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.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.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.Id.Show More Ms. Begum suffered damage to her hips and spinal column and was rendered infertile and unable to work.4.Id.Show More She received “a bit of financial assistance from nonprofits” but nothing from the clothing brands for which she sewed.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.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.Id.Show More but resolution of the charges against eighteen others involved in factory management has met repeated delays.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.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”).

On Lenity: What Justice Gorsuch Didn’t Say

Facially neutral doctrines create racially disparate outcomes. Increasingly, legal academia and mainstream commentators recognize that this is by design. The rise of this colorblind racism in Supreme Court jurisprudence parallels the rise of the War on Drugs as a political response to the Civil Rights Movement. But, to date, no member of the Supreme Court has acknowledged the reality of this majestic inequality of the law. Instead, the Court itself has been complicit in upholding facially neutral doctrines when confronted with the racial disparities they create. It advances the systemic racism of colorblindness against any race-conscious remedial legislation, while denying marginalized people relief from unequally burdensome systems so long as those systems’ rationale is facially neutral. This obstinate colorblindness has become so pervasive in the framework of criminal jurisprudence that race is no longer merely the elephant in the room—it is the room itself.

This Essay presents the Court’s recent decision in Wooden v. United States as a case study of what the Court could achieve by saying the quiet part out loud and explaining the white supremacist motives underlying presumptively neutral doctrines. The Court can overturn its misguided doctrines without acknowledging their racial and colonial dimensions, but fixing the underlying rot in the system requires the Court to first acknowledge that the rot exists. Otherwise, new “neutral” doctrines and rationales will continue to crop up to take the place of those that were overturned. The decline of lenity and corresponding shifts in fundamental doctrines can only be fully reversed if the Court is willing to embrace the anti-colonial and abolitionist consequences.

Introduction

“As every civil rights lawyer has reason to know—despite law school indoctrination and belief in the ‘rule of law’—abstract principles lead to legal results that harm [B]lacks and perpetuate their inferior status. Racism provides a basis for a judge to select one available premise rather than another when incompatible claims arise.”1.Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 369 (1992).Show More

Derrick Bell

In the second season of Star Trek: Deep Space Nine, the longsuffering engineer Miles O’Brien is arrested and tried in a Cardassian criminal court.2.See Star Trek: Deep Space Nine: Tribunal (Paramount Television June 5, 1994) (depicting the trial of Miles O’Brien on Cardassia Prime).Show More The trial is overseen by an archon, who acts as both judge and prosecutor.3.See id.Show More At the beginning of the trial, she declares, “The offender Miles O’Brien, Human, officer of the Federation’s Starfleet, has been found guilty of aiding and abetting seditious acts against the state. The sentence is death; let the trial begin.”4.Id.Show More As viewers, we recoil from this perversion of justice; it’s the stuff of kangaroo courts. Our notion of justice is grounded in the public perception of a fundamentally fair process.5.See Tracey L. Meanes, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 Ohio St. J. Crim. L. 105, 106 (2005) (discussing the role of public perception in the fundamental fairness analysis of due process).Show More We would be shocked to encounter Cardassian procedures in an American courtroom.

And yet, there are two sorts of justice in America. There is the ideal, guided by strong constitutional limits on prosecution meant to produce a fair trial for defendants, even if it means the guilty sometimes go free. Traditional doctrines guide the court to favor the defendant until the prosecution can overcome all reasonable doubt. And then there is the fast and loose world of mass incarceration, replete with plea bargaining, harmless error, qualified immunity, and good faith exceptions. That sort of justice is fit for a colonial power—like the Cardassians—bent on subjugating large portions of its populace. That sort of justice would have little use for lenity. These two systems often exist in parallel, with the latter cloaking itself in the trappings of the former.

In Wooden v. United States,6.Wooden v. United States, 142 S. Ct. 1063 (2022).Show More the Court, in an opinion authored by Justice Kagan, held that a series of burglaries committed at a single address on a single night did not count as more than one “occasion” under the Armed Career Criminal Act’s7.18 U.S.C. § 924(e)(1).Show More (“ACCA”) mandatory minimum sentencing provision.8.Wooden, 142 S. Ct. at 1069.Show More In a concurring opinion joined in part by Justice Sotomayor, Justice Gorsuch indicated that, when interpreting ambiguous statutes such as the ACCA, courts should turn to the rule of lenity before analyzing a statute’s legislative history or purpose.9.Id. at 1081 (Gorsuch, J., concurring).Show More The rule of lenity requires that courts resolve reasonable doubts about the application of penal laws in the defendant’s favor.10 10.Id.Show More

Justice Gorsuch observed that courts have weakened the rule of lenity over time, culminating in the Court’s current interpretation, which requires a finding of a “grievous ambiguity” before courts can apply lenity and find in favor of the defendant.11 11.Id. at 1084.Show More This narrow rule of lenity is one factor that perpetuates mass incarceration and its concomitant racial disparities. But Justice Gorsuch does not say why this shift in the rule of lenity occurred. This Essay presents the narrowing of the historical doctrine of lenity as an offshoot of mass incarceration’s racist roots. That is, lenity—or rather, its narrowing—is one tool courts use to lock up Black, Brown, and poor people, and to keep them locked up.

This constriction of lenity was only an intermediate step in the erosion of constitutional law to permit racially driven mass incarceration. In the early years of the conservative reaction to the Civil Rights Movement, the Court both invented new doctrines and revised or abandoned longstanding ones to police marginalized people and prevent their recourse to the courts. Even the Warren Court contributed to this reaction, giving rights access with one hand while erecting procedural barriers to rights access with the other.12 12.See William J. Stuntz, The Collapse of American Criminal Justice 79–80, 227–30, 260–65 (2011) (demonstrating how the Warren Court’s procedural rulings reduced the focus on a defendant’s guilt in favor of procedural questions, thereby incentivizing the legislative criminalization of increasingly trivial behavior). Daniel Harawa and I will address the racial dimensions of the Warren Court’s ostensibly colorblind criminal procedure jurisprudence in a forthcoming piece, The Warren Court’s Colorblind Counterrevolution.Show More The Court extended harmless error to encompass constitutional violations in 1967.13 13.See Chapman v. California, 386 U.S. 18, 23–24 (1967).Show More The Court invented qualified immunity in 1967,14 14.See Pierson v. Ray, 386 U.S. 547, 555 (1967).Show More then expanded it considerably over the next few decades.15 15.See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).Show More Police harassment gained fresh justification with the invention of reasonable suspicion in 1968.16 16.See Terry v. Ohio, 392 U.S. 1, 19 (1968).Show More Lenity was (sometimes) corralled to only apply in cases of “grievous” ambiguity in 1974.17 17.See Huddleston v. United States, 415 U.S. 814, 831 (1974).Show More By 1983, the Court began to foreclose the possibility of implying damages as relief for constitutional violations by federal actors.18 18.See Bush v. Lucas, 462 U.S. 367, 390 (1983).Show More The Court created a “good faith” exception to its Fourth Amendment exclusionary rule in 1984.19 19.See United States v. Leon, 468 U.S. 897, 908 (1984).Show More While advancing purportedly race-neutral doctrines, the Court buttressed the racial hierarchies of the carceral state.20 20.See Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002) (“[T]he Supreme Court’s construction and reification of race in Fourth Amendment cases legitimizes and reproduces racial inequality in the context of policing.”); Brandon Hasbrouck, The Antiracist Constitution, 116 B.U. L. Rev. 87, 116 (2022) (“While the individual mechanisms [of procedural racism] have often been decried for their role in perpetuating white supremacy, the pattern of their adoption and application reveals a much larger problem: the Court is decidedly anti-Black.”).Show More This is what Justice Gorsuch didn’t say. Leaving out this critical context indicates that even when the Court is willing to address the symptoms, it will leave the disease of systemic racism undiagnosed and untreated.

Part I explains lenity and provides a background of Wooden. Part II discusses how courts have shifted and narrowed the doctrine of lenity, so that it almost never applies today. Part III explains the reason for that shift: courts’ narrowing of the rule of lenity is one purportedly race-neutral means of imprisoning Black, Brown, and poor people. Finally, this Essay explains why it is necessary for members of the Court to start saying the quiet part out loud. The Court can overturn its misguided doctrines without acknowledging their racial dimensions. But to fix the rot in the system, the Court must first acknowledge that the rot exists. Otherwise, new “neutral” doctrines will continue to crop up to take the place of those that were overturned.

  1. Derrick Bell, Racial Realism, 24 Conn. L. Rev. 363, 369 (1992).

  2. See Star Trek: Deep Space Nine: Tribunal (Paramount Television June 5, 1994) (depicting the trial of Miles O’Brien on Cardassia Prime).

  3. See id.

  4. Id.

  5. See Tracey L. Meanes, Everything Old Is New Again: Fundamental Fairness and the Legitimacy of Criminal Justice, 3 Ohio St. J. Crim. L. 105, 106 (2005) (discussing the role of public perception in the fundamental fairness analysis of due process).

  6. Wooden v. United States, 142 S. Ct. 1063 (2022).

  7. 18 U.S.C. § 924(e)(1).

  8. Wooden, 142 S. Ct. at 1069.

  9. Id. at 1081 (Gorsuch, J., concurring).

  10. Id.

  11. Id. at 1084.

  12. See William J. Stuntz, The Collapse of American Criminal Justice 79–80, 227–30, 260–65 (2011) (demonstrating how the Warren Court’s procedural rulings reduced the focus on a defendant’s guilt in favor of procedural questions, thereby incentivizing the legislative criminalization of increasingly trivial behavior). Daniel Harawa and I will address the racial dimensions of the Warren Court’s ostensibly colorblind criminal procedure jurisprudence in a forthcoming piece, The Warren Court’s Colorblind Counterrevolution.

  13. See Chapman v. California, 386 U.S. 18, 23–24 (1967).

  14. See Pierson v. Ray, 386 U.S. 547, 555 (1967).

  15. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982).

  16. See Terry v. Ohio, 392 U.S. 1, 19 (1968).

  17. See Huddleston v. United States, 415 U.S. 814, 831 (1974).

  18. See Bush v. Lucas, 462 U.S. 367, 390 (1983).

  19. See United States v. Leon, 468 U.S. 897, 908 (1984).

  20. See Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 967–68 (2002) (“[T]he Supreme Court’s construction and reification of race in Fourth Amendment cases legitimizes and reproduces racial inequality in the context of policing.”); Brandon Hasbrouck, The Antiracist Constitution, 116 B.U. L. Rev. 87, 116 (2022) (“While the individual mechanisms [of procedural racism] have often been decried for their role in perpetuating white supremacy, the pattern of their adoption and application reveals a much larger problem: the Court is decidedly anti-Black.”).

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.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.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.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.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.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.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.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.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.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.