LEGAL METHODS OUTLINE COMMON LAW REASONING Role of precedent Law is not unchanging Distinguishing cases based on the individual facts to come to new conclusions o Judges give more or less weight to different factors Narrow/broad interpretations of common law rulings Rules vs. Standards o Rules: more stringent result (binding) DEMAND that a decision maker respond a certain way to the presence of triggering facts. ROL is ostensibly neutral and general; however Severe impartiality can lead to inhumane results (Think Palsgraf and ct costs) Consider: The Restatement has no precedential power…do cts sometimes neglect careful analysis of problems b/c of their willingness to defer to the restatement? Bright line rules: The more the law is settled, the more likely it is that people won’t litigate. Highly predictable outcomes. o Standard: more general interpretation (more leeway in end result) If there are multiple criteria for analyzing the law, almost always use the standards approach. direct application of a background principle or policy Standards mean that there will probably be a lot more for the jury to decide (their sympathies come into play) Legal doctrines that collide => different levels of generality o Deciding the facts that turn the case Power of analogy usually used in ―slippery slope‖ problems o Basically policy arguments – look at effect will be (carried to its logical conclusions) Eg, economics, incentives, etc… Tools o o o of case law: (ALL USED TO CONSTRUCT ANALYSIS FOR CONCLUSIONS) Precedent Logic Public policy Slippery slope arguments are policy questions. You should think about what incentives or consequences would ensue if a certain directing is taken. In the common law area, cts are attentive to policy implications. Language (how used in context of other cases) Sympathies Analogies Manipulating levels of generality Catergorical vs. multi-factual approach
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Which legal doctrines take precedence over other? o Eg, categorical v. multi-factua (case by case)l approaches Categorical approach => rule-based If the issue falls into a certain category, there is a binding conclusion Weakness: whether the case is an exception to the rule, or if the rule is completely binding on the case?
More likely to be a question of LAW Multi-factual (case by case) approach => standard-based Weaknesses of multi-factual approach: o often don’t tell you how much to weight each factor, so it can end up being a weak argument. o Cts are not often clear whether they are ―and‖ or ―or‖ factors o Was court using factors as illustration, or is it an exhaustive list of factors?? More likely to be a question of FACT
Precedent/Stare Decisis o Adherence to precedent is a principle/value not a rule Constraining force // but seldom so constraining that there is no room for movement o Ct’s legitimacy is enhanced from judicial self-restraint. In using precedent, judges will enhance the parts that are favorable, and playing down the unfavorable parts The more politicized cts are, the less likely that they will command respect. Nothing has changed in the law or in the country’s circumstances that would justify the overturning of roe v wade, for example. Though the judges won’t directly overturn roe, they’ll steadily chip away at it. o Precedent has less power when there are more factors at play in a case Ie, less likely to be just like previous cases o The clearer the statement of the issue and facts, the less precedential use it may have. o The less reasoning used in a previous decision, leaves more room for argument re: its precedential value in subsequent cases o Using precedent from previous cases: either enlarge or limit the scope, depending on the outcome you want to come to. o Do some precedents constrain more than others? If the conclusions of a case apply to a broad set of categories, it can be classified as a substantial precedent. o However,There is a benefit of (incremental) common law adjustment. Compare the Soviet Union…why did it fail? Because there is not opportunity for incremental adjustments. Central planning meant that one person had to know everything about anything. This leads to inefficiency. o Benefits of the precedent system: 1) Social welfare is enhanced by the predictability of laws—utilitarian argument 2) minimal fairness—deontological argument o Argument: according to some cts, stare decisis is a principle of policy and not a mechanical formula of adherence 6 reasons why clear rules are important: (1) consistency (2) uniformity among lower courts (3) predictability (guarding against inconsistency) (4) judicial restraint a. Problem of Judicial Notice: Judicial notice is generally about facts that cannot be disputed (ex. When it rains the ground gets wet.).How much should cts assume to be true? How do cts know anything? (5) judicial armor against popular disapproval (6) keeping matters of law separate from matters of fact
STATUORY INTERPRETATION statutes always trump common law o exception: courts’ interpretations of that statute is binding on future cases intent: what statute provides on the issue purpose: what statute seeks to accomplish sources of statutory interpretation: o text – language of statute itself (modern trend looking past strict interpretation of the words alone.) o title o purpose – evil to be remedied o historical/legislative context – circumstances surrounding enactment o legislative history – paper trail (committee reports usually most persuasive) o public policy/the nature of things
VAGUENESS IN STATUTORY LANGUAGE: Words are imperfect! o Condideration: could a vague and standardless statute indicate to the ct that it should hammer out the details?? (Statutes often vague so that they can be passed by a majority) o many of the open ended, broadly worded statutes are treated by teh courts as legislative inventions to create common law o often create ambiguity through grammatic carelessness TEXTUALISM: Follow the law as WRITTEN; look at inclusions and exclusion to see to what extent the statute reaches; instead of attempting to derive a subjective meaning from the text, the textualist would focus on the objective meaning (the average person). o Function: Rather than trying to figure out what the drafters meant, trying, objectively, to figure out what meaning of the disputed words are in the context of the statute. o What can be considered? Omissions and commissions Policy considerations // political-economic assumption Ordinary meaning if statutory text has plain meaning, no reason to go elsewhere to find evidence to undermine it. ―terms of art‖ // ordinary understandings common law usage is particularly usage. Plain Meaning Rule is NOT synonymous to Textualism ―Plain meaning doctrine‖- The plain meaning rule rest on the belief that the actual words agreed to are the best evidence of the ultimate legislative intent—This has been laid to rest. Almost everyone will look at leg. history now. Dictionaries Ie: ―prevailing party has a longstanding definition‖ Buckhannon CANONS OF CONSTRUCTION Today, textualism is the leader of the pack. Although older judges may have used leg. history to confirm their read of a statute, this is mostly no longer the case. Policy argument: Courts should use the textual mode of interpretation, so that the legislature will be more careful in drafting legislation in the future
textualists often agree with the public choice theorists in thinking that the legislative process generally does not produce statutes having coherent purposes or intents New textualists will interpret one law in light of the entire corpus of the law. (holistic textualism); they’ll look at how statutes have been interpreted, and follow suit. Read Buzbee’s article.
INTENT: trying to ascertain what the legislature actually wanted (or would want) the outcome to be of a particular dispute; the point of the ct is to find out what the legislator ―had in mind‖ when it used the language at issue; purports to curb judicial policy-making. o To determine legislative intent Close parsing of the text of the provisions/statutory structure Enactment history Legislative history (criticized b/c creates all the wrong incentives for Congress) o Main critique: collective nature of the legislature! Ie, no single mind behind a piece of legislation Thus, it is a mistake to ignore the many reasons behind passing legislation Ie, remedy of a problem, satisfy constituency, etc… o Textualist critique: Intention of the legislature must be found in their words, not in their secret intentions. If they’d wanted to be more explicit in the creation of a statute, they could have. o Public choice critique: economic theory applied to political science It is a mistake to think of legislation as anything besides bargain/compromise between different interests. No single intent! Just a disagreement, compromise, and outcome. Another strain of public choice theory: cynical re entire political process Thus, intentionalism adds something that is fiction to the realities of the legislative process o Subset of Intentionalism: Imaginative reconstruction (Posner) Posner-the judges function is to imagine as best he can how the legislators who enacted the statute would have wanted it applied to situations they did not forsee. (imaginative constructions. o Intent v. meaning: an important distinction! Meaning is more rooted in concepts of Textualism Intent is figuring out what the drafters meant (goal) PURPOSE: What was the evil to be remedied by the enactment of the statute? o All legislation is purposeful, and judges should be faithful agents to that purpose. o Also subject to critique from public choice theory Not just one purpose! Are statutes just bargains among interest groups? And despite this, should the statutes be enforced without argument? o Benefits: Less manipulable and less subject to misuse than intentionalism o Critiques: Not the court’s job! May be theoretically relevant, but simply too hard to determine. o Should you expect coherence in different bodies of law? Ie, should different statutes use similar language? Answer: usually, it is hard to see the argument that they should!
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Progression of statutory interpretation changes the language to address problems Ie, after passage of Statute 1, there is administrative agency interp, lower court interp, and other statutes modifying the field Then Statute 2 comes along, and tries to fix some problems raised by these interpretations o Ie, different language to address the same purpose as Statute 1! Common Purposivist Theme—Avoiding absurd results All statutes should have a sensible construction. A ct must say that the act, although within the letter, was not within the intention of legislature, and therefore cannot be within the statute.Holy Trinity Counter: is this sort of construction a usurpation of the legislative function? Judicial Lawmaking??
DYNAMIC INTERPRETATION: Continuous updating of a static legislative text to reflect current societal norms o Encourages decision making with the real-world impact and implications in mind o Similar to imaginative reconstruction, but more explicitly calls for updating according to present-day legislative views o In practicing law, it is always important to point out what the real impact will be. o Critique: undermines legislative supremacy! o Judges disagree with the practice, but admit that this is often what judges do! LEGISLATIVE SILENCE/INACTION?: o judges relying on leglislative inaction often look for specific evidence that the legislature was aware of something but left it untouched. Argument against using legislative inaction as a sign of acquiescence: legislators can’t get to everything! Just because they don’t get to it doesn’t mean that they agree with it!Scalia says-cts should not base their decisions on whether they think congress will subsequently overrule them by statute. o Significance of Legislative Ratification (generally a questionable argument):…does this equate to legislative silence? Explicit or implicit legislative embrace of a cts earlier decision Legislature has not corrected the judicial interpretation Problems with ratification arguments o Congress is busy, and it’s presumptuous to assume that their silence on an issue equates to ratification. o It’s generally post-enactment
FUNCTIONAL ANALYSISo Functional Analysis—Incentives created by awarding attorneys fees to Civil Rights litigation (private attorney general actions) etc. Perhaps litigants will be more willing to bring suits in good faith if the process won’t be financially crippling to them.
CANONS OF CONSTRUCTION Linguistic vs. Substantive
LINGUISTIC: reflect basic rules of grammar or usage and steer the interpreter toward a reading consistent with legislative intent o MOST CANONS ARE LINGUISTIC o expressio unius: expression of one thing is the exclusion of the other Most used canon today! Has also been criticized Can’t expect law makers to be all-knowing in what they aim to do Ie, there will be linguistic differences, and can’t so strictly construe it to assume internal coherence within the statute o Counter: if we don’t EXPECT internal coherence, we are giving congress license to draft sloppily o in pari materia: If you have similar language in a set of statutes, they should be interpreted in the same way. Ex. In WV v. Casey : should the cts also have the ability to shift experts fees? USSC says no. Since numerous other statutes refer to both attorneys fees and experts fees, we must assume that the omission was an exclusion. (expression unius AND in pari materia??) o ejusdem generic: list of items should be looked at together to determine class of categories included o Cts will always (to the extent possible) interpret a statute as being constitutional SUBSTANTIVE: o Statutes in derogation of common law should be narrowly construed o Penal statutes should be narrowly construed (doctrine of lenity) Ie, read in favor of the defendant o Remedial statutes should be broadly construed o The presumption against interference with state and governmental operations o Clear Statement Canon-USSC is fond of this canon; the ct will look for an especially clear statement if an interpretation of a statute will impinge on a particular value (such as state’s rights or 1st amendment) 3 ways that canons can be rendered meaningless: (1) vagueness (2) qualifiedness (3) apparent existence of a canon for every possible proposition (ie, canons can undercut one another)
LEGISLATIVE HISTORY: THIS WILL ALWAYS BE CONSIDERED state cts tend to use legis. history less often than federal courts (less complete records) hierarchy of legislative sources (most persuasive to least): o committee reports Why are committee reports the most influential, given that they are written by staff members, and under the influence of interest groups and lobbyists? Answer1) Expertise 2) Care 3) Delegation 4) Congressional reliance. Problem w/ the report: it is often written by proponents of the legislation, so the opposition’s viewpoint is highlighted the usual rule is that statements by the opponents of legislation carry less weight than the statements by supporters o floor debates o hearings o presidential signing statements o misc. legis hist. (eg, indiv. statements of congressmen, press releases, etc…) critiques of legislative history: o should be governed by the laws, not intentions of legislatures
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ie, end result governs, not how we got there legis hist used to be more unavailable and expensive to obtain inaccurate representation of members’ actual views (written by staff members) indeterminate, manipulable, undemocratic You could presumably pick and choose what you want in supporting your point o In practice: Never construct an argument that relies upon both the statutory language AND the legislative history. LH is CONFIRMATORY. ―The legislative history confirms my interpretation of the text of the statute blah blah‖ LH should be a separate argument in the brief.
ADMINISTRATIVE LAW agencies PROMULGATE regulations // legislatures ENACT statutes Agencies have (1) legislative, (2) judicial, and (3) executive functions. o To write regulations – notice & comment rule-making process [legislative function] o Adjudication of permits or licenses required by regulation [judicial function] o Enforcement – inspecting and policing compliance [executive function] Constitution Legislature – (enact) enabling act administrative agency is empowered and limited implements and enforces the law. Organic act: statute that creates the agency Enabling act: assigns duty to agency, empowers them to handle the problem. Notice and comment process: most common mode of rule-making o Proposed rule notice and comment period final rule o Agencies have to explain themselves at every stage Agencies always have a degree of DISCRETION to implement rules Cts always give agencies degree of DEFERENCE with regard to their interpretation and implementation. o Cts are generalists//need expertise to handle the decision making. DEFAULT RULE re: agency action: agencies have unreviewable discretion to pursue violations less than they are enabled to do. Skidmore case: o Sliding scale deference => ―all things considered‖ deference Ie, it depends how persuasive the agency was in their views o Cts are not bound, but may be persuaded Chevron case: o ―Chevron two-step‖ if congress has spoken to the precise question at issue, that is the end of the matter ie, no deference to the agency’s interpretation court and agency must both agree with congress if congress has not addressed the precise question at issue (ie, silent or ambiguous), the question for the court is whether agency’s answer is based on a permissible construction of the statute. Counter: What on earth is a ―permissible construction?‖ Courts will not impose judicial construction of the statute. o Rationale for the decision in Chevron:
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agencies are better than courts in setting policy president is accountable to the people by extension, so is entire executive branch (courts are not!) Critiques: vests too much responsibility, and gives too much deference to the agencies Exec branch’s responsibility is to enforce law – not create it greatly expands the power of the exec. branch inconsistency over time with agency’s changing views as administrations change. Only Notice & Comment regulations are subject to Chevron step-2 deference not guidance/policy papers.
Mead case: When do you get Chevron deference? o When it is clear that Congress has given law-making authority to the agency State Farm case o Hard look review Ie, cts will rigorously look into agency’s rulemaking process o Result: over half of regulations are remanded by courts to have the agency try the rulemaking process again o Usually comes up when it’s a high-stakes regulatory action of major impact. Overton Park case: o When an agency reaches an unjustifiable result Arbitrary and capricious interpretation FDA v. Brown & Williamson o Ct. creates loophole for extraordinary cases that don’t get Chevron deference o Changes what you look at in Chevron step 1. Ambiguity doesn’t necessarily assume delegation of power. o Exception to Chevron: won’t grant deference to such significant, economychanging interpretation.
STATUTES AND LEGAL CHANGE When should the Ct overrule??? o Intervening developments in the law Judicial Legislative Change in executive administrations // agencies o Lack of coherence Law itself has become incoherent, OR Ct thinks it can make the law more coherent by creating new rule/interp. o Weakening conceptual underpinnings Ie, change of modes of interpretation. o Obstacles, unworkable decisions (wide latitude) o Becomes outdated // inconsistent with sense justice and social welfare Ie, no longer enjoys majoritarian support LAW AND ECONOMICS Descriptive (positive): what does economics tell us about the shape of the law // how it got where it is Normative: law and jurisprudence should be controlled by economic principles
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any legal solution should take into account not just a closed legal system – should also take into account market influences preference for market ordering over political ordering should be wary of interfering with free market (anti-regulation // if there is regulation, it should be cognizant of and sensitive to market influence) politically conservative view STRONG: regulation should only overcome market influences if you can point to specific market failure MODERATE (Posner): prefer common law decision making to legislation/regulation decision making virtually always sensitive to efficiency concerns // sensitive to context, rarely incorporates drastic changes in the law ie, common law solutions are inherently efficient. common law tends to take small steps abrupt change is bad in market!
Rational actor theory: everyone takes into account their own interests maximize personal benefits o Ie, assumption of self-interested rational actor Efficiency: o Pareto superiority if two people engage in trade, at least one actor is better off, and no one is worse off. Pareto optimality: from a certain point, there is no move that will result in Pareto superiority Ie, someone will be made worse off if changed from this equilibrium The law should not prevent actors from engaging in Pareto superior moves. o Kaldor-Hicks efficiency there are changes/trades that may be made that will leave some better off, and some worse off Efficiency will be reached when more are made better off than worse off. More realistic, b/c most trades in the real world someone is always made worse off than he was before. Does NOT mean that the losers are compensated for their loss! Ie, something can be Kaldor-Hicks efficient and incredibly ―unfair‖ Social cost/Coase theorem: o Transaction costs o Externalities (harms or benefits that flow from activities that cannot be monetized – thus are not paid for) Don’t matter to society if there are no transaction costs ie, costless for people to bargain Ie, doesn’t matter who is given the entitlement – parties will come to the most efficient societal solution. o The problem is: there are ALWAYS transaction costs Law should be concerned with creating optimal solutions. Perfect information: everyone knows everything about everything o This is never the case! Frequently in bargaining, one party knows more than the other! o Not only is information never perfect, but it is also very costly to gather information
Free-riders: everyone has an incentive to let other people do the work o Under wealth maximization principles, the productive members of society have no duty to support the unproductive. Charity is an important part of personal ethics, nut it can lead to free-rider problems o Counter: Wealth Maximization places far too much moral emphasis on being productive, which is often a product of luck. It is thus an incomplete guide to social decision making Costs of collective action: (book by Mancur Olson) o It’s always more costly to act as groups, than to act individually or in small groups Small groups that have high stakes in high numbers are efficient…those with dispersed interests have a more difficult time acting collectively (higher cost). ―Regulation is purchased for the regulated o Shouldn’t assume that legislative solutions are meant to favor those who it is intended to help
NATURAL LAW v. POSITIVISM natural law: law and morality must be linked o broader concepts of morality and justice as paramount/ruling over legal principles o what the law OUGHT TO BE - Criticism of natural law views: 1) if you allow natural law perceptions to influence the law, judge will have too much discretion to further their own views. positivism: law as command o result of telling people what to do // power of superior authority that is made to enforce that command o law is as it is enforced o Law should not submit to morality b/c the law IS morality. o Hart (Positivist Scholar)-Even though the law might have a ―core meaning,‖ but there is some open texture a the borderlines of the law that is open for interpretation. o The law is like the game of telephone: eventually different perceptions of what the law OUGHT to be become what the law IS. these two doctrines are said to be opposites in fact, they will influence each other o as time goes on, what ought to be becomes what is. o text + power + justice + purpose + institutional repercussions => law Austin – law is about command and power o Critics say law is about conduct (standards/rules of conduct) Dworkin/Hart – no matter what, even if you accept law as command, there will always be some core (accepted) understandings, but some marginal open texture. o Ie, something will come in and fill in the gaps. LEGAL REALISM-You’ve got to step back from the law and see what the EFFECTS ARE. forget about what the law actually says, what is it’s reality in implementation? o Generally: According to realists, all rules, justifications and standards are simply political choices masquerading as as legal principles o Example: law of water use – what do you examine to determine the law? o Social and economic effects o Drafters of the law their backgrounds and biases/personal experience - Judges, legislators, administrative agencies. o Major players of that area of law (eg, farmers, industry, cities, drinkers of water, etc…) - Some are targets, some are beneficiaries - Also, those who interpret the laws (lawyers, lobbyists, enforcers, etc…) o History – changes in use, demographics ―Bad man‖ perspective – Holmes o just wants to know what the law is so he can know how to (or not to) act - doesn’t care why - just about using law for predicting outcomes o drafters of the law should write from perspective of the bad man judges make decisions based on ―hunch‖ o ie, judges are influenced by being part of a profession where people always criticize each other o have to form opinions that are defensible within the field, but they will also clearly be influenced by their own ―prism‖
STRATEGY:
Step 1: Make a Hierarchy of Authority Step 2: Then use your legal artillery: Be sensitive to statutory language, cases interpreting that statute, statutory canons, common law fleshing out of the statutes, agency actions or deference issues, always check out authority from other jurisdictions that are persuasive in their analogies o Any time that you have a bunch of statutes together, you need to look at how the statutes interrelate, if at all. o Buzbee approach: look at the statutes first, look at the cases to see how the cases interpret the statutes, then go back to the statute o Pay attention to LEVELS OF GENERALITY Example of a set of arguments that can be employed: just throw them out there! Why does the majority reject the FDA’s exercise of control here? They looked at legislative history Post enactment statements Proposed laws Individual legislative statements o These are considered to be extremely UNRELIABLE. They looked at other laws enacted. There were 6 laws that implied no FDA authority Congress itself is the TOBACCO REGULATOR o