Not Nuanced Enough

Another interesting tidbit in yesterday's Supreme Court opinion was Justice Scalia's concurrence in Krupski v. Costa Crociere S.P.A. The case involved the interpretation of Federal Rule of Civil Procedure 15. Passing over the details of what the case was actually about, the interesting part is that Justice Scalia objected to the Court's reliance on the Advisory Committee Notes that accompanied the promulgation of the rule.

Now, one might say that this is only to be expected -- after all, Justice Scalia has waged a long-standing war against reliance on legislative history. But really, the Advisory Committee Notes seem quite different from the kind of legislative history to which Justice Scalia typically objects. Typically, legislative history consists of a report drafted by one committee of one house of Congress, or words spoken in debate by a single legislator on the floor of one house of Congress. Justice Scalia rightly points out that such history might not reflect the views of the full Congress, which is the body that can give the law authoritative force (although, as I have explained at length, the legislative history may be understood as "incorporated by reference" into the resulting laws).

But the Advisory Committee Notes are different. They're more like the "official comments" that accompany sections of the U.C.C. They are prepared by the single, non-bicameral body that prepares the text of the rule. The Supreme Court is aware of them as it puts its official imprimatur on the rule and gives the rule force. The process is quite different from the legislative process. The difference in the processes by which laws become laws and by which the Federal Rules become rules should give rise to different attitudes regarding the value of the history in interpreting the resulting texts. I think Justice Scalia is being inappropriately mechanical in carrying over his legislative history fight into this different arena.