Judging Statutes: How Judge Robert Katzmann Suggests We Look Beyond the Text
Daniel Muslin
The honorable Judge Robert Allen Katzmann, currently serving as the chief judge of the
United States Court of Appeals for the Second Circuit, recently came to the Benajmin N.
Cardozo School of Law to give a lecture to students about his latest book “Judging Statues” and
how U.S. courts have different tools available to them to assist with interpreting laws enacted by
Congress. Judge Katzmann’s book and lecture both had great insights on approaching statutes
that all students of law could benefit from and created excellent arguments for why it is
sometimes necessary for courts to go beyond the literal words of a law in order to uphold the true
intentions of the legislature. “What propelled me to write the book”, Judge Katzmann began, “is
that very little attention is given to the holistic enterprise of how a law gets made.”
A brief look into Judge Katzmann’s biographical history will show that he graduated
from Columbia University with his bachelor of arts in Political Science and then upgraded to a
Ph.D. from Harvard followed by acquiring his J.D. from Yale. Afterwards he clerked for Judge
Hugh H. Brownes at the U.S. Court of Appeals for the First Circuit. He then went on to teach at
several law institutions such as Georgetown University, N.Y.U. School of Law, and U.C.L.A. to
name a few. On March 8th, 1999 he was appointed by Bill Clinton to the U.S. Court of Appeals
for the Second Circuit and was confirmed in July of that year. Judge Katzmann has also worked
closely with Cardozo’s own immigration justice clinic.
Throughout his lecture, armed with a spiffy blue bowtie that conveyed “I’m ready to take
on the textualists”, Judge Katzmann argued that when the courts evaluate a statute they should
look not only at the plain text but also attempt to understand the intent of the legislators who
wrote it because the two are not always distinguishable. Judge Katzmann mentioned both in his
lecture and in his book, several tools available to judges that he believed would help them in this
task. The most important of which he said was legislative history; primarily congressional
committee reports. Committee reports allow judges to see what the legislators, who were most
involved with the drafting process of a particular statute, thought. According to Judge Katzmann
the best committee report to start with, if available, is a conference committee report. These are
vital to figuring out what the intent of legislators was because a conference committee involves a
committee comprised of members from both the House of Representatives and the Senate. One
of the cases that Judge Katzmann was involved in, which he mentions at length in his book
although only quickly touched upon in his lecture, was Murphy v. Arlington Central School
District Board of Education (2004). In helping he and the Second Circuit court decide “whether
parents who prevailed in disputes with their school systems over the educational placements of
their disabled children were entitled to reimbursement for costs associated with hiring expert
witnesses and consultants who aided them in litigation” they looked at a conference committee
report that said “[t]he conferees intend that the term ‘attorneys’ fees as part of the costs’ include
reasonable expenses and fees of expert witnesses…” which they then used to decide that the
legislators and subsequently the disputed statute (Individuals with Disabilities Education Act)
did mean to allow the prevailing parties to recover the cost of expert fees. Although the Second
Circuit’s ruling was ultimately reversed by the Supreme Court in 2006, based on a legal
argument that the School District Board’s lawyers did not previously make to lower courts,
Justices Breyer, Stevens, and Souter wrote a strong dissent that supported the Second Circuit’s
use of legislative history saying “[b]y disregarding a clear statement in a legislative report
adopted without opposition in both Houses of congress, the majority has reached a result no
Member of Congress expected or overtly desired.”
Sometimes though, as Judge Katzmann addressed, a committee report is not always
available. Judges can then turn to the myriad of other legislative history components that still
hold as reliable indicators of what congress had in mind when deciding a law. In the Second
Circuit’s Raila v. U.S. (2004) case, which Judge Katzmann discussed in both his book and
lecture, the Second Circuit used a 1940 testimony before a senate subcommittee to help
determine the intent of congress in regards to a specific section of the FTCA (Federal Tort
Claims Act). In the Raila case, Lenore Raila was injured when she slipped and fell on a package
which she claimed was negligently placed at the bottom of her doorstep by a postal worker. Raila
then attempted to sue the United States but the government said they had immunity based on a
provision in the FTCA dictating that the government could not have actions brought against it
regarding “[a]ny claims arising out of the loss, miscarriage, or negligent transmission of letters or
postal matter.” At the 1940 senate subcommittee hearing Alexander Holtzoff, who was a special
assistant to the Attorney general, testified that “[e]very person who sends a piece of postal matter
can protect himself by registering it, as provided by the postal laws and regulations. It would be
intolerable, of course, if in any case of loss or delay the Government could be sued for damages,
consequently this provision was inserted.” In his book Judge Katzmann explains how this led the
Second Circuit court to believe “that this testimony suggested that the purpose of the postal
matter exception was to shield the government from liability arising from the loss of or harm to
the mail itself, not for injuries caused by the common law torts of postal employees.” This view
was later endorsed by the Supreme Court with their 2006 ruling in Dolan v. U.S. Postal Service
where the same type of slip and fall claim was ruled in favor of the plaintiff.
Further in the lecture Judge Katzmann brought attention to several key pieces of
legislation that irreversibly changed how U.S. courts and society function such as the Civil
Rights Act of 1964, Title IX, and The Clean Air Act. In contrast to these Judge Katzmann also
noted how even “the most trivial things are often subject to statutes.” One example of this, as he
pointed out, was the size of fish; alluding to the Code of Federal Regulations §622.37(d)(2)(ii)
which says that specific fish under a specific size requirement need to be immediately released.
This seemingly minor statutory rule would go on to initiate a major 2015 Supreme Court case,
Yates v. U.S., which Judge Katzmann only briefly mentioned in his lecture and which is not
included in his book, but nevertheless is an excellent example of the kind of statute interpretation
that Judge Katzmann advocates for. The Yates case showcased another important tool that Judge
Katzmann proposed would help decipher legislative intent; canons of construction. Canons are
basic rules and maxims applied by courts to help them interpret written documents. In the Yates
case Cpt. John Yates, during a routine offshore inspection, was charged with possessing
undersized red grouper aboard his fishing vessel. When he docked four days later the undersized
fish that he was told to keep on board as evidence were missing. Yates was charged with
violating 18 U.S.C. §1519 which punished the destruction or concealment of “any record,
document, or tangible object” to obstruct a federal investigation. Eventually the case made its
way up to the Supreme Court on a writ of certiorari. The issue before the Supreme Court was
whether “any tangible object” included fish. In a 5-4 decision it was decided that the phrase did
not include fish. In the plurality opinion authored by Ruth Bader Ginsburg it was written that the
justices relied on the canon “noscitur a sociis” which roughly translated means “a word is known
by the company it keeps.” Applying this canon to the phrase “any record, document, or tangible
object” the Supreme Court reasoned that because the words “record” and “document” directly
prefaced “tangible object” that a “tangible object”, in terms of the statutory phrase, only referred
to an object used to preserve or record information, of which a fish is not one. Besides just
canons the Yates case did also utilize some legislative history as well. Citing it as “extra icing on
the cake” in the plurality opinion, Ginsburg writes that if one looks at the time which 18 U.S.C.
§1519 was enacted as part of the Sarbanes-Oxley act of 2002, that act was clearly enacted just
after Enron’s collapse, a company involved in a scandal where they were accused of shredding
important records and documents that implicated them in financial crimes. Thus, based on the
events happening at the time of the statute’s enactment, it was clearly meant to deal with
corporations willfully destroying documents and not other types of objects such as fish. Looking
historically at the events surrounding the time a law was enacted, however, was not a strategy
pioneered by Ginsburg nor Katzmann but goes back to the 1892 Church of the Holy Trinity v.
U.S. case where Justice Brewer wrote “another guide to the meaning of a statute is found in the
evil which it is designed to remedy; and for this the court properly looks at contemporaneous
events.”
At the end of his lecture Judge Katzmann took questions from the Cardozo 1L student
body. One student asked how Judge Katzmann dealt with a situation where the legislative history
actually went against the supposed ‘just result’ to which the Judge answered “if the legislative
history is substantial I cannot ignore it. My job is not to decide what congress should have done.”
Another student asked how the executive branch can impact legislative history and Judge
Katzmann responded that the president can choose to include a signing statement saying what
they think of the statute when they receive the bill from Congress but, that it is debated amongst
judges whether that should hold much weight. The last substantial student question asked Judge
Katzmann to evaluate how his political science background has affected him as a judge. Judge
Katzmann said “It’s been very useful, at least for me, because it says to me that as a judge
interpreting the law I need to have a sense of the whole institutional process” and he went on to
explain how political science is about seeing how the institution of government functions as a
whole as well as how the individual pieces function and then ultimately coalesce.
Although not touched upon in his lecture, Judge Katzmann had a few suggestions in his
book on how to make deducing the meaning of statutes easier for courts going forward. He
suggested that legislators could simply attach what they thought to be the relevant legislative
history directly to their enrolled bills. An enrolled bill is “the final copy of a bill or joint
resolution which has passed both chambers in identical form, signed by the appropriate House
and Senate officers and submitted to the president for signature.” Another method would be to
put the relevant legislative history on Congress’ online legislative information system:
THOMAS (now succeeded by Congress.gov) and cite its relation to the specific law. Judge
Katzmann also suggested that periodic seminars on the legislative lawmaking process be
available to judges and law clerks as well as seminars on how the judiciary functions be made
available to legislators and their staff in order to further promote understanding between the two
branches so they can work together better.
With all this discussion on utilizing legislative history and canons to illuminate the
intents of statutes a textualist might posit that this gives too much authority to runaway
intentionalists to, either accidentally or purposefully, attribute false meanings to statutory
language or emphasize a particular intent where there is none. Judge Katzmann does note
however, aside from superior courts overruling lower ones, that the government has a direct
method with which to check the power of such intentionalist judges saying both in his book and
lecture that should the legislature truly disagree with a ruling they can always amend existing
law or write new legislation that would effectively nullify that court’s decision and clarify itself
what the law’s true intent was.