New York Law Journal Publishes Akin Gump Article on the Debate over Judicial Reliance on Legislative History

New York Law Journal has published the article “The Supreme Court’s Continuing War Over Legislative History,” written by Akin Gump litigation partners Rex Heinke and Douglass Maynard and senior counsel Jessica Weisel. The article addresses the debate over the use of legislative history that played out in the Supreme Court’s recently decided Digital Realty Trust, Inc. v. Somers, a unanimous ruling “that whistleblower protections under the Dodd-Frank Act extend only to employees who report violations to the Securities and Exchange Commission.”

In the case in question, the authors note that the majority “relied largely on the plain language of Dodd-Frank’s whistleblower provisions, but then cited a Senate Report as evidence of the statute’s purpose and design.” In a concurring opinion, however, three conservative justices dismissed the use of the report.

Heinke, Maynard and Weisel write that the concurrence, authored by Justice Clarence Thomas, was “intriguing,” because it signaled “his willingness to take up Justice Antonin Scalia’s mantle as the court’s primary critic of the use of legislative history materials.” They also said it left unanswered the question of how federal courts should “interpret statutes when the statutory language is susceptible to competing interpretations” and that the decision to challenge the use of legislative history was striking “because the sole legislative history source cited by the majority is a committee report.”

The article proceeds to discuss other aspects of Thomas’s concurrence before concluding that “whether the reader supports or opposes judicial reliance on legislative history, the concurrences in Digital Realty Trust indicate that this debate is far from over.”

To read the full article, please click here.