Example 8.3
Takeaway point 8.3: When courts disfavor legislative history, let cases — including those that relied on legislative history — explain what the legislative history intended.
When judges dislike legislative history, camouflage it.
The next passage makes its legislative history nearly invisible. We look again at Exxon’s attempt to escape liability for an oil spill in Alaska. One of its several arguments asserted that the Clean Water Act (CWA) implicitly prohibited any award of punitive damages against oil companies that pollute oceans and other waters. Exxon’s main argument here is that Congress made numerous remedies available to plaintiffs and therefore intended to exclude any alternative remedy that the statute did not specify. The annotations point out how Exxon smuggles legislative history into its brief.Source: From Exxon’s brief in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008).
This paragraph begins by building credibility. It introduces the plaintiff-friendly remedies that are enshrined in the CWA in order to set up the main point: that one, critical remedy (punitive damages) is precluded by the CWA. In general, begin with your strong points. But realize that, on occasion (such as when you are making a controversial point), this start-with-the- unfavorable-information strategy can be helpful.
The word “calibrated” does a lot of work here. It implies that Congress and the CWA implemented a thoughtful, measured approach. It further hints that punitive damages in private actions are unpredictable and wild. As Mark Twain observed, the difference between the almost-perfect word and the perfect word is the difference between a lightning bug and lightning.
Exxon engages in brilliant, sophisticated (but as we see below, dangerous) laundering of legislative history here. After building the lawyers’ credibility, the brief cites cases — almost no legislative history is in sight. Many judges who disdain legislative history would read these citations without thinking twice, but digging into these cases reveals that Exxon’s argument about what Congress intended — the main purpose of this part of Exxon’s brief — relies on legislative history. And flimsy legislative history, at that. For instance, Exxon’s quotation from Milwaukee comes from this sentence: “A House sponsor described the bill as ’the most comprehensive and far-reaching water pollution bill we have ever drafted,’ 1 Leg.Hist. 369 (Rep. Mizell). …” (emphases added). Exxon thus claimed that a single member’s statement was the definitive statement of the Supreme Court. (And that member did not even introduce the bill.) And the next case that Exxon quotes, Middlesex, cited Milwaukee for the proposition that the CWA was “comprehensive.” In other words, Exxon’s two Supreme Court citations that the CWA was “comprehensive” both sprouted from a single statement by a single legislator. But it looks like Exxon’s position is supported by multiple Supreme Court opinions. Exxon achieved this effect by forgetting to include the phrase “internal quotations omitted” or “quoting Representative Mizell” after the Milwaukee quote. Exxon was lucky that it did not get caught by opposing counsel for misidentifying the original source of the quotation, namely one elected official rather than the seven justices who joined the Milwaukee opinion. The passage is otherwise an ingenious use of invisible legislative history.
Exxon smuggles in more information here. It suggests that the CWA vindicated “longstanding maritime policy,” but it provides no support for this claim.
Yet again, Exxon smuggles in legislative history — in a perfectly acceptable way — by citing a case that relied on legislative history. The case that Exxon paraphrases says this: “The legislative history of the Act reveals that Congress wanted the district court to consider the need for retribution and deterrence, in addition to restitution, when it imposed civil penalties. 123 Cong. Rec. 39191 (1977) (remarks of Sen. Muskie).” Thus, this citation, like most of the paragraph, demonstrates how to use language from cases that relied on legislative history in order to make legislative history invisible in your own brief.
Use only one or two rhetorical questions in an entire brief. But in the right spot, and Exxon picks a good one, a rhetorical question can crystallize and simplify an issue.
Exxon springs the trap that it laid by building its stealthy legislative history argument: it returns to the language that now seems indisputable — that the CWA was “comprehensive” — to imply that all common law doctrines are subsumed by the CWA. Exxon has leveraged two comments from two legislators that were cited by the Court decades earlier into an entire theory of how the CWA interacts with all state laws. This is extraordinary advocacy.