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Thursday, May 26, 2011

The interpretive authority of consensus in the lower courts

Following up on my earlier post on today's Supreme Court decision in Fowler v. U.S., here is a post on another of today's cases: U.S. v. Tinklenberg. The case concerned how to calculate time under the Speedy Trial Act. Justice Breyer wrote for the Court, and it was a characteristically Breyerian opinion: The text could be read this way, but then again it could also be read this other way; and here are several (in this case, six) considerations that, taken together, lead us to adopt one interpretation rather than the other one.

Let's focus on his second consideration. The opinion tells us that, over the course of the last few decades, every circuit has answered the question at issue and, until the Sixth Circuit's decision here, every circuit ruled the other way. Breyer then states that "[t]his unanimity among the lower courts about the meaning of a statute of great practical administrative importance in the daily working lives of busy trial judges is itself entitled to strong consideration, particularly when those courts have maintained that interpretation consistently over a long period of time."*

Concurring in the judgment, Justice Scalia (joined by the Chief and Justice Thomas) concludes that the text is clear and so there is no need to consider anything else. In particular, he writes: "The clarity of the text is doubtless why, as the Court's opinion points out, every Circuit disagrees with the Sixth Circuit's conclusion. That is the direction in which the causality proceeds: Clarity of text produces unanimity of Circuits -- not, as the Court's opinion would have it, unanimity of Circuits clarifies text."

I'm not 100% sure what Breyer has in mind, but let's take a strong reading of his position, according to which the lower-court consensus has more than the evidentiary value of shedding light on the best interpretation of the statute. The consensus, instead, has force by virtue of its mere existence. That is, the fact that all the lower courts have adopted one interpretation is an independent reason (not conclusive, to be sure) to agree with them -- due to the interest in avoiding disruption, etc.

I am inclined to think that the strong view of the value of lower-court consensus, whether or not Breyer is actually embracing it here, states a normatively desirable principle of law. Cf. Eskridge & Frickey on "Law as Equilibrium."

* Note: I corrected a typo that appears in the current version of the opinion on the Court's website. (I'm not sure I corrected it the right way, though.)

Posted by Aaron Bruhl on May 26, 2011 at 09:15 PM in Criminal Law, Legal Theory | Permalink


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What would the old-fashioned view of the common law have said? In that view, the law is discovered, not made. What is discovered is the consensus of society, the customs of the land, perhaps not hitherto vocalized but what a well-informed, unbiased person would think just. In that view, too, I should think a high court would not be able to say that a great number of lower courts were mistaken. Indeed, that would be harder to justify than saying that some single previous high court was mistaken.

Posted by: Eric Rasmusen | Jun 18, 2011 12:55:00 AM

A couple thoughts:

@ Joe: Yes, the fact that the lower court decisions are not independent samples is important, and that decreases their value from the evidentiary point of view. I think that the lack of independence does not diminish the force of a consensus to the extent the force derives from the mere fact that the consensus exists and would be costly to upset.

@ Hillel: I should have thought of your article. Am I right that your approach is based in significant part on the value of honoring public expectations? I think (my interpretation of) Breyer is getting at something slightly different, though certainly compatible. (Feel free to respond, if you respond, by telling me to read your article again!)

Posted by: Aaron Bruhl | May 27, 2011 7:26:53 PM

For anyone interested, my article on ssrn, Contemporary Meaning and Expectations in Statutory Interpretation, explains and defends the strong version of Breyer's argument here.

Posted by: Hillel Levin | May 27, 2011 10:06:13 AM

Further to my comment above, I'm thinking of passages like this one, from Washington Energy Co. v. United States, 94 F.3d 1557, 1561-62 (Fed. Cir. 1996):

As a general matter, we “do not create conflicts among the circuits without strong cause.” Mayer v. Spanel Int'l Ltd., 51 F.3d 670, 675 (7th Cir. 1995). We adhere to this view because “federal law (unlike state law) is supposed to be unitary.” Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993). It would, of course, be foolhardy to suggest that we should blindly adhere to another circuit court's decision as a fail-safe method of preventing intercircuit conflict. Congress has created multiple and co-equal intermediate federal appellate courts, each with an equal power and duty to decide the cases properly brought before it. This regime, by design, embraces the possibility of a considered difference in views among the circuit courts on a given question; a policy of blind adherence to the decision of another circuit, apart from any utility it might have in promoting uniformity and predictability in outcome, would flout the manifest will of Congress. As then-Judge Ginsburg had occasion to observe in In re Korean Air Lines Disaster, “each [federal court] has an obligation to engage independently in reasoned analysis.” 829 F.2d 1171, 1176 (D.C. Cir. 1987), aff'd, 490 U.S. 122 (1989). At the same time, the interest that all prospective parties before the court have in uniformity and predictability of outcome must be given its due. We thus temper the independence of the analysis in which we engage by according great weight to the decisions of the other circuits on the same question. Moreover, as the courts of appeals have long recognized, the need for uniformity of decision applies with special force in tax matters.[*5] In recognition of the principle that “uniformity among the circuits is particularly desirable in tax cases to ensure equal application of the tax system to our citizenry,” we have held that we should not “reach a result in conflict with” a sister circuit “unless the statute [at issue] or precedent of this court gives us, in our view, no alternative.” Gibraltar Fin. Corp. v. United States, 825 F.2d 1568, 1572 (Fed. Cir. 1987) (footnote omitted).[*6] Washington, in order to prevail, must therefore demonstrate that either section 167, the implementing Treasury Regulation, or some precedent of this court leaves us with no alternative but to reverse the trial court’s decision on the depreciability vel non of recoverable cushion gas.
*5. See, e.g., North Am. Life & Casualty Co. v. Commissioner, 533 F.2d 1046, 1051 (8th Cir. 1976) (“[D]ecisions of other courts of appeals in the area of taxation should be followed unless they are demonstrably erroneous or there appear cogent reasons for rejecting them.”); Federal Life Ins. Co. v. United States, 527 F.2d 1096, 1098-99 (7th Cir. 1975) ( “Respect for the decisions of other circuits is especially important in tax cases because of the importance of uniformity, and the decision of the Court of Appeals of another circuit should be followed unless it is shown to be incorrect.”); Grimland v. United States, 206 F.2d 599, 601 (10th Cir. 1953) (“Of course, we are not bound by the decisions of other courts of appeals but they are persuasive and entitled to great weight, particularly in tax matters.”).
*6. It is worth noting that the Ninth Circuit, where the instant appeal would have been heard had Washington pursued its dispute with the IRS through the Tax Court rather than through the Court of Federal Claims, follows much the same approach. See Pacific First Fed. Sav. Bank v. Commissioner, 961 F.2d 800, 803 (9th Cir. 1992) (“As we pointed out in Vukasovich, in the realm of national tax law, ‘it is more important that the applicable rule of law be settled than it be settled right.’”) (quoting Vukasovich, Inc. v. Commissioner, 790 F.2d 1409, 1413 (9th Cir. 1986)); First Charter Fin. Corp. v. United States, 669 F.2d 1342, 1345 (9th Cir.1982) (“Uniformity among the circuits is especially important in tax cases to ensure equal and certain administration of the tax system. We would therefore hesitate to reject the view of another circuit.”).

Posted by: Joe Miller | May 26, 2011 11:11:19 PM

One complicating consideration is that the Courts of Appeals strive to avoid circuit splits - or, at least, they say they do. To the degree that they do so, that gives an awful lot of weight to the first circuit that happens to decide the question. The lower-court-consensus datum would be more helpful if the Courts of Appeals weren't themselves relying on someone-else-already-said-it-ism.

Posted by: Joe Miller | May 26, 2011 10:41:12 PM

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