have recognized some of these differences.
James J. Brudney, The Supreme Court as Interstitial Actor: Justice Ginsburg’s Eclectic Approach to Statutory Interpretation, 70 OHIO ST. L. J. 889 (2009).
In this article, part of a symposium at the Mortiz College of Law examining Justice Ginsburg’s first fifteen years as a Supreme Court Justice, Jim analyzes her approach to statutory interpretation through a representative sampling of Ginsburg opinions in three distinct fields: criminal law, labor law and civil rights. Jim notes that Justice Ginsburg has remained largely above the fray of the interpretive methodology wars that have raged during her tenure—the battles over textualism vs. intentionalism, deference to executive interpretation, the use of legislative history and so forth.
Jim describes that in the criminal arena, Justice Ginsburg’s opinions have relied on close textual readings and cannons of construction, while discounting legislative history and executive interpretations, which have narrowed the interpretation of criminal statutes affecting both white collar crimes and street crimes. In contrast, in the labor and civil rights cases, Jim finds what he describes as a much greater “deference to the political branches,” manifested by a greater tendency to find statutory language ambiguous and to rely on legislative history and administrative interpretations. This is the “eclectic” approach referred to in the article’s title.
Yet, while acknowledging the possibility of an accusation of result-oriented decision-making as the cause, Jim theorizes (supported both by the opinions he analyzes and lectures the Justice gave when she was Judge Ginsburg) that the Justice is particularly sensitive to the Court’s institutional role in discussions with the other branches: “In Ginsburg’s view,” Jim suggests, “the Court should be more activist in promoting clarity and predictability—even at the risk of frustrating Congress’s likely purpose—when such clarity is important for constitutionally informed policy reasons and also is deemed relatively easy for Congress to achieve.” On the other hand, Jim writes, Justice Ginsburg is less likely to insist on clarity and more likely to defer to legislative intent “when the policy issues were resolved through complex regulatory bargains negotiated by experienced political actors on both sides.”
James J. Brudney, Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns, 83 S. CAL. L. REV. 731 (2010).
In 2007 and 2008, union membership in the private sector rose modestly for the first time in decades, due at least in part to a “comprehensive campaign” strategy, in which organized labor generates extended economic pressure on employers through coordinated tactics that include publicity efforts directed at media and consumers, regulatory pushes related to health, safety and the environment, and financial reviews relating to pensions and shareholders.
One employer response to these campaigns has been civil suits alleging a pattern of extortion under the Racketeer Influenced and Corrupt Organization Act (“RICO”), which pose the threat of treble damages and attorney’s fees and raise the specter of organized labor as “racketeer.”
In this article, Jim examines whether these nonviolent pressure tactics are properly actionable under RICO. This entails review not only of RICO, but of the Hobbs Act, the underlying extortion statute whose violation serves as a RICO predicate. The article carefully examines four determinative questions for the success of such suits: whether, through a comprehensive campaign, a union “obtains property” from an employer, if so whether it is done “wrongfully,” whether the First Amendment protects typical comprehensive campaign tactics regardless, and finally whether, even if the individual actions by labor are lawful, whether cumulatively the campaign could “be deemed actionable as a form of ‘death by a thousand cuts.’”
As a prelude to the close analysis, the article provides an outstanding history of the relevant union activities and federal statutes. Ultimately, Jim concludes that “union comprehensive campaigns qualify as lawful ‘hard bargaining’” and that “federal courts should take the initiative to clarify the law and thereby reduce the chilling effect of RICO actions.”
James J. Brudney, Cannon Shortfalls and the Virtues of Political Branch Interpretive Assets, 98 CAL. L. REV. 1199 (2010).
This article is part of an issue devoted to the work of the late Professor Phil Frickey, a giant in the field of statutory interpretation. Jim’s article focuses on Frickey’s scholarship over a period of two decades regarding the use of canons in statutory interpretation. Proponents of canons as means of interpretation argue that they “promote more predictable construction of statutes” and that they “foster more neutral policy outcomes.” Jim reviews and praises Frickey’s critical review of these claims, which leads to deep skepticism as to whether the canons ultimately achieve much of either such end. Yet, as the article describes, Frickey nonetheless found the canons a useful part of the interpretive process by their “encouraging more efficient statutory drafting” and “signaling the intensity of [certain] judicial policy preferences.”
Jim then uses Frickey’s view of the canons as a “resource effectively promoting the Court’s policy preferences” as a jumping off point for his own arguments in the article that the canons should hold a subordinate position to legislative history and agency directives, the “interpretive assets” that come from the legislative and executive branches. From a legitimacy standpoint, Jim argues that, generally speaking, legislative history is superior to the canons. In support of this view the article contrasts the absence of constitutional basis for the canons with the constitutional provisions directing Congress to determine its rules and to create a journal of its proceedings, which led directly to the creation of committees and legislative history in a way foreseen by the framers. From the perspective of objective reliability, Jim argues that canons “come out in third place” because there are clear, accepted and justified hierarchies for different legislative and executive materials (e.g., for legislative history: conference committee reports at the top, floor statements by non-drafters on the losing side at the bottom), while the canons lack such a framework, and, Jim suggests, its absence “may stem from an implicit understanding that such a creation would be both arbitrary and unproductive.”
James J. Brudney, The Story of Pepper v. Hart: Examining Legislative History Across the Pond, in Eskridge et al. eds, STATUTORY INTERPRETATIONS STORIES (Foundation 2011).
Jim is the latest Moritz faculty member to have an entry in the outstanding and engrossing Foundation Press “stories” series, which, subject by subject, have leading scholars tell the story of landmark cases in the field, which are then artfully used as a jumping off point for further information. Jim’s case is a British one, Pepper v. Hart, in which the Law Lords overruled more than 200 years of precedent by allowing British courts to rely on the official parliamentary record of committee proceedings and floor debates to interpret statutes. Previously, consideration of such legislative history materials had been barred.
Jim recounts the constitutional and pragmatic history that had supported this rule and then tells the story behind Pepper, which focused on the application of a British tax statute—intended to eliminate loopholes for upper income executives by the provision of company cars and subsidized lunches—to a children’s tuition benefit provided to teachers (and, presumptively, to discount tickets provided to rail and airline employees). Such application was discussed at length in Parliament, with the government minister who introduced the bill repeatedly and specifically assuring Parliament that the tax would not have the precise impact the government was now urging. In the face of finding for the government unless the practice of barring consideration of this legislative history was removed, the Lords held that definitive legislative history could be consulted for ambiguous statutes. The chapter is full of some of the personal history of the parties, but also offers a rich understanding of the reaction to the case (British academics hated in; courts liked it at first, then less so), and draws interesting comparisons between the British and U.S. experiences. The U.S. Supreme Court continues to use legislative history more than its British counterparts, and Jim notes important differences in the legislative process and the executive’s role in it to justify the contrasting approaches. The chapter also uses the history to conclude that the argument for “excluding legislative history altogether . . . is moribund,” and that the “British debate over weight rather than admissibility is far more productive than the indeterminate disagreements that for twenty-five years have characterized federal judicial exchanges” in the United States.
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