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GENERAL GUIDELINES Think the problem through using the tools – focus for specificity See if the question gives you a roadmap Think through assertions of factual outcomes. Think through intuitions; don’t just state them. Focus carefully on facts unique to the case (judge has to write opinion; not appealable). Isolate the applicable part of the statute and don’t confuse it with other parts. Stick to the hypothetical and don’t talk about the course generally. If the argument you make for one side is a stretch, say so. The counter-arguments you make for one side do not have to mirror the other side’s

arguments. If something is just a quibble, mention it and say so. Are the arguments someone tries to make inconsistent with each other? Are people

unfaithful to their own logic? If there is statute, focus on each specific provision with specific precision. Don’t rely on

the checklist. Think about the incentives created for each decision/recommendation – which ones do

we want to create and which ones do we not want to create? Be careful that arguments don’t put you into an infinite loop Focus on the current question – don’t recite previous exams Think about when dealing with a new statute and when dealing with judicial precedent

I) INTRODUCTION: STATE V. POSTA) Holding: Slavery has always been legal in NJ. The Constitution does not specifically

outlaw it (life, liberty, pursuit), but it upholds property rights. This specific language trumps the vague language.

B) Relates to almost every section1) The Court takes a formalist approach (Slavery existed before Constitution so it

should exist after) (a) There is a precedent in MA outlawing slavery, but a similar case in VA legalizing

slavery (argue that the MA judge is anti-slavery, state is anti-slavery so it is natural for these feelings to dictate the decision)(i) Maintains legal intelligence over mere feelings – reference to MA judge?(ii) Opinion says “Judges must be more than men” – suggests that feelings should

not enter into the picture(iii) Protects law from undue public pressure

2) Freedom of Contract – can a person sell himself into slavery or decide he wants to stay in slavery for whatever reason?

3) Rules/Discretion – the judges don’t use the discretion that the MA judges used, they rely on rules

4) Statutory interpretation – Did the Constitution end slavery or did it not? How do you interpret statutes with conflicting plain language?

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II) PRECEDENT, FORMALISM, AND LEGAL REALISMA) Winterbottom v. Wright (coachdriver sued manufacturer after injury, but was hired by a

third party so he lost the suit)1) Rule of Law: The right to recover is confined to those parties that enter into a

contract2) Precedent used: Levy v. Langridge (def sold defective gun to plaintiff’s father; blew

up in the son’s hand; plaintiff won)(a) Difference between this case and Winterbottom is that the son was a minor who

could not negotiate on his own behalf3) “Hard cases make bad law”

(a) if court rules in favor of plaintiff, they will make bad law(b) you cannot be ruled by your sympathies, have to think about the future

B) Longmeid v. Holliday (def sold defective lamp that exploded and injured plaintiff’s wife; def not liable because no fraud present)1) Rule of Law: There must be an element of fraud or misrepresentation present in order

to claim damages when they do not have privity of contract2) There is no contract here like Winterbottom

C) Thomas v. Winchester (plaintiff was ill; husband went to fill prescription at pharmacy, but ended up with poison cause jar was mislabeled; they sued the manufacturer and won)1) Rule of Law: A dealer in drugs and medicines, who carelessly labels a deadly poison

as a harmless medicine, and sends it so labeled into market, is liable to all persons, who, without fault on their part, are injured by using it as such medicine in consequence of the false label.

2) The liability of the dealer in such case arises, not out of any contract or direct privity between him and the person injured, but out of the duty which the law imposes upon him to avoid acts in their nature dangerous to the lives of others.(a) Articles of an inherently dangerous nature, a manufacturer should be liable for

negligent construction because this makes the product imminently dangerous (difference between this case and Winterbottom)

D) Loop v. Litchfield (flywheel kills decedent; sold to him by the def; plaintiff tries to use Thomas to argue the flywheel was inherently dangerous)1) Rule of Law: If there is no contract with the party injured, there is no duty arising to

the plaintiff by the party guilty of negligence unless the defendant’s negligence puts human life in imminent danger

2) Holding: flywheel is not inherently dangerous so Thomas does not applyE) Losee v. Clute (steamboiler thrown on plaintiff’s property; allege that the boiler was

negligently made)1) Rule of Law: At most, an architect or builder of a work is answerable only to his

employees for any want of care or skill in the execution thereof, and he is not liable for accidents for injuries which may occur after execution of the work

2) Rule of Law: no privity of contract, no liability unless inherently dangerous3) Holding: decision for def. if the intermediary is at fault, don’t sue the manufacturer.

F) Statler v. Ray Mfg. Co. (plaintiff argues coffee urn was inherently dangerous after it exploded)

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1) Rule of Law: a manufacturer may become liable to third parties having no contractual relation for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous and causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction.

2) Holding: the court found that the coffee urn was inherently dangerous(a) This makes it clear that manufacturers need insurance for everything

G) MacPherson v. Buick Motor Co. (def sold car to dealer who sold to plaintiff; plaintiff thrown from car because of defective wheel not made by def)1) Rule of Law: “If the nature of a thing is such that it is reasonably certain to place life

and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used w/o new test then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully”(a) Old test of inherently dangerous replaced with foreseeability of injury(b) Cardozo asserts that had judges been applying foreseeability in all of those other

cases then they would have come out the same(c) Could argue that Cardozo made a new rule; the pre-MacPherson cases had made

the law unpredictable because judges were making exceptionsH) Strict Adherence to Precedent vs. No Strict Adherence to Precedent

1) Adherence(a) Maintains legal intelligence over mere feelings (Post)(b) Cases should come out the same because it is unfair to treat people differently

(rules/discretion)(c) Hard cases make bad law (Winterbottom)(d) Changing the law is the legislature’s job(e) Unexpected consequences of change in the law (Burke)

(i) There would be constant change; inconsistency in the law(ii) Science of gov’ment requires more knowledge than a person can obtain in a

lifetime, that is why we follow precedent(f) Deference to prior decisions (Burke)(g) By using different reasoning, not adhering to precedent – misrepresenting the

judge’s opinion (criticism of Cardozo)2) No Adherence

(a) Impossible for judges to be objective – requirement for strictly following precedent (Cardozo)

(b) Matching the colors of a case at hand vs. the colors of many sample cases is not a good way to decide cases (Cardozo)(i) It is when the colors do not match that judges must point the rule in the right

direction utilizing history, custom, or social utility (MacPherson)(ii) When social needs demand one settlement rather than another, there are times

when history must be ignored/custom sacrificed in the pursuit of larger ends(c) The shift that was evident in the legal system (MacPherson) is analogous to

science; as more and more accurate measurements are available, old rules that worked for the previous measurements no longer work (Kuhn)

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(i) “So long as the tools of a paradigm continue to prove capable of solving the problem it defines, science moves fastest and penetrates most deeply throu confident employment of these tools…retooling is an extravagance to be reserved when the occasion demands it” (Kuhn)

(d) “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV…” (Holmes)(i) precedent is important but other subjects need to be incorporated

(e) Who cares about precedent, judges should just do what is right (Swift)I) Characteristics of Formalism

1) Basic Premise(a) You can take the law as an area and reduce it to a relatively small # of principles

and these principles will dictate the results of cases (Langdell)(i) Example: State v. Post

(b) Law is characterized by custom, tradition, immutability (Purcell)(c) You can decide legal issues without any difficulty in a mathematical, uniform sort

of way2) Criticisms

(a) Human reason is not always fallible and sometimes it is okay to challenge long standing ideas

J) Characteristics of Legal Realism1) Basic premises

(a) Law is not a self-contained body of thought; you have to consider other things (history, economics, etc.)

(b) Precedent can stand for two different things which leaves the judge to interpret it2) Criticisms

(a) What if the social scientists don’t have all the answers – new realism can become like the old formalism in the sense that realists may stick to the social sciences the way formalists stuck to their mathematic like deductions

(b) Predictablility problems – don’t want judges to write opinions from nowhere(c) Precedent forces a check on the legal system

K) The law as both formalist and realist1) The rules change as the rules are applied (Levi)

(a) The law is both formalist and realist – “a controversy as to whether the law is certain unchanging and expressed in rules, or uncertain, changing, and only a technique for deciding specific cases misses the point. It is both.

2) Adjudication is a creative process, but it is constrained by traditions and habits as well as rules (Llewellyn)(a) There is a middleground where judges can apply their own intuition about the law

in order to come up with a decision – judicial craftsmanship (the middleground between precedent and anything goes)

L) Useful analogies for thinking about the law1) Chain novel idea – develop an overall theory and make sense of it (Dworkin)2) The idea of lawmaking as akin to a craft (Kronman)

(a) “the existence of a craft means the existence of some significant body of of working knowhow…”

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3) The law as a moving classification system (Levi)(a) “Ideas first rejected but which gradually have won acceptance now push what has

become a legal category out of the system or convert it into something which may be its opposite.”

III) COERCION, CONSENT, AND CONTRACT: THE NATURE OF FREE CHOICE

Who are the two parties making the contract? Who do they represent? Could there be any pernicious motives to limiting freedom of contract? What are the incentives on both sides? Find the exchange that takes place, even if it’s a “volunteering” situation. Find the benefitDon’t forget that we are looking at the legislature’s ability to limit freedom of K – a matter of

regulatory powers

A) Lochner v. New York (baker violated the labor law by unlawfully requiring an employee to work 60 hours a week)1) Rule of Law: there is no reasonable ground for the state to interfere with the liberty

of person or the right of free contract in the occupation of a baker2) Freedom of contract issue: The underlying premise of freedom of contract is that

people have enough sense to decide what is best for them; that people’s choice reflect their interests

(i) Counterarg: might be an instance of coerced choice because no one really wants to work 60 hours a week, but might have to

B) Green v. County School Board (school board enacted a freedom of choice approach to let pupils choose their schools in order to desegregate; problem is nobody moved so Court says board has to try something else)1) Collective action problem – group cannot get it together so that prevents an

individual from acting on their desires(a) When there is a collective action problem you cannot make the inference that

people’s choices reflect what they want(b) Counterarg: People may volunteer in order to gain stature in their

community/social group; opposite of collective action problem, but still does not reflect what the person really wants

2) Adaptive Preferences – the pupils may prefer the schools that they are at, but only because that is what they think is available to them for whatever reason (coercion, threat of violence, etc.)

3) Freedom of choice/contract – people clearly want to go to the schools that they have chosen and the Court is helping no one by taking these choices away(a) Counterarg: their choices are not really their choices if they are made because

people are scared of violence or scared of being the outcast for going against the grain (sour grapes idea – people are content with what little they can get (Elston))

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C) Harris v. Forklift Systems, Inc.1) Rule of Law: An environment can be determined to be hostile based on the

frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, and whether it unreasonably interferes with an employee’s work performance; however, no single factor is required. Furthermore, Title VII says nothing about psychological harm being prerequisite.

2) Freedom of contract issue: people have the right to leave jobs where they are going to be harassed so government has no right to try to regulate these types of relationships(a) Counterarg: How can this be something left up to the parties when sexual

harassment is something that is woven into the fabric of the workplace; that is why the law is needed (MacKinnon)(i) Crystallization: previously, sexual harassment was not defined as a category,

so people could not contract in order to prevent it; the laws provide a way for people’s desire to be expressed and then you can negotiate it

(ii) Externalities: sexual harassment affects all women in the workplace, not just one

(iii) Information Asymmetry: When people exercise their freedom of contract in a certain way, they are seen to be signaling something about themselves(i) This is justification that there should be limited freedom of contract

because the little indicators may not be true indicators of person’s character

D) Surrogate Parenting Associates, Inc. v. Kentucky (court held that surrogate parenting does not equate to the buying and selling of children)1) Bounded Rationality: People are overwhelmed with incentives; if someone comes to

you and asks you to sell your kid, you are only looking at the immediate benefit/detriment and not issues that may arise down the line (a) Counterarg: you can’t solve all bounded rationality issues by giving women the

right to repudiate the contract2) Freedom of Contract: the baby is the woman’s property and she has the right to sell

it(a) Externality: The baby is a third party and it would be better off with a family

who wants it(b) Physic Externality: It is not about the people engaging in these activities, but

about the rest of society (see anticommodification argument)3) Anticommidification: by turning certain things into commodities, you lower its true

value; certain kinds of human goods preclude exchanges (babies)E) Romeo and Juliet (apothecary cannot sell the poison to Romeo even though he wants the

money and Romeo wants the poison1) Freedom of contract issue2) Bounded rationality – suicide3) Externalities – you don’t want the poison wandering around (not a very strong arg)4) Anticommodification – exchanged transactions turn people into less than people

(a) Apothecary: “my poverty, not my will, consents”F) Arguments for freedom of contract

1) Autonomy

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(a) Limiting people’s freedom of contract will not solve the poverty problem because you are limiting their choices (Viscusi)

(b) You should not prohibit people from working at dangerous jobs because they have decided that the compensation is worth the risk (Viscusi)

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(c) People should be able to make their own decisions (Viscusi)(i) Counterarg: assumes people know what they want; this has its limits like the

coal miners in Lockner2) Benefits Both Parties/Bargain Theory

(a) If both parties agree, then it must be benefiting them in some way(b) Regulation increases administrative costs – passes them onto the worker and

consumer3) Liberty

(a) Central planners may go too far and encroach upon rights of parties to the contract(i) Planners may have sinister motives (a statute enacted to keep out foreign

laborers – Lochner)(b) Regulation of a market often creates a worse situation(c) People should bear the consequences of their actions(d) We need to maximize knowledge, which requires liberty (Hayek)

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(e) The advance and preservation of civilization are dependent upon a maximum of opportunities for accidents to happen (Hayek)(i) People need freedom to discuss options, freedom to make choices, may not

lead to success, but the alternatives will be worse4) Compensating Differentials

(a) People get paid for any risks/externalities they take (Viscusi)(i) Counterarg: assumes perfect information

G) Arguments against freedom of contract/ Restrictions on freedom of contract1) Externalities

(a) The social costs of a bargain - when it affects third parties (Lockner)(i) Will contract hurt person’s family? (coal miners)

(b) Externalities count but you have to weigh people’s desire to do things against other people’s interest

(c) Counterarg: People who are trying to correct what people are doing make bigger mistakes because it is spread over the whole society whereas people making their own decisions usually only affect them or a smaller number of people

(d) Counterarg: Do not matter unless they have a tangible effect on you2) Moralisms

(a) Weighing people’s right to do things against other people’s moralistic psychic interests (Calebrisi)(i) Counterarg: freedom of contract will solve this problem; people who have a

problem with something may try to enter into a contract to solve this externality

(b) Difficult to calculate or measure these harms(c) Who are we to impose our morals when there are no externalities

3) Incapacity(a) When people are, in some way, incapable of entering into a contract

(children/mental defect) – (Lockner)4) Bargaining Inequalities/Coercion

(a) Circumstances of uneven bargaining may have forced people into a decision (monopoly for example)(i) One way employees can deal with this is by forming a labor union (possible

collective action problem if they have trouble organizing)(b) Usually happens when one person lacks an education and can only get one type of

job(i) Freedom of contract counterarg: if my only option is to work in this coal

mine and you tell me that I cannot because of unsafe work conditions, how are you helping me?

(c) When does social pressure, pressure to conform amount to coercion?(i) Green – social pressure vs. threats of violence(ii) Mill – women are taught to believe it is their duty to live for others and to

have no life but in their affections to men

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5) Redistribution Concerns(a) Poor people can be taking advantage of or exploited

6) Bounded Rationality (a) Human brains are not perfect computers and they have certain limitations; our

ways of processing info quickly do not always work(i) Counterarg: You cannot draw lines between children/disabled people and

other people because no one is perfectly rational; no one weighs info perfectly (Hayek)

(b) People are not perfect calculating machines so it is hard for them to know what is best and even when people are presented with all of the information, they sometimes misevaluate it

(c) People do not act rationally, but based on certain heuristics (availability, anchor, representativeness) which skew people’s perceptions of situations (Tversky)(i) Availability: when things are salient or apparent to us, we tend to overestimate

its likelihood; issue here is how to we get people fully cognizant of the risks of certain contracts they may enter when they are bounded by these heuristics

(ii) Anchoring: tied to initial value, which may need adjusting(iii) Representativeness: frequency

7) Monopoly (Relates to Coercion)(a) May not be voluntary; coerced, in effect by social conditions, lack of choices

(Lochner)(b) Coal miner town and no other job

(i) Counterarg: if you want to help, break monopoly, don’t restrict freedom of contract

8) Collective Action Problem (Green)(a) No one wants to be the first mover(b) Since we cannot count on people’s behavior to do what they want, by forcing

them to do it we act in line with their preferences(c) Will be viewed as a troublemakers – people would rather be free riders

(i) Counterarg: what if this is what people really want? (not desegregation)

9) Bad/Adaptive Preferences(a) Sour Grapes Argument – you assume you don’t want something because you

can’t have it; you are restricted in your choice(b) False Consciousness

(i) The idea that people’s desires have adapted to what is available(ii) Might be something ingrained in culture (blacks accepting segregation) or

prior common experience (Stockholme syndrome); won’t fight for rights(i) Some people have adapted to what is available (Green)(ii) Some people adapt for evolutionary reasons – learned along the way that

couldn’t be a baseball player so stopped trying; where to draw the line?

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1. You want to think about whether preferences have adapted in situations that are unfair, coercive, etc. vs. where they have not

(iii) Counterarg: why should we want to change people’s preferences just because we think it is wrong?

1. Counterarg to Counterarg: anytime someone’s desire has adapted to what is available to them, then it is not a true desire

10) Crystallization of Preferences(a) Proscribing activity helps people recognize that they don’t want it (sexual

harassment)(b) Something seems unacceptable but we need a law to crystallize it for proper

recognition and understanding(i) Counterarg: once it has been crystallized, why not waive it?

(i) Information asymmetry: if you don’t choose to waive it, it may send the signal that you are a trouble maker (sexual harassment)

11) Anti-Commodification (baby/organ selling) (a) Some things should not be alienable (Marx)

(i) Profanes relationships (no longer a friendship)(ii) Price tags on people lives (selling organs)(iii) Lessens values of gifts/altruism (Titmuss)

(i) The idea is why would you give up something when you can get money for it

(ii) Counterarg: isn’t this just a moralism (people don’t want things like baby/organ selling going on)?

(b) Sometimes less choice is more choice because people don’t want to be in a position to think about how certain things will affect them; would rather not have the choice to be able to sell their baby or their organs

(c) People may get a benefit that is nonfinancial and paying them may deprive them of this (ex. Soldiers taking experimental drug for stature among comrades, not pay)(i) Counterarg: commodification could be good; soldiers turn more rational and

business like because nonfinancial motivation is gone (may take stupid risks to impress comrades)

12) Information failure

(a) If people do not know how dangerous a job is, we should forbid that work (Viscusi)

(b) May not know the relevant facts to bargain properly(i) Counterarg: can be corrected by distributing info

(c) Some risks are immediate, but others may take time (d) Lower paid and less well educated workers end up in riskier jobs, and have fewer

choices (Viscusi)(e) Counterarg: providing people w/ info regarding the risks may cause them to

overreact to the danger13) Freedom of contract/formalism

(a) Suffers from the same vices as formalism(i) Resistence to complexity

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(ii) Refusal to see that things are more complicated(i) Counterarg: avoids the problems that realism encounters, putting

excessive faith in public officials

IV) THE DILEMMA OF RULES AND DISCRETION Think of the tensions between flexibility, accuracy and equality, predictability. Apply each problem to the unique facts of the case. Rules might be better since will have discretion in either case – at least it is less likely to

be directly racist The key point when deciding between a rules/discretion regime is to LOOK AT FACTS

AND PARTCULARS of how the regime will be applied – similar situations in other places, how over- or under-inclusive, what will the police (or other enforcement agency) act like – how much confidence do you have in them, how must do your trust their discretion, how well-trained are they, how diverse a population is, whether a rule will impact a certain subset’s behavior more than another’s etc. Also, will there be discretion in the judges and juries who deal with a case (if it is before them).

But neither seems to work – rules lead to freedom, and discretion leads to restrictions (this is because of the need to enforce in either case)

Anti-/freedom of K relates to when the govt is good or bad at making decisions – if the govt is good, then need standards and rejecting freedom of K, but if the govt is bad, need rules and freedom of K

Note relation to formalist/realist in the College Dean hypothetical Aristotle’s relationship to statutory interpretation

A) Pappachristou v. Jacksonville (1972) 1) Vagrancy law was found unconstitutional; criminalized innocent activities2) Law will never be enforced as it was written because it is vague and subject to

discretion of policeB) McAleer v. Outerbridge Horsey (1872)

1) In certain situations, vagueness is okay because too precise a definition becomes a roadmap for evasion

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C) Stanley v. Illinois (1972)1) Law makes assumption that all unwed fathers are unfit, instead of judging each

individually, which would be more costly to administer2) Stanley had to show that the generalization did not fit him so the court should grant

him a hearingD) Railway Express Agency v. New York (1949)

1) Justice Jackson – if a rule is applied to both the rich and the poor (evenhandly), then if it is a bad rule it will be changed because it affects everyone equally(a) Equal protection creates forced political responsibility

E) Arguments in favor of Rules/ against discretion1) Lack of notice/unfair surprise

(a) To tell someone that he broke the law when there is no way for him to know that his action broke the law offends our sense of fairness (Pappacristou)(i) People don’t know what is lawful and what is not

(i) Counterarg: it is wrong to say people don’t know what is going on in a discretionary system; a tradition or pattern has been established that make the system understandable

(b) Does not give fair warning(i) The reason we have laws is to get people to behave in certain ways, and if

people are constantly guessing at what the law is then they are not going to behave correctly until you arrest them (Pappacristou)

2) Inefficient/waste of resources(a) This applies to both citizens and the government

(i) Ordinary people can’t plan affairs(ii) Hurts the govt. – fails to deter, poor way to organize society

(i) Police would have to constantly arrest people because they don’t know what the law is

3) Arbitrary and discriminatory enforcement(a) With a vague rule, officers will only go after a subset (one group being disorderly,

the other group “just being kids”)(b) Unless a rule is enforced evenhandly, there will be discriminatory enforcement

(Jackson)(i) Ensure equality and bad laws will drop out of the picture (there would be no

need for courts to strike down ordinances as bad law or for discretion because the rich as well as the poor will protest if a law is bad)

(i) Counterarg: police are always risking their lives and they need to have the discretion to arrest suspicious characters who may be a threat

(ii) Counterarg: It is problematic to say that laws will be changed if people complain because if a law is only affecting the lower classes, then it will not be changed because they have no influence

(c) Rules restrain judges; not free to do what they want; better than a case by case basis where judges have a lot of discretion (Scalia)(i) Case by case approach may disguise a judge’s discriminatory enforcement(ii) Counterarg: rules are subject to interpretation so the restraint is limited

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(iii) Counterarg: the judge that is deciding the rule is not restrained; she is deciding the case before her and those that resemble it closely

(iv) Counterarg: Is it safe to assume that a judge will be any good at devising a rule for a case whose facts can’t be anticipated?

4) Accountability(a) Rules may protect against arbitrary and unreasonable government (Jackson)

(i) If you know the rules, you can hold the government accountable for their actions

(ii) Counterarg: rules may hurt poor more than rich (France)(i) Bounded rationality, collective action, or adaptive preference might

impede protest(b) People are accountable for their actions; if you know the rules, you can choose

how to act(i) Stanley – here is what happens when you don’t marry the mother of your

children; if you knew the rule, don’t expect the state to bail you out(i) Counterarg: it is not reasonable to expect people to know all of the rules

that apply to their situations because people just do not think like that5) Administrative Costs

(a) Clear rules require less adjudication (how to calculate if each 17 year old is unfit to vote, if a person is too drunk to drive)

(b) Rules save administration costs (Stanley)6) Dignity (discretion is the idea that regardless if you have a benign master, you are

still a slave, and there is no dignity in that (Locke))(a) Subjecting oneself to the whims of another; Rules depersonalize authority so it is

better to have an impersonal rule than be at the will of another, even if the rule is less positive than a whim (Locke)(i) Being subject to someone else’s will is bad, undignified, and servile no matter

how just the discretionary system is; it is better to appeal to a rule and know where you stand even if you are not being treated as well

(b) When a system is too discretionary, it becomes a vicious form of tyranny and people stop fighting and give up (Fuller)

7) Who makes the rules?(a) When people enter into a political association and they are required to issue rules

for other people, they will, under certain circumstances, change and they will be able to consider other points of view and circumstances; you go from being selfish to being concerned for others (Rousseau)(i) Counterarg: people who make the rules are imperfect, irrationals beings like

everyone as well and everyone who gains power does not always go through this transformative process from selfish to benevolent

8) Reciprocity between people and government(a) Rules prevent inconsistent rewards and punishment(b) Rules dehumanize people, but this is good (Weber); you don’t want people

thinking about other things when you are trying to enforce your rights9) Rules are more conducive to the market

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(a) A person can plan his economic affairs because he knows the rules(i) Capitalism needs rules so people can know where they stand in order to plan

(b) In a market system, rules are needed for a person to calculate what he is doing (Weber)

10) Rules are a sign of advanced civilization(a) Using discretion is like looking at omens for advice and lords for discretionary

decisions (Weber)(b) Discretionary judgment is irrational and smack of fortune telling (Weber)(c) A good legal system evolves towards rules (Fuller, Weber)

11) Rules/Freedom of contract(a) People have more freedom within the rules because he would be certain that the

powers of the gov’ment will not be used to deliberately frustrate his efforts (Hayek)(i) It is not the rules persay that allow freedom of contract, but the fact that people

can make more decisions on their behalf within the rules; it makes it hard for people to plan when there is a lot of discretion

(b) You can have freedom of contract that is rule governed because the attitude that goes with freedom of contract is let people look after themselves, take responsibility for their actions – and this is the type of attitude that goes with rules(i) Give people some rules, turn them loose, and let them do what they need to do,

but if you introduce discretion, then it limits this freedom of k (Hayek)12) Rules ensure predictability

(a) People will know the rules that judges/lawmakers announce and will plan their behavior accordingly(i) Counterarg: even when judges announce a rule, people will be guided by their

rough sense of what is permitted and what is not(ii) Counterarg: there may be more predictability if judges decide cases in a way

that conformed to their sense of justice if people know how a judge is deciding cases versus a judge applying a rule and making unacknowledged exceptions

F) Arguments in favor of Discretion/ against rules1) Rules are crude (over and under inclusive)

(a) Discretion allows everything to be taken into account(i) Allows consideration of particular circumstances and context, which may be

important in achieving a just and fair outcome (b) Rules look at a person one-dimensionally (Stanley)(c) Police won’t arrest everyone if the law is over-inclusive(d) Rules never line up perfectly with the behavior we want to proscribe – won’t

achieve the objective that it was made for2) Unduly harsh rules lead to underground exceptions

(a) Judges/police find ways to use discretion anyway(i) Counterarg: if rules are evenhandly enforced, then people will protest if a rule

is too harsh; if it is arbitrary, only the weak will protest (Jackson)

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;

(i) Counterarg: but some rules only hurt the weak (France)(b) Judges often make exceptions to unduly harsh rules without acknowledging that

they are doing so3) Rules can be a roadmap for evasion

(a) If you define everything in the law, you give people a chance to figure out a way around it (McAleer)

(b) The more specific you make the law, the more opportunities you create for evasion

4) Rules can be facially neutral, substantively unjust(a) Only poor people will be hurt if forbid sleeping under a bridge, begging in the

park, or stealing bread (France)(i) Generality in appearance is not a guarantee to generality in application

(b) Leads to equal protection and due process problems (Stanley) because there is a lack of individualized determination

5) Discretion is a sign of an advanced civilization(a) Rules are good to a point, but they fail to include one’s moral intuitions or sense

of justice (Aristotle)(b) Rules are necessary, but they only go so far; discretion is a mechanism for filling

in gaps and correcting problems not foreseen by the rules (Aristotle)(c) Rules are primitive, a starting point; systems that are developing will recognize

the need for discretion (Oakeshott)6) In General, all rules are subject to interpretation

(a) This relates to #2 – someone has to enforce and this enforcement involves some form of interpretation

(b) There is a capacity to exercise reason that falls between rules and discretion; this has to do with interpretation, judgment, lawyering as a craft (Llewellyn)(i) Fernencis – practical wisdom, you get it from practicing and just being good

at it; you can’t spell out a bunch of rules in order to make people have good judgment (Aristotle)

(c) Counterarg: not all rules give rise to such varying interpretations; furthermore, the fact that there is a rule will often make things more predictable than if there were no rule

7) Rules can conflict(a) Discretion is needed to resolve them

8) Rules fail to adjust to societal changes and technological advances(a) It is impossible to draft a rule to cover all types of behavior; as society changes,

rules don’t necessarily change fast enough to keep up with it(i) Need a broad rule (allowing for more discretion) to catch certain kinds of

criminal or suspicious behavior that the rules may not specifically cover9) Discretion goes with anti-freedom of contract

(a) Discretion has the attitude of give people a break, some people cannot look after themselves, and this is the attitude that goes with regulation of freedom of contract/anti-freedom of contract(i) Individualism has strong tendencies with freedom of contract; altruism is

aligned with anti-freedom of contract (Kennedy)

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;

V) THE INTERPRETATION OF STATUTESFind quickly the controversial words or phrases in the statute. Isolate the applicable part of the statute and don’t confuse it with other parts. (Adjective

and adverb problems). Examine a word or phrase in dispute in context with surrounding words. What if the legislature omitted a key word or phrase? Relationship to rules/discretion Relationship to realist/formalist – am I just doing the will of someone else, or am I an

interpreter of the political process who must fix it when necessary (transformative process vs. just passing on laws

Is Weber an FOC case – allowing companies to create their own aff action plans? Aristotle –set stage for pushing rules as far as they can go, but sometimes need to think

about what lawmaker would have done in a situation where rules were under- or over-inclusive – statutory interpretation (controversial) – he believes in PL idea, but then says need to go to LH and Intent when necessary

“General Propositions do not decide concrete case” – idea of a “general” statute and a specific case falling under it (Holmes dissent in Lochner)

“plainly and palpably” See SPC v KY (?) LH and intent are invoked when needing to give statute “a sensible construction”

1) TVA v. Hill(a) The court rejected TVA contentions that the word “action” in the statute does not

cover projects that are substantially completed(b) Concurring and dissenting opinions disagree on the meaning of words(c) Court uses legislative history to confirm what they thought about the language

2) Church of the Holy Trinity v. US(a) Gov’ment arg: when you have language that is so specific and redundant, the

lawmakers are trying to cover everything (expressio unius)(b) Court: Why reach a result that Congress does not want us to reach? Look at the

legislative history and look at the debates to see who Congress wanted to exclude; amending the statute is a cumbersome process that does not guarantee the same result; excluding a pastor would be absurd under this statute when it was meant for cheap, foreign labor

3) United Steelworkers v. Weber(a) Cites Holy Trinity, look past the language and see the intention of the legislature(b) We are not classifying employees in a way that limits people’s opportunities; we

are actually fixing something that would be a Title VII violation (employment discrimination) and trying to intergrate our workforce

(c) Court argues that if they declare this unlawful by going with the plain text (“unlawful to discriminate because of race in hiring”) then they will thwart both of the purposes of Congress: expanding the opportunities of blacks and allowing managers to run their workplace as they see fit

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;

(i) Counterarg: the purpose of this legislation was not to help blacks but to ensure colorblind hiring (court may be wrong about Congress’s purpose)(i) Counterarg: this law was passed with the plight of blacks in mind

(availability heuristic)4) Illinois v. Fitzpatrick

(a) Does face to face in the Constitution literally mean face to face? Court says yes(i) Dissent says no, the purpose of the provision is so the defendant can question

his accusers; if closed circuit tv accomplishes those purposes equally well, then okay

(ii) Being face to face may not accomplish the goal of the statute which is to cross-examine witnesses; may actually hurt this goal (think Brando, intimidating witnesses)

(b) Constitution does not address the issue of closed circuit tv(i) Constitution does not have to change every time society changes (against

amendment)5) Circuit City Stores v. Adams

(a) Majority: We have to interpret this language in a way that it is not redundant; they attach a lot of significance on the terms in statute to determine exclusion

(b) Dissent: No, this language is redundant because Congress was being cautious(i) You can use the legislative history/purpose to see that congress meant to

exclude all employee contracts from arbitration6) Riggs v. Palmer

(a) Lawmakers cannot have meant for a murderer to be able to inherit his legacy of the victim; this is an exception to the rule(i) Counterarg: it still would have been better to follow the rule so that the court

cannot arbitrarily decide who gets their legacy and who doesn’t because some cases will be hard and some won’t (judges will have too much discretion)(i) In this particular case, it may seem ridiculous to let the def recover, but

you cannot go by this particular case; you have to think about the other cases that may arise

(ii) Freedom of Contract: the testator made his decision, why not let his will be carried out? What right does the court have to alter his decision?

B) PROBLEMS WITH INTERPRETATION1) The failure of the language

(a) Legislature isn’t always careful with the language(b) Words can be unclear, or do not carry out the intent of the statute(c) PL may lead to an absurd result

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;

2) Failure of foresight(a) Technology/societal changes can present an unknown option (Fitzpatrick and

closed circuit TV)(b) Language may not have been written with the cases in mind that ultimately arise

(i.e., TVA v. Hill) (i) Counterarg: it would make it difficult to write laws if legislatures had to think

of every possible instance in which the law could apply to; they did think about the problem generally (exceptions), but you cannot anticipate every case that a law might apply to(i) Counterarg to counterarg: how could the legislature not think of

something like as extreme as TVA? The language should not stand in our way and we should decide this case based on what Congress would do

(c) Legislature cannot always go back and change the language – the players may have changed and/or legislature is busy with other things

3) Punt(a) Sometimes the legislature writes a statute that does not solve an issue; statute is

drafted in a way where both sides can claim victory or it is the result of compromise(i) See also legal process

C) SOLUTIONS: How should a judge interpret a statute (there are times when one may go with only plain language or only with legislative history, intent, but this is rare)1) Plain language

(a) Find arguments pro and con as to whether the act falls under the statute’s language – make sure to see how far the language can stretch

(b) It is extremely rare to ignore PL – usually argue that the PL goes with the interpretation

(c) However, you don’t want to stretch PL so far that it does not make any sense – beyond its ordinary use

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;

2) Purpose/intent of the statute (isolate the part of the statute in question first)(a) How narrow or broad is the statute?(b) Would the legislature have included this if they knew? (Riggs, Holy Trinity,

Fitzpatrick)(c) Carefully distinguish the act from cases intended to fall under the statute(d) Think of possible exceptions (snail darter, preacher – absurd type situations)(e) Congress may be more willing to let the Court fix situations where they are trying

to institute changes over a generation (Title VII) versus something small (tax law)3) Legislative history

(a) Look for subtle things in the legislative history(b) Was this statute enacted in response to a particular event? Is the purpose broader

than the event? (Holy Trinity)(c) Measure the legislative history next to the plain language. Could this be fake LH?

Could there have been other ways to achieve the stated goals?D) ARGUMENTS FOR AND AGAINST VARIOUS INTERPRETIVE METHODS

1) Why plain language?(a) Using LH or Intent is arbitrary

(i) What if no cognizable intent?(ii) What level of intent? Competing intents/purposes in TVA (save snail darter,

build dam)/Weber (fix past discrimination, color blind hiring)

(b) Guessing about the intentions of Congress gives judges too much discretion(i) Avoids legislating from the bench – let legislature amend(ii) Plain language is closest to what legislature voted on(iii) If not written, then omitted – generally (expressio unius est exclusio alterius)

or during the process(c) We want to create a climate where Congress will know that if they want their

intentions to be met, they need to express it in the language; it is better for the implementation of laws(i) Justice Jackson argument: if the legislature wants to write a law that has an

ethnic bias (Holy Trinity), then we are going to keep out the pastors and all the people this law was not intending to keep out until you change it

(d) Penalty Default Rule: Strict interpretation; Congress needs to be more careful with the language that it uses so cases like TVA will not keep coming up(i) Supreme Court is disciplining the legislature by going with the PL because

even though they know their intentions, they refuse to implement them so that they will draft better laws

(ii) Prevents interest group opportunism in the legislative history(iii) More incentives to be clear(iv) Political accountability; legislature can’t punt decisions off to the courts(v) Avoids the fair warning/unfair surprise problem

(i) Counterarg to penalty default: we don’t want Congress spending all of their time tying down loose ends; sometimes they leave things vague not because of political compromise but because of legislative economy

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;

(e) The judge’s role in interpreting a statute is that the judge acts as Congress’s agent; it is not proper for a judge to say Congress wants to do this, but I think it is bad so I am going to change it; should stick with the language

(i) Counterarg: a judge can re-interpret the law even if he sticks with the plain language

(ii) Counterarg: acting as Congress’s agent may also mean looking past the text to the legislative history1. The idea is that if the Court wants to be a faithful agent, they have to

make adjustments in order to carry out the mission in situations that they could not have foreseen. Congress could not have possibly wanted them to interpret their language in a way that creates an impossible situation.

(f) Could interpret PL, if unclear, for path with least irreparable harm and hope legislatures fixes(i) Legislatures change, not guaranteed they will fix the problem

2) When not to follow plain language?(a) What if language is not plain?(b) Drafting error(c) Defeats the purpose of the statute/spirit of the law (Holy Trinity); language is

stretched too far

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;

(d) Language is ambiguous or unclear – Fitzpatrick (face to face)(e) Changed circumstances – the language is unclear or obsolete(f) If language was not written with this case in mind, we should not try to use this

language to decide this case, instead we should use legislative history(i) (i.e. Riggs)

(g) Court may decide that it is their job to “update the language” in the sense that they will decide the case according to the political climate of the time rather than at the time the bill was passed(i) Counterarg: court should not be updating; if Congress wanted it updated, they

would do it themselves(h) Holy Trinity Argument: If you don’t look past the plain language, you get an

absurd result3) Exceptions

(a) Expressio unius (i) While Congress did not mean for this language to apply across the board, by

spelling out certain exceptions Congress meant to say “and there are no others” outside of the exceptions already spelled out in the statute (TVA)

(ii) Counterarg: Why reach a result that Congress did not want us to reach? Look at the legislative history and look at the debates to see who Congress wanted to exclude

(iii) Whenever a judge is in a position to say here is how you fix an unseen problem that is not covered by a statute, they are making an argument for amending not interpreting the statute(i) Counterarg: The constitution does not have to change every time we

have a change in our society; it is not efficient 4) Why Legislative history?

(a) When the plain language is not clear, LH can enlighten as to what was going on and make sense of the plain language

(b) Helps us understand the intent/purpose of a statute(c) Helps avoid absurd results

5) Why not legislative history?(a) Generally a sketchy concept – we don’t know the deals that were going on nor the

relative strengths of the committees(b) The committee is not Congress; it is hard to get the intent of Congress out of a

committee report(c) the LH is not the law – this is not what was voted on(d) this is not what people see when they are dealing with the law (fair warning)(e) may have conflicting elements; in a huge piece of legislation, will be able to find

arguments for both sides6) Why intent (Holy Trinity/Weber dissent – blow off PL)

(a) Allows one to get to the heart of a piece of legislation and qualify one’s interpretation of a statute accordingly

(b) Prevents absurd result(c) Ignoring intent and sticking to PL is bad if we think they contradict

7) Why not intent?(a) Judges may get the purpose of the statute wrong

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;

(b) Purposes are too complex to rely on for statutory interpretation; the purposes are going to be complex, multi-faceted, and cross-cutting

(c) Intent is sketchy – if it is far from the PL (Holy Trinity) you get the same problems of 1) fair warning and 2) not the law/what was voted on

(d) Intent may be broader than the law that was actually produced – it can be an excuse for ripping open legislation by claiming that something is part of the intent, simply because intent may be broader than the original evil that caused the legislation

8) Evil that brought on the legislation/ reason behind the statute(a) When everything else is unclear and/or unknown, at least we know what the

statute is about(b) Legislatures focus on one specific problem usually after a huge incident

(availability heuristic) and it alerts them to a more general problem9) Use of Policy in interpretation

(a) Is the language unclear enough to allow policy concerns?(b) Is it a policy Congress has rejected?(c) Will it lead to an absurd or unjust result?(d) Underlying every rule and standard is a policy and/or principle which is always

available to guide judgment in resolving uncertainties about the rule’s meaning (legal process)

(e) Look to see if the language is clear and then determine what is the best policy (Radin)

10) Constitution v. Statutes(a) Harder to amend the constitution (Fitzgerald)(b) No need to worry about holding the “framers” accountable(c) Constitution is cast in general terms, w/o specific incidents in mind. Meant to last

for centuries11) Extreme Legal Realism

(a) Radin, Llewellyn (for every maxim there is an opposite); look at PL and do what you think is best

(b) History is not relevant; easily manipulated; does not reflect compromises(c) Just do what is right – what will lead to a desirable result(d) Realists say that judges often make decisions based on “what they ate for

breakfast”(i) counterarg: Legal process was a response to extremes of legal realism; there

is a reasonable way to go about solving legal problems even if realists were right in saying that it is not like doing math; there is a reasonable way to exercise your judgment

12) Legal process (a) When the language is not clear, you interpret the language in a way that furthers

the purpose of the legislature(i) Counterarg: a judge may be too quick to not follow the language in order to

look at the purpose(ii) Counterarg: there may be a disagreement about the purpose of a statute; it is

dangerous to think that a statue has a single purpose; they are cross-cutting

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;

(i) TVA – has a pretty clear purpose (save animals) but legal process still does not solve all the problems (at what cost?)

(b) When reasonable people get together, they can solve problems in a way that can suppress conflict(i) No reasonable person would have wanted this outcome – no purpose is served

by the result (Riggs)(ii) Counterarg: maybe we will have some disagreements and we will be unable

to solve the problems(iii) Counterarg: what about a PUNT?

(i) Courts will look at the legislative history and see that the decision was meant to be left up to the court; legal process does not solve the problem

13) Public Choice Theory(a) Statutes are the product of different parties with different agendas and there are

winners and there are losers; the statute comes out as a result of all of these conflicts being fought out and the result is multiple purposes(i) Counterarg: while statutes don’t have a clear purpose, maybe judges should

impose a purpose on them; you have to interpret the statute somehow(b) Introduces collective action problem: an individual will gain from group activity

even when the individual does not participate(i) This is the free rider problem especially in big groups because it is the idea

that your money will not make a difference (because it is so many people) so why contribute at all, but if everyone thought like this, group would fail(i) Small/Medium groups overcome this because they are more supportive,

organized, and cohesive; consequently, they do better than bigger groups in getting legislation passed

(ii) Look for the group that has an interest in the legislation and how well organized/powerful they are1. public choice argument – interpret the statute in a way that leans

against these well organized groups in situations of ambiguitya. criticism: How do you know that it is interest groups behind the

legislation? Maybe there is an interest group supporting it, but it is going against the public goal. If there is an interest group on all sides, then there is no way you are going to be able to choose one

14) Scalia(a) Rules guy; understands there is a dilemma here(b) He acknowledges the over and under inclusion point but says that it is worth it to

have rules(c) Common law and case by case approach is really not rule governed enough and

that is the problem(i) Leaves things unpredictable going case by case(ii) Rules enable judges to stand up to pressure better; if there is no rule, only

judgment – you are more likely to be swayed by popularity than you would if there was a rule you could hide behind

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;

(d) Criticism: When we were looking at the privity of contract cases, there was a rule. So when Scalia criticizes that common law approach, we can say that it is rule governed enough

(e) Criticism: Judges who are swayed by popularity can always find an exception to the rule

(f) There is an affinity between plain language/rules. He says that he likes rules and it easier for him to find rules in the law because he looks at the plain language. He tries to interpret statutes in a way that will generate a rule

(i) Criticism: what if the plain language says use discretion. What do you do then?

a. Find a basis for the rule in the language(g) Congress’s underlying intention is that the statute works. So Congress is saying

“Yes, follow our language, but help us out. If something comes up, make sense of the statute.”

(i) Scalia is making the same type of argument. He is saying that Congress knows that judges will find rules in the language; Congress wants judges to go about their business by making things as rule like as possible

(h) Scalia on Riggs: might be okay to make an exception in a totally absurd case, but generally don’t want to ask about this kind of case because it is a slippery slope to total discretion and possibly avoiding the types of rules that legislatures intended

VI) MORAL OBJECTIVITY Find quickly the controversial words or phrases in the statute.

Moral Relativisma) Don’t think of moral as objective in some sense – compare it to something objective like math or scienceb) How much is morality like these things? Is it a lot less or a lot more like them?

Bork-Once judges depart from the world of law, it is a matter of individual preferences and will-Since my preferences are as good as yours, it is a matter of imposing will and deciding between views – no rational way to make such a decision-Holmes idea of separating law and morality

Posner-can say another society is disgusting, but not immoral-as a judge, otherwise, you are imposing your views

-comparison is science1)People don’t disagree about matters of science-but what about meteorologist?2) But these are disagreements in steps in the reasoning – not fundamental diffs-but there is such a thing as shoddy science – need to compare things at the same level

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;

3) But people trust scientists to tell them things – don’t see a comparable thing in morality4) It is must easier to check a scientific judgment than a moral one

-answer to Nazi Germany1) take out of the moral realm – say it is social, economic, etc.2) say it’s disgusting – supee

-but what gives you the right to do anything?

A) Morals Subjectivity1) You have your view and I have my view, but they are just views2) Communities have views (Posner)3) Are these kinds of views harder to defend than people think?4) While there is one “right” answer for science (people are taught the same things from

grammer school to college), but you cannot do that with morality (find a right answer)(a) Counterarg: The claim that science is different from morality relies on an

illegitimate type of comparison; if you want to do a comparison, do a comparison between certain moral truths that are universally accepted with scientific principles that are universally accepted

(i) The boundaries of science are often tested and have not always been acceptable

5) Morality is culture bound and therefore it is wrong to impose your morality on other people(a) Counterarg: what do you mean its wrong? Who says it is wrong? Didn’t you

just say it was culture bound and who are you to say that it is wrong to impose my morality on other people when it is okay in my culture?

1. Can’t be objective because too much disagreement. 2. No perception in morality like in science. 3. Morality is closely tied to religion. Is one religion superior to another?

B) Common Arguments against moral objectivity

1. Gewirth: Morality cannot be objective in the way science is objective because people disagree about matters of morality too much. 2. Morality is culture bound. Wrong to impose. (Williams)3. Rawls: The question should not be that morality is true or false. Is it reasonable? 4. Kuhn: Science is not easily testable. 5. Rawls: moral diversity is celebrated, whereas diversity in scientific matters shows

that someone is wrong; therefore, morality cannot be objective6. there is no way to justify moral judgments whereas science has a method of proof and

justification (Rawls)7. Can have multiple reasonable morals.

Reflective equilibrium: people have intuitions at diff levels of abstraction – not always consistent – try to bring people into agreement through specific discussion (Rawls)

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;

Veil of ignorance – try to imagine yourself ignorant of personal characteristics (like an umpire or arbitrator) and make moral decisions from that

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