Charles A. Sullivan (Seton Hall University - School of Law) has posted The Curious Incident of Gross and the Significance of Congress's Failure to Bark (Texas Law Review, Vol. 90 , 2012) on SSRN. Here is the abstract:
This Response to Professor Deborah Widiss's Texas Law Review article, Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation, is generally sympathetic to Widiss's concerns but cautions that she may be according Gross v. FBL Financial Services too much weight. Gross held that an amendment to Title VII liberalizing that statute's causation standard did not apply to the Age Discrimination in Employment Act.
Professor Widiss sees Gross as potentially creating a presumption that a congressional override of one statute requires related but unamended statutes to be interpreted differently than the amended enactment. While I agree that such a rule would be problematic, I argue that not only is Gross a deeply flawed decision unlikely to carry much precedential heft outside the situation it addressed but also that Professor Widiss underestimates the significance of a key limiting fact: the statute that amended Title VII to dilute the causation requirement also amended the ADEA, albeit in another respect. Surely, it is easier to infer in this setting an intent not to coordinate Title VII and ADEA causation standards than it would be had the Age Act never been addressed at all.
More generally, while I share Professor Widiss's preference for a more nuanced approach to statutory interpretation than the current Court manifests, I argue that courts should be hesitant to draw inferences from congressional silence since, Sherlock Holmes to the contrary notwithstanding, dogs don't bark for a lot of reasons.