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03/11/2019

Michael Dorf on Jam v. IFC
Michael Ramsey

At Dorf on Law, Michael Dorf has an interesting long post on the Supreme Court's recent statutory decision in Jam v. International Finance CorporationDid Jam v. IFC Kill Purposivism? As he summarizes the case:

Jam v. Int'l Finance Corp is a lawsuit by Indian citizens against an international organization alleging that the latter's lax supervision of its loan led to catastrophic environmental harm. IFC invoked the International Organizations Immunities Act, (IOIA) which grants international organizations the “same immunity from suit . . . as is enjoyed by foreign governments.” When the IOIA was enacted in 1945, foreign governments enjoyed essentially absolute immunity, but today they do not. The question posed by Jam was whether the IOIA should be interpreted statically--so that IFC would have the same immunity that foreign governments enjoyed in 1945--or dynamically--so that IFC would have the same immunity that foreign governments enjoy now.

And on the opinions:

The majority opinion of Chief Justice Roberts in Jam sounds in textualism. Here is the key analytical move:

The language of the IOIA more naturally lends itself to [a dynamic] reading. In granting international organizations the “same immunity” from suit “as is enjoyed by foreign governments,” the Act seems to continuously link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two. The statute could otherwise have simply stated that international organizations “shall enjoy absolute immunity from suit,” or specified some other fixed level of immunity. Other provisions of the IOIA, such as the one making the property and assets of international organizations “immune from search,” use such noncomparative language to define immunities in a static way. 22 U. S. C. §288a(c). Or the statute could have specified that it was incorporating the law of foreign sovereign immunity as it existed on a particular date.

The opinion goes on to cite a fair number of other examples of other statutes and cases to establish something like a working presumption that "same" language implies dynamic rather than static reference.

...

Justice Breyer's dissent contains several expressions of both a critique of textualism and a brief for purposivim. He says: "It is purpose, not linguistics, that can help us here." Then later, he decries what he regards as the majority's single-minded focus on text and narrow conception of relevant context: "all interpretive roads here lead us to the same place, namely, to context, to history, to purpose, and to consequences. Language alone cannot resolve the statute’s linguistic ambiguity." Justice Breyer concludes with a paean to purposivism that, given the solo nature of his dissent, has an elegiac quality. He writes:

Purposes, derived from context, informed by history, and tested by recognition of related consequences, will more often lead us to legally sound, workable interpretations—as they have consistently done in the past. These methods of interpretation can help voters hold officials accountable for their decisions and permit citizens of our diverse democracy to live together productively and in peace—basic objectives in America of the rule of law itself.

Professor Dorf comments:

Textualism arose chiefly as an attack on promiscuous and undisciplined resort to legislative history, that is, as an attack on intentionalism rather than purposivism. It's true that some purposivists (including Justice Breyer) think that legislative history still has a role to play in statutory interpretation, but these days they rarely cite the sort of material to which early textualism so vociferously objected--floor statements and committee reports.

To be sure, Justice Breyer is an exception. He cites legislative history frequently. But as his dissent in Jam illustrates, he does so as a purposivist--a judge interested in giving practical effect to a statute's purposes--rather than as an intentionalist--a judge seeking to uncover what the legislature thought or would have thought about the precise facts before the court. Thus, he relies on Senate and House reports on the IOIA for such anodyne propositions as the claim that the statute aimed to “satisfy in full the requirements of . . . international organizations conducting activities in the United States.” One could just as well infer that purpose from the text of the IOIA.

Even if one reads the majority opinion in Jam as categorically and forever ruling out the use of legislative history, it is hard to imagine that reading having practical consequences in many cases. One can be a purposivist pretty effectively just by inferring purposes from a statute's text and context.

All this sounds right, and a further thought is that this shows (again) the dominance of statutory originalism in modern legal analysis (though not by that name).  The majority and dissent in Jam agree that the central question is what the IOIA meant on immunity when it was enacted.  They disagree on how to conduct that inquiry.  That is a dispute within the broader idea of what would be called originalism if it were the Constitution instead of a statute that was under consideration.