Professional Documents
Culture Documents
Follow Precedent
Discretion is only needed at the margins in extreme
cases.
Judicial restraint operational test of the truth
Fairness treat cases the same
Laws must be predictable slippery slope to chaos
To many exceptions guts the rule
The more complicated the web of rules and exceptions,
the less likely judges apply correctly
LIBERAL INTENTIONALISTS
Only intent // Start w. text, always consider other evidence
SEVERE TEXTUALISTS
Consider only text in all situations, interpret literally
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SEVERE INTENTIONALISTS
Start w. text, look @ intent 2 avoid absurd&ambig.
o
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Disuse randomly enforcing statutes that exist but arent enforced doesnt seem fair
Easterbrook (hybrid) general v. private interest law
First, determine if a statute is general or specific
Specific: result of compromise, no identifiable purpose; private interest law
General, clear purpose: judicial freedom to interpret the best outcome for each case.
How to be good intentionalist
Look at various materials to determine the true purpose of legislature
Legislative history
committee notes
debate records
drafts & comments
Whats the context? what problem was the legislature actually trying to solve?
Church of Holy Trinity we wanted to stop forced labor from coming into the U.S., not
trying to ban pastors from coming in.
Cases
TVA v. Hill
o [TEXTUALIST] Majority purpose of Endangered Species Act to conserve species that are of
incalculable value
Legislative history indicates saving species is national policy, first priority
There must be reason why legislature didnt put in an exception to the rule!
Once meaning discerned & constitutionality determined, judicial system comes to end.
o [INTENTIONALSIT] Minority leads to absurd consequence (shutting down million dollars project);
the Act didnt mean to halt projects that were already in construction when the Act was enacted.
Legislature didnt intend this sort of consequence.
Interpretation of action new action (future projects) or old action (projects begun)?
Church of Holy Trinity v. U.S.
o [INTENTIONALIST] Majority purpose of Immigration Act was to prevent migrant workers
We should always think legislature intended exceptions to its language to avoid absurd
consequences.
History act intended to expel evil surrounding unfair labor practices in early U.S.
Church didnt violate the intent/purpose of the act therefore okay to bring Pastor.
Riggs v. Palmer
o [INTENTIONALIST] Majority the legislature did not intend for murderer to get money principle of
justice that one cannot benefit from his crimes.
Textualism
1. Restraint on Judges (similar to rules)
2. Discipline legislator: penalty default should have
made rules clearer!
3. Best evidence of intent: if majority of time text
reflects intent, purpose driven approach might get
statutes intent wrong
4. Incoherence: difficult to determine a groups intent
than an individuals intent
5. Bargain: possible that there were different
compromises legislature made in creating statute
Purpose Analysis
1. Speakers meaning: interpreting (not re-writing)
statute to seek authors intent
2. Meaning to parties dependent on the context/the era
during which statute enacted
3. Faithful agent: legislature wants courts to use
discretion to avoid absurd results
4. Cheaper: legislature not always able to perceive
problems that may result from not including each term
5. Legislative inertia: problems may be inevitable,
legislature has other things to think about, better to find
other agents to fix problems that may arise.
STANDARD
Decreases error of over- and under-inclusiveness
Gives more discretion, includes all relevant
factors, different decision produced from
different cases
ADVANTAGES OF RULES
1. Easier for regulated party to know how to comply
a. More predictable, clear in advance, better at controlling parties and providing good deterrence when we
want people to act in a certain way
i. Papachristou (vagrancy) the vague standard gave too much power to police to use discretion in
arresting people (erratic arrests, cut against disenfranchised groups)
2. Easier for regulator (police/state) to apply the rule
3. Gives regulator (police/state) less discretion
4. Less likely to be used arbitrarily
5. Aids courts in resisting immediate public pressure
a. Blame the outcome on the rule
6. Easier for public to know that regulator was unbiased
a. Removes police/judge from blame
7. Rules are less costly to enforce
a. No need to have individualized hearings
b. But may perhaps lead to less just results
DISADVANTAGES OF RULES
1. Expensive to create ex ante
a. Have to consider all facts in all possible situations, and extract the most important fact
b. Standards allow for incremental learning and evolution no huge upfront requirement
2. Drives discretion underground
a. Speeding Example 90% of people violate speed limit, whats the justification for pulling over the 1 car
in the highway? There must be another reason why!
b. If massive rule violation just as much discretion as a standard, but faade of rule!
3. Roadmap for evasion McAleer
c. Standards dont allow people to tip-toe up to the line; because parties are unsure, it creates a buffer zone
i. If people dont know how much lying constitutes fraud they will over-deter and lie less.
d. De-incentivizes people from trying to play the system
LIST
RULES GOOD
Prevent unfair surprises;
Restrict arbitrary and discretionary enforcement
Saves administration costs
appearance of equal treatment
Predictability
Judicial restraint, judicial independence.
STANDARDS GOOD
Rules are over/under inclusive - inaccurate
Drive discretion underground
Roadmap for evasion
Rules require a lot of information expensive to create
i.
ii.
iii.
iv.
Each player has a dominant strategy that is best regardless of what the other player does.
One-shot deal.
Assume that each prisoner only cares about his own punishment (no altruism)
Result the inevitable outcome (defect/defect) is worse for each prisoner than the other (better)
possible outcome (cooperate/cooperate) [both cooperate pareto efficient outcome]
b. If the government didnt get involved, then selfish rationality of humans would lead to a less-perfect
outcome. Government can shift the result to one that is the collective good.
c. Pursuing our own interests (rationality) leads us to make decisions that are collectively bad
argument for government interference?
d. Repeated interactions possible to get cooperation until the very last move no need for govt. interf.
i. Neighbors and painting if my first choice is to cooperate, then maybe my neighbor will also
cooperate cooperation is possible if there are not high discount rates (less uncertainty of the
future greater cooperation)
1. Establishing reputation
Conley Coercive paternalism is better than libertarian paternalism (manipulating and nudging people in the
right direction) because at least we get the desired outcome (e.g. ban smoking)
FOR AUTONOMY/ANTIPATERNALISM
1. Autonomy it is a fundamental right to human beings, shouldnt restrict peoples right to autonomy
2. Consequentialist argument contracts have a mutual advantage, it would be wasteful to interfere in contract
3. Alternatives to limiting contracts
a. If youre concerned about public welfare, create regulations and enforce them!
4. Risk by choice if people have information and have calculated risks, people should have freedom to choose
decisions to make risks in return for contracts that reflect those risks
a. Counter-arg: information asymmetric/not enough problems
5. Knowledge people know their own preferences/own interests the best, therefore freedom of contract provides
the best outcomes for people
a. John Stuart Mill you care about your own welfare and have most info more than anyone else
i. Ex ante, you have more knowledge about yourself than anyone else.
6. Paternalism demeans human beings because it assumes individuals cant make good choices, dis-incentivizes
people to make good decisions because they have someone else (govt.) to fall back on.
7. Slippery slope small limitations can lead to greater limitations down the road
8. Hayek economic benefit for allowing people to take own risks and make mistakes
a. We dont fully understand the systems that we have in place
b. Want people to have freedom to act in risky ways in order for innovations to occur
c. If we limit what an individual can do, that may have unintended consequences.
d. Markets can solve informational problems
Public Good goods that are non rivalrous (my use doesnt affect your use) and non excludable (not preventing another
from enjoining the benefits)
Non-excludable: individuals cant be excluded from use
Non-rivalrous: use by one individual doesnt reduce availability to others
o Ex. Fireworks impossible to prevent people from viewing the fireworks; individual using fireworks
doesnt reduce its availability to others
o Ex. Lighthouses you cant block light; one person using the light emitted doesnt reduce usage of the
light to others.
Problems with public good
o Free-rider people who dont pay for the good may continue to access/use it.
o Public good creates positive externalities that public doesnt compensate
o Markets usually undersupply these types of public goods.
o Govt. regulation is necessary taxes, subsidies, charities, norms
Coase Theorem
Theory: no transaction costs, rights naturally flow into the hands of whoever will pay the most b/c parties bargain for the
most efficient outcome; no need for law because parties will figure out what is the most valuable on their own.
Gravitate towards the highest joint surplus.
Transactions costs
Because of the Coase theorem, the law should try to lower transaction costs
o Clearly stating rights of parties, creating defaults in contracts
Whenever low transaction costs, the most valued end state is reached
Barriers to bargaining
1. Multiple parties more parties = higher transactions costs, holdout problems, harder to coordinate
2. Collective Action Problem fear of free riding, some groups will hold out to free-ride.
a. Solution legal rule to require everyone to chip in for the contract to be enforceable
3. Externalities external costs v. benefits
a. Opportunity cost (the cost I lose by coming to law school than working; turning down $25 to clean room)
b. If we bargain, and I accept offer, then offer value > my benefit from causing harm
c. If we bargain, and I decline offer, then my benefit from causing harm > offer value ; means its efficient to
cause harm
d. If TC=0, remaining externalities are those in which benefit of harm > cost (e.g. it is efficient)
Critiques of Coase Theorem
1. Incommensurability [not having the same standard to judge things on]
o Sometimes we cant assign money values to certain things emotions, feelings, etc.
o What is the true cost of some things? Can we know?
2. The Willingness of Pay Willingness to Accept
o Willingness to Accept = amt. a person is willing to accept to abandon good, or put up with sth. negative.
o Willingness to Pay = max. amt. person is willing to sacrifice to procure good, or avoid sth. negative.
o People value things they own >> than when they dont have it
o Wealth effects if something makes you wealthy, you will have a higher cost to give it up than to pay
and receive it (clean water, healthcare)
o Endowment effect people tend to value things just by the virtue that they own it
3. Emotional Costs
o After lawsuits parties detest each other and would be reluctant to bargain
4. People dont know the legal rules in place & just control behavior based on the environment they are in
o Coase may only work in cases where the stakes are high and the parties are sophisticated
Pyler v. Doe
Texas statute deny free public education to illegal immigrant children violates the 14th amendment
Strict Scrutiny test
o Govt classification involves suspect class - race, national origin
o Infringes on fundamental right
o Compelling state interest and means are narrowly tailored to that interest
Uses intermediate scrutiny in this case
o Substantial state interest, focusing on the legitimate ends of the state
not allowing education to children of illegals doesnt achieve dis-incentivizing influx of illegals
states idea children will leave state, not contribute to economy (bad argument)
focus on consequences of classification, rather than motivation
San Antonio v. Rodriguez
Allocating public school funding on property taxes doesnt violate the 14th amendment
o Education isnt fundamental right
o Poor isnt suspect class
o Survives rational basis scrutiny
E.g. legitimate state interest that reasonably relates to ends.
3. Before MacPherson: The rule of privity applies to negligence claims with a growing list of discordant
exceptions for inherently dangerous objects.
4. After MacPherson: Plaintiff recovers when the object that caused harm is negligently made and
reasonably certain to place life and limb in danger (knowledge requirement).
5. What Cardozo did
a. Reinterpreted the previous cases to uphold precedent, but gave his own reasoning to the
decisions (ignored dicta of past rulings). Why? The common law idea of stare decisis- there's
a difference between overruling and reinterpreting
i. What's good about stare decisis? Predictability. But the law here was not longer
predictable, so Cardozo's overhaul was appropriate
b. Made the law on privity rule and its exceptions coherent again
c. i.e. Reinterpretation of Losee v. Clute (steam boiler): Defendant was not liable because he
knew his safety test was not the final one.
6. Why let the judiciary make new laws? They are faster than the legislature in a changing world
(where things are not made one at a time anymore so privity rule is not sufficient)