Law School Outline - Legal Methods Final Outline

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					Legal Methods Outline – Fall 2002 – Broyde
How a Dispute Becomes a Case (16-29) I. Cases A. Procedural Posture: The movement of the case and the legal issues they hinge on. II. Reversing v. Overruling A. A court reverses the decision of a lower court in the same controversy. 1. Lower court is bound by precedent of higher courts – no exception. B. A court overrules itself - it disavows in a later, different case what it itself had ruled in a prior, different, but factually similar case. 1. Higher courts can overrule themselves – not bound by precedent. III. Res Judicata v. Stare Decisis A. Res Judicata – X may not ever again sue Y over this particular issue. 1. Res judicata - important in federal system of both state and federal courts because stops state court losing and then going to federal courts for the same issue. B. Stare Decisis – Requires following “the law,”/rule laid down by another case. 1. Appellate courts create stare decisis through opinions. 2. Law of the case – requires same defendant in every case. If the plaintiff wins, then those who come after can use it as well. A Case Timeline I. First Step - Is there a case? A. Is there a reasonable claim or cause of action? Is there a legal right for a remedy? – is this a question of “law”? – If no cause of action, then can‟t be a case, but can be settled or just be dropped B. Can the individual prove by a preponderance of the evidence that he/she is right? C. Looking for the courts to be able to provide redress and for witnesses II. Second step – What forum to take case to? A. The forum is the court that you bring the case to, municipal, state, federal. B. Each court has a different jurisdiction that determines what cases it hears. 1. Jurisdiction depends on the claim‟s nature, amount of money at stake, where the claim arose, and the parties‟ state citizenship. Jurisdiction hinges on subject matter jurisdiction and personal jurisdiction a. Subject matter jurisdiction – ability of court to hear case based on the nature of the claim and the amount of controversy. Based on each state‟s common law for state courts or federal law for federal courts. (1) Federal Law exception – federal courts also have jurisdiction in cases involving diversity jurisdiction or amount in controversy is over $75,000. b. Personal jurisdiction – Court only able to try individual in its scope. (1) Long-Arm statutes – have expanded actions throughout state. (2) Implied Consent – Used to make drivers subject to personal jurisdiction. C. Picking a forum is strategic and based on things as: which forum‟s rules will best aid your client, which forum will be quickest, and which provides the most favorable jury. III. Step Three – Bringing the Suit A. First step to filing a suit is to file a complaint with one of the following ways: 1. File and Serve State – file complaint in state court, then serve a summons on other party directing him/her to appear in court to answer complaint and offers a copy of the complaint.





2. Serve and File State – serve the other party with summons and complaint first and later file complaint with the court. The Complaint – informs parties as well as provides what relief is being sought. Allows the other party to respond to it, possibly just writing a check to you, resolving matter without going to court. 1. Default Judgment – If other party ignores the summons and complaint, then court will render a default judgment against him/her and case will be over with the victim winning. The Answer – Defendant responds to each claim in summons and complaint. Includes following: 1. Affirmative defenses - “Yes, but…” (facts fine, but no liability) 2. Counterclaim – imposing liability back onto the victim. 3. Before or after the answer, the other party can also move to dismiss for failure to state a claim upon which relief can be granted (demurrer) or for lack of jurisdiction or suing wrong party Pre-Trial Motions – Judge can decide alone some case issues 1. Either a motion for judgment as a matter of law or the renewal of motion for judgment after trial: Ask the court to enter judgment for the moving party as a matter of law – b/c facts alleged by the plaintiff don‟t amount to a claim or because the law doesn‟t recognize the defendant‟s defense, or no facts are in dispute and the judge can determine the winner. The judge can also just dismiss or throw out the case or parts of the claim.

IV. Step Four – Pre-Trial Discovery A. Discovery – the pre-trial exchange and gathering of information. Discovery created in the 1930s to avoid two things: problem of evidence in hands of evil people and unnecessary litigation where one party had all the evidence needed to clear things up but wanted to hold it till the trial. Discovery sifts through the evidence before trial giving both parties a notion of whether to go on to trial. 1. Interrogatories – written questions to the other party to which a written response is required. 2. Depositions – Pre-trial evaluation of witnesses. 3. Production of documents – request for documents from other party. V. Step Five – Sometimes – Motion for Summary Judgment A. Summary Judgment – either side can do it – for every claim, is there any real issue of material fact for a trial is required and, if not, is the party entitled to judgment? Each claim where any facts are disputed must go to trial. VI. Step Six – Jury Selection A. Jury selection is very strategic for you can help choose people favorable to client. B. Voir Dire – the Q & A session among the jurors, lawyers, and judge that ultimately selects the jury. C. Judgment by Peers – Juries are “finders of fact” in lawsuits. Juries make decisions of fact in most matters in the U.S. system. The Judge also does it for the non-jury cases. Juries decentralize power and prevent certain forms of judicial stereotyping. VII. Step Seven – The Trial itself A. Both sides first make their opening statements B. Witnesses are then questioned (first direct examination then cross examination) C. Objections are used to ask for rulings on violations of the rules of evidence. D. After all the plaintiff‟s witnesses, the plaintiff rests 1. The defense may now ask for a judgment as a matter of law, arguing that even if all the plaintiff‟s facts are agreed upon, there is no matter of law that would find for the plaintiff. E. Plaintiff attempting a prima facie case – that is, a case that is legally sufficient to show D‟s liability. F. Judge might reserve judgment on one or more claims as to whether or not they pass the judgment on the matter of law test – he/she can come back after the jury deliberates to rule on this.

G. Defense then presents case, witnesses, and then rests. H. End of D‟s case, both parties can move for a directed verdict – Even with all the facts, the plaintiff or defendant could not win. I. Finally, there is judge’s instructions or “charge” to the jury – Is the law that jury can consider. J. Both sides also give jury instructions with presents the law most favorable to each side. K. Jury then comes back with its decision. L. D is allowed to renew motion for judgment after trial – if Judge agrees, he can negate and alter jury‟s ruling. VIII. Step Eight – Appeal A. Appeal – It states that the trial court committed an error of law. 1. Doing the appeal = Appellant/Petitioner, Party responding = Appellee/Respondent. B. Hierarchy of appellate courts, usually two of them. Appeal first goes to the lower one, and then if the higher court accepts the case, they will hear it. 1. Exception – Can appeal to the U.S. Supreme Court for a writ of certiorari, - Have discretion on whether or not they want to take the case. C. A brief is written for the appellate court outlining the errors of the lower court. D. Eventually you‟ll have oral arguments before a panel of judges. E. Appellate court will offer a written opinion either affirming or reversing the case and offering common law justification for doing so. IX. Step Nine – Res Judicata A. Once a case is finalized, is has the res judicata effect, that is, the judgment is final and cannot be further challenged. The parties can‟t also later raise claims or defenses that were not raised but could have been – that‟s called being merged in the judgment. Bases of Judicial Decisions (34 – 64) - Statement of what judges do or ought to do – foundational issues about the judicial process. 1. Hobbes A. “…all the sentences of precedent judges that have ever been, cannot altogether make a law contrary to natural equity…” 2. Holmes A. “Law should correspond with the actual feelings and demands of the community, whether right or wrong.” 3. Gray A. “but suppose in a case where there is nothing to guide him but notions of right and wrong, that his notions of right and wrong differ from those of the community – which ought he follow – his own notions, or the notions of the community? I believe that he should follow his own notions.” B. “Holmes‟s capacity for deferring to legislative enactment as an expression of majority will became an expression of authoritarianism, might makes right. Supported by an occasional secular scholar, this group created out of Holmes‟s writings a judicial monster whose jurisprudence came closer to the philosophy of the German dictator than to that of America‟s Founding Fathers.” 4. Montesquieu A. “But the judges of the nation are only the mouths that pronounce the words of the law.”

5. Blackstone A. Judges just fill in the gaps of uncertainty. B. “Judicial decisions are the principal evidence, that can be given, of the existence of such a custom as shall form a part of the common law…It is not in the breast of any subsequent judge to alter or vary from [these prior decisions], according to his private sentiments: he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land.” C. “But even in such cases the subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation.” 6. Saleilles A. “One wills at the beginning the result; one finds the principle afterwards; such is the genesis of all juridical construction.” 7. Bork A. “Any judge who is honest knows that he often intuits a conclusion and then goes to work to see if legal reasoning supports it. But the original intuition arises out of long familiarity with the structure and processes of law. A judge will have such intuitions in cases where he has not the remotest personal preference about the outcome.” B. “But the honest practitioner, including the lawyer or the judge, also changes his mind when the materials with which he works press him away from his first tentative conclusion.” C. “If that is true, and it is, then it is not true that all judges choose their results and reason backward.” 8. Hutcheson A. “If anyone had suggested that the judge had a right to feel, or hunch out a new category into which to place relations under his investigation, I should have repudiated the suggestion as unscientific and unsound, while as to the judge who dared to do it, I should have cried “Away with him!” 9. Definitions A. “Mediating legal directives take different forms that vary in the relative discretion they afford the decisionmaker. Frms can be classified as either “rules” or “standards” to signify where they fall on the continuum of discretion. Rules afford decisionmakers less discretion than do standards.” 10. Rules A. “A legal directive is “rule”-like when it binds a decisionmaker to respond in a determinate way to the presence of delimited triggering facts.” B. “But the rule‟s force as a rule is that decisionmakers follow it, even when direct application of the background principle or policy to the facts would produce a different result. 11. Standards A. “A legal directive is “standard”-like when it tends to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation.” B. “Standards allow the decisionmaker to take into account all relevant factors or the totality of the circumstances. Thus, the application of a standard in one case ties the decisionmaker‟s hand in the next case less than does a rule.” 12. Langdell A. Langdell conception of law as science. Judge‟s task is to reason from prior decisions. B. “Holmes insisted that judicial decisionmaking was not so rarified or abstract; he saw the common law as the pursuit (sometimes unconscious) of sound public policy.” 13. Dworkin A. “What are judges doing when they write about law in their opinions? They are making arguments to

the judges of the appellate court to persuade them that the decision should be affirmed and to the lawyers, litigants and public at large to explain and justify the judge‟s decision.” 14. What is the purpose of law and what do judges do and why? A. Holmes‟s - Congress writes laws, people have written the Constitution and judges are just umpires, they play by the rules. This is contrasted to Learned Hand‟s use of the word “justice.” Holmes would say that some of the rules are unjust, however, that‟s not his fault – he just uses the rules – Congress or Constitutional Amendments should fix them, not the courts. B. Justice Shaw‟s Dilemma: Slavery abolished in 1830 in MA – however, Fugitive Slave Act states that free states have to return slaves to slave states. While Shaw squirmed on whether or not to do this, Holmes would say to ship them back to the South. Shaw does not know what to do though (because he believes his job is to do justice). C. Critical Legal Studies (“Legal Realism”) – Critique of Holmes – Judges make decisions in whatever way they desire, based on their own biases and experiences. After we make a decision, we look at the law and justify the position. Activist take on the judicial process. Judges as independent participants. Historically, Legal Realism was the opposite of the Cordozo‟s science of law – what judges say is the one scientific truth. The Critical Legal Studies people say that there is no truth in law, just politics and gamesmanship that allows good judges to mold their opinions into the law. D. Three main views: Holmes (rule-playing – judges just as umpire, not players) v. Cardozo (law as science – intuition there, but judges find THE one answer) v. Critical Legal Studies (Activism of Judges – Politicization of Judges) E. Problem with Holmes: Doesn‟t allow for feedback Holmes Response: Feedback comes from Legislature – where no answer, Judges should guess what the Legislature would do. Problem with Holmes: That depends on getting Judges to be disciplined. Problem with Holmes: Judges are slaves of Legislature and when flip out, the judges should just follow. Like how judges would enforce Nazi rules or slavery if the Legislature believed it. Problem: Holmes view does not work against tyranny. Important critique. Holmes Response: Judges supposed to follow the will of the people, so if they do weird things, they‟ll get a weird judiciary. If want change, then work to better government. Holmes worried about: Worried that judicial activism creates a different set of problems. If judges are check on government, then taking authority away from Legislature and giving it to judges, that‟s an anti-democratic though. Holmes was deeply engrained on representative democracy. F. Cardozo believed judges are supposed to search for truth and judges that come up with answers other than the “truth” are stupid. Only one answer, it‟s a science, and its not democratic. Produces “objectively right” answers. He doesn‟t deny that different judges see things differently, just as scientists argue on points, however, be thinks that there are truthful answers to the questions. Cardozo says that if the Legislature passes some non-truth act, the judges should just forget about them. Judiciary should take the truths, self-evident and non-self-evident ones, and shove them to the public, regardless of if they like it. Opposite of Holmes because not listening to the people. His purpose is the “do justice” everyday. Cordozo would ignore the Fugitive Slave Act. If forced to do something, you either quit or defy it. G. Critical Legal Studies view – (Pg. 51) – Law divides into two categories – (1) cases where the outcome is basically predetermined and law is clear and uncontroversial – they are called “easy” cases. (2) All “hard” cases have “gray areas,” where the law doesn‟t know what to do. So the “hunches” come from biases, and those aren‟t like scientific hunches. These are subjective ideas. Legal Realists call this judicial biases and that Cardozo is a liar, there is no objective truth to search for. Hunches are based on their community values and then they cram it down on the public. It‟s democratic if judges are elected and that there are enough of them to provide a broad selection of biases. So sort of side with Holmes. This is completely against Cordozo‟s truth-seeking.

Natural Law and Legal Positivism (459 – 197) I. Introduction A. Natural Law – Law and morality are intertwined with morality setting absolute limits on the law. Come from “above” govt. Govt. interprets law above. 1. Cardozo: “if a precedent is applicable, when do I refuse to follow it? Natural Law Answer: When the result decreed by precedent is unjust, it is justice, and not precedent, that must be followed. 2. Cardozo: If no precedent, how reach the rule that will make precedent for the future? Natural Law Answer: You must reach the sought-after rule by reference to moral principles, human reason, and authoritative legal materials. B. Legal Positivism – No reference to morality or natural justice. Law derives its binding quality solely because it proceeds from the dominant political authority in civil society. Hobbes, Bentham, Gray, Austin, etc. Judges should just use rules that are there, not make them up or interpret them. (Holmes). 1. Cardozo: “if a precedent is applicable, when do I refuse to follow it? Positivism Answer: You don‟t refuse to follow it. 2. Cardozo: If no precedent applicable, how reach rule that will make a precedent for the future? Positivism Answer: While there might not be precedent, there is a legal standard or principle to guide the decision. 3. Positivists would say that you should always follow the rules because they are the rules and that following the rules creates order and that there is a “social contract” that individuals all interact as a community. Say that if you don‟t like the rule then you should get the Legislature to change them, or should move to a different area with different rules. C. The Question of Choice 1. Debate between natural law and legal positivism – the law that is and the law that ought to be. D. Question of Choice Explored Further 1. United States v. La Jeune Eugenie – 1822 – African slave trade is repugnant to natural religion, Christian duty, and social justice. Therefore, it‟s enough to stamp out any trade that is repugnant to “general principles of justice and humanity.” How does one tell what‟s in violation of this? Form of natural law at work – law and morality. United States govt. captured a slave ship from France – by virtue of being involved in the slave trade, the U.S. could take the ship and then free the slaves. In this year, it‟s funny because there was definitely slavery in the United States. Story tells us that everyone knows that slavery is bad and “repugnant.” And because slavery is bad we should not send them back. Natural law is the “ought to.” If asked Story about the slaves in the U.S., he would probably say that of course that U.S. slavery is bad and that we should try to free the slaves as much as possible. Would say that the higher law counteracts the Constitution which says that slavery is legal. Would say that the Constitution is immoral in that sense. Talking about overt defiance of the Constitution, in favor of the natural law. 2. The Antelope – 1825 – Send the slaves back to countries because it‟s not illegal there and we can‟t impose our rules on others – Positivism. After Story‟s opinion. Some slaves were captured and brought to the United States. Supposed to be set free, but the Portuguese wanted them back. The SC said sure, and gave them back. Justice Marshall states that while slave trading was bad and violated the higher law, but the rules said that they had to give them back and they couldn‟t disregard it. 3. Griswold v. Connecticut – 1965 – CT statute making illegal birth control, as well as helping someone use it, was struck down. Married couple wanted birth control, but CT statute outlawed birth control. Law attempts to stop pre-marital sex and crossing state lines to get it, mainly because commuter state. CT law trying to stop getting contraceptives to unmarried individuals, mainly youngsters. Realized that married couples can get contraceptives from NY or Boston. Burden small for married couples and hard for youngsters. Case famous

because it opened a discussion about where rights come from in our system – (Judge Bork – one reason he was stopped from SC was because of Griswold commentary – points out that Griswold does not come from a text – it is purely a value decision to assign high level values to a right that the framers of the Constitution didn‟t put in document – Bork says that this is natural law and natural law has no values except those that decide cases. Douglas would respond that this is just a very important issue, so must decide on it. (Biden presented with Clarence Thomas‟ economic natural law rights – Biden states three types of natural law – good and bad types of natural law, which is what Bork is saying – Biden saying that when he‟s in charge he‟s right and when he‟s not it‟s bad – Problem is that we can‟t agree on “good and bad” natural law. – Thomas says the obligation to pay back one‟s debt is a moral obligation. T says that bankruptcy discharge of debts should be wrong – don‟t have to pay your debts if bankrupt – Thomas would say this conflicts with economic natural law. a. Justice Douglas for Court‟s opinion – Natural Law – expands Court‟s power by using penumbras (SC puts its moral values on the law and the states) of the Bill of Rights to create “zones of privacy” not mentioned in Constitution. Uses these zones to strike down the law‟s intrusion into marriage. Douglass responds to the criticism that leaving the text by saying that privacy is a natural right and if we don‟t have that we need to add it to the system. b. Justice Goldberg concurring – Natural Law – Use of 9th Amend to broad the powers of the Constitution to include rules not included in document. c. Justice Harlan concurring – Natural Law – Due Process 14th Amend used to support ending the statute. d. Justice White concurring – Natural Law – same as above. e. Justice Black dissenting – Positivism – whether or not this law is good has no relevancy to the case. Justices imposed their beliefs. Court‟s job is just to look if it‟s legal or not. Nothing in the Constitution provides for the voiding of this statute. If people want it changed, they should elect reps in the Legislature to change it. f. Justice Stewart dissents – Positivism – same as above. g. Some contexts of law that are just legal positivists – like securities and administrative law – lots of minutia there are lots of regulatory framework – More natural law advocates in bigger picture parts of the law. Good Nazis defended themselves by stating legal positivists, they just followed the rules around them. Legal positivists have a hard time on hard cases. Natural law theoreticians, however, allow the articulation of principles that overtly defy the law, grounded only in their own selfish view that this is truth. World War II is over and a private in the German Army – was assigned guard duty over Russian captured prisoners – one of the prisoners escaped and re-captured and the private was ordered to beat the prisoner to death – this private under orders beat the Russian soldier to death – is he a murderer? The private said that this was standard operating procedure and that German soldiers had been battered by the Russians and that he had a gun pointed at him by his superiors – do we accept this defense? E. Hart and Dworkin 1. Command concept encompasses sanction concept, superiority concept, and the concept of obligation or duty. Sovereign is person receiving habitual obedience from members of a given society but not in turn having a like habit of obedience to a superior. 2. Critique of positivist view is Hart‟s The Concept of Law. Inadequacy comes from choosing the concepts of a command and habitual obedience as basic tools of analysis. Can‟t account for certain features of the law like: a. The varied contest of law b. Range of persons to whom laws are normally applicable, for orders are addressed to others, whereas most laws bind those who have enacted them as well as those who have not.

c. Order are deliberate datable events – only with much stretching of meaning and fictions can they account for the legal status of customary law and the decisions of the courts. d. Concept of a command leads Austin to the wrong claim that one has a legal obligation because one fears the sanction. 3. Dworkin - law is multi-textured – uses same terms to apply to many contexts and situations. Law has rules and Principles are broader ideas. Rule is application of a principle and a policy put together to make a concrete goal to regulate life. Principle is a vision of what law wants to do (Ex. Law is color blind). Policy is a goal that law senses that it ought to be working for. 4. Dworkin‟s Example – Riggs v. Palmer - Guy killed grandfather in order to quickly get his money that was due from a will. NY has lots of laws about wills and they have no statutes saying that you can‟t receive your will money if you kill that person. The NY statues on will are rules. NY Court of Appeals Dworkin says that we have a rule in conflict with a principle. Rule says that if you follow the rule you inherit. Principle says this is the wrong result b/c gives bad people an opportunity to unfairly profit. They say that we need a rule to say that people should not profit from their own fraud. Comes from nowhere – it comes from the Judge‟s commonsense of how things should function. Dworkin says that we are more inclined to be legal realists when we are interpreting rules – we are less inclined to be legal realists when we are articulating policies or principles. Tension when the rules are in conflict with policies and principles and when this happens the rules should give way. 5. Dworkin criticism? If play by the rules, but it changes on you – it violates basic ideas of fairness. Dworkin‟s response is that it can‟t work that way. 6. Law school‟s honor code is meant to do principles and policies. Attempting to avoid Dworkin‟s problems of shadow rules, law school specifically puts its policies and principles in writing, putting reader on notice that there are some high level principles. 7. Dworkin – discretion in the law – the lawmaker has the most discretion in our system – b/c create the broader policies. Important for Dworkin to explain discretion because basic problem with his system is that the rules are tempered by principles and could see how the principles and policies could be abused in their application to the rules – creates a category of discretion that lawmakers, prosecutors, and the police use to put policies to rules. 8. Basic problem with Dworkin is that it assumes a fair, good law-deciders. Holmes would say that legal realism is much fairer because it denies any discretion to its players if it is properly done in a fair way. In Dworkin‟s system there is sometimes a lack of uniformity because discretion affects cases. Dworkin‟s system is a combination of natural law and legal realism – natural law though is king, trumps over legal realism. Narrative, Facts, and Judges (64 – 78) I. Hynes v. New York Central R.R. – And Does It Matter How Judges Do What They Do? A. Hynes v. New York Central R.R. Case 1. Statement of the case – Deals with use of public spaces adjoining private rights of way and liability for damages for those injured in these areas. 2. Facts – Hynes and friends playing at a regular spot on the navigable Harlem River. Using a plank as a diving board attached to the defendant railroad company‟s right of way, the kids jumped into the river below. Before jumping into river, Hynes struck by a wire and killed. 3. Procedural History - Both TC and Appellate hold for D stating that Hynes was a trespasser. 4. Issues – Can damages be collected from public use of lands adjoining private rights of ways? 5. Holding – Reverse both the Appellate and TC‟s decision and orders a new trial. 6. Reasoning – Plank was a permanent improvement on D‟s property and that those individuals who use the public waterways are entitled to protections from danger, and specifically from the D‟s lines. Hynes was in the public waterways and protected and that the D‟s claim that only touching his property constituted trespassing was wrong. Hynes should have been

protected whether on the plank, over, or under the plank. B. Professor Weisberg Comments on Hynes v. New York Central Railroad Co. 1. Cardozo creatively stylizing to draw the reader into the situation. 2. Judges framing facts and arguments in the manner most supportive to the court‟s views. “Winning” is how convincing they are on other judges and in gaining authority. 3. Cardozo evoking sympathy in order to get upset at the railroad company in order to agree with his reasoning. Sympathy used to stop the reader from critically analyzing the legal reasoning but rather to just like the outcome and go along with the opinion. 4. Wolf on discussion of law and science: Some think the law should be rigidly applied. Lawyers and judges and law professors use literary devices to get a properly framed case that creates a sympathetic cause for either the defendant or plaintiff. 5. Justices who are elected can sometimes write their opinions to get votes, while lifetime appointments are not subject to public opinion. Trying to influence the other judges on the Court‟s panel so vote with them. II. Law as a Science (Pg. 12) A. Law thought to be highly-analyzed, could find fundamental truths. Assumes that there are fundamental truths that can be obtained. B. If accept this, then brings idea that law can be understood by all of society. Law becomes fair. 1. If accept, then have to think of natural law – Oppressors used it saying that they could govern with it over lower classes. Law as a science started to decline when the oppressors used the law over the poor and lower classes. Three events moved the death of the law as a science: a. Racism that law accepted. b. Sexism that law at its core accepted. c. The anti-workers bias of the law. Case Sequence – Nine Cases (92 – 146) I. Before Barrett v. South Pacific A. Pool owner, but there are trespassers who drown in the pool. Parents should be responsible for child, even though they have different senses of surroundings. B. Law before Barrett: Unless you put out a trap, in the common, are essentially not responsible for any of the trespassing that occurs on your property, even if you were negligent – as long as you weren‟t intentional C. Hypo: Before this case if a private apartment dweller asks for liability of pool then you would tell him the law states that he is only responsible for his guests‟ drowning. Your defense would be that they assumed the risk, but the dead swimmer would say that there was a duty of the host to look after the guest and that the conduct was negligent. So still have to show negligence with invited guests, but should be able to show it easier than a trespasser. II. Barrett v. South Pacific (This case was entirely unprecedented – totally made precedent) A. Facts: Boy lost his leg playing in a railroad turn-table. B. Court said: Railroad should have prevented this by affirming activity – whether locks or fences. Children are immature so look out for them – adults should know better. C. Hypo: If the company had built a fence, and the children had climbed the fence, would the company still be liable? The court does not give directions on this. Instead, a jury decides in 1891. How would the jury make this call? Jury would look to see how old the child was and what other options could the railroad have done to protect the children (fence, locking the turn-table, guards). Must decide between what costs less between security versus future tort claim amounts. So tell him: Can lock the turn-table and be safe and create a system that locks it everyday and that you

ensure it‟s locked when not around. Say that you should buy bushes because it will reduce likelihood that people would be attracted to turn-table because can‟t see it. Guard dogs – probably will reduce things, but might create a new nuisance. D. Hypo: If he says that can‟t turn-table – then can just say hire a guard. Or you can tell him that you don‟t have to do anything, but once in a while you might have to pay. E. The court only cites one case but goes against it. Also talks about Cooley‟s words on Torts. But Cooley is not talking about trespass, but rather a general principle on negligence. The court does not quote anyone – So while it looks like precedent, it is completely unprecedented. F. This is a change of the law – no California law prior that owners liable for the negligence of the trespasser – know this because they did not quote any in the opinion and you can guess that no other state had anything because not quoted either. III. Peters v. Bowman A. Facts: Man who owns some property but has moved away. City put up an embankment on the property and a large pond was created on the property. A child and his friend built a raft and floated on it, but the child drowned. Father let him play unsupervised. B. Court said: The property owner was not liable for the death of the child. Landowner didn‟t have to set up their land for trespassers – they said that the previous case (the turn-table case) was just an exception because the turn-table was an artificial creation while the pond was a natural condition. Moved away from Turn-Table Case and parents should have told children to avoid ponds. Also says that turn-tables look like fun but are dangerous – children can‟t correctly determine how dangerous they are. Ponds are fun and dangerous as well, however, children can figure out how dangerous they are. C. Court doesn‟t over-rule the turn-table case, but rather states that turn-tables are more like traps, while the ponds are natural. Children don‟t realize how dangerous turn-tables are and get hurt. Ponds though have visible and apparent danger. D. Hypo: Alligators in the Pond – “concealed or hidden” dangers. Say that parents can‟t tell you about hidden dangers though because there are so many of them. E. Hypo: Look back at turn-table case, but now for an adult. Says that turn-table was negligent in its creation and that he was trespassing. He would lose because he could appreciate the danger of the turn-table. So now limited to trespassing liability and to infant minds (children) The more I increase the awareness of the risk, the greater you have reduced the liability. It might be that you want to embark on an education campaign. You want to just target “infant minds.” If you had to try and deter adolescents, you need all sorts of things. But if it‟s “infant minds,” then all you need is: increasing awareness, a fence that blocks vision to the turn-table. This case limits the turn-table rule just to “infant minds.” F. Turning back to pool owners – what does this second case tell a pool owner? There is no liability because a pool is like a body of water and it‟s up to the parents to inform the kids that it could be dangerous. When do you become liable for the pool – when the dangers are concealed or hidden – like if you have a pool cover on and can‟t see the pool or when the pool freezes over and somebody walks on ice not seeing how thick it is. Court says that only time pool owners have liability are when you can analogize the pool to the turn-table case when dangers are concealed. G. Turn-Table Case’s Importance to United States Law: After this case which was unprecedented, the case was constantly discussed and changed it to when the object is not concealed dangerously and when protected from infant minds. If building a pool need to consider the following now after these two cases: standard advice of putting up a sign telling the dangers of the pool so to make it not a

concealing danger. IV. Peters v. Bowman A. En bank Chief Justice writing to tell why the petition is denied. B. Chief Justice says: Owners liability is directly connected to the object that causes injury, whether natural, common, or artificial. How do you know how to conduct yourself? Why did the Chief Justice write this opinion? Gives a rule trying to answer the question, determine what is necessary to determine negligence. Everyone gains by this – builders want to know how much they need to do – people want to know when to sue. C. Chief Justice says: the owner of a thing dangerous and attractive to children is not always and universally liable for an injury to a children tempted by the attraction. It is the duty of parents to warn their children. Reasonableness – comparative ease of deterring the danger. The jury is supposed to decide this. Owner decides what he wants to do and the jury second guesses the actions. If the jury determines that you were negligent, that you didn‟t provide enough protections, then you are liable. D. Hypo: So if paint turn-table bright pink and put M & Ms there, a jury would prove you liable. E. In the Chief Justice‟s desire to create clarity, he‟s actually muddled it because now just saying that it‟s a jury matter and they consider all sorts of things so it‟s hard to figure out the outcome. Don‟t know what protections you would have to do because the jury could find that that is not enough. Chief Justice said there is just negligence. F. Hypo: Client now comes to you saying wanting to build a pool – what‟s my risk? You tell him where the pool is and other questions – but at the end you don‟t really know because of the jury. You don‟t get a safe harbor position. Safe Harbor Provision – when law says when you do A, B,C, and D you are immune from liability from trespassers no matter what. G. Hypo: You‟re an insurance company who has a homeowner who has just built a new pool – do you want to offer a pool premium – how much would you charge them? Before you give them insurance you could tell them that they would need to put up a fence. Could also tell them how common bodies of water are in the area – because in that community parents could have told children how dangerous bodies of water are. Would also want to see how visible the pool was in the community – front yard or back yard. Would also want to see how the other pools are protected – if everyone doesn’t have a fence, then you probably don’t need one because the jury would find for not having a fence as reasonable. H. Majority opinion and the Chief Justice are talking differently. Chief Justice talks about reasonable people and negligence. Majority opinion was talking about hidden dangers. Chief Justice arguing with the basic premise of the majority.

V. Sanchez v. East Contra Costa Irrigation Co. Case A. Is this concurrent with previous cases – Yes b/c in Barrett said landowners must take precautions. This case it says that this body of water is a trap – a concealed danger. Court is trying to invoke the principle – putting aside the previous decisions – this case is seeking to invoke the exception to the common law (the common law is that owners shouldn‟t have to protect against trespassers – but the exception is if the item is a concealed danger or trap) - The shallow water was a bait, and the trap was the siphon – here, you couldn‟t see or know about the siphon – In this case – is the canal really a trap? This canal is not really a trap, but rather more of a concealed danger – because it wasn‟t consciously designed to catch trespassers. A spring gun was a

classic trap. The owner had no intent to catch people. The expansion of this case is now intent is not part of a trap – just something that snares something. Now a trap is just concealed danger, no intent. In Barrett, turntable which is a danger not readily apparent to danger – could be a trap. B. Sanchez has redone law – now attractive nuisances are traps. – Barrett into the common law. C. The Chief Justice is being disagreed with without being cited – because he said that it was only negligence, had nothing to do with a trap. D. If the CA court wanted to agree with the Chief Justice, then you would talk about how the company should have put up signs, fence, etc. Because dealing with common law negligence. Since the Court put none of the language of the Chief Justice, they are following different ideas. E. Important Point: The implication not stated is that trespass just doesn‟t matter b/c of the trap. Court exclusively about attractive nuisances being traps – not on trespassing. F. So again, client with pool – am I at risk? Have neighbors with 2 year old kid and have seen the kid drink from your pool every now and then – should you be afraid? Sanchez has changed the focus to traps and now we have to consider things as things we‟ve never thought about like hidden dangers – dangers that the victims wouldn‟t have reasonably been aware of. G. Court says here that there is strict liability for traps – if you do one, you are liable. VI. Copfer v. Golden Case A. Facts: Owner left construction equipment out and children came to play on it. B. Four Part Test (from Restatement) – When would the owner be liable: 1. Even though children are trespassing, knows that they are doing it. 2. Owner knows that there is risk to the children 3. Knows that children are going to be unaware of the dangers 4. The economic and utility is burdened by the owner because he‟s in a better position to do it over the children. C. What‟s missing if this is taken from the Peters majority decision? The reference to traps and hidden dangers. D. This case was probably taken from the Chief Justice‟s opinion because it‟s a generic negligence argument – have to look at all the factors – cost, the place, the condition, the age of the children, and the costs of protection to determine what‟s reasonable and unreasonable. Jury balances the four parts of this test E. Look at the Sanchez case with these rules: now you need to know how at the time of construction how expensive it would have been to protect the siphon – if not too expensive then they would have been liable. F. Trap is now anything that hurts you that you didn‟t know would hurt you (used to be motive of the trap, now it‟s even more expansive – had to show intent or conscious desire to hurt) G. Now everything is a trap – if you hurt yourself by accident, and that could have been prevented, that was a trap. H. Barrett case is still consistent, because if you could have put a lock on the turn-table that would have satisfied all conditions. Law of Barrett – must take ordinary care to protect against attractive nuisances. Law is the same but broader definition of attractive nuisance. Law has changed but continued to be consistent. I. All that has changed is subtle exceptions – in 1610 trap was a deliberate thing. 1891 trap was something whose danger couldn‟t be reasonably understood by small kids. 1955 a trap is something that could hurt somebody but that he could have been prevented by the owner with little cost.

J. Why doesn‟t the court cite all the previous cases and things: until 1930, America was truly a common law situation, everything was precedents. After 1930 though, started to do restatements in an attempt to unify national law. In 1930 is Sears Roebuck – with nationalized commerce. Contract allow before then could differ from state to state because very few multi-state business, exception is Northeast because of small states. But once end of World War I, national companies became massive economic development – factories, national shipping, etc. People wanted uniform law. Restatements were formed to uniform then. CA courts have been heavily dependant on the Restatements – but those came out of the earlier cases. K. Using the Restatement as a citation – just saying California is a restatement state. We follow uniform law – bring you business to CA. VII. Willford v. Little A. Court said: The body of water was not an attractive nuisance because like a naturallyoccurring body of water and no trap. The rule is therefore: Trespass – you are responsible for your own injuries, unless an attractive nuisance or trap. B. P argued in Willford: Defendant was negligent because did not put up a fence which could have been done at a low cost. Cited Copfer because the court expands the definition of a trap and the plaintiff needed this expansion in order to justify liability. C. Why not cite the Peters chief justice‟s opinion: Because it was not precedent – it was a form of a dissent. While he agreed that should deny a rehearing of the case, he writes why not – but no one agrees with his concurrence. D. P could have also used Sanchez: trap arguments – Sanchez has bait and trap language and that would have been hard to prove in this case so probably didn‟t use it. E. Two panels of the California Court of Appeals don‟t agree on which law to use – one panel uses the Restatement (Copfer) and the other uses California law (Willford). Big issue in the Willford case is that there are now two divisions in the Appellate courts. F. What would have been the application of the Restatement on this case: Defendant would have been liable due to the four part test in Copfer - the fence was cheaper than anything and the defendant would have had the foreseeability that children could have been injured, etc. If the panel used the Copfer test, then trial judge would have given the jury the restatement as instructions and told them to decide on the facts. G. Holding: As a matter of law, swimming pools are not attractive nuisances. (Restatement not binding) VIII. Knight v. Kaiser Co. Case A. In line with the ruling in Sanchez – liability if bait and a trap – yes – majority opinions in this case goes back to Peters and turn-table case and Sanchez. Gives us the common law rule: No liability for trespassers unless you bait and trap them onto your property. B. Sand traps are not included because they are like naturally occurring traps, like sand dunes and parents are to warn children of naturally-occurring dangers. (court refers to Peters on this) C. Swimming pools though, have been determined to be similar enough to natural bodies of water to be considered a natural item for the purposes of these things. D. Attractive nuisance is then: Situation unlike a naturally occurring event so that parents can‟t be responsible for warning children of all of the unnatural dangers out there. (statement of law) E. Traynor Dissent: Looks back at chief justice‟s opinion in Peters. But with dangers created by the owner that are novel and dangerous to children, the rule ought to be different. Says the majority has the wrong law. Traynor says the law should be negligence. Traynor then says you should measure this negligence by the

Restatement‟s four part balancing test. (pg. 118 of casebook). Says can‟t have absoluteness – have to have a jury use the restatement to see each and every case, depending on lots of factors – age of children, cost of abatement, etc. Also dissents from the majority because the majority believes that the court decides on these things, while Traynor decides through a jury. F. If the child had been playing on the machines – defendant would have been liable – jury would only decide how much damages should be paid out. McComb would say that the judge would make calls of liability, jury just thinks of fact. G. Why does Traynor dissent: Knows that it was 4-3 and so if he writes a forceful opinion knows that if the court changes then this opinion could be used forcefully. Who is he writing for?: Traynor could be writing for the people who elect judges or for the state legislature in nominating justices – could be creating a litmus test for future justices. IX. Reynolds v. Wilson Case A. Case now 4-3 saying that pools were traps. Written by Justice Shenk, who in the previous case voted in the opposite way. They were only 1 year apart from each other. B. Pool was a concealed danger because of the leaves and slippery algae – Shenk says this case is different because one couldn‟t readily discern the danger – really like the Sanchez case – this is a bait and a trap. What makes a trap? – Shenk says that a clean pool is in a condition that a reasonable child can tell info of it. Shenk states that a pool covered in leaves is in a condition that no reasonable child can tell the depth of the pool. C. Traynor and Shenk agree on focusing on the restatement of the law to determine cases and they both agree that there is liability for traps (Traynor would say that because definitionally a trap knows that there will be injury to the child) D. If the judge and jury are the same, the two would agree – Shenk (negligence occurs when you have an unprotected trap) and Traynor (trap occurs when you should have applied more care). They might argue though who makes the call – Traynor says that it is always a jury matter and Shenk might say that sometimes a judge can make this call. E. Spence dissent: the leaves covering the pool are an ordinary danger that one should know about – happens in naturally occurring bodies of water too – and he says that the majority opinion breaks with the precedent that a pool in its normal condition is never an attractive nuisance. He says that Sanchez is right because it deals with a real trap, but not applicable to this case because in this case, not a trap – leaves normally settle on pools – can‟t call normal things a trap. X. Garcia v. Soogian A. Uses the Restatement – puts the four part test to use – says that the Restatement is the law and that the owner is not liable because the child was old enough to know the danger of her actions (plus, the costs of protection is too high – balance drops to the owner). B. Now four solid votes behind using the Restatement as law. That is a huge change from what used to be the law, that of California law. Can see how reasoning can change on the court itself over time. C. Dissent is that they agree with the result, but disagree with the reasoning – they say the reasoning should be that like of the turn-table cases or the restatement. The majority says the restatement, while the minority says that it‟s Barrett, Wilford, Sanchez, etc. where trespassers have no liability unless baited and trapped.

XI. King v. Lennen A. Is this just the common law rule applied to a more complex situation? (Common law rule in 1616 was not responsible for trespassers except for trap). B. Look at the sequences of nine cases: 1. The common law has stayed pretty constant. Still focuses on a negligence standard, and people are just arguing how to interpret negligence in a highly evolving complex society. 2. Other way to look at this: law really has changed because while the words are the same, we‟re drastically redefined the terminology so that things are different. Common law trap was something designed to get someone. In the modern era, though, traps are very different. Precedent (26 – 29/149 – 193) I. Reversing v. Overruling A. A court reverses the decision of a lower court in the same controversy. 1. Lower court is bound by the decisions of the higher court. B. A court overrules itself, that is, it disavows in a later, different case what it itself had ruled in a prior, different, but factually similar case. 1. Higher courts not bound by precedent. II. Res Judicata v. Stare Decisis A. Res Judicata – X may not ever again sue Y over this particular issue. 1. Res judicata important in federal system – it stops suing in state, and losing, and then taking the case to the federal courts for the same issue. B. Stare Decisis – Requires that they follow “the law,” the rule laid down by another case. 1. Appellates court create stare decisis through opinions. 2. Law of the case – requires that there be the same defendant in every case. If in one case the plaintiff win, then those who come after can use it as well. III. A Theory of Precedent A. What is Precedent? 1. Precedent as a Rule a. Treatment of X in a manner Y constitutes, solely because of its historical precedence, a reason for treating x in manner Y if and when X occurs again. b. Urges a decision-maker to give weight to a particular result solely b/c it came first. 2. What in a Precedent Binds? a. Case lays down a rule – court can “confine the case to its particular facts.” – and in some instances, overrule itself – very rare. b. Loose view of precedent – arguing exclusively from language that is found in past opinions and citing language rather than facts. B. Can Precedent Constrain? 1. Categories and Characterizations. a. Rules of Relevance (1) allows us to distinguish between precedent and irrelevant facts. (2) Precedent usually formed around context. 2. Decisions Without Characterizations a. Robins Dry Dock & Repair Co. v. Flint (1) No 3rd parties could sue on a contract even if it made for their benefit. By Holmes - so what the law says without thinking about it. (2) Real answer: Reliance – this was foreseeability – dry dock should know what

happens often and so should be liable for consequential damages that are created through their breach of contract. (3) Affects: Testbank Case – On appeal, this court affirmed, concluding that claims for economic loss unaccompanied by physical damage to a proprietary interest were not recoverable in maritime tort – looking at Robins. Facts: boating accident on Mississippi River. (4) Robins should be read: only if physical damages can you get economic damages. Just like there is no liability in contracts for these third parties, there will now be no liability for third parties in torts. (5) Percolation – don‟t rule on it and then let the lower courts decide on issues – then eventually the SC can rule on it. Let the state courts experiment. (a) Dissent: Robins a tort case grounded on a contract. Court‟s requirement of physical injury as a condition for recovery is an unwarranted step backwards in torts jurisprudence. Robins only dealt with claims for negligent interference with a contract. 3. Rules of Relevancy a. Rules of relevance of a context of a precedent is one way of talking about how we know what‟s really important in a case. b. Shows that cases contain info that is very dependant on things that are outside the scope of the case – social norms, society as a whole, etc. c. Sanchez Case - Case most similar to a trap. Many people consider Sanchez to not be a case about bait and trap, but rather as a case that deals with company towns and the use of illegal immigrants who are the workers of the company. d. Llewyn disagrees - every case lays down a rule, of the case. So how do you look to see if something is precedent? Find the paragraph with the rule, that‟s the holding – that‟s what we look at to determine what will be the precedent of the case. In Sanchez - what‟s precedent – so a concealed danger is a trap and the owner is liable. e. Counter to Llewyn – cases have implied holdings not articulated. C. Why a Doctrine of Precedent? 1. Criticisms a. Hobbes (1) Any judge who makes a mistake is obligated under laws of nature to correct them as they arise. Only consider truth, not precedent. b. Bentham (1) Vehement detractor from stare decisis (2) Won‟t tell someone what NOT TO DO, but rather WHAT THEY SHOULD NOT HAVE DONE and then punishes them. (3) Common law was a deep-laid conspiracy to oppress the people. 2. Utilitarian Defenses a. Fairness (1) “Treat like cases alike” – otherwise things are arbitrary. b. Predictability (1) Helps decision-makers plan lives, have some degree of repose, and avoid foreseeing only the unknown. (2) Question of balancing expected gain against expected loss. c. Efficiency (1) Courts busy enough as is and making them reinvent the wheel each time is burdensome. d. Legitimacy (1) Adherence to precedent gives courts legitimacy. (2) Planned Parenthood of Southeastern Pennsylvania v. Casey (a) Court‟s power comes from the trust the people give them to decide

national law – frequently overruling itself would destroy people‟s faith in court and unity can cancel national divisions. 3. Burkean “Conservatism” a. Schauer wrong: (1) Respect for past decisions helps all of society – utilitarianism (2) like cases treated alike – deontological – moral argument b. Kronman (using Burke): (1) Look to the past because it‟s the past (2) Contract between generations – with obligations for each. The Common Law and its Reception (3-7) I. The Common Law A. The Components of the Common Law 1. Constitutional Law a. Federal and state constitutions and judicial decisions interpreting them. 2. Statutory Law a. Rules and Regulations enacted by a legislature – federal and state. Some laws are just created to push a social policy. b. Congress creates administrative mandates and then the regulatory agencies create the rules to meet that mandate. 3. Common Law a. Entirely a body of past judicial decisions, those from cases. b. Characteristics of the Common Law: - Constantly evolving as opposed to statutory law, Juries in the system, Common people into the system, Quicker and more contemporary than statutes because Legislature is slow to react, Can finesse the rules in the common law, Can massage the truth a bit to build a case. c. Disadvantage of the common law system: - Incoherent to non-lawyers because no rule-book that tells one the law. Need professionalized attorneys to interpret for others, Civil law countries, much less reason to have a lawyer because just have to read the rules, Jury Nullification – jury thinks the law is dumb and so won‟t hold person to it, Same facts can get different outcomes dependent on juries, Pay the price of vagueness - statute law is slow in progressing. B. History of U.S. Common Law Tradition 1. American common law has been shaped by English common law 2. Colonial Times a. Produced a layman‟s version of English legal institutions. First half of eighteenth century, colonial judicial administration became more professionalized. The cycle: Security of interests and transactions requires some regularization of the law, but the regularization of law creates an urgent need for lawyers, and lawyers, when they come, bring about the law‟s further regularization. b. Independence did not just sever the ties with England. After 1776 continue to be influenced by the English common law doctrines. However, as times progresses, creates a distinctive U.S. indigenous system and set of doctrines. C. Civil Law 1. Primarily relies on comprehensive, highly generalized, written codes. 2. Civil Law system - Judge investigates whether there has been a crime and the judge decides whether to bring this to trial and then the defendant has to argue against a judge. The Inquisitorial System. In common law system, the Judge is the neural umpire, not a participant.

Takings & Judicial Process (195 – 224) I. Chapter 4: What Judges Do – A Coda A. Introduction 1. Takings - “5th Amend to US Const – [N]or shall private property be taken for public use without just compensation.” Holmes v. Brandeis on the notion of “freedom of contract.” B. Pennsylvania Coal 1. Statement of the case - Does a PA statute (preventing companies from mining under homeowners) go too far in “taking” private property. – Balancing interests of coal co. and private landowners. 2. Facts a. Deed conveyed the surface, but expressly reserved the right to mine underneath the property – takes the premises with the risk and waives all claims for damages. Plaintiff claims that the Kohler act supercedes all of this though. b. Problem: Coal company actually owns the land underneath the land and sold the surface rights to the homeowners. Made them sign deeds taking the risk of cave-ins. c. Homeowners won when PA intervened – their assumption of risk that led to the reduction in home price is not absolute because risk gone – wealth transferred to the homeowner is more than that gotten by the coal miners (because the coal underneath that company loses was more expensive than the house). Especially because the homeowner will only sell their home back for whatever they think the company thinks how much the coal is worth. 3. Procedural History & Outcome Here a. Supreme Court of PA – D had contract and property rights protected by the Constitution, but held that the statute was a legitimate exercise of the police power and directed for the plaintiff. 4. Holding and Reasoning [Holmes] a. Statute doesn’t disclose a public interest sufficient to warrant so extensive a destruction of the defendant’s constitutionally protected rights. b. General rule: while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. c. Danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. d. Company says that this is a “taking” – govt. seizes the property in eminent domain but supposed to justly compensate if do this (here didn’t compensate) e. Holmes states that this is a “taking” – govt. has shut down the property – govt. can do this, but needs to pay. Question isn‟t whether the coal mining should continue, but who should pay for the costs – govt., people of PA, the company. f. Holmes puts forth the idea of a freedom to contract – if people willing to take risk, then let them make their contract without intervention. (govt. could not intervene in contractual agreements). 5. Separate Opinions & Dissents [Brandeis Dissent] a. Legislature has the power to prohibit uses without paying compensation. Because restrictions imposed to protect the public health or morals from dangers is not a taking. b. Govt. can restrict private property to fosters public safety, even if dramatically reduces the value of the land. Ability of police power to restrict your private property (not in the classic sense because govt. not taking ownership of your property, just restricting it). Govt. will choose to restrict because puts the economic burden on the company, and not the taxpayers. c. if the police power furthers the govt. policy then constitutional – it may not be the best or cheapest policy – just have to be connected (THE RATIONALE REASON TEST)






– govt. has a rational reason to pass goal A in order to facilitate goal B. Note on the Jurisprudence of “Takings” 1. Govt. has the power to “condemn” private property – power of eminent domain – must be for public use and the owner of the land must be justly compensated. In Search of Lodestars: “Economics” 1. Holmes: Economics rights of the parties are the lodestar points of the case – Economic relationships are deserving of a high level of protection and government may not intervene in these types of economic relationships. In Search of Lodestars: “Politics”/“Policies” 1. Brandeis: Political responsibility of government to take care of its citizens – Government trumps all – Govt. through its police power regulates society to the benefit of everyone – Police power is a broad statement of government power. The very beginning of the vast expansion of government. (Classic liberalism shifted from republicanism) In Search of Lodestars: “Property” 1. Holmes Conception of Property – you own it and have the right to use your property in the way you want. Freedom to contract is a building block that rights are built. 2. Brandeis though doesn‟t see a contract as a societal building block. Freedom to contract is not a fundamental right, govt. authority can trump it. 3. Republican Ideology and the Right to Property a. Emphasis on common good and unselfishness. b. Faith in Legislatures was a central tenet of republican thought. c. The Shift from Republicanism to Liberalism 1. Liberalism – sought to create a large sphere within which the individual could exercise privileges and enjoy immunities free from state interference. 4. Property as a Paradigm a. Property – security of legally justified possession and material expectation – was the paradigm of the constitutionally protected private sphere. In Search of Lodestars: “The Rule of Law” 1. Scalia – if the rules of the game are well established, then everybody factors into their costs the cost of regulation. Fairness is not some objective determination, but rather a manifestation of the fact that there are rules of the game and everyone agrees to play by them. Problem with PA coal is that the law was passed after the property had been sold and the houses had been built. Scalia says that the market takes into account the possibility of regulation so long as the outlines of the regulation are articulated before the activity occurs. 2. Why should clear rules be important? [Scalia] Higher priority for society to have the SAME laws, over the RIGHT answer. Scalia’s Six ways to a just society: a. Consistency and the appearance of consistency b. Uniformity among the lower courts (similar matters are decided similarly) c. Predictability, or the avoidance of uncertainty (people privately order their rights in a manner consistent with the rule of law) d. Judicial Restraint (don‟t keep making new laws because people won‟t know the laws) e. Judicial armor against the popular disapproval. (don‟t decide cases with public opinion but merits) f. Keeping matters of law separate from matters of fact. Law & Economics – Property Rights (559 – 583)

I. Chapter 18: Law and Economics A. Introduction 1. Positive (or descriptive version) of economic analysis – explain judicial decisions. 2. Normative economic analysis – Should decide to achieve econ. efficiency

B. Efficiency 1. “Kaldor-Hicks” criterion for efficiency - what the law should be – what are the costs associated with each proposition – transferring the cost of activities efficiently. Says political process is less efficient than the economic process. 2. Need to ask: (a) What are the solutions? (b) How much do they cost? (c) Then choose the most cost efficient means. 3. Hanks, On a Just Measure of the Efficiency of Law and Governmental Policies a. Kaldor & Hicks defined a potential economic move as efficient if, after the move, the winners gain more than enough to compensate the loser. b. How to maximize the economic pie, not to advocate how the pie should be divided. c. Previously rule: Pareto superior (Pareto optimal) – proposed move is efficient if at least one person believes himself better off after the move and nobody believes himself worse off. d. Posner: LEGAL rule SHOULD find the most cost effective solution. 4. Externalities a. Externalities - Activities affect another person in either a positive or negative way. b. Economists: To achieve efficiency, externalities must be: private costs should equal total social costs. 5. Polinksy, An Introduction to Law and Economics a. Simple Coase Theorem: If zero transaction costs, efficient outcome will occur regardless of the choice of the legal rule. b. Complex Coase Theorem: If positive transaction costs, the efficient outcome may not occur under every legal rule. In these circumstances, the preferred legal rule is the rule that minimizes the effects of transaction costs. 6. Boomer v. Atlanta Cement (1970) a. Facts: D operates a cement factory in the town that pollutes and has affected several residences around it. b. Holding and Reasoning 1. Total damage to the plaintiffs‟ properties is small compared to the cost for the factory to change. 2. 3 choices for the factory: (1) Time to find technology to equip their factory with to stop polluting; (2) Pay the plaintiffs for their damages; or (3) close the factory. 3. Court chooses 2nd option - paying P b/c that the technology might not be available by the time specified and the only way to help the plaintiffs while recognizing the importance of the factory is to pay them for their damages. 4. Judge: Company can continue the tort if they pay for it – goes against tort idea of prevention. Against idea that individuals have inalienable right not to be harmed, not just to be harmed and get paid for it. Court implies that this is Kaldor-Hicks efficiency – because the cement company is important to the community – providing jobs and money for it – rather than close it down, it’s more efficient that it be required to pay damages. c. Separate Opinions & Dissents 1. By just paying P, allowing a continuing wrong to persist. No incentive for future change because know they can get out of trouble just by paying. 7. Richard Posner – Wealth Maximization Revisited a. Posner: Can‟t have inalienable rights, because under this idea, every right can be bought – just for a differently amount. Govt. can take away your rights but must compensate you. 8. Ploof v. Putnam a. family in boat during storm who tied to defendant‟s dock – servant told them not to

and untied the ship from the dock. Family sued saying they had a right to tie to the dock. Court said yes – cheaper to fix the damage to the dock than to the boat. Posner – while he agrees that inalienable rights can be sold, they just can be sold cheaply. 9. Guido Calabresi and A. Douglas Melamed: Property Rules, Liability Rules, and Inalienability: One view of a Cathedral. a. Three types of rights according to Calabresi 1. Property 2. Entitlements protected by liability rules 3. Inalienable Rights An important b. Posits that all three of these are different. way of looking c. Property Rights at various 1. You can sell these in order to maximize your wealth. cases. 2. “Property” = is now anything that you can sell, not just physical items. 3. There‟s no reason why a laptop is property, and a kidney is not, however, in Make sure to the U.S. we have laws that say kidneys are not property. use this on the 4. All of contract law. final exam 5. Some of torts. because 6. Price determined by buyer and seller negotiation. Broyde likes it. d. Entitlements protected by liability rules 1. Law may state that you can‟t sell a kidney, but if you do and its destroyed you have an obligation to compensate me for it. 2. Some torts are like this. & Tort of Wrongful Death (not protected by property rights but by liability rules). 3. Govt. intervenes and says that this is not an alienable right – can‟t do this. e. Inalienable Entitlements 1. Transfers can‟t even take them away even if compensate them. Go to prison if you violate other people‟s inalienable rights. 2. Criminal Law. f. Polluting Rules 1. Property Rules – can sell it to those who value it more. g. Right to Privacy 1. A tort right that is really a property right. h. Liquor Licenses 1. While seemingly property rights, you can‟t get one if had a felony so that‟s like an inalienable right. i. Every time government creates a new right, it has to determine what type of entitlement it wants to create. j. Inalienable rights only created in special circumstances because otherwise they are terribly economic inefficient. Calabresi says that if you create lots of them, then hurts the economic system as a whole. k. Baby-Selling 1. Usually give child inalienable right to be brought up by their own parents – except in cases where society has determined that the parents are unfit. Cases v. Statutes (225 – 243) I. In the Domain of Statutes A. Introduction 1. Always have to ask: (a) What is statute‟s justification?; (b) What is statute‟s effect?; and (c) What is statute‟s meaning? 2. Statutes v. Cases a. Cases give courts a definitive, authoritative text – can‟t deviate from it.

b. Statutes also bring in the Legislature in legal issues 3. STATUTES ARE BINDING LAW a. Legislative Supremacy – Legislatures can overturn decisions by courts but courts cannot rewrite or ignore legislation. (1) Legislatures are more majoritarian and create binding determinations for all. 4. Legislative Intent a. Courts should read the statutes and should fill in the gaps in the statutes and fill in the context. If the Legislature had provided a firm context for a statute, that information would be there. b. Allows to read the statutes outside of the words themselves. c. Dissent to this just says that you should read the statute and that‟s it – don‟t add in context – it‟s only the language that is in the statute itself. II. Chapter 5: Statutes v. The Common Law A. A Common Law Rule 1. Filmore v. Metropolitian Life Ins. Co. (1910) a. Facts: P‟s husband wants access to the benefits of insurance plan. D though says no because the husband murdered the P. By killing her she should be stopped from benefiting from her death. b. P claimed that if insurance company would not pay in circumstances where benefit from own fraud, the company should have put it on the policy. Not fair to put new conditions on policy after he‟s signed. c. Insurance company‟s response – you can‟t profit from your own fraud. And quote the common law for this position. Plaintiff responds, if felt that way, put it in the contract so I would have known. d. Court: Agreed using the common law – can‟t benefit from own fraud. B. The Statutory Complication 1. Deem v. Milliken (1892) a. Facts: Plaintiff died and didn‟t leave a will so things should pass to children under most state‟s residual will rules – son wants his share, although he‟s the one that murdered his mother. Since Elmer dead by execution by state, now this case is between debtors and the mother‟s relatives. Bank wanted to reclaim the property when Elmer defaulted on loan, but not paying because dead. b. Court: Says that the state intended for the statute to pass along items to children in the case there is no will. It would be incorrect for the courts to read anything more into that wording – therefore the son is entitled to get stuff, although he caused her death. Statutes should be read strictly as the language employed. c. Court says that they don‟t like the result of this statute, however, they can‟t be the one to change if – if a change is needed, the Legislature should be the one to do it. d. Is this the right result though? - The bank however, is not trying to profit, just trying to get their money back – however, the relatives wanted to profit on the deal. e. This case was before the previous case. The previous case had an intestacy statute, but it shows that the previous case just chose not to discuss that statute – (interesting) 2. Riggs v. Palmer (1889) – other cases have reached opposite conclusion a. Facts: Grandson would get benefits from grandfather‟s will, however, grandson is the one who poisoned his grandfather. b. In NY, the statute set up what conditions can govern the wills. c. Says that the intent of the Legislature would not allow murderers from benefiting. d. All contracts may be controlled in their operation by the general, fundamental maxims of the common law. Statutes have to be read in a common sense way and in common sense way, we wouldn‟t let murderers get benefits. e. Dissent: We are bound by the rigid rules of the Legislature and shouldn‟t read more into them then is stated – they would changed things if they wanted to – The law had

already punished the grandson and now on the benefits he should get. f. This is a classical case – by a statute that covers a situation that reasonable people would say Legislature didn‟t intent to cover. g. Should only apply statute with the intent of the statute – if you can figure it out. Dissent says no intent, there is only the text - just read the text and apply it. 3. (“Legal Realism” – Critical Legal Studies – don’t believe anything about law being a science – law has conflicting legal principles and the one that you apply is a matter of judgment and since judges usually come from the top of society, they routinely apply the principles that lift up the top of society and hurt the lower parts of society.) C. The Legislative Response 1. In 1932 Ohio adopted a “slayer rule” thereby overruling Deem v. Milliken. 2. Wadsworth v. Siek a. Facts: Woman beaten by husband who wanted parts of her estate – he was indicated and brought up on manslaughter charges. Statute precluding murderers from getting the fruits of their “labor” – however, nothing for manslaughter – something Legislature could have included if wanted to. Ohio Legislature didn‟t want to add it to the list because knew that manslaughter was involuntary, drunk driving couples, etc. shouldn‟t be penalized. Here the guy should have been charged with murder, but either prosecutor or cops screwed up) b. Courts can‟t amend statutes, therefore guy can get whatever is in the will. 3. Following this case Ohio once again changed its statute. 4. Shrader v. Equitable Life Assurance Society a. Woman strangled to death in a parking garage and not on had found the killer, although her husband was suspected. b. Court: Since her husband is proven innocent till proven guilty, he can‟t said to be a “guilty person” - statute is not applicable in this case because her husband is not guilty so far. However, court says that the statute is not the only thing to look at – then look at common law – then says that civil courts can decide, not just criminal courts, on whether someone committed the crime for the sake of determining if guilty enough for the statute to take effect. c. Back full circle – don‟t have any criminal allegation here at all – OH court says that they had no problem for using that court for trying his guiltiness. D. Assignment on Pg. 243 – Suicide – Can you Reclaim if he helped to kill her? 1. A‟s argument that he did a good thing is not right – because Ohio obviously found him guilty for murder (they wouldn‟t have done so if they believed he did the right thing). 2. A needs to say then that: Argument for spousal offset provision which say that spouses inherit and general policy that generally don‟t disinherit spouses. State or B would respond: Trumped by the public policy that states that murderers are not to gain from their ill actions. - NOTE: When general statute is trumped by a specific statute, the specific statute beats it/trumps it every time. 3. A could then argue legislative intent – they didn‟t mean to do this. 4. So Finally Come Down to: A has to argue opposite of Riggs v. Palmer – Ohio purpose of the statute (You wouldn‟t want to give your money to the person who killed you). However, under this case there is an exception – Legislature says almost 100% sure that those killed won‟t want to give money to those who kill you, however, in this case, there might be an exception here to that 100%. Here, B knew all the facts and wanted for him to inherit after she died. - If wanted to support this argument, you would look for: Legislative comments from members of the Legislature for their comments of why they enacted the statute and why they disliked Deem v. Milliken. - B would then respond that there is a public policy in Ohio saying you shouldn‟t gain from your own ill actions – can‟t profit from own violations.

5. What if you‟re an attorney now – you have a couple that comes before you – wife really wants to die and husband wants to know how to legally that he can help her die and how can they legally transfer her wealth to him if she kills herself. a. can‟t encourage this behavior – because answering the question is encouraging an illegal act. you‟re a co-conspirator. Legislative Process (445 – 456) I. Appendix: The Legislative Process A. The Bill Itself 1. The Short Title: Can have substantive or historical significance. “Loser Pays Act” – substantive – tells people the policy in the act. 2. Findings Section a. Gives the rationale/what want to accomplish in the bill. (1) Legislative Intent – Tells Courts for what things this bill deals with. (a) Here, findings 1-3 just set up the problem. Finding 4 puts out one solution – puts out a loser pays system. (2) Findings 1 – 3 although not having a lot of things to do with the 4th Finding, it just tells the judge the reason they decided – economic efficiency. The Congress is not supporting the British version of loser pays (that it is fairer). 3. Bill Text a. Section 3a – Award of Fees – Crucial word is “any” – If I sue you on 12 matters, and only win on 1 matter, then you still win because you get your money for attorney‟s fees. Just not the Loser‟s Pay Act – left alone this says that if you lose the lawsuit you pay, but in reality, part 3a says that if you lose ANY claim you owe for attorney’s fee. So discrepancy. (Even if you lose in a practical way, you could still win because even if you win on one claim of 50 you still win). b. Sleazy Part – you could sue people who are just out of violation of a policy, sue them, get change and then bill then for your attorney‟s fees. File frivolous lawsuits all day long and get attorney‟s fees. Statute as written gives right to do that. c. Section 3b – Formal record keeping in case of later contest of fees. d. Section 3c – Limitation on fees – puts limit on contingency fee – court only will give you “reasonable” amount. e. Section 3d – No settlement - prevailing party is the party who gets a win either in final judgment or on singular claims. Definition section. Is the exclusion of settlements relevant? No because you would include attorney‟s fees in the settlement – so shouldn‟t be there. f. Probably won‟t get fees if you represent yourself and you‟re an attorney because like in 3b it says that „counsel or records‟ is needed and not one if represent yourself. 4. Bill Itself a. This bill is a dramatic change in the law. b. Only applicable to civil cases in federal courts 5. This bill in committee a. Two paths: Can die in committee or can hold hearings and create records on the bill – discussions of the Congressmen on the committee talking about what‟s good and what‟s bad about the bill – creates a public policy background of the bill. Committee hearings are an intellectual free-for-all. Has to get a majority vote to leave committee. 6. House Floor a. Everybody can talk on the House Floor – records make the Congressional Record. Full of individual members‟ assertions of the bill – what it will or will not do. Also part of the Legislative record with the committee discussions. 7. Eventually goes to Senate. - If not same, then conference committee.

8. President then signs or vetoes, etc. 9. So really by this point there is a massive legislative record on the bill. Theories of Statutory Interpretation (245 – 265) I. Chapter 6: Theories of Statutory Interpretation Introduction 1. Interpret statutes with a theory, the choice of which is critical to the outcomes of actual cases. 2. 2 models of the judicial role in statutory cases: “Agency” and “Partnership” a. Agency – Courts = agents of the Legislature, carrying out its instructions with little or no independent judgment or discretion. b. Partnership – Courts = lawmakers, working with legislature to produce a coherent and sensible legal regime. A. Courts as Agents of the Legislature 1. Traditional Intentionalism a. Legislative intent - what the Legislature thought when it used the language it used. It curbs the judge and policymaking by an unelected, life-tenured judiciary. b. Intent of the legislature learned by language, history, and structure, and background of the statute – seen in records, testimony, etc. c. Judge should place themselves in Legislature‟s shoes to find the intent. d. Advantage: In line with democratic theory of the country. Problem: Hard to determine the legislative intent b/c so many wills of the legislators. Also b/c sometimes legislatures are ambiguous and sometimes they are very specific, e. Easy when statute just passed b/c know the debate – harder when statute is old. 2. Doubts About the Focus on Legislative Intent Legislative Intent may be difficult to discern a. Fictional Intent (1) legislative intent is fiction – can‟t really figure it out. (2) legal realists don‟t like it – Can‟t figure out what 500 people all think. b. Public Choice (1) Applies market economics to explain institutional and political behavior and decisionmaking. Assumes that people are “egoistic, rational utility maximizers” in political and economic arenas. Statutes are just compromises that are reached in political struggles. (2) Vote by any legislator are result of special interests and logrolling rather than any sincere pursuit of sound policy or the public interest. (3) Posner: public choice scholarship too much – it claims to be scientific and infallible but it‟s not – model is not very useful for reality. (4) Motorized Vehicle Example a. When Congress first used this term, there were no airplanes. When airplanes first came though they seemed to fit the definition. They probably didn‟t INTEND to cover planes though. (5) Courts: what would legislature have said in favor of the public. (6) Pblm. with the public choice – looks like courts doing what they want in whatever circumstance there is ambiguity. 3. Agents of a Principal Without Intent – Moves away from Legislative intent. a. Broadening Intentionalism (1) Court might still defer to legislative authority by (a) determining what the legislature would have decided if it had thought about the issue, and/or (b) determining what resolution is most consistent with the broad purposes underlying the statute. (a) Imaginative Reconstruction

i. Judge should put themselves in the shoes of legislators and figure out how they would have wanted the statute applied to the case before them. Must be reasonable and consider the original time period things were discussed in. (b) Attribution of Purpose i. Intent – refers to what the legislature meant. ii. Purpose – what the legislature ultimately sought to accomplish. iii. Meaning – literal definitions of the words of text. (c) Hart and Sacks Approach i. Every statute has a purpose. Have to decide what the purpose is. ii. Pblm: Doesn‟t account for idea that votes are compromises. b. Narrowing Intentionalism (1) Narrow the judicial inquiry – abandon search for legislative intent for a (nearly) exclusive focus on the statutory text and/or a presumption in favor of narrow reading of statutes. (a) Textualism and the Distinction between Intent and Meaning i. Simply follow the law as written. Just read statute text. (b) Reading with Beady Eyes i. Statute domain should be restricted to cases anticipated by its framers and expressly resolved in the legislative process. B. Courts and Legislatures as Lawmaking Partners 1. “New Legal Process” theorists - statutory interpretation must be a creative act – pursues substantive as well as procedural justice. There can be a “dynamic statutory interpretation.” C. Three “Truths” on Statutory Interpretation 1. Can‟t agree on a hierarchy because can‟t agree on the basic rules of law. Some judges want a rule of law that is closely related to the will of the legislature and others want an activist court and loose statutes. 2. Example: Congress passes the American with Disabilities Act – private right of action for people who are discriminated against because of their disabilities. Can now sue for money. Question was: Should this law though have a statute of limitations? They said yes, but disagreement over how long that statute of limitations should be? Punted to the courts by passing without a statute of limitations – courts then took the case and then couldn‟t look at legislative intent because they couldn‟t agree in Congress. Therefore they had to create a statute of limitations themselves. Rehnquist says screw you Congress – Congress should not do this to the courts – if you don‟t put one in the bill, then will not add one. Courts sometimes do not want to be part of the legislative process. Here though the courts create a statute of limitations. Sources of Statutory Interpretation (267 – 290) [Actually Read Pg. 267 – 290] I. Church of the Holy Trinity v. United States (1892) A. Justice Brewer Opinion 1. Read it in historical context – Done to keep people out of the country who we didn‟t want in here – however, here since it‟s someone that we did want in the country – the statute is wrong and must be changed. 2. First case where SC decides a case on legislative intent. a. If strict textualist, read the statute as throwing out the person. Here, court disregards statute and goes to legislative intent, history, etc. 3. Text of statute a. Says who can‟t come into US and the 4 exceptions: (1) can‟t find someone to do the

work here, (2) performers, (3) relative or friend, (4) personal domestic servant. Clergy couldn‟t be fit into exceptions. b. Title – prohibit the importation and migration of foreigners and aliens under agreement to perform labor – Court says this couldn‟t possibly be for religious clergy, but solely for manual laborers. (1) Has to be determined through legislative intent or through the general use of the term in the 1890s. 4. Purpose of the Statute a. Brewer says purpose is to stop the importation of cheap labor which hurts the American economy. We don‟t want importation of labor, but rather we want them to hire Americans. b. How Brewer respond to idea that maybe the American clergy needs some protection? (1) Close to a First Amendment violation – this is a Christian nation and Christian churches has a right to choose their own religious leaders and if Congress stops this, it would stop freedom of religion. 5. Legislative History a. States that legislative history makes it clear that it goes after day laborers and not those who make their living through their brain. Meaning of the statute, while the statute doesn‟t explicitly say it. (1) What would critics of legislative history say? Congress should have put this in the statute itself – if they want to establish a strong value, then should put it in the statute. (2) Brewer misreads the legislative history – a close read of it shows that Senate had a chance to include artisans and it voted 50-9 not to include the group, but instead to exclude them. So how can Brewer read differently? Congress never intended to restrict laborers of the brain. Textualism & Uncertainty (291 – 318) I. Chapter 8: Reading Statutory Texts A. The Primacy of the Text 1. Significant dispute exists as to whether the text of the statute should be the exclusive basis for judicial interpretation. However, even with the statutory text does not provide a definite answer, it always excludes some possibilities. 2. Problem #1: The Internal Revenue Code a. IRS Code doesn‟t want to tax the gift till you have it and to what it‟s fair market value. Income should only be paid once. b. Model: Just have to run through the statute and interpret it tightly. 3. Problem #2: Building an Incinerator a. Congress delegated EPA ability to set emission standards balanced with the cost of doing it. Delegation of Congress power to an agency. b. Strict interpretation allows exemption from statute – but pblm w/ the term “potential” – statute doesn‟t talk about if the potential is before or after the emission controls are enacted – sue, go to case law, etc. 4. Problem #3: The Case of a Suspended Teacher a. Statute compels it to get to this result of him getting money. b. While it may be dumb, the judge would say – go to Legislature if want to change it. c. “Law of unintended consequences” – doubtful that Legislature intended for cocaine teachers to be paid, but that‟s how it worked out. 5. Problem #4: Uses of a Firearm a. Have to know what “use” means. Ambiguous in statute and could affect if he actually used it in the scenarios or not.

B. Statutory Uncertainty 1. Why aren’t statutes clearer? a. The Challenges of Language (1) It ought to be intelligible because it ought to be in words – and words are utterly inadequate to deal with the multiform occasions of life. (2) Words are notoriously imperfect symbols for the communication of ideas – and draftsmen must write words to appeal to multiple groups, all with their own understanding of meanings of words. (3) Courts just can‟t ask the Legislature what they mean. b. Unanticipated Situations (1) Can‟t make statutes comprehensive, covering all situations. (2) Whoever lays down the general rule must be able to anticipate every conceivable situation in which it might be applied. c. The Legislative Process (1) Legislative process hardly lends itself to careful, precise, statutes. (2) Many vague statutes essentially delegate authority to the courts or to an administrative agency, leaving it to them to work out the regulatory details, if not the whole legislative scheme. (a) Pro: Agencies have a better comparative advantage to do this kind of technical work. Con: Legislators fail at this type of role. d. Group Authorship (1) Difficult to draft language in committee. 2. Vagueness a. Regina v. Ojibway (1) Facts: Indian riding a pony through Queen‟s park – sitting on down feather pillow instead of a saddle. The pony injured its leg and due to Indian custom he shot it. Charge of breaching Small Birds Act – saying you can‟t hurt a bird. (2) Statute says two legged animals covered with feathers (pillow) so judge held against the Indian. (3) Important point – words must be taken in their usual daily language meaning, not at strict as this opinion shows. Must sometimes go with normal usage. b. Rider says “Whoa” to Drunk Charges (1) Charged with DUI on horse – says not a motorized vehicle. c. “No Vehicles in the Park” (1) General words must have some common application. There must be a core of settled meaning, but there will be, also, a penumbra of debatable cases in which words are neither obviously applied nor obviously ruled out. (2) Sorted out by interpreter by looking at “aims, purposes, and policies.” d. Note on Vagueness and Delegation (1) Open-ended, broadly worded statutes are treated by the courts as legislative invitations to create a common law. The broader the statute, the more freedom for judicial interpretation. 3. Ambiguity a. Nix v. Hedden (1) Facts: If tomato is fruit or vegetable for taxation purposes. (2) Scientifically tomatoes are fruits, the common use has them as vegetables. b. University of Utah Hospital Med. Ctr. V. Bethke 4. Grammatic Uncertainty a. Courts often rely on rules of grammar or punctuation to determine statutory meaning. However, legislatures often create ambiguity through grammatical carelessness.

Textualism: Canons of Construction (319 –332) 5. Clues from other Provisions a. Words are always used in context – Interpretation looks beyond the specific operative term to other textual clues such as the use of the term in other provisions or the structure of the statute. 6. Canons of Construction Canons of Construction – interpretive principles as to textual meaning. Generally, not found in the statute but are invoked by judges on their own. a. Invoking Canons (1) Suspicious as to whether canons actually control – or affect – interpretation. b. Types of Canon (1) Two general categories (a) Linguistic Canon – basic rules of grammar or usage; rest on the assumption about how speakers use words and in theory, steer the interpreter toward a reading consistent with legislative intent. (b) Substantive Canon – general substantive principles. c. A Linguistic Canon – expression unius d. Substantive Canon – presumption against interference with state govt operations. Legal Realism (509 – 537) I. Legal Realism A. What does Holmes mean by a “Bad Man?” 1. “Bad Man” only follows the laws because there is a punishment involved. 2. “Good men” follow law regardless of their info of the punishments involved. 3. Holmes: Good people intuit what good things to do are and follow the law. Bad people just toe the line, following the law just enough to not get in trouble. 4. When law permits something morality labels as immoral, Holmes‟ bad man does the activity because he sees his legal conduct devoid of morals. 5. Holmes ignores good people‟s tendency to examine the laws closely, determine that the law is wrong, and then overtly defy it or even covertly. 6. Legal Realists have split morality and the law. B. HYPO: What about people in 1840 who went around instilling slave rebellions? 1. People who did that usually hung so that deterred others from thinking about it. 2. Slave Rebellion Instigators would say that they were “good people.” 3. Holmes: These people didn‟t exist or that they were hardly in existence. 4. Problem with Legal Realism – has only one idea about why people violate the rules – the costs of violating the rules is less than the benefit of violating the rule and getting away with it. Law then serves as a check to the sudden urges to do something wrong. But if you deal with challenges to the legal system grounded in something greater than a sudden desire to do something bad, legal realism has a hard time dealing with it (such as civil disobedience). 5. Legal realists know that because people use cost-benefit analysis and people will do thing that they think can be accomplished, must make the costs huge and pleasant (like jail). If Legal Realists have to overpunish to stop bad activities, almost no punishment is “fair.” C. Legal Realism only works if the system is (a) efficient and everyone gets caught and (b) there are no public displays of overt defiance of the law based on morals because people want to get caught and get punished. 1. Legal Realists wouldn‟t be able to handle Martin Luther King‟s civil disobedience in jail and writing letters from them. D. Legal Realists are too logical for what law OUGHT to do – assumes much too much of a logical, rationale players in the game – don‟t consider that most murderers don‟t rationally think about their

actions before they commit murder. E. Legal Realism problems. When realize that not everyone is a rational player, then hard to deal with things. There is a lot more legal realism in financial and securities law because people are more rational players when breaking the law here. Breaking from the Text (332 – 341) I. Ignoring Unambiguous Meaning A. United States v. Locke 1. Have to file prior to December 31 and they filed it ON December 31 and took away their mineral rights from them – Govt. says strict interpretation – “before” December 31 is prior to the 31st, like the 30th. 2. SC said they DIDN‟T file the statute b/c that‟s not what statute said. Dissent: the interpretation is stupid. Stephens: look at legislative intent and they probably meant end of the year, not a specific date. 3. Is Stephens wrong: One answer Yes, b/c judges can‟t find for leg. intent in the face of actual statutory words. Replies that if Congress can‟t write what it means then he‟ll write it himself. 4. Congress intentionally wrote the statute knowing how people would think that they had till the end of the year, but it was the 30th – it was conscious by Congress because they wanted stupid people to default on their mineral rights and then the Government would profit from getting the rights back. 5. Stephens has hard time believing that Govt. would really be this devious and so an accident and b/c accident, can redo statute. 7. Holmes View: Take away property b/c missed deadline. And is a warning to everyone else. Good person would have filed at the beginning of December to be safe. Don‟t toe the line. 8. Arguments for Ignoring Plain Meaning a. Absurd Results (1) Even committed textualists concede that a judge should not follow the literal meaning of statutory language if it leads to a result that is patently absurd. b. Legislative Intent (1) Apparent meaning of the statutory text may be inconsistent with actual legislative intent. c. Background Norms (1) Court might reject apparent textual meaning because it conflicts with important background norms. B. United States v. Wells Fargo Bank 1. Congress allows types of bonds to be tax-free – statute here is in controversy as to whether you have to pay estate taxes on these bonds that are inherited to you. Literal read was that these bonds were free from estate taxes because of “all-taxation.” And in other cases, Congress has used the terms but then parenthetically exempted other types of taxes. Here forgot the parentheticals. 2. Attorney: If wanted to exempt from all taxes except for estate taxes would have put it in. 3. SC says that NOPE – Congress couldn‟t have really intended that there would be total exemption from taxes because that would deprive the govt. of revenue and there is no notation that anyone intended that. Couldn‟t have been the intent of Congress, though that‟s how it is written. Statutory Purpose (343 – 355) I. Chapter 9: Statutory Purpose Statutes always have some purpose or object to accomplish A. Heydon‟s Case (based on finding statutory purpose)

1. For the sure and true interpretation of all statutes, four things are to be considered: (Have to consider these four things for every statute). a. What was the common law before making of the Act; b. What was the mischief and defect for which the common law did not provide; (Parliamentary intent) (statutes also trying to codify societal values, etc. besides mischief). c. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; d. The true reason of the remedy (the precise mechanism for reaching the precise goal). EXAM: WITH ANY NEW LAW, HEYDON’S ANALYSIS IS THE FIRST THING DONE. 2. Statute must be read in the light of some assumed purpose. 3. Scalia - Do Heydon‟s case, BUT ONLY if Congress puts it in the bill. Look to Findings section (what mischief trying to correct). When Congress leaves it out, Scalia would say that means Congress doesn‟t want courts to do the compare/contrast analysis with the new law. 4. Why not put a finding and a short name on everything? Don‟t want to put out the reasons for doing the bill and the broader the bill, the less likely you want to make findings and trying to hide bad things. 5. Heydon‟s rules can lead to legislatures manipulating bills so as to alter future judicial interpretation – only putting good motives in the findings so that when go through Heydon‟s analysis in court you‟ll get a good decision. B. Friedrich v. City of Chicago (Posner) 1. Awarded attorney‟s fees, expenses, and expert witnesses fees under § 1988. 2. However, being challenged because experts are not attorneys. 3. Statute hastily done – was done on the last day of the session. 4. Not usurpation for the court to complete the statute by reading it to bring about the end that the legislators would have specified had they thought about it more clearly or used a more perspicuous form of words. 5. To forbid the use of expert fees would be to encourage underspecialization and inefficient trial preparation. 6. See no reason that Congress would have exempted expert fees from the Loser Pay Act. C. West Virginia University Hospitals, Inc. v. Casey (Scalia) 1. Attorney‟s fees and expert fees are two separate costs; experts are not covered. 2. Not the court‟s role to determine legislative intent. Just because Congress “forgot” something doesn‟t mean that the courts should interpret it. 3. And since Congress didn‟t put in expert fees, they shouldn‟t get it. 4. DISSENT – Marshall – Statute is giving power to plaintiffs in civil rights cases, not adding expert fees in goes against what Congress was intending. 5. DISSENT – Stevens – Allowing reimbursement for other things and not expert fees goes against the purpose that inspired that provision. Use Heydon‟s Case analysis to figure out what the mischief was attempting to be stopped. 6. Scalia – text trumps the purpose/intent. Dissent – Intent/Purpose trumps the text. Legislative History (357 – 372/393 – 397) I. Chapter 10: Legislative History A. Using Legislative History 1. Plain Meaning Rule – If words plain, they give meaning to the act, and it is not the duty of the courts to search of a different meaning. Not used now. 2. A Hierarchy of Legislative Sources a. Highest is Committee Reports

(1) Expertise – represents the collective understanding of those Congressman with the most expertise on the committee. (2) Care – these documents are crafted carefully and fully. (3) Delegation – Committees have the most power in Congress. (4) Congressional Reliance – Members rely on the reports. (5) Criticism: these reports are just special interest fodder. b. Next are statements made on the floor by bill sponsor or floor manager. (1) Statements by individuals are not listened to. c. Statements made at hearings. d. Scalia - we never know what the majority actually wanted in the statute, but rather we get many individual viewpoints that are meaningless. 3. Legislative History in Practice a. Air Quality Standards b. Liability for Hazardous waste cleanup (1) Congressional Records - Useless b/c Members can revise and edit their statements. c. “Employee” under the Age Discrimination in Employment Act (1) Gregory v. Ashcroft (a) Doesn‟t allow the consideration of age in the hiring and firing of individuals over 40. (b) Used similar legislation to show legislative intent. II. Notes on Pg. 393 – 397 B. The President 1. Deference to Presidential Interpretation a. President controls agencies and Court sees President as mechanism of electoral accountability for agencies. 2. Presidential Signing Statements a. The agencies he proposes, drafts, and lobbies for a large number of legislative initiatives the Executive Branch plays a significant role in shaping the final product. b. Gives a signing statement – official comment about the bill. President puts forth their interpretation of the bill – adding to the legislative history. c. CRITICISM: President usurping the power of courts and Legislature and because written after passage, can‟t have an affect on the intent of the Congressional debate. d. REPLY – However, President is involved in Congressional debate. 3. Legislative History and the President’s Role a. Whether or not the President‟s legislative role justifies judicial reliance on signing statements, it may have consequences for the judicial reliance on legislative materials. Critique of Legislative History (372 – 383) C. The Assault on Legislative History - “Textualists” judges, led by Scalia, call on courts to swear off legislative history altogether. - Holy Trinity Case is THE MAIN EXAMPLE of the use of legislative intent. Case stands for the proposition that judges rule the system, because only loosely tied to the laws that Congress writes. Judges are not strict constructionists, but rather judicial activists. 1. Constitutional Illegitimacy a. We are governed by laws, not by the intentions of legislators. 2. Unavailability and Cost a. Only statutes are law - only statutes go through all the constitutional procedures for enactment. 3. Inaccurate Evidence of Members’ Actual Views a. Only few members read Committee Reports and most of the time written by staffers and special interests. Plus, more the courts have relied on these reports, the more the writers of

them have written things in there to influence the courts. 4. Indeterminacy a. Can find legislative intent for whatever position that you want to advocate. Note on Legislative History and “Democratic Exegesis” a. Use of legislative intent is undemocratic. Argument: By using text of the statutes, thereby reducing judicial power, it increases the power of the democratically elected branches. 5. Scalia: Legislative intent is so diffuse that people will find whatever they want in legislative intent and so it is useless. 6. Pg. 117 – CA statute on negligence – didn‟t do a specific law on pool drowning because consciously tossing it to the court to decide. Want to remain a common law state and so put a vague law forward for the courts to decide. 7. Common law system gives the power to judges, while the civil code system is legislature empowering (diminishes the power of judges). These two models are constantly battling each other. 8. Assignment Pg. 383 – if follow Scalia, would say that she is screwed. But if follow legislative intent, then would say that you would say that there is probably another law that deals with this because she is not making money, just other coins. The more you‟re tied to legislative intent, the more likely to update laws to the modern era at will – Scalia‟s people though would just read the statute as is, and not consider the modern context. Agency Action (385 – 392/397 – 398) I. Chapter 11: Additional Players - Administrative Agencies implement statutes. “4th Branch of Government” - President has two important roles: (a) Chief Executive – agencies‟ boss and control their interpretations, and (b) veto power makes him a significant part of the legislative process. - Congress: Delegates authority or oversight to the agency. Authority: higher powered delegation. A. Introducing Agencies 1. Agency takes the general language of the legislature and translates it into specific requirements; agencies governs on a day-to-day basis and are created by statutes. 2. Executive Agencies (Dependent) – w/i executive branch; headed by one political appointee; includes Cabinet departments. 3. Independent Agencies – subject to less presidential control; headed by multi-member, bipartisan commissions. Immune from direct Presidential authority. Example: Federal Reserve. Varying levels of Presidential powers within these organizations – immune from Federal Reserve, however, lots of control in the military. 4. Most federal regulations are produced through “notice and comment rulemaking” 5. Legislative function by promulgating regulations, executive function in inspecting and policing compliance, and judicial role in adjudicating applications for permits and licenses and alleged violations of statutes, regulations, and permits. 6. Agency Action – don‟t make law, but through the vague enabling act creating the agency, the agency is given large amount of authority to regulate actions. For most part though, agencies just interpret their mandate given to them by Congress. a. If agency doesn‟t do mandate correctly, or if overstep boundaries, the courts step in. B. Deference to Agency Interpretations 1. Courts often defer to the interpretation of a statute given by the appropriate agency. 2. Skidmore v. Swift & Co. a. Is “working time” for firefighters include the time sitting around. b. Supreme Court: Defer to the administrative interpretation of the statute by the administrator and we don‟t know if he‟s right or wrong, but when Congress charges this individual with interpreting the act, his/her decision should be binding. The only time we‟d overrule the administrator is only when he/she is CLEARLY wrong. c. This is a highly deferential standard – BINDING ON PRESIDENT AND COURTS.

a. Become interpreters of the Constitution - binding on the courts. b. Approach in Skidmore labels administrative agencies extremely powerful and the central administrator is not just political role, but also a judicial role. (Therefore, becomes open to extreme political maneuverings). 3. Chevron USA Inc v. NRDC a. Facts: Non-profit environmental group sues the EPA – Chevron in favor of the regulations and so they sued the National Resources Defense Council. b. EPA created regulations and Chevron argued the court should defer to the administrative agency‟s interpretation of the standard – the court shouldn‟t ask “is it right or not” but rather “did the agency follow proper procedure”? c. If Congress hasn‟t dealt with the issue, then courts should defer to the administrative agency. These are political decisions and if the Legislature doesn‟t choose to take them, then should defer to the administrative agencies. And the courts can‟t overstep the agency‟s power. 1. Only way for the courts to strike down the agency‟s interpretation is (1) if the agency blatantly was wrong in its interpretation, (2) went against the Constitution, or (3) went against procedural due process by breaking the rules of how agencies work (like have to publicize the regulation and take public opinion on them for x amount of days prior to the final regulation). THREE WAYS THAT COURT CAN UNDO AGENCY ACTION – ONLY THREE WAYS. 2. The agency just being wrong WILL NOT be struck down by the court. Only Congress can change that. 3. Chevron doesn‟t give us guidelines on how to deal with problems to the APPLICATION of regulations, not the interpretation. (like minorities are not getting the number of broadcast rights example). 4. Turns out that not every agency action is challengeable. II. Pg. 397 – 398 Assignment – Gregory v. Ashcroft A. If wanted to just have individuals take care of compliance, do: 1. Allow people to sue to have the law followed. a. private right of action presupposes that there will be a jury trial and they can have biases (like white Alabama juries hurting black males before civil rights). 2. By having the agency sue, they can get an injunction which the plaintiff can‟t get. B. Problem with administrative agency – if political appointee, they make decisions politically and so nature of agency will swing with changes in administration or political decisions. C. With administrative deference, courts only defer to administrative agencies if the material is technical, scientific, etc. (like chevron case). However, in EEOC, it’s just interpreting a statute which court can do. Also, when the agency is political in nature, then the courts will be leery of their rationale. The more technical the case, the more deference to the agency. III. Assignment on Pg. 424 – Overhaul of Immigration and Naturalization Act Problem 1: A. The INS is not going to get deference over the psychological nature of persons. B. Congress wanted to create a broad language because didn‟t put homosexuals and sex perverts into the statute, but rather created broad language – thus open to change. C. Congress would have voted to allow a changing standard for allowing people into the country depending on current definition of “psychopath” Problem 2: A. Is a fight about whether homosexuality is a “sexual deviation” in that court‟s area. Problem 3: A. Congress made the statute more technical, so more deference to CDC and other agencies – clarifies things all around the country.

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