Professor Abbe R. Gluck’s Scholarship Cited in Three Supreme Court Cases this Term

Scholarship authored by Alfred M. Rankin Professor of Law Abbe R. Gluck ’00 was cited in three Supreme Court opinions this term, including in one opinion by both the majority and the dissent.

In the recent U.S. Supreme Court case FS Credit Opportunities Corp. v. Saba Capital Master Fund, which considered whether private parties have a right to sue for recission of contracts that violate the Investment Company Act, Gluck’s 2013 article, “Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I,” co-authored with Vanderbilt Law School administrative law scholar Lisa Schultz Bressman, was cited by both Justice Amy Coney Barrett’s majority opinion as well as by the dissent on the question of whether the Act’s legislative history should be consulted. The article, published in the Stanford Law Review, was the most extensive empirical study in history on the question of how Congress drafts statutes. The work has been widely cited, including previously by the Court. 

The same article was cited by Justice Ketanji Brown Jackson in Learning Resources v. Trump, the challenge to the Trump administration’s tariffs. Justice Jackson concurred separately to argue that both the majority and dissent should have included congressional materials in its analysis. She looks to Gluck’s scholarship for “evidence that lawmakers themselves pay more attention to these reports than a statute’s text to understand the statute’s purpose and meaning.”

Gluck’s scholarship was also cited in the case of Landor v. Louisiana Department of Corrections and Public Safety before the Supreme Court, which on June 23 concluded in a 6-3 ruling that a former prisoner, whose head was forcibly shaved, violating his religious freedoms, could not sue the prison guards responsible. 

Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justice Sonia Sotomayor ’79 and Justice Elena Kagan, to argue against impeding the way Congress drafts legislation in the Spending Clause context.

“Today’s decision might well land a serious blow to Congress’s effectiveness. Or it could end up merely a bothersome statutory drafting guide: If Congress adapts its Spending Clause legislation to fit the Court’s newly prescribed formulas — and if the Court lets it do so — then the majority’s robotic importation of contract principles will have little real-world effect,” they wrote. 

The dissent quoted from Gluck’s 2014 article, “Our [National] Federalism,” published in the Yale Law Journal, which detailed how Congress incorporates state actors into federal statutory law. They quoted the article to dispute the majority’s emphasis on contract analogies and to argue instead that “the suggestion that [Spending Clause] statutes are not ‘law’ on the same level as other pieces of legislation makes little sense.”

Gluck’s scholarship has concentrated on introducing a focus on the realities of the congressional drafting process, as well as the role of state actors, into the theories and doctrines of statutory interpretation. In addition to her faculty position at the Law School, Gluck is the founding faculty director of the Solomon Center for Health Law and Policy, a professor of internal medicine at the Yale School of Medicine, and a professor at the Institution for Social and Policy Studies at Yale. She is an expert on state courts and federalism, Congress and the political process, civil procedure, and health law, and her work is among the most relied upon by courts and scholars in the country.