Patrick O. Ojo, On Behalf of Himself and All Others Similarly Situated v. Farmers Group, Inc., et al., No. 10-0245 (DB)

This was a certified question from the federal Ninth Circuit. A Texas statute prohibits insurers from setting rates in a way that discriminates based on race. The narrower question was whether Texas recognizes a “disparate impact” theory that would permit a plaintiff to show that insurance credit scoring was discriminatory by looking at its effect (how people of different races are affected by the policy) rather than having to show direct discrimination that used race as a direct factor.  In other words, does Texas law permit credit scoring that has a discriminatory impact but is not itself directly discriminatory? (( Although a federal claim was brought by these plaintiffs, the defendants argued that Texas law controlled. This “reverse-preemption” applies to this question of insurance law because of the McCarran-Ferguson Act. ))

Justice Green wrote for a (nearly) unanimous Court, explaining that the Texas statute did not recognize a disparate-impact claim that would limit this type of credit scoring. (( Justice Willett joined most of the opinion but did not join its discussion of legislative history. Justice Hecht did not participate. )) Along the way, the opinion discussed the legislative history of the Texas statute, including a bill analysis and two formal reports submitted to the Legislature by the Department of Insurance.

Justice Willett wrote a concurring opinion to take issue with the majority’s discussion of legislative history, explaining that he would not refer to it when the statute is clear. Chief Justice Jefferson responded with a concurrence defending how the majority had folded legislative history into its discussion.

Justice Jefferson’s opinion does not defend reliance on legislative history per se. Instead, he goes to a much higher level of abstraction, explaining how legislative history fits into the craft of writing appellate opinions:

An appellate opinion is not a mere recitation of legal standards and conclusions. … it is also, perhaps more importantly, one part of a dialogue between parties, citizens, legislators, and judges—a dialogue that provides a historical record of the relevant controversy. Even where our decision is purely legal, it begins with an account of the case’s facts—the story of how the case arose, and how it came to be in front of us. Many times, we could give our conclusions of law without reference to any of this, but we choose to include this “extraneous” information because it gives context to our decision, making it more approachable to our readers and more easily integrated into our social fabric. In this sense, we as judges act as storytellers and historians.


We tell these stories because doing so is crucial to our legitimacy. Our judgments carry with them a threat of state authority. As justification for the coercive impulse behind our decisions, we give not only a conclusion but also a narrative, by which we seek to legitimize our decision by placing it in historical context, demonstrating that it is consistent with our notions of justice—and, indeed, that it comports with the state of the law.


When used in this contextual manner, there is little reason to think legislative history inappropriate for citation. An exhortation that extrinsic sources never be cited for any purpose gives such sources too much power and judges too little credit. … If we are trusted to make fair decisions despite recitations of sympathetic or compelling facts, why should we not also be trusted to give fair interpretations despite looking to legislative history for general background?

Justice Willett found this argument “vex[ing]” and the distinctions drawn here “gossamer-thin”:

Given that context is baked into construction, I cannot easily discern at what epochal point “contextualizing” (permitted) ends and “construing” (prohibited) begins. … I am concerned that one judge’s context is another judge’s pretext. … And how exactly are readers, absent an express disclaimer, to divine the true interpretive basis of a court’s decision? The concurrence depicts judges as “storytellers,” but given that context and construction are inextricably fused, how can one know when a court is telling a story versus selling a story?

Reading the dueling concurrences is worth your time.