Note

Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered

The U.S. Supreme Court has never held that the Fourteenth Amendment makes the entire Bill of Rights applicable to the states. Instead, it has selectively incorporated against the states those rights that it deems to be fundamental. However, only two enumerated rights remain that the Court has affirmatively labeled non-fundamental. It is doctrinally puzzling why the Fourteenth Amendment should be understood to stop just short of total incorporation.

Of the last unincorporated rights, only one relates to criminal procedure: the Grand Jury Clause, which guarantees the right to be indicted by a grand jury before prosecution for a felony. The Court declined to incorporate the Grand Jury Clause in 1884 in Hurtado v. California, and this Note argues that Hurtado should be overturned. After analyzing the incorporation caselaw from the Roberts Court, an area in which the Court has been active, this Note argues that Hurtado is doctrinally incompatible with the modern approach to fundamental rights. Despite the internal inconsistencies in the doctrine, which this Note identifies, applying the modern incorporation framework to the Grand Jury Clause shows that the right to indictment is a fundamental one.

Finally, this Note argues that Hurtado can be overturned consistent with principles of stare decisis. Indeed, this Note makes a novel but striking finding—Hurtado likely does not carry precedential force as an incorporation case at all. This Note shows that Hurtado was argued and decided as a procedural due process case. Because the Court’s incorporation doctrine turns on substantive rather than procedural due process, Hurtado did not decide the relevant legal question at all for incorporation purposes.

Introduction

“[F]or so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards by the whole petit jury, of twelve more, finding him guilty, upon his trial.”1 1.4 William Blackstone, Commentaries 306 (London, 16th ed. 1825).Show More

In at least one corner of constitutional law, the Supreme Court makes explicit value judgments about which constitutional rights are important and which are not. Under the Court’s longstanding incorporation precedents, the Due Process Clause of the Fourteenth Amendment only secures “fundamental” rights against violation by the states. States remain free to ignore or abridge rights in the Bill of Rights that the Court deems non-fundamental.

At one time, the Supreme Court believed that nearly all of the Bill of Rights was non-fundamental, but after a flurry of incorporation cases from the Roberts Court, only two affirmatively non-fundamental rights remain: the Seventh Amendment’s right to a civil jury and the Fifth Amendment’s requirement of a grand jury’s indictment as a prerequisite to prosecution for capital or infamous crimes.2 2.Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982).Show More This Note is concerned with the latter. In 1884, in Hurtado v. California, the Supreme Court held that it did not violate the Fourteenth Amendment’s guarantee of due process when the State of California tried, convicted, and sentenced a man to death without an indictment. This Note offers a long-overdue reconsideration of Hurtado and argues that the right to indictment is a fundamental one that should bind the states—no longer should states be able to prosecute by information at the whim of a lone prosecutor.

This reevaluation of Hurtado comes at a time when the Supreme Court itself is pondering the future of Hurtado. Dissenting from the Court’s recent decision in Ramos v. Louisiana, which incorporated the requirement of a unanimous jury for criminal convictions, Justice Alito warned that the Court’s holding there threatened the validity of Hurtado.3 3.Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting).Show More This Note is the first since Ramos to take Justice Alito’s comments seriously by analyzing the validity of Hurtado both on its own terms and in light of the Supreme Court’s recent incorporation precedents.4 4.See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions.Show More It finds that Hurtado is a flawed, misunderstood precedent that cannot be maintained in light of current doctrine.

In addition, this Note also contributes to the literature by uncovering hitherto unnoticed inconsistencies among the Roberts Court’s incorporation cases. While these cases seem conceptually unified, careful examination shows that they differ from one another in subtle but important methodological aspects.

A word of clarification. This Note takes a purely doctrinal approach. It is not concerned with the well-trodden issue of whether the Fourteenth Amendment was intended to incorporate rights against the states as an originalist matter. Nor does it take any stance on whether incorporation is properly accomplished via the Due Process Clause or the Privileges or Immunities Clause. It accepts as a matter of settled precedent that the Fourteenth Amendment incorporates at least some rights and that it does so through substantive due process. Finally, while there is a voluminous literature both critiquing and defending the grand jury as an institution, that, too, is beyond the scope of this Note and is only considered so far as the Court’s doctrine makes such functionalist assessments of constitutional rights relevant.

The argument proceeds as follows. Part I briefly outlines the contours of the right to grand jury indictment in order to clarify what is at stake in the incorporation debate. Part II traces the arc of the Supreme Court’s incorporation doctrine and then analyzes the modern caselaw, noting differences in how the cases apply the incorporation framework. Part III turns to Hurtado itself, critiquing the opinion and explaining its important role in the development of criminal procedure among the states. Part IV applies the modern incorporation framework to the Grand Jury Clause and finds that it is a fundamental right protected by substantive due process. Finally, Part V argues that Hurtado can be overturned consistent with stare decisis principles. In fact, it is entirely possible that stare decisis does not attach to Hurtado at all under the modern incorporation doctrine because Hurtado determined only that procedural due process does not guarantee the right to indictment—the holding did not implicate substantive due process.

  1. 4 William Blackstone, Commentaries 306 (London, 16th ed. 1825). ↑
  2. Walker v. Sauvinet, 92 U.S. 90 (1876) (civil jury right); Hurtado v. California, 110 U.S. 516 (1884) (grand jury right). While the Supreme Court has never considered the fundamentality of the Third Amendment, the one circuit to consider the question found that it is fundamental. Engblom v. Carey, 677 F.2d 957, 961 (2d Cir. 1982). ↑
  3. Ramos v. Louisiana, 140 S. Ct. 1390, 1435 (2020) (Alito, J., dissenting). ↑

  4. See Suja A. Thomas, Nonincorporation: The Bill of Rights after McDonald v. Chicago, 88 Notre Dame L. Rev. 159, 187 (2012) (assessing all unincorporated rights post-McDonald but before Timbs or Ramos) [hereinafter Thomas, Nonincorporation]; F. Andrew Hessick & Elizabeth Fisher, Structural Rights and Incorporation, 71 Ala. L. Rev. 163, 175 (2019) (arguing before Timbs and Ramos that jury-related rights should not be incorporated because of federalism concerns). Only Professor Thomas’s piece makes the affirmative case for incorporation of the Grand Jury Clause, but it does so only briefly, and it does not undertake the necessary analysis done here with the benefit of hindsight from more recent decisions. ↑

A Third-Party Beneficiary Theory of Corporate Liability for Labor Violations in International Supply Chains

Large multinational corporations (“MNCs”) profit off their suppliers’ maintenance of sweatshop conditions in developing countries. Although some companies have responded to reputational pressure by taking nominal steps to improve working conditions, such as enacting supplier codes of conduct, those efforts have not led to significant change. Because voluntary efforts have thus far been ineffective, victims have pursued domestic litigation against MNCs to compensate their losses and encourage future reform. In the recent case of Nestlé USA, Inc. v. Doe, the U.S. Supreme Court cut off one popular avenue for such suits, the Alien Tort Statute, leaving plaintiffs with little ability to sue under federal law. State law tort claims, however, are a strong alternative. Plaintiffs can argue, and indeed have argued in one federal circuit court case, that MNCs have undertaken a duty of care to them as third-party beneficiaries of their supplier codes of conduct. This Note argues that plaintiffs making this claim should point to analogous cases in construction law, where courts have often found that design professionals overseeing a construction site have a duty of care towards their contractors’ employees. In analyzing construction law cases, this Note draws out five factors that have influenced courts to find liability. Future plaintiffs suing for labor violations should use these factors to show that MNCs owed them a duty of care under their supplier codes of conduct and may therefore be held liable for labor rights violations in their international supply chains.

Introduction

Shiuli Begum was working as a sewing machine operator in Bangladesh when a massive crack appeared in the wall of the factory where she was employed.1 1.Dana Thomas, Why Won’t We Learn from the Survivors of the Rana Plaza Disaster?, N.Y. Times (Apr. 24, 2018), https://www.nytimes.com/2018/04/24/style/survivors-of-rana-plaza-disaster.html [https://perma.cc/D93X-LHE8].Show More An engineer called to the site that afternoon recommended that the building be immediately condemned, but managers ordered the employees to report back to work the following morning.2 2.Id.Show More Shortly after the shift started on April 24, 2013, the Rana Plaza garment factory collapsed, trapping Ms. Begum under concrete for over sixteen hours until her neighbors helped pry her out with iron pipes.3 3.Id.Show More Ms. Begum suffered damage to her hips and spinal column and was rendered infertile and unable to work.4 4.Id.Show More She received “a bit of financial assistance from nonprofits” but nothing from the clothing brands for which she sewed.5 5.Id.Show More In all, over 1,100 people died in the Rana Plaza factory collapse that day, and 2,500 more were injured.6 6.Rana Plaza: Bangladesh Jails Owner of Factory Building that Collapsed in 2013 for Corruption, ABC News (Aug. 29, 2017, 9:33 AM), https://www.abc.net.au/news/2017-08-29/rana-plaza-owner-of-collapsed-bangladesh-building-jailed/8854240 [https://perma.cc/U6​ST-ZCW5].Show More However, victims of the 2013 collapse have yet to receive justice from the Bangladeshi court system—a court sentenced the factory’s owner to three years in prison in 2017 for illegal earnings,7 7.Id.Show More but resolution of the charges against eighteen others involved in factory management has met repeated delays.8 8.Rana Plaza Court Case Postponed in Bangladesh, Al Jazeera (Aug. 23, 2016), https://www.aljazeera.com/news/2016/8/23/rana-plaza-court-case-postponed-in-bangladesh [https://perma.cc/HB6Y-DMXN].Show More

Several prominent American companies, including Walmart, J.C. Penney, and The Children’s Place, have previously been linked to suppliers producing goods in Rana Plaza at the time of the disaster.9 9.Clare O’Connor, These Retailers Involved in Bangladesh Factory Disaster Have Yet to Compensate Victims, Forbes (Apr. 26, 2014, 5:29 PM), https://www.forbes.com/sites/c​lareoconnor/2014/04/26/these-retailers-involved-in-bangladesh-factory-disaster-have-yet-to-compensate-victims/?sh=489c7609211b [https://perma.cc/FS9L-2FEB].Show More These companies, like many others, have achieved tremendous cost savings through their contracts with suppliers in developing countries, where labor costs and regulatory burdens are low. However, profiting off unsafe and unjust factory conditions has also made large multinational corporations (“MNCs”) a popular target of domestic litigation aiming to secure compensation for victimized employees like Shiuli Begum.10 10.For an overview of cases using different legal strategies to sue MNCs for labor violations, see Ramona L. Lampley, Mitigating Risk, Eradicating Slavery, 68 Am. U. L. Rev. 1707 (2019).Show More There is a great deal at stake in the outcome of these lawsuits. Besides the normative argument that these corporations collect unjust profits, there is the practical reality that MNCs are currently in the best position to take responsibility for poor labor practices in their supply chains. As the Rana Plaza example illustrates, victimized workers in developing countries often cannot rely on their own court systems to hold direct offenders accountable, making suits against MNCs one of the only options for legal redress. MNCs also have greater incentives and more resources to bring about better treatment of workers because the companies are usually better known and more financially reliant on maintaining good reputations than their suppliers.11 11.See Andrew Herman, Note, Reassessing the Role of Supplier Codes of Conduct: Closing the Gap Between Aspirations and Reality, 52 Va. J. Int’l L. 445, 450 (2012) (describing how MNCs have adopted supplier codes of conduct in response to activist pressure).Show More

Because the United States largely lacks other legal mechanisms to incentivize MNCs to perform supply chain due diligence,12 12.By contrast, some European countries have mandatory due diligence legislation. For example, the French and Dutch parliaments adopted legislation in 2017 that would require companies to investigate and report on human rights violations in their supply chains. Sharan Burrow, Eliminating Modern Slavery: Due Diligence and the Rule of Law, Bus. & Hum. Rts. Res. Ctr. (Aug. 8, 2017), https://www.business-humanrights.org/en/blog/​eliminating-modern-slavery-due-diligence-and-the-rule-of-law/ [https://perma.cc/5LTK-4UVK].Show More there is a large body of literature analyzing the potential for lawsuits to compensate victims and encourage reform. Much of this literature has focused on federal claims under the Alien Tort Statute (“ATS”) and the Trafficking Victims Protection Reauthorization Act (“TVPRA”),13 13.See, e.g., Jennifer M. Green, The Rule of Law at a Crossroad: Enforcing Corporate Responsibility in International Investment Through the Alien Tort Statute, 35 U. Pa. J. Int’l L.1085, 1086, 1108–09 (2014); Lampley, supra note 10, at 1729–45; Debra Cohen Maryanov, Comment, Sweatshop Liability: Corporate Codes of Conduct and the Governance of Labor Standards in the International Supply Chain, 14 Lewis & Clark L. Rev. 397, 417–18 (2010); Laura Ezell, Note, Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations, 69 Vand. L. Rev. 499, 512–25 (2016); David Shea Bettwy, Drones, Private Military Companies and the Alien Tort Statute: The Looming Frontier of International Tort Liability, 47 Cal. W. Int’l L.J. 1 (2016).Show More though the recent Supreme Court case Nestlé USA, Inc. v. Doe throws the former category’s viability into question by holding that “general corporate activity” in the United States does not create a sufficient nexus to impose liability for aiding and abetting forced labor abroad.14 14.141 S. Ct. 1931, 1937 (2021).Show More Due to obstacles in bringing successful claims under federal law, a growing number of scholars have moved on to consider the viability of state tort and contract-based claims.15 15.See, e.g., Allie Robbins, Outsourcing Beneficiaries: Contract and Tort Strategies for Improving Conditions in the Global Garment Industry, 80 U. Pitt. L. Rev. 369, 372 (2018); Alexandra Reeve, Within Reach: A New Strategy for Regulating American Corporations That Commit Human Rights Abuses Abroad, 2008 Colum. Bus. L. Rev. 387, 388–90; Lampley, supranote 10, at 1708, 1750; Joe Phillips & Suk-Jun Lim, Their Brothers’ Keeper: Global Buyers and the Legal Duty to Protect Suppliers’ Employees, 61 Rutgers L. Rev. 333, 334–35 (2009); Maryanov, supra note 13, at 429–36.Show More

This Note contributes to the existing literature on state tort law claims by suggesting a novel legal strategy through which plaintiffs could better plead the existence of a duty on the part of MNCs to monitor their suppliers, thus far an insurmountable barrier in the few attempted cases. In one U.S. Court of Appeals for the Ninth Circuit case, the plaintiffs argued that supplier codes of conduct, which many MNCs have imposed on the entities comprising their supply chain, can give rise to liability through third-party beneficiary theory.16 16.Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009).Show More This Note will extend that theory, arguing that the case was wrongly decided and that construction law can serve as a helpful model for plaintiffs going forward. There is a limited amount of scholarship on the potential applicability of common law doctrines regarding general contractors in the construction context to MNCs in the supply chain context.17 17.See Maryanov, supra note 13, at 431–32; Lampley, supranote 10, at 1713–14 (noting that worker-plaintiffs have unsuccessfully analogized themselves to independent contractors when trying to establish that they were owed a duty by employer-defendants); Phillips & Lim, supranote 15, at 364–65 (explaining the contemplated categorization of buyer-companies as “general contractors” owing a duty to “independent contractor” employees of suppliers in claims where the buyer allegedly “retained sufficient control over jobsite health and safety”).Show More However, this Note is the first to closely analyze the doctrine of third-party beneficiary theory as applied to architects and engineers in construction law and use it as a model to distill factors that are applicable to the MNC context.

Part I begins with an explanation of how economic forces, reputational harms, and technological developments have converged to make supply chain management cheaper, easier, and more important for MNCs who rely on a geographically disparate supply chain. This Part also discusses the history of supplier codes of conduct, the principal method by which companies currently attempt to mitigate harms in their supply chain. Part II provides greater background on different litigation strategies to hold MNCs accountable for labor violations, beginning with federal claims and their limitations before examining state claims. After establishing the primary procedural requirements for foreign workers to bring a case in state court, Part III then explains how construction law cases using third-party beneficiary theory are closely analogous to supply chains. In construction law cases, courts have generally focused on five factors to guide their analysis of whether a design professional—such as an architect or engineer—owed a duty to contractors’ employees. These factors include foreseeability, contract specificity, actual practice of supervision, ability to stop work, and actual knowledge of safety issues. Part IV applies those five factors to a current supplier code of conduct, providing a model for future plaintiffs to advocate a totality of the circumstances analysis based on those factors. This Part also addresses counterarguments. Finally, this Note concludes with a summary of how plaintiffs should approach third-party beneficiary claims in the future.

  1. Dana Thomas, Why Won’t We Learn from the Survivors of the Rana Plaza Disaster?, N.Y. Times (Apr. 24, 2018), https://www.nytimes.com/2018/04/24/style/survivors-of-rana-plaza-disaster.html [https://perma.cc/D93X-LHE8]. ↑
  2. Id. ↑
  3. Id. ↑
  4. Id. ↑
  5. Id. ↑
  6.  Rana Plaza: Bangladesh Jails Owner of Factory Building that Collapsed in 2013 for Corruption, ABC News (Aug. 29, 2017, 9:33 AM), https://www.abc.net.au/news/2017-08-29/rana-plaza-owner-of-collapsed-bangladesh-building-jailed/8854240 [https://perma.cc/U6​ST-ZCW5]. ↑
  7. Id. ↑
  8.  Rana Plaza Court Case Postponed in Bangladesh, Al Jazeera (Aug. 23, 2016), https://www.aljazeera.com/news/2016/8/23/rana-plaza-court-case-postponed-in-bangladesh [https://perma.cc/HB6Y-DMXN]. ↑
  9. Clare O’Connor, These Retailers Involved in Bangladesh Factory Disaster Have Yet to Compensate Victims, Forbes (Apr. 26, 2014, 5:29 PM), https://www.forbes.com/sites/c​lareoconnor/2014/04/26/these-retailers-involved-in-bangladesh-factory-disaster-have-yet-to-compensate-victims/?sh=489c7609211b [https://perma.cc/FS9L-2FEB]. ↑
  10. For an overview of cases using different legal strategies to sue MNCs for labor violations, see Ramona L. Lampley, Mitigating Risk, Eradicating Slavery, 68 Am. U. L. Rev. 1707 (2019). ↑
  11. See Andrew Herman, Note, Reassessing the Role of Supplier Codes of Conduct: Closing the Gap Between Aspirations and Reality, 52 Va. J. Int’l L. 445, 450 (2012) (describing how MNCs have adopted supplier codes of conduct in response to activist pressure). ↑
  12. By contrast, some European countries have mandatory due diligence legislation. For example, the French and Dutch parliaments adopted legislation in 2017 that would require companies to investigate and report on human rights violations in their supply chains. Sharan Burrow, Eliminating Modern Slavery: Due Diligence and the Rule of Law, Bus. & Hum. Rts. Res. Ctr. (Aug. 8, 2017), https://www.business-humanrights.org/en/blog/​eliminating-modern-slavery-due-diligence-and-the-rule-of-law/ [https://perma.cc/5LTK-4UVK]. ↑
  13. See, e.g., Jennifer M. Green, The Rule of Law at a Crossroad: Enforcing Corporate Responsibility in International Investment Through the Alien Tort Statute, 35 U. Pa. J. Int’l L.

    1085, 1086, 1108–09 (2014); Lampley, supra note 10, at 1729–45; Debra Cohen Maryanov, Comment, Sweatshop Liability: Corporate Codes of Conduct and the Governance of Labor Standards in the International Supply Chain, 14 Lewis & Clark L. Rev. 397, 417–18 (2010); Laura Ezell, Note, Human Trafficking in Multinational Supply Chains: A Corporate Director’s Fiduciary Duty to Monitor and Eliminate Human Trafficking Violations, 69 Vand. L. Rev. 499, 512–25 (2016); David Shea Bettwy, Drones, Private Military Companies and the Alien Tort Statute: The Looming Frontier of International Tort Liability, 47 Cal. W. Int’l L.J. 1 (2016). ↑

  14. 141 S. Ct. 1931, 1937 (2021). ↑
  15. See, e.g., Allie Robbins, Outsourcing Beneficiaries: Contract and Tort Strategies for Improving Conditions in the Global Garment Industry, 80 U. Pitt. L. Rev. 369, 372 (2018); Alexandra Reeve, Within Reach: A New Strategy for Regulating American Corporations That Commit Human Rights Abuses Abroad, 2008 Colum. Bus. L. Rev. 387, 388–90; Lampley, supra note 10, at 1708, 1750; Joe Phillips & Suk-Jun Lim, Their Brothers’ Keeper: Global Buyers and the Legal Duty to Protect Suppliers’ Employees, 61 Rutgers L. Rev. 333, 334–35 (2009); Maryanov, supra note 13, at 429–36. ↑
  16. Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009). ↑

  17. See Maryanov, supra note 13, at 431–32; Lampley, supra note 10, at 1713–14 (noting that worker-plaintiffs have unsuccessfully analogized themselves to independent contractors when trying to establish that they were owed a duty by employer-defendants); Phillips & Lim, supra note 15, at 364–65 (explaining the contemplated categorization of buyer-companies as “general contractors” owing a duty to “independent contractor” employees of suppliers in claims where the buyer allegedly “retained sufficient control over jobsite health and safety”). ↑

The Common Law of Interpretation

Courts and commentators have claimed that there is no methodological stare decisis. That is, the Supreme Court’s decision to use purposivism or textualism to interpret a legal text in one case is not binding in future cases. While a contrarian strain of scholars has argued that judicial decisions about interpretation should serve as controlling authority in later cases, critics fear that this approach would tie the hands of future courts too tightly.

However, this Note argues that the Supreme Court’s directions about how to interpret legal texts already have a soft and salutary authoritative force. It does so, first, by reconceptualizing so-called “methodological precedent.” Those who argue that interpretive decisions are not binding are led astray by the assumption that methodological stare decisis would look like a categorical commandment, such as: “Thou shalt not consult legislative history.” A more modest vision of methodological precedent is a kind of common law: that is, a collected series of smaller decisions converging on a set of norms for interpreting legal texts. Different norms might be settled to different degrees at different times. But as certain methods become accepted in the case law, even opponents may employ them, or feel that they have some constraining force. This kind of case-by-case development is already happening (albeit imperfectly). It has both horizontal and vertical effects, causing judges to adopt specific interpretive approaches or engage in specific modes of analysis. Additionally, this methodological common law is normatively desirable because it balances goals of stability and predictability while respecting the value of interpretive pluralism.

Introduction

The U.S. Supreme Court is in the business of determining the meaning of legal texts.1 1.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”).Show More It should be no surprise, then, that many of the pages in the U.S. Reports are devoted to communicating the Court’s views on the proper methods of interpretation. Some of these statements are general and trans-substantive, like the declaration, “Today, our statutory interpretation cases almost always start with a careful consideration of the text.”2 2.Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021).Show More Some are specific to the kind of legal directive, such as the principle that “remedial statutes should be liberally construed.”3 3.Peyton v. Rowe, 391 U.S. 54, 65 (1968).Show More Sometimes the Court articulates a canon of construction that is triggered by a particular context, such as the rule that “[i]mplications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction.”4 4.Immigr. Naturalization Serv. v. St. Cyr, 533 U.S. 289, 299 (2001).Show More

But what is the legal status of these interpretive directions? For many years, judges and scholars have agreed there is no such thing as “methodological stare decisis.”5 5.See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2144 (2002) (“[T]he Justices do not seem to treat methodology as part of the holding [of a case].”); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 389 (2005) (“[S]tare decisis effect attaches to the ultimate holding . . . but not to general methodological pronouncements, no matter how apparently firm.”); Stephen M. Rich, A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law, 87 S. Cal. L. Rev. 1197, 1197 (2014) (“When the Supreme Court rules on matters of statutory interpretation, it does not establish ‘methodological precedents.’” (quoting Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1902 (2011))); B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 167 n.4 (2015) (Thomas, J., dissenting) (“[N]o principle of stare decisis requires us to extend a tool of statutory interpretation from one statute to another without first considering whether it is appropriate for that statute.”).Show More No Supreme Court majority opinion purports to require that future justices be textualists or purposivists. Nor does one majority’s decision to use a particular extrinsic source (like dictionaries or drafting history) seem to mean that future courts must do the same. Thus, while a given case may stand for any number of legal propositions, each court supposedly writes on a blank methodological slate.

But this consensus may rest on eroding foundations. First, the wholesale exclusion of interpretive premises from a case’s “holding” has always been in tension with the Supreme Court’s view that the “portions of the opinion necessary to [reach the] result” are binding on future courts.6 6.Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). Although, what makes a part of an opinion “necessary” to the result and what kinds of propositions are “necessary” is open to interpretation.Show More The fact that the Supreme Court’s conclusions about legal interpretation are treated differently than its other outcome-determinative premises has been assumed more often than it has been defended. Second, an emerging wave of scholars has suggested that the Court’s statements about methodology should (and perhaps do) have some precedential effect.7 7.E.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1870 (2008) (“[A]s a matter of policy, courts should give extra-strong stare decisis effect to doctrines of statutory interpretation.”); Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681, 684 (2008) (terming decisions about judicial methodology “subdecisions” and arguing that “the purposes behind traditional stare decisis suggest that the appropriate reform is to extend the scope of stare decisis to statutory interpretation subdecisions”); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1754, 1848 (2010) [hereinafter Gluck, States as Laboratories] (arguing that methodological stare decisis “appears to be a common feature of some states’ statutory case law” and is therefore possible and potentially beneficial); Grace E. Hart, Comment, Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context, 124 Yale L.J. 1825, 1826 (2015) (arguing that statutory interpretation decisions should be treated as substantive law to help govern choice-of-law disputes); Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 106 (2020) (arguing primarily that lower courts follow the Supreme Court’s lead on methods of statutory interpretation).Show More They contend that rule of law values would be enhanced by clarity about how courts will approach difficult questions of statutory interpretation.

But these arguments in favor of methodological stare decisis have provoked strong criticism.8 8.See, e.g., Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1591 (2014) (“[I]t would be severely problematic for federal courts to attempt to freeze interpretive rules into place by applying stare decisis.”); Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in Precedent in the United States Supreme Court 135, 154 (Christopher J. Peters ed., 2013) (“[Adopting] a regime of methodological stare decisis . . . would for some period of time imperil rather than foster stability.”).Show More As a descriptive matter, at least some judges may not feel that they are bound by the Supreme Court’s prior methodological decisions.9 9.See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment) (“[W]e do not regard statements in our opinions about . . . generally applicable interpretive methods . . . as binding future Justices with the full force of horizontal stare decisis.”).Show More Indeed, it is hard for lawyers to believe that the Court’s interpretive views are “binding” in any sense when they have witnessed decades of intractable disagreement over the proper methods of statutory and constitutional interpretation.10 10.Gluck, States as Laboratories, supra note 7, at 1753–54.Show More As a normative matter, judges are likely to chafe at the suggestion that their deeply held convictions about interpretation are trumped by old judicial decisions or long-dead members of their court.11 11.See Randy J. Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, 97 Tex. L. Rev. 1125, 1149 (2019) (suggesting that a jurist would likely protest if “faced with the prospect of subordinating her individual view” and “urged to apply an interpretive methodology”).Show More

This Note pushes back against both of those objections. First, it argues that there is already a soft system of methodological precedent at the Supreme Court and in the lower federal courts. Both critics and detractors of the idea of methodological precedent generally assume that, if such precedent existed, the Supreme Court would issue (and future courts would follow) explicit and broad legal directives, like: “legislative history is a permissible source of evidence for resolving statutory ambiguity,” or “the Constitution should be interpreted according to its original public meaning.”12 12.See notes 57–59 and accompanying text.Show More But the absence of such categorical holdings does not mean that the interpretive statements that the Court does issue are not authoritative. Instead, the Supreme Court’s back-and-forth about interpretation operates as a common law of methods, where individual cases elucidate specific norms and facilitate consensus. It can take multiple cases and many decades for a methodological dispute to be “settled,” and different areas of the law are settled to different degrees. But as interpretive norms are enshrined in case law, they exert an authoritative force on the Supreme Court and lower courts in a way that mimics the effect of precedent. And second, despite the fears of commentators, this system is actually beneficial. In fact, a system of gradual methodological common law achieves many of the rule of law goals underlying stare decisis while still allowing room for interpretive pluralism.

The argument proceeds in four Parts. Part I briefly explores the concept of “precedent.” Part II proposes a common law model of interpretive precedent where individual cases serve as minor but meaningful authorities about the proper way to interpret legal texts. Over time, debates about interpretive methods can be settled through accumulated decisions and judicial practice, even without the Supreme Court explicitly dictating a comprehensive philosophy of interpretation. Part III is descriptive, arguing that such a common law of interpretive methods already exists. Part IV is a normative defense of this status quo.

  1. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”). ↑
  2. Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021). ↑
  3. Peyton v. Rowe, 391 U.S. 54, 65 (1968). ↑
  4. Immigr. Naturalization Serv. v. St. Cyr, 533 U.S. 289, 299 (2001). ↑
  5. See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2144 (2002) (“[T]he Justices do not seem to treat methodology as part of the holding [of a case].”); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 389 (2005) (“[S]tare decisis effect attaches to the ultimate holding . . . but not to general methodological pronouncements, no matter how apparently firm.”); Stephen M. Rich, A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law, 87 S. Cal. L. Rev. 1197, 1197 (2014) (“When the Supreme Court rules on matters of statutory interpretation, it does not establish ‘methodological precedents.’” (quoting Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1902 (2011))); B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 167 n.4 (2015) (Thomas, J., dissenting) (“[N]o principle of stare decisis requires us to extend a tool of statutory interpretation from one statute to another without first considering whether it is appropriate for that statute.”). ↑
  6. Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). Although, what makes a part of an opinion “necessary” to the result and what kinds of propositions are “necessary” is open to interpretation. ↑
  7. E.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1870 (2008) (“[A]s a matter of policy, courts should give extra-strong stare decisis effect to doctrines of statutory interpretation.”); Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681, 684 (2008) (terming decisions about judicial methodology “subdecisions” and arguing that “the purposes behind traditional stare decisis suggest that the appropriate reform is to extend the scope of stare decisis to statutory interpretation subdecisions”); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1754, 1848 (2010) [hereinafter Gluck, States as Laboratories] (arguing that methodological stare decisis “appears to be a common feature of some states’ statutory case law” and is therefore possible and potentially beneficial); Grace E. Hart, Comment, Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context, 124 Yale L.J. 1825, 1826 (2015) (arguing that statutory interpretation decisions should be treated as substantive law to help govern choice-of-law disputes); Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 106 (2020) (arguing primarily that lower courts follow the Supreme Court’s lead on methods of statutory interpretation). ↑
  8. See, e.g., Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1591 (2014) (“[I]t would be severely problematic for federal courts to attempt to freeze interpretive rules into place by applying stare decisis.”); Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in Precedent in the United States Supreme Court 135, 154 (Christopher J. Peters ed., 2013) (“[Adopting] a regime of methodological stare decisis . . . would for some period of time imperil rather than foster stability.”). ↑
  9. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment) (“[W]e do not regard statements in our opinions about . . . generally applicable interpretive methods . . . as binding future Justices with the full force of horizontal stare decisis.”). ↑
  10. Gluck, States as Laboratories, supra note 7, at 1753–54. ↑
  11. See Randy J. Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, 97 Tex. L. Rev. 1125, 1149 (2019) (suggesting that a jurist would likely protest if “faced with the prospect of subordinating her individual view” and “urged to apply an interpretive methodology”). ↑

  12. See notes 57–59 and accompanying text. ↑

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