Divergent Paths: The Academy and the Judiciary

In Divergent Paths: The Academy and the Judiciary, Judge Richard Posner proposes a partnership between the federal judiciary and law schools.1 He provides a sweeping critique of the federal judiciary and suggests ways in which law schools can address these failings. His critiques fall under the headings of structural deformations (e.g., method of appointment, lifetime tenure), process deficiencies, (e.g., legal formalism in judicial opinion writing, lack of curiosity), and management deficiencies (e.g., poor staff management, lack of collegiality). The corresponding solutions include law schools providing continuing education for federal judges and changing their curricula to include new knowledge and skills. It is an ambitious and comprehensive volume on improving the federal judiciary

A Constitutional Defense of Legislative History

This essay sets forth an original, constitutional defense of legislative history in statutory interpretation that challenges conventional textualist wisdom. Textualists believe that the Constitution requires judges to focus on statutory text to the exclusion of legislative history. This is because only text, and not the committee reports and debates that constitute legislative history, passes through the Constitution’s law making steps of bicameralism (passage by both chambers of Congress) and presentment (delivery of the bill for the President’s signature or veto). Thus, textualists argue, only the statute’s text is enacted law, and judges ought to consider that law and nothing else. I argue that textualists improperly view congressional law making as important for its result (the enacted text) rather than its process. Several constitutional provisions show that the federal law making process was structured to generate debate and deliberation over proposed legislation. And this deliberative process (as reflected in legislative history) is the context within which statutory text takes on meaning. Thus, careful review of constitutional text and structure busts a textualist myth: The Constitution actually requires judicial consideration of legislative history