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CONSTITUTIONAL INTERPRETATION

No approach to interpretation is self-justifying and there is no good general theory of how to interpret texts. Debates over interpretation are institutional- raise issues about who should make what sorts of decisions and about minimizing the discretion of untrustworthy institutions. Any approach requires a justification and depends on judgments and commitments that are independent of texts themselves.

The Constitution is a common-law constitution: often taken to establish standards rather than rules; many of our key rules are stated in cases, not in the texts; when there are gaps and ambiguities, the Court comes up w/ “tests”- principles, rules and categories that can’t be found in the Constitution.

Sunstein: Where no clear answer exists, judges do best to work analogically, inquire into history, conceived broadly, and to adopt a presumption in favor of democratic outcomes. But, the presumption is weaker when the majoritarian process is defective.  Democracy-reinforcing principle. The Court might be able to forge and participate in incompletely theorized judgments on particular outcomes, while allowing democratic processes to come to terms w/the broader and more fundamental issues. (Consider: Roe v. Wade- Court would’ve done better to proceed slowly and incrementally to gather wider social agreement and fracture society less severely; homosexuality- Court ought to proceed cautiously, narrowly and w/easiest cases.) This is because “rules are sometimes not feasible or desirable, and also that the most important political judgments come not from courts, but instead from democratic arenas.” Court can get farther on “agreements on results and on low-level principles amid confusion or discensus on large-scale theories.” While it would be nice to have Rawls’ “overlapping consensus,” people in democracies distrust abstractions altogether. “Incompletely theorized agreements can operate as foundations for both rules and analogies [which make it possible to obtain agreement where agreement is necessary, and to make it unnecessary to obtain agreement where agreement is impossible], and such agreements are especially well-suited to the institutional limits of the judiciary” such as error costs. “The particular role of judges fits will with i.t.a.” – “most fundamental principles are developed democratically, not in courtrooms.”

What We Would Want to Know: 1. Simplicity of legal rules. Have we increased the arbitrariness of the system? 2. Accuracy. Did we meet the legislative goals? 3. Is ‘slippery slope’ going to emerge? 4. What is the comparative competence of the courts and the legislature? 5. Is there a presumption in favor of liberty? Judicial deference? Democracy-reinforcement? Uncertainty principle? 6. Fit with precedent? Is the precedent good? 7. What are the decision costs and error costs to allowing judicial discretion in this area of law?

Hypothesis: The choice among methods of interpretation, in constitutional law, turns largely on what will FIT the past and JUSTIFY, or make best sense of, the past (Dworkin). ORIGINALISM The meaning of the Const should be settled by the original understanding of those who ratified the relevant provision (may seem rulelike b/c it settles cases before they arise).

Hard Originalists: the meaning of the Const is settled by asking how those who ratified the relevant provision would have answered very specific questions. (seeking rules)

Soft Originalists: historical inquiry is necessary to get a more general sense of goals and purposes. (seeking constraining but flexible standards)

PROS CONS 1. Judicial discretion will otherwise be badly exercised 1. Concrete questions don’t always have concrete historical and a system of rules based on originalism will answers discipline judges 2. The search for original understandings leads to many 2. Great uncertainty is introduced by alternative indeterminacies approaches, but this system limits in advance and 3. Problem of changed circumstances doesn’t threaten predictability 3. Reduces judicial discretion and makes constitutional law more rule-like 4. These rules have a democratic pedigree by virtue of their connection to past judgments. 5. Original understandings are democratically grounded and subject to democratic correction JUDICIAL RESTRAINT JUDICIAL ACTIVISM 1. Dem. will and Holmes’ deference 1. Rejects judicial restraint and gives the Supreme Court a 2. Case-by-case judgment and analogical thinking- large role in American gov’t (enthusiasts of the Warren supplies many of the rules of American Court) constitutionalism and limits the exercise of judicial 2. The majority should not be allowed to decide what rights discretion where no rules can be found. the minority has. Common Law Constitutional Law – precedent- 3. Legislature is vulnerable to political pressure, whereas the interpretive style. Looks at the evolution of law and how judges are insulated. cases have been decided, how the text has been 4. The court should protect those who cannot protect interpreted through time. This allows the Constitution to themselves & operate in the name of democracy set out general themes and guidance for current times. 3. Judicial role is most active and firm where democratic processes are most likely to break down or least likely to be reliable (ex: if the right to vote is at stake or when vulnerable classes are at a disadvantage) This should be the height of CONS theoretical ambition 1. Judges often can’t grasp the systemic effects/consequences of any social changes (whereas legislatures and bureaucracies are in a better position to do so) 2. In the face of uncertainty and legitimate disagreement, the democratic judgment should prevail. 3. Gives too much power to judges. Rules of interpretation should be designed to minimize the risks of judicial discretion. 4. Democratic governance is an important part of the rights that people have. Judges should be cautious before invalidating democratic outcomes. 5. How do judges know when a group can’t protect itself? TEXTUALISM/FORMALISM

Hard Textualism

Soft Textualism: We need not take language literally when such an interpretation produces an absurdity. Aristotle: Law are general principles for the majority of cases. There’s also a tradition of equity to correct shortcomings of general principles.

PROS CONS 1. Not following rules leads to systematic problems of 1. Text may be unclear uncertainty, delay and confusion. 2. Temptation for bad formalismclaiming a particular 2. Risk of mistake with application to future cases view is IN the Constitution. 3. There is an obligation of fidelity to the law. 3. May result in absurdity. 4. Hard textualism  better system by acting as a constraint on the courts and a corrective on the legislature (Vermeule). 5. Following democratic will as passed through the political process.

INTENTIONALISM

Where the application is one the legislature would reject, we should turn away from the text.

PROS CONS 1. The maxims are the product of collected judicial and 1. Tough to determine intention, especiallyof multi-person social wisdom. As a result, they have their own bodies democratic pedigree. 2. Potential for bias 2. Intentionalism, though, mirrors life, and the 3. Doesn’t respect democratic will as passed through the imprecision in our everyday language. political process. PRO-LOCHNER Lochner : Statutory ANTI-LOCHNER Interpretation  “Liberty” under 14th includes freedom of 1. Text  “FOC” not in the Constitution  value-added contract (foc). textualism ► Value-added formalism is too simple a ► Holmes: Constitution not enact Spencer’s cliché. The Constitution does embody a Social Statics. It’s a flexible document for a particular moral and economic theory. (See heterogeneous people who can’t predict future Epstein/Spencer below at #3.) needs.

 The original meaning of the term  Changing circumstances dictate flexible “liberty” included foc. standards. Why be bound by original meanings over contemporary ones? Jefferson: “Dead have no rights.”

 Substantive due process  Procedural due process Lochner got his pre-deprivation hearing. 2. Structure   discussed  possible non-starter: Amendments necessarily arise in response to different needs, so why cross- apply linguistic meanings?

3. Intent/Purpose  Epstein: Constitution explicitly protects  May turn on view of  Holmes: Const. a flexible document. private property, personal autonomy, etc. liberty/coercion ► Founders intended federalism (10th) and  Holmes is wrong. (see below #5) judicial deference. Defer to state action, and from ► The Founders didn’t foresee econ. there to majority rule through leg. action. regulation like Lochner. ► Holmes is injecting his own scepticism and moral relativism into the debate.  Compensation is increased health, leisure, etc.  Violative of takings clause. Bakers are losing surplus hours without just (any?) compensation.

4. Legislative History  Procedural safeguards in aftermath of slavery to prevent ► Movement away from restraint in labor deprivation of ► Safeguard against exploitation of humans, market. Reject max. hr. law interference. blacks’ rights which would include the workplace. Max. hr.  Cuts both ways… laws therefore good interference. [Notice this rests on the assumption that the ‘exploited’ are helped by such laws.  empirical claim.]

5. Canons/ LIBERTY: FREEDOM FROM Philosophical LIBERTY: FREEDOM FROM COERCION INTERFERENCE Arguments ► Elimination of the weak is hardly  Spencer: Liberty principle “benelovence.” Protection of exploited a non- Deviation from lib. principle  gov’t power arbitrary, administratable rule. arbitrary  1. gov’t a crappy manager (public policy argument) 2. nature is thus prevented from good adaptation

THEORETICAL AMBITION CASUISTRY/ANALOGICAL REASONING  Lochner issues a general rule and limits  Holmes: General propositions do not decide judicial discretion. concrete cases!

 Dicta as non-binding allow case-by-case  Ignores holding/dicta distinction. Holden (8 decisionmaking. This promotes hr. day for miners) dicta suggested state flexibility and accounting for individual ► Ignoring Holden’s protection for workers. circumstances. dicta was a mistake.  Precedent might be bad. (Posner) Should have at least  Respecting precedent promotes predictability reconciled with and  costs. Lochner. Dicta promote predictability, which is what the Ct. was trying do in Lochner with its big theory. ACTIVIST DUTY JUDICIAL DEFERENCE Under Lochner, Muller/Plessy/Adkins all  There’s a MAJOR scope of review argument would have been struck down. calling for judicial deference which underpins both Holmes and Harlan. ► Harlan is inconsistent? He pushes for 2 reasons: inclusion of social science in law, but 1. Comparative competence of courts in assessing seems to believe leg. is better at it. data. [This is an empirical claim about decision and ► If Levi is right about democratic nature of error costs. See #6 below.] court system, then judicial decisions have 2 Options: 2. Leg. decisions have a greater democratic their own pedigree. ► Democracy- pedigree. reinforcing principle: Courts should intervene only when the democracy process is malfunctioning = when some group can’t protect itself + ► Uncertainty principle: Resolve doubts in favor of dem. will through leg. action. Eliminates need for comparative competency assessment!

EFFICIENCY 6. Public Policy Effects ABSENCE OF INFO  INEFFICIENCY  Not clear that banning the employee’s  Paternalism: Cannot trust workers’ decisions. preferred option is good for him. They lack info. about the risks. Counter-intuitively, it most hurts the  Stronger claim: Their own perceived self- poorest by banning their best option. interests are harmful. (Cognitive dissonance,  Compensating risk differentials show that i.e., stupidity.) people are trading risk for pay.  Myopia in dealing with low-probability ► Do workers lack info events. about risks, or the ability to process that info? PATERNALISM  Paternalism is a slippery slope. What can’t the gov’t do, if they can set max. ► Harlan: Social science shows baking is hrs., min. wage…? unique. Not arbitrary. The slope need not slip. ► Muller (max. hr. for women) shows us ► Holmes: Let it slip. Majority should be free where social science is likely to lead us in to vote their way into Hell. the hands of judges.

 Max. hrs. law is interest-group leg. by ► Public-choice theory: Interest-group politics unions to force cartelization. (Note: This is acceptable and desirable. Holmes says is the logical extension of Spencer’s nearly any ends are o.k., because the argument? Rather than fighting it out in a majority rules. (Current Ct. has not gone state of nature, we have to fight it out in ► Is it an area in which this far.) legislatures. Post-New Deal gov’t is the we’ll be able to set story of competing special interests.) limits on gov’t? ► Should that even matter, or should majority rule matter most?

COLLECTIVE ACTION PROBLEMS ► Good system of social norms solves  Workers can’t protect themselves from collective action problems. Ex: If most coercive employers. people believe the background rule is for  Collective action problem (Mill): Solves the cause, perhaps this shows employers are prisoner’s dilemma, whereby rational self- only firing people for cause.  Social interest leads to competition that leaves both norm makes changing the law parties worse off. Law protects workers unnecessary. competing to their own detriment.

► Rawls modified: People behind a veil of  Relative positions (Frank): Workers care ignorance care about average utility, not about relative positions. Their relative econ. difference principle. Relative positions positions are unchanged with a gain in leisure may change, so long as the gains are = Pareto superior move. significant and there’s a safety net on the losses. = Calder-Hicks. ► Plus, relative position may not matter for the poor. They want a higher absolute position (more money to feed family).

JUDICIAL DEFERENCE  Scope of Review Effects(why judicial At-Will For-Cause Waivable For-Cause Non-Waivable deference is good) BENEFITS BENEFITS (1) LowersBENEFITS decision costs.  Enables employers to get rid of bad  Employers don’t want to fire withoutHarlan test: Montana legislation not reasonably appear to berelated suffering to the end being sought. Easier to ask “was this crazy?” employees cause anyway (arbitration system and damage caps  than “was this right?”  Good employees aren’t at risk  Employees would like basic protection  cost more than at-will) (2) Does not  error costs. Intense review   Decision costs/error costs are low  Hence  Good market-mimicking  Good for people at minimum wage, prevent mistakes.  Standard repetitive transactions outcome because the costs will not come out of a. cts. not expert at social science resulting in at-will Ks shows that the  Parties can waive if they want at-will their paychecks b. cts. not elected; shouldn’t second-guess leg. parties are choosing what is in their  Penalty default rule: Employers have  Good Paternalism: Employees might value-judgments mutual advantage  market- the burden to specify that a contract is often waive because of cognitive failures (This is a principled objection under #5, but mimicking at-will if they switch (also info-forcing!) or collective action problems there might be empirical fall-out from cts.  Employers will simply pass costs  Even if workers have lost money, it  Insulates employees from hidden trampling on leg. prerogative. E.g., along in a for-cause regime to workers doesn’t matter. Their relative positions discrimination decreased voter turnout, less predictable and consumers  for-cause is futile are the same, and they have gained job  Good distributive and psychological law, leg. inaction, etc…) (Posner and Epstein) security (Frank). effects [NOTE: This also preserves the uncertainty  For-cause would redistribute from  Entitlement effect: Employees will principle, which Cass seems to like.] good workers to bad workers know that they can’t be fired without  Recent studies show workers think the cause, and this will have good DRAWBACKS FUTILITY psychological effects  Lower wages Max.hrs.rule is for-cause. law:  Norms are working; don’t mess with them.  Employers will simply contract around  Lower employment Labor costs , so prices  and profits . ► Health issue offsets economic losses. (Replicating the norm would actually (Coase), with good results for workers  For non-unionized workers, it Both aggregate and per-employee wages . ► In addition to health, there’s all the usual change the norm itself: Bernstein.)  Codifying the norm will prevent decreases their attractiveness over suspects: This is what people want but can’t Total Respects no of people’speople employed competence; , but they’re this is arbitrary behavior. unionized workers, who can only be get because of a collective action problem. notprobably sheep not sustainable.  Perhaps workers are simply expressing fired for cause. They are being made to compete by evil, their own views about fairness  Redistribution helps the bad workers oppressive Scrooges.  Signalling problem: An employer who  More costly for employers (so either ► Relative positions are unchanged, but leisure offers for-cause may attract hordes of higher unemployment or higher prices) is improved.  Min. wage law: marginal emplyees. Solves collective  To block a waiver which employees 1. Is redistribution As with max. hrs. law,  prices and profits action. problem. want, must show that the restructured desirable? Total employment . This means both more package will be better for employees 2. Will intended unemployment and fewer hours for the DRAWBACKS (but they don’t know it). DRAWBACKS redistribution occur? employed. Allows for arbitrary discharge w/out  Disemployment effect: Employment  Heckman’s South American studies: 3. What is the mix of , b/c labor costs are higher and Employers don’t want to take risks on reason effects? ► Can The mask poor discrimination don’t benefit. employers are more reluctant to take on new entrants (young, women), because Who’s helped? ► With rapidly growing econ., disemployment ► Those hurt are usually young, unskillednew employees (whose skills are if they want to fire them, they’ll have to Who’s hurt? workers. unproven) effect  occur.prove cause in court. 4. Who will feel the ► Chicago: Data is faulty, and there’s no  Bad employees won’t waive, whereas► Earned Income Tax Credit (EITC) instead of costs? theory to explain the data. good ones will waive and take the cash.min. wage: It’s a subsidy by gov’t, rather Workers, employers,  More costly and litigious than by employers. consumers? ► Princeton studies: Min. wage hike  lead to (Posner’s argument  unemployment.ISSUES regarding  employer ISSUES ► Health□ Howissue expensive does not apply would to it min. be for wage, but costs. Must see econ. □ How often are people fired without ISSUES collectiveemployers action to get problem rid of badmay. employees? transfers over time.) cause, and how effectively does the □ How expensive would it be for ► Makes□ Arework employees more attractive, really willing shifting to people market discipline such discharges? employers to get rid of bad employees?fromcontract welfare away to work. important rights because □ Would employers simply pass along of irrationality or myopia? costs to workers and consumers, ► Must assess moral  One needs a value-laden theory to meaning no net effect?  Harm to others/Externalities determine what counts as a harmful judgments in order to externality (low-wage jobs? surrogacy?). know. At-Will (1900-1960) At-Will with ad hoc public policy exceptions (1960-present) For Cause Waivable (nowhere) Clarke and Comerford  Perjury/Committing a Crime: Petermann  Worker’s Comp.: Svenko  Citizen Crime-Fighting: Palmateer  Sexual Harassment: Monge BUT NOT  Co-Pilot: Buethe  Agency Regs.: Long v. CCI

 Can’t undermine a clearly defined legislative policy, or freedom not to commit a crime. Not for violation of administrative regulations or company policy.

Upshot: 1. At will is fine if workers know what they’re getting into, and they are not being fired for no reason. 2. For-cause waivable is fine if we can contract around for-cause without too much expense. 3. For-cause nonwaivable is fine if cost of firing bad workers is not prohibitive, and there aren’t negative effects on wages or employment.

What We Would Want to Know: (Case for Non-Waivability)  Paternalism in the Face of Informational Problems: myopia, individual irrationality, failure to account for low probability events, market coercion OR Collective Action Problem  Harm to Others: 3rd part effects (perjury and citizen crime-fighting)

Paternalism: Is the market working? Public good? Monopoly? Info.problem? Do workers understand the relevant risks? Excessive optimism? Irrationality? Does a vulnerable class need protection from market coercion? Consider whether there’s a collective action problem. Externalities: Are there 3rd party effects? Consider commodification and societal effects. Redistribution: What’s the mix of effects? Who’s harmed and who’s helped? Who will bear the costs?

Case for Non-Waivability with Sexual Harassment  Adaptive preferences: We ought not to Lochnerize (to take as natural or given) preferences that may be the product of an unjust status quo. Freedom means not simply satisfying your preferences, but also having your preferences formed under conditions that do illegitimately constrain their development.  Norm Change: Sometimes people choose in accordance with social norms that they don’t like and want to change, but they can’t change them on their own. They are dependent upon gov’t regulation to change the norms. Collective action problem.  Endowment Effect: The allocation of an initial entitlement to people makes them value it more than if it had not been allocated to them in the first instance.  Commodification: Freedom from harassment may not be something we want to treat as a good which may be bought and sold. Dehumanizes women.  Is short-term rise in hiring discrimination offset by long-term preference and norm change? Effects of a Ban on Sex Discrimination:  Hiring effect: Hiring women becomes more expensive, since they’re potential lawsuits. As a result, employers may hire fewer women.  Adverse 3rd party effects: Ex., If law firms are refusing to hire women, then women will stop becoming lawyers.  But there is also a ban on discrimination on hiring. As noted above, it is much harder to prove discrimination at the hiring end. All effects of the ban will depend on how harsh the hiring effect is.  Single men: Worse off, because there’s more competition from women on a level playing-field. Also, men become liabilities as potential harassors.  Single women: Better off, unless the hiring effect outweighs.  Married men: Those dependent on their wives’ incomes should be better off.  Married women: Those dependent on husbands’ income will be worse off, since husbands’ prospects are not as good as before.

Issues to Keep in Mind:  Coase Theorem v. endowment effect. Coase Theorem: Difference between at-will and for-cause waivable is small. If people can contract around the background rule easily, then the background rule won’t matter. However, if the endowment effect is correct, then at-will and for-cause background rules will make a big difference. Under at will, employees would pay little to buy these rights. Under for cause, employees will demand a lot to give up these rights. Outcome will be efficient in either sense, but it may not be the same. Partial salvaging of Coase, but only for efficiency. Efficiency = whatever voluntary, rational people bargain their way toward.

How do we determine the background rule?  Whatever the parties would have done. Intention-mimicking. Seems to support at-will. This respects autonomy. It also seems to promote efficiency.  Usual practice. Problem is that codifying the practice might change it. Plus, the practice, even if it exists, might not be what people would have bargained their way toward. Seems to support at-will, if employers are only firing people for cause.  Intention-eliciting. Get them to act the way you want. Seems to support for-cause. Waivability then turns on Info. Problems and 3rd Party Effects.

Evolution of Legitimate Ends in Lochner Era

Lochner Muller West Coast Skrupa  3rd party effects (Jacobson: vaccination) ► health ► redistribution ►Int.-group leg.?  monopolies ► paternalism  wards of state  health, if important (Holden: miners’ 8 hr. day)

Effects of a Max. Hr. Law on Women :  Economic Effects: It might make it more expensive to hire women, freezing women out of certain professions and creating occupational segregation. At the least, it would put them at a competitive disadvantage, unless men are not competing for ‘female’ jobs. One possible solution is the addition of an employment discrimination clause. This would be difficult, though, for women to invoke.  Constructive1/Reflective Debate: Women will have more incentive to stay home, since their earnings are capped as opposed to their male counterparts. On an obvious level, this attempt takes for granted that law constructs social conditions, and then tries to keep women from breaking into a ‘man’s world.’ On this view, Muller is dishonest. The court pretends that it’s simply mirroring existing differences between the sexes in an attempt to protect women, when in fact it’s bolstering those difference through law in an attempt to oppress women. Muller could be defended by arguing that in fact the differences are legitimate. While the argument for difference in physical strength is now largely irrelevant, perhaps the social fabric is best preserved when women nurture and rear children. A much stronger claim is that women do not want to be competing to their collective detriment in the workplace, and Muller thus solves a collective action problem.

1 Robert Hale and Morris Cohen. More on Constructive/Reflective Debate:  The argument above applies to Plessy as well. The court treated social practice and established custom as independent of and immune to law (“If the two races are to meet…”). The opposing claim is that law affects social arrangements and private desires: Law shapes society.

 This is what Lochner, Muller and Plessy have in common. All 3 treat as natural and pre-legal systems that were in fact created by law, and which were (at the least) controversial from the standpoint of justice. The idea is status quo neutrality: Any deviation from the status quo represents troublesome partisanship. In this sense, it’s like bad, value-added formalism. They may be reasons to keep things like at-will employment or women as housewives, but we can’t argue that law must respect them simply because they exist, since law is what helped put them there in the first place. (Adkins, too?)

 CS seems to really dislike status quo neutrality, and the idea that deviation from norms should be treated as unfair partisanship. He seems to be more concerned with whether the deviation (1) promotes democracy; and (2) has good distributional or social consequences.

 Response: From the fact that govt. ensures property rights, it does not follow that govt. can do whatever it wants with them. Govt. protects us from violence, but it would not be justified in doing violence to us, or authorizing third parties to do so. [Turns on one’s theory of natural/non-natural rights….Classical v. liberal versions]

 The shift from reflective to constructive law can be seen in the 14 yr. period from Adkins to West Coast. In West Coast, the legal realists have carried the day. The 1930s and 40s denaturalization of markets and economics is complete. CS: “Lochner’s death case.” The Ct. allows min. wage law for women for health and to protect poor people (redistribution). However, the Ct. does not say that paternalism or interest group legislation are acceptable; the decision is not totally Holmesian. The Ct. does follow Holmes and Harlan in saying that the non-naturalness of the economic situation calls for judicial deference to legislative will.

Lochner and Incompletely Theorized Agreements (ITAs)  Lochner began with an insistence that common-law categories were natural and pre-political, instead of a conscious, social choice. This created a generally recognizable theory of the state’s role. This general theory was not replaced by a new one all of the sudden. CS: “It instead came apart through particular cases that attacked the periphery and then the core: The process of case-by-case decisionmaking tests any general theory and exposes its limits. Over time, an area of law may become more theorized or less so. Over long periods of time it may go from one to the other and back again.”

Neutrality = the preservation of the existing distribution of wealth & entitlements under the baseline of common law. CL categories are taken as natural rather than as a social construct. Deviations from the CL baseline are considered partisan state action, and require constitutional scrutiny.

 However, the CL itself is a product of legal rules and baseline shifts, so it’s circular (unfair) to use it as a status quo baseline for measurement.

Inaction v. action distinction. CS: Failure to impose min. wage is NOT a neutral inaction- it is in fact an action creating subsidy for employers

Funding Limitations & the 1st Amend.- Buckley v. Valeo a. Statute- ceiling on campaign expenditures i. Equalize ability of individuals & groups to influence the outcome of elections ii. Equalize participation in politics promoted 1st Amend. b. Ct. overrules- restricted 1st Amend. rights i. Equalization- not permissible end of govt. action ii. Disparities in wealth- natural- govt. should take no action- neutral c. Similarities to Lochner i. Existing distrib. natural ii. Inaction- neutral

“ Affirmative Action”  name reflects Lochner- like premises  indiff. to race- seen as inaction- natural course  discriminatory effects deriving from colorblind rules are norm.- anything countering them should be labeled “affirmative”  In order to show violation of equal protection clause must show discriminatory intent. NOT good enough to show discriminatory effects. BUT if see these effects as partly result of past govt. actions- legislation based on compensatory goals seems sensible.

Frank and Relative Positions Studies: When GDP rises, it does not appear that people’s self-reported satisfaction rises. 1st criticism of data: Maybe the self-reported ranking is itself relative. Self-reported happiness is naturally comparative. Doesn’t rise even when everybody’s absolute happiness goes up. How would we test this? Frank: How happy people report themselves as being maps on pretty well to external indicators (rates of suicide; psychosomatic illnesses…). 2nd criticism: Wealthier countries have better health and more longevity, but the people aren’t subjectively happier. Frank would have to concede this one.  CS: Data isn’t bad, but not compelling.

Frank: People are on a positional treadmill. Prisoner’s dilemma. People work harder to get more and keep up with each other, without making them happier. Possible criticism (Sen): Even if self-satisfaction studies are accepted, all they show is that happiness doesn’t go up with growth, but well-being may go up.

Comparison outside relative incomes Θ: OSHA reg. Dentists will lose income, but gain safety positions. But will dentists only be comparing their relative incomes to other dentists? If not, then good criticism of Frank.

J. Rawls: Rawls criticizes the classical conception of liberty. People start from morally arbitrary starting points with inequalities of wealth. The liberal interpretation focuses on equality of opportunity, and attempts to correct for these inequalities (by ensuring equality in education, among other things). However, Rawls still challenges the liberal interpretation for containing morally irrelevant, but determining, factors. 1. Natural lottery of talents is arbitary. 2. Familial settings are heavily determinate.

Behind veil of ignorance, people would choose difference principle. Social inequalities are justifiable only if they’re in the interest of the least well-off. Could be used to justify capitalism: 10-10-10  100-90-11. That’s finethe poorest people have gone from 10 to 11.

Objection: People behind veil of ignorance would choose average utility. Studies: difference principle, average utility, a.u. with a set floor, a.u. with a set ceiling  People wanted to maximize average utility, but with a set floor (safety net). 10-10-10 to 10,000-9,000,000-9, so long as 9 isn’t that bad.

Frank: If relative econ. positions really do matter, then the lower bracket is much more miserable in the latter state. Rawls: Envy would not be present behind the veil.

Challenges to Rawls’ difference principle: 1. Too focused on lowest segment; ignores average utility. 2. Ignores importance of relative econ. positions.

Rules Discretion

 Rules minimize decision costs (informational and  Rules are both over- and under-inclusive if assessed by political): Enormous efficiency gains b/c the relevant reference to the reasons that justify them- rules can issues have been decided beforehand and there is a produce arbitrary outcomes b/c they don’t account of framework w/in which decisions can be made. People individual circumstances. In some cases, any rule that we can overcome their own myopia, weakness of will, generate will produce too much inaccuracy in particular confusion, venality, or bias. Great for administrative cases, e.g. college admissions. Site-Level agencies. Unreasonableness- in modern regulatory law, this occurs  Rules are impersonal and blind; they promote equal when a general rule is applied to situations in which it treatment and reduce the likelihood of bias and makes no sense and it produces enormous costs for few arbitrariness- people who are similarly situated are more benefits in the particular site, yet administrators insist on likely to be similarly treated. See Hayek. mechanical compliance.  Rules serve appropriately both to embolden and to  Rules can be outrun by changing circumstances- rule- constrain decision-makers in particular cases- esp. makers can’t know the full range of particular situations when the particular stakes and the political costs are high, to which the rules will be applied. John Dewey. rules reduce responsibility for particular cases  Abstraction and generality sometimes mask bias-  Rules promote predictability and planning for private Generality/abstraction of rules can hid biases- by not actors, legislators and others addressing certain groups directly but only in a general  Rules increase visibility and accountability With way there can be bias standards & factors, no one knows who is really  Rules drive discretion underground- jury nullification; responsible for things selective prosecution. Ex., “3 strikes-and-you’re-out”  Rules avoid the humiliation of subjecting people to policy  prosecutors don’t charge for felonies when the exercises of official discretion in their particular case- offenses seem relatively minor, and juries are reluctant to rules turn citizens into right-holders, rather than convict. supplicants. ex., elderly and retirement  Rules invite evasion by clever wrongdoers “If judges  Constrain the arbitrary exercise of discretion cannot proceed by analogy and extend the rule where (Papachristou) justification so suggests, people will be able to engage in  Minimize error costs in the aggregate- the number and harmful conduct because of a mere technicality.” magnitude of mistakes reduced  Rules can be dehumanizing and procedurally unfair;  Offer guidance to judges b/c they may make blunders sometimes it is necessary/appropriate to seek  Promotes political accountability b/c drawn up by a individualized tailoring- Rules can be procedurally body w/a name and legitimacy unfair in a democratic process where one should be able  Rules promote great thought into the rule itself since this to point to the unique quality of their situation and is the only time (not at application) that the ramifications participate in the legal process that affects them. This can be determined reflects democratic norms of participation and responsiveness.  Rules and rule-following have unfortunate psychological affects on public officials- may eliminate the equitable spirit and make officials unwilling to exercise discretion. Hence Bentham’s favoring of an “anxious sensibility” incompatible with simple rule- following.  Good judging outstrips good rules- an ideal judge is alert to a range of particulars that cannot be fully captured in rules.  Rules do not allow a particularized inquiry into whether people are similarly situated, so that relevant features may be deemed irrelevant by the generality of rules

ARGUMENTS AGAINST DISCRETION ARGUMENTS FOR DISCRETION  “Untrammeled” discretion: arbitrary and out-of-hand (Papachristou)  Limits absurd outcomes based on inflexible rules  Undermines predictability  Allows for greater accuracy in individual cases (avoids  Can introduce the bias/views of decision-maker to a the over/under inclusive problem) greater degree  Avoids the dehumanization problem of rules  Might prevent parties w/different values from reaching  Allows for substantive justice to treat the differently the same conclusion for different reasons- undermines situated differently stability  Can promote moral responsibility by requiring frank  Can be arbitrarily enacted acknowledgment of all factors involved in decision- making  Keeps discretion from being driven underground  Allows justice/practical wisdom to prevail RULES MIGHT BE CHOSEN WHEN: RULES WILL BE AVOIDED WHEN:  The error rate w/rules is low and the decision rate is  The lawmaker lacks info and expertise, so that the info high (large number of cases w/ great similarity) costs are too high to produce reliable rules  The error rate for rulelessness is high  It is difficult to choose rules b/c of political disagreement,  When the number of cases is large and cases are so that the political costs are too high to justify them similar (Roe v. Wade)  When predictability is important and people need rules  People in a position to decide whether to have rules don’t to order their affairs (when the need to protect fear bias, interest or corruption of decision-makers expectations is high)  Those who make the law don’t disagree much w/those  When we have great trust in the body that makes the who will interpret the law- thus, lawmakers don’t need rule (often legislature); OR little trust in the decision rules to discipline judges and others maker/applier often the judiciary  The applications of the legal provision are few in number or relevantly different from one another  Circumstances are changing rapidly  Don’t trust the body making the rule (reasons of incompetency, bias, partisanship, etc.) often the legislature

BAD PROBLEMS WITH RULES:  Overlooks the distributional issues of errors- maybe the same people are hurt continuously this could make this formula unjust even if the ratio is low  Thinks of every error as having the same value Major Proponents: Black Major Proponents: Fuller Frankfurter Hayek Harlan Scalia O’Connor

Major Decisions: Major Decisions: Papachristou (discretion bad) McGautha (rule-bound death penalty bad) Morales (discretion again bad) LaFleur (rule-bound decision-making unconst.) Furman (rule-free death penalty bad) nd st 2 Restatement Conflicts 1 Restatement of Conflicts (Maybe Morales, too, if wrongly decided?) DPC sometimes condemns rulelessness (Papachristou and current death penalty law). DPC sometimes condemns rules (LaFleurpregnant women). “If rules are understood as complete, before-the-fact judgments about legal rights, rules are pretty much impossible. Encounters with unforeseen cases will confound the view that things have been fully settled in advance. The need for interpretation, and the likelihood of competing interpretations founded on disagreements about substance, will likely defeat the project of following rules.”

All this does not mean rules are always inferior to case-by-case judgments: an absurdly general claim. Rules often go wrong because they diverge from the arguments that justify them, producing outcomes that make no sense. Particularized judgments based on the relevant feature of a single case represent the highest form of justice.

Rules  particular statutory provisions which allow little or no work at the point of application.

Standards  general principles (of the sort embodied in rules) which require that a lot of work must be done at the point of application  discretion of applier, i.e., No unsafe behavior on highways.  casuistical approach  Advantage to the standard system is that it can easily be applied to cases that are different b/c usually not too rigid and adapt in a good way to produce the right outcome.

Factors  Judgments emerge from a lawmaker’s assessment of particular relevant factors whose precise content (and weight) has not been specified in advance.  Factors are different from rules because the test is not exhaustive, still room for discretion.  Ex: statue says whether speed is excessive bases on weather conditions, time of day, etc.  Factors are often thought to be good, indeed constitutionally required, in death penalty cases. Multi-factor tests sacrifice predictability for the sake of accuracy in individual cases. Rule of Law values are promoted by analogical reasoning, which has built up, over time, a relatively predictable set of principles.

Principles  high-level moral principles; their content lies in their application  not rules, but rather usually the justification behind them. I.e. Rule: Cannot go over 60mph, Principle: Public safety  Principles can be used in interpretation- for example exceptions to rules often arise from application of the principle behind the rule Ex. A law of wills may not allow inheritance by someone who has murdered the testator in order to inherit. Riggs v Palmer.

Guidelines  Law that establishes floors and ceilings and identifies a range of outcomes from which people can deviate only if there is good cause in that particular case, produce a mixture of possibilities  Guidelines may be preferred to rules b/c they leave room for flexibility. But this can also be looked at the other way around in favor of rules that eliminate discretion  May be preferred to standards b/c they can better monitor discretion

Analogies  case is compared w/ prior ones to see whether the precedent controls it or is distinguishable or should be extended to it  most often an analogy will produce a standard that makes sense of the outcomes in the case at hand and the case before it

Sunstein’s definition of casuistry: rule-free judgments based on careful comparison of individual cases. He believes there is still a place for casuistry in a system committed to the rule of law.

Sunstein: “Legislatures may well be in an especially good position to set out rules, because they are capable of getting a systematic overview of a whole area of law, and they can see how its various parts fit together. Judges are often

16 incapable of obtaining that overview. . . . This institutional disability rightly leads courts sometimes to avoid rulemaking and to decide the case instead through some narrow rationale that leaves many questions open.”

Simple Economic Framework of Rules: try to minimize error costs and decision costs.  “Error Costs” are determined by looking at NUMBER and MAGNITUDE of errors, i.e. by reference to the purpose of the program.  “Decision Costs” include both private and public costs of figuring out the content of the law  Rules would then tend to make sense with 1000s of similar decisions  occasional errors are tolerable if there must be 1000s of decisions  Rules are less necessary for infrequent or one-shot decisions; should be avoided when costly to come up with decent ones.  Problem: Rules are “front-loaded” (a lot of work to generate a decent rule), but with rulelessness, system is “back- loaded” since all actual work done at point of application

Slightly More Complicated Economic Framework:  Rules should produce PREDICTABILITY, which is an independent good.  Where predictability is especially important, insist on rules, even if not very accurate.

Frameworks suffer from 2 Basic Problems of Economic Analysis:  Overlooks distributional issues (who is helped & hurt?: this may matter a lot, for those hurt by errors of rules would be same group hurt by errors of rulelessness, e.g. death penalty)  Elides qualitative distinctions: to think of every bad thing as a “cost” seems obtuse.

Papachristou v. City of Jacksonville (1972): Vagrancy law declared “void for vagueness” and in violation of the Due Process Clause.

Problems of Discretion: 1. People weren’t given fair notice of the law. Fair notice is required for predictability (invokes a substantive due process violation). 2. Law is too vague, so that people can’t know what is expected and what is a violation 3. Violates non-delegation principle: vagueness allows appliers/enforcers to give content to the law not legislature (never should same person make the law as enforces it). 4. Lack of discipline over the police so that there was arbitrary exercise of discretion: “encourages arbitrary and erratic arrests and convictions.” 5. It is unconstitutional to have a status offense 6. The case is set in a particular sub-text of racial suppression a. seemed to discriminate against male African Americans, thus no equality in the application 7. The court needed to elicit a clearer statement from the legislature 8. Imposes too many errors and large decision costs 9. Criminalization of otherwise innocent conduct. This is a substantive due process argument, in which we’re saying that the behavior can’t be banned, no matter how clear the law is.

Other Problems: 1. Or police may be unclear about how to enforce the law. They must give the law content. 2. Hard for legislature to monitor police with rule-free law. 3. Absence of fair notice = procedural due process. People targeted by the law are unlikely to know exactly what constitutes a violation. On this account, this is democracy-promoting (perhaps unlike Lochner). People can’t conform their conduct to it.

CHARACTERISTICS OF THE RULE OF LAW:  Clear, general, publicly accessible legal rules laid down in advance- “Rule of Lenity” (gun cases) provides that in face of ambiguity, criminal statutes will be construed favorably to crim. defendant. Yet, no legal system can eliminate official discretion to give content to law at points of application and ruleness will be limited even in legal

17 systems highly committed to the rule of law. This may be a failure of the rule of law, but it is a product of the limitations of human language and foresight.  Prospectivity; no retroactivity  Conformity b/w law on the books and real-world application. If real law is different from enacted law, generality, clarity, predictability, fair notice & public accessibility are all sacrificed.  Hearing rights and availability of review by independent adjudicative officials  Separation b/w law-making and law-implementation- the legislature must lay down rules in advance; laws cannot be created by the people who execute them (esp. important in criminal law) “nondelegation” principle  No rapid changes in the content of the law; no contradictions or inconsistency in the law. Madison: “The mutability of the laws of the States is found to be a serious evil.”

Misunderstandings of the Rule of Law  Some see requirements of rule of law as providing an important check on what they see as partisanship and selectivity insofar as these are reflected in law.  Rule of law is a requirement of generality & requirement of generality forbids law from imposing selective benefits or selective burdens  return of idea of impartiality & neutrality in law seen in Lochner.

FULLER AND THE RULE OF LAW 8 Failures in the rule of law: 1. failure to achieve rules 2. failure to publicize 3. abuse of retroactive legislation 4. failure to make rules understandable 5. enactment of contradictory rules 6. rules requiring conduct beyond the powers of affected parties 7. frequent changes in rules 8. failure of congruence b/w rules as announced and as administered

Consider these examples:  prohibition of deceptive trade policies (if struck down for vagueness, the legislature may have to specify goals or give illustrations- yet the FTC makes such practice unlawful and has never been struck down b/c: there are no criminal penalties, there is a common law understanding of “deceptive trade practices” and the FTC will specify what offenses are).  A state university admissions policy with no criteria at all- is it void for vagueness? Are we worried about lack of notice, discretion, admissions committee’s trustworthiness?

City of Chicago v. Morales: [The problem of discretion revisited. The court finds the Chicago Gang Congregation Ordinance unconstitutional and “void for vagueness” in spirit of Papachristou, but don’t have skepticism of democratic malfunction. Fails to provide notice and encourages arbitrary and discriminatory enforcement.] -- definition of term “loiter” not specific enough. “It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an ‘apparent purpose.’” Do not know what loitering is covered and what is not  notice problem: citizen must be able to conform conduct to law before a dispersal order, the terms of which are themselves unclear. -- mandatory language of enactment directs the police to issue a dispersal order without first making an inquiry about their possible purposes. “No apparent purpose” standard is inherently subjective – requires no harmful purpose and applies to non-gang members as well as suspected gang members.

O’Connor/Breyer: Reasonable alternatives remain open to Chicago – need to construe ordinance more narrowly, limiting term “loiter.” Committed minimalist here: wants narrow/shallow decisions.

Scalia: “Loiter” more clearly defined here than in ordinary vagueness cases  the people know what it means. Wants factors that support rule-bound judgments. No evidence of constitutional right to loiter. Justices hide behind an artificial construct of judicial restraint: Lochnerizing! “The present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other

18 measures authorizing police orders to preserve public peace and safety.” Citizens should have freedom to deprive themselves of a freedom.

Thomas: (Burkean opinion) Democracy reinforcement. First history is relevant here – there is no fundamental right to loiter. [Court has Benthamite response: While anti-loitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality.”  reasoning about tradition.] Second we must place trust in the police who have the duty and power to maintain the public peace & disperse groups when necessary if the individuals in them threaten the peace. Also, there is nothing vague about an order to disperse.

Meares: Papachristou is about vague rules used by a (white) majority against a (black) minority. In Morales these laws were generated by black citizens in besieged communities.  We shouldn’t assess rules independent of their context.

Is there fair notice in Morales? Is order to disperse sufficient to overcome vagueness challenge? (Could also attack on substantive due process grounds: People simply can’t be arrested for standing around.) 1. They may not know what’s going to trigger the dispersal order. 2. It doesn’t answer the main concern that police have arbitrary exercise of discretion.

“Unreasonable” statute, even with gang-member condition, is questionable. A statute re: gang members conspiring to commit criminal acts seems to be constitutional. But there’s still a policy objection: Police could use it as a tool for harassment. What about “loitering”? Majority thinks it’s vague, but Scalia disagrees. O’Connor position: Shouldn’t rely on a vague wording when a more specific one is possible. Thomas: We want that vagueness. If we tie the police’s hands behind their backs too much, then we don’t really attack the gang problem

Rep. Case: McGautha v. California: the court holds that complete jury discretion in death penalty decisions does not violate the 14th Amendment. The court reviews the historical difficulty of arriving at standards for death penalty decisions and decides that it is beyond human capability at that point.

Problems w/not having mandatory death penalty:  there is no notice given that one is doing something for which they can be put to death  the jury is making the law (rule by men, not by laws)  the legislature has defaulted in its responsibility to say what the standards should be.  less equality, some randomness in application

Problems w/a mandatory death penalty:  Harlan’s majority opinion: rule-bound death sentences have led to jury nullification (more discretion by jury)  general standards will be meaningless  the legislature can do no better in advance.  Harlan envisions: fine-grained, case-specific judgments as a utopian conception of procedural justice (contrast w/Hayek’s Rule of Law)

Marshall (dissent) says that rule-bound rigidity and rule-free arbitrariness are both unacceptable in death penalty sentencing. The alternative is between: we want the state to give factors (i.e. not have “stark legislative abdication”) and also to allow discretionary review. “The standard jury instruction contains at best an obscure hint.”

Furman v. Georgia overruled McGautha. The Supreme Court, following Papachristou, held that a rule-free death penalty violated due process b/c it gave the jury too much discretion. NC then enacts a “mandatory” death penalty rule for specified homicide offenses. Woodson v. NC- the Supreme Court held that a mandatory death penalty was unconstitutional precisely because it was a rule; it ignored the need for individualized consideration. This is an emphatic attack on rule-bound law due to its blindness to individual circumstances. What emerged is a system of a set of specified factors, in the form of aggravating and mitigating circumstances (as Marshall advocated in McGautha).

19  Some empirical data that if you give people a scale to award damages they will generally pick same value, but if you allow open-ended decisions the values will be all over the screen. Thus many feel there should be guidance for punitive damages.  contribution of behavioral economics  CS’s study: American moral judgments about punishment, at least in personal injury cases, are very similar. But the dollar amounts for damages are all over the place. Can’t even break down the dollar awards by gender, age, race….Could be lack of modulus or illicit considerations (bias, prejudice).  PD awards violate rule of law values, b/c law doesn’t supply any standard. Juries don’t have a point of reference (modulus). This is why juries don’t normally sentence people.

Θ: How would we draft a rule that satisfies the current SupCt., and is not rule-free? 1. Maybe a list of aggravating or mitigating circumstances would be unworkable. Perhaps a list that is suggestive, but not exhaustive. 2. Could appellate judges look at other similar cases to see if the current case is an outlier? Most states have moved in the direction of (1) and (2).

Could we attack the constitutionality of rule-bound imposition of the death penalty? Is rule-free college admissions actually procedurally fairer? Undermines predictability. Harder to administer. BUT, does take into account situation’s circumstances. (LaFleur)  Ct. struck down mandatory imposition of death penalty for the same reasonit ignores the circumstances of the case. It is “blind” infliction of death. Back to Rehnquist in LaFleur and his argument that nearly every law has an irrebutable presumption. Slippery slope argument. One response is that the rule (5 mos.) is just unreasonable given the situation. Another is that certain areas, i.e., reproductive rights, are not to be abridged by legislation.

THE RESTATEMENTS OF TORTS: CONFLICT OF LAWS

First: Sets out fairly strict rules on where K or tort issues are tried if there is a question of district jurisdiction  Too rigid and general; allows for no discretion, want greater accuracy

Second: Multiple prong test w/ more variables to exclude absurdity but also complicates rule and makes less clear (maybe this is worse than the 1st b/c leads to error, too). The addition of §6 (Choice of Law Principles) to 2nd Restatement may  b/c rigidity produced absurd results. Now we’re back to Harlan. Rule-bound law isn’t the way to go.  Open-ended balancing test; shift to standards

It might be that the shift from the 1st to the 2nd (and more discretionary) Restatement of Conflicts will mean more decision costs. Which will mean higher error costs?  There is much dissatisfaction with the 2nd: decision costs are higher, but error costs are no lower.

Short-Lived “Irrebuttable Presumption” Doctrine:

Cleveland Bd. Of Educ. v. LaFleur: female school teachers subjected to mandatory maternity leave b/c of the presumption that at a certain time, pregnant women are unfit for the classroom. The court strikes the school bd’s unconstitutional b/c irrebuttable presumptions are in violation of the Due Process Clause (no individualized determination of fitness).

MAJORITY: The court’s basic objection is that permanent irrebuttable presumptions are disfavored by the due process clause. This is a substantive due process argument. The court decides that case-by-case method has low error costs and not very high decision costs.

DISSENT: Rehnquist’s dissent: the notion of an irrebuttable presumption makes no sense b/c it requires individual hearings, which is contrary to the Rule of Law. To strike down irrebuttable presumptions would invalidate a huge

20 number of American laws. Almost every rule is both over and under-conclusive w/respect to its purposes. But a case- by-case system is very costly and humiliating. (A response to Rehnquist for mandatory pregnancy leave might be: if the rule is wildly overconclusive, the risk involved is great and the cost of individual hearings is not too large, then they are justified. This is not an argument against all mandatory irrebuttable presumptions- it’s much more shallow.)

Scalia also hates this type of individualized inquiry and he attacks the common law case-by-case system, at least for the Supreme Court. The court should issue rules, but the suggested doctrine is rule-free. It is unpredictable and might create due process problems; also, judges are not in a good position to make these decisions and the court will end up spending two decades sorting out the meaning of the narrow rule.

While Court no longer invokes irrebuttable presumption doctrine, Lafleur reflects a pervasive conception of procedural fairness – one that calls for individualized considerations, based in FACTORS, not RULES.

HAYEK- RULE OF LAW  Identifies the Rule of Law w/ “impartiality” as opposed to “planning” (where the state enacts a particular end) “Because the rule of law does not pick out particular winners and losers, it does not play favorites, and in this sense it is impartial.”  Hayek, Jackson and Scalia all think that equal protection symbolizes justice more than any other provision b/c the requirement of generality spurts procedural safeguards. If a rule can’t be applied to everyone, then it won’t be applied only to some w/out legitimate reasons for differentiation. Roe v. Wade: Judge Calabresi argues that it fails on equal protection b/c men do not have the same obligation to protect 3rd parties via bodily protection as the prohibition of abortion does.  Hayek and Generality- Hayek does approve of the regulatory state, gov’t provision of public services, maximum hour laws; so what does generality permit and forbid? He is concerned w/measures that involve arbitrary discrimination b/w persons. “the state is banned from imposing qualifications only when they are arbitrary on their merits.” A law is insufficiently general when the means and ends are not reasonably related  When we obey laws, not subject to the will of others.  B/c judges have no choice in drawing conclusions from facts a certain way w/ rules, we have a law of rules not of men w/ all their flaws and biases  Rules are laid in advance w/o thought to particular cases so no impartiality or discrimination  Rules (general and abstract) that apply to all will not be oppressive b/c those who make them are also subject to the rules- safeguard against arbitrariness and oppression  Rules allow people to properly weigh their decisions, thus w/ rules there is freedom of choice  When rules are sufficiently broad, they allow for private interpretation w/in limits set- privately adaptable  Rules and Markets are similar b/c both blind and do not know in advance indv outcomes  Hayek criticizes socialism as not being run by rules created in advance of the situation, the socialist state’s actions are a product of planning as the circumstances occur (case by case) which demands that someone’s needs be chosen over another’s- discrimination- and produces no general predictability for its citizens “the more a state plans the more planning becomes difficult for the individual”

SUPPORT OF HAYEK  Like markets, rule of law does not make after-the-fact adjustments  Both rules and markets are “no respecter of persons”  Both work against measures that impose inappropriate formal demands on government.  Legacy of privately adaptable rules (see below)

CRITICISMS OF HAYEK  The identification of the Rule of Law w/ (a particular conception of) free markets is unwarranted  He is conflating 3 debates: law vs. discretion; law vs. command; markets vs. planning  The sufficiency of generality depends on whether the basis for differentiation is legitimate. We need a theory of appropriate qualifications (since we’re second-guessing judgments of means-ends relationships) and the Rule of Law can’t supply such a theory. Equality is empty and formal and a court invoking equality isn’t that different from a court invoking liberty (Lochner) b/c both depend upon a substantive account of legitimate/illegitimate ends.

21  Claim of impartiality in rule-oriented, free markets is not entirely true, markets will “pick” losers like the handicapped, poor, etc  He conflates economic planning with Rule of Law violations. Responses: 1. Econ. rules will have to shift often, which deprives law of its predictability and stability (Fuller). 2. Markets and rules are both blind and ex ante (before the fact). One doesn’t know in advance what’s going to happen.

Justice Jackson: Equal Protection Clause  2 parts of 14th amendment allow Sup Crt to overrule an ordinance: Due Process & Equal Protection  Crt uses Due Process too often: Jackson says there should be a heavy burden on one who wants to crt to invoke this rationale b/c it often prevents municipalities from dealing w/ the conduct they are trying to control and leaves it ungovernable (Chicago gang case)  Equal Protection Clause doesn’t make behavior ungovernable, just says law must apply broadly to all and can’t discriminate unless a reasonable differentiation is “fairly” related to the object of the regulation  This differentiation test is a little difficult since a case can usually be made in all circumstances that the discriminations is related to the object (Ex- Hispanics can’t give blood- illegitimate, blind can’t drive- legitimate) hinges on unacceptability of result  Scalia, Hayek, Jackson: Equal Protections clause is better than Due Process Clause b/c it doesn’t allow as much intrusion by the government and thus is less disabling (laws will only pass if generally good b/c extend to all) and because this way only laws that are generally good for public as a whole pass. All three also say keeping law general and broad also guards against arbitrariness

Jackson opinion in REA v. New York  Why is equal protection clause preferable to due process clause? EPC = can’t disallow certain types of treatment of groups DPC = can’t allow certain intrusions of liberty EPC is less intrusive, in that gov’t can regulate, but it just can’t discriminate in its regulation.  As Jackson and Hayek develop the idea, certain rules can actually offend the Rule of Law. (Not a position endorsed by Fuller and Scalia.)  Some people (Calabresi) claim that Roe v. Wade should have been argued on EPC grounds.

Parts of Hayek/Jackson program: 1. It is less intrusive to nullify a law for arbitrary discrimination (equal protection clause) than for seeking unacceptable ends (due process clause), so we can be generally deferential to legislatures. 2. Use of the equal protection clause extends political safeguards. By making everyone subject to the law, you increase the chance of public outcry against oppressive legislation. It forces political safeguards to kick in. They are concerned about rule-bound law against minorities/factions. Ex., If Calabresi is right that abortion’s only o.k. if similar bodily impositions are put into place against men, then his hunch is that we won’t see legislatures passing laws against abortion.  This is the Hayek/Jackson thesis.

Criticisms: 1. Jackson’s test is vacuous. Every law (almost) is fairly related to its object. The problem for Jackson is deciding when a law is justifiably discriminatory (i.e., blind people can’t drive; but, it’s not o.k. to say Hispanics must give blood).  The judge must supply independent moral judgments about the legitimacy of legislative ends. 1. Don’t we then have to characterize certain ends as illicit? 2. Isn’t this doing something akin to DPC cases (like Lochner)?

Why Scalia likes the general rules approach:  similar cases are decided in the same way (equality) so justice is seen in the law in appearance and reality

22  Sup Crt and App Crts can review very few cases so the rest are left to individual judges and juries discretion if not generally decided by a larger body  When Sup Crt does see a case, will never see the totality of circumstances a lower court does so discretionary judgement doesn’t make sense  People need predictability and consistency in the law  Rules are clear and unambiguous  Provides for judicial restraint/constraint  Emboldens courts to be able to do what is unpopular under the shield of a rule  Rules decrease the “costs” for lower courts

More from Scalia:  Thinks Judge-made law should be rule-bound  Promotes equal treatment (both appearance and reality)  Discretion-conferring approach does not impose equal treatment  Also, SC only hears limited # of cases  impossible to see “totality of circumstances” like Louis IX  “Totality of circumstances” test engages judge in fact-finding, which is meant for a jury.  Favors clear, previously enunciated rules  Rules can inhibit discretion (check upon arbitrary judges) and also embolden judges (“stiffen the judicial spine”)  Textualism/Originalism makes is easier for some judges to develop general rules, but no general principle can achieve a perfect fit. “When one does not have a solid textual anchor or an established social norm from which to derive the general rule, its pronouncement appears uncomfortably like legislation.”  “It is my inclination – once we have taken the law as far as it can go … to leave that essentially factual determination to the lower courts.”  The Rule of Law- the law of rules- should be extended as far as possible. “Totality of circumstances” will always be around but must be avoided if it can.  W/out announcing rules, the Sup Ct increases the costs of future decisions for lower courts, “exporting” decision costs to others

With rule-free approach: “Equality of treatment is difficult to demonstrate and, in a multi-tiered judicial system, impossible to achieve, predictability is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired.”

At the End of Scalia’s Day:  There is a time for individualistic judgment, but we should try to push rule-bound judgment whenever possible  Can’t ever have a perfect fit to interpreting legislative law but (1) an good attempt is better than no attempt to set things out clearly and (2) the legislature expects this difficulty  Totality of circumstances should be avoided when possible, because all these variables promote the vices of discretion (arbitrary, not predictable, no equality of treatment)  If one can find an textual anchor or established social norm (or some other outside way of leaning toward a rule) then making a rule is easier because this legitimizes the rule  Two primary roles for judges protect separation of powers and protect hated defendants

Scalia v. O’Connor  O’Conner makes case-specific judgments; likes to look at a wide variety of factors  O’Connor has presumption against rules; only if very certain about disposition of a category of future cases. Response: Very difficult to determine const. legitimacy in an O’Connor world. Cases with freedom of K show a basically O’Connoresque world. It becomes very difficult to predict whether a discharge will be lawful.  O’Connor is worried about a lack of judicial knowledge. Scalia is worried about turning judges into fact-finding.

ROUTES TO PROGRESS

FEATURES OF A SYSTEM BASED ON FACTORS:  Multiple and diverse relevant criteria  Difficulty of describing relevant factors exhaustively in advance  Absence of a clear, a priori sense of the weight of the criteria

23  Attentiveness to (much of) the whole situation Justice as far from blind  Attentiveness to particulars; avoidance of abstractions (decisions are fact-bound; avoidance of error through insufficiently considered rules or principles)  Attention to precedent; analogical reasoning (ensure similarly situated people are treated similarly)  Diversely valued goods and problems of commensurability- if we devise a scale, we will have to re-characterize the relevant goods in a way that change their character and effaces qualitative differences.  Absence of a full theory to account for foundations of decision- operate at a low/intermediate level of generality and permits the emergence of agreement on particular outcomes.

ACOUSTIC SEPARATION  Bentham: Create conduct rules which are clear, but decision rules which are flexible. In other words, make the law seem to the public more rigid than it is.  “Acoustic separation” = literally, let them hear different things.  Problem: There are times when we want people to think that the rules are flexible (i.e., breaking the speed limit to get a sick person to the hospital).  Response: The defense of necessity is present in every American jurisdiction.  New Problems: Once people are aware of the rules’ flexibility, their practices will change.  Sacrifices the people’s right to know what the law is.  Fails to take account of the basic criticisms of general rules as creating bad private incentives. (His strategy is neither democratic nor efficient.)

CHOICE B/W RULES AND DISCRETION [minimizing the risks of unreasonable generality of rules on one hand and potentially abusive rulelessness on the other.]  Simplest method: A species of casuistry- officials should examine the context and inquire into the likelihood of error and abuse w/either rules or rulelessness and make an “on balance” argument about which is better. (case-by- case inquiry of whether to make case-by-case judgments). Consider: likelihood of bias, location and nature of social disagreement, the stakes, the risk of overinclusiveness, the quality of those who apply the law, alignment or non-alignment b/w lawmakers and others, sheer number of cases.  Presumptions- Decide cases narrowly and modestly, as in common law, so that we don’t produce blunders (esp. where predictability isn’t impt. and any rule we devise will likely go wrong).  Pragmatic judgments about the relevant area: contextual inquiry into the aggregate level of likely errors and abuses. (See Econ Analysis earlier)  Legitimate Rule Revisions: favors rules but allows exceptions when they no longer fit w/reflective public convictions. Officials- allowed to soften rules by reference to the notion that absurd results won’t be produced by literal readings. (ex: jury nullification, prosecutorial discretion, admin agencies). Citizens- allowed to depart from the rules, as when “necessity” of saving life or property is a legally sufficient excuse for violating a rule. Also, desuetude- citizens are permitted to depart from rules when such rules lie dormant on the books and no longer can claim public support. (ex: Griswold v. Conn- ban on use of contraceptives by married couples; real intention was to deter clinics from dispensing contraceptives to poor people. No basis in modern convictions). Way of responding to Bentham’s problem w/o adopting his solution.  Privately Adaptable Rules- (Hayek’s program) favor rules that allocate initial rights and entitlements but maximize flexibility and minimize the info burden on gov’t, by allowing for private adaptation. This permits ordinary people to determine ultimate outcomes. (ex: default rules that can be changed by parties). Contrasted w/command and control rules that allocate entitlements, but minimize flexibility by mandating particular outcomes or end-states. (criticism of modern regulatory state) Coase & FCC example # 3 and # 4 are attempts to deal w/the problem of rules.

Schauer: Formalism  Presumptive Formalism: presumption in favor of the literal/acontextual approach with an escape route when consequences are outrageous  4 requirements of predictability: 1. Capacity of those relying on a rule to identify the clear cases; 2. Decision- makers will perceive particulars as being members of the same category perceived by the addressees (same clear

24 cases); 3. Rule must speak in terms of an accessible category; 4. The rule must treat all members of a category in the same way  The key to understanding the relationship of ruleness to predictability is the idea of decisional jurisdiction (will the decision-maker have jurisdiction to determine the rule’s purpose or whether they have jurisdiction only to fit a particular into the clear cases). Allowing jurisdiction as to purpose undermines predictability  We may want some other decision-maker to make these decisions- not judges  Stability is also fostered b/c we suppress consideration of a wide range of potentially relevant differences  Rule-boundedness is inherently conservative and may disable decision-makers from taking into account certain features- but this may not be bad.  Presumptive formalism maintains the advantages of ruleness but tempers the occasional bad result (though not w/out some cost)

Hart: Formalism and Rule-Skepticism  The difference b/w rule interpretation and analogical reasoning in terms of certainty is much less than we think. Rule interpretation often involves generating the simple paradigm cases when one is confronted w/a hard case  Either method will at some point prove indeterminate, but formalism is not the ideal  We operate under two handicaps: relative ignorance of fact and relative indeterminacy of aim. Given the limits of human language and foresight, formalism seems both fanatical and idiotic  Formalism equates to settling in advance but settling in the dark  Rule-skepticism is persuasive w/in a theory of the function of rules in judicial decision but should not be expanded elsewhere and has definite limits  Formalism and rule-skepticism are great exaggerations and the truth lies between them

Schauer and Hart  Presumptive formalism is Schauer’s fresh recommendation. Establishes that formalism is a possible position, rather than just value-added lying.  Hart: Doesn’t like formalism. When there’s excessive generality, judges should ‘do what’s right.’ Alternative is Schauer’s ‘follow the rules.’  Θ: Manual recount law within 7 days. Can’t do it in that time. Seemingly absurd result.  Hart’s new claim is that the inadequacy of rules does NOT result from leg.’s incompetence or myopia; it results from the human condition and our lack of foresight into future circumstances.  Hart’s last sentence. Course is about middle road between formalism and rule-scepticism.

25 Text  More objective than searching for legislative purpose.  Statutes should not be interpreted to bring about  Provides legislature with incentive to make initial rule absurd results. good and clear.  Literal language should not apply in such cases.  Avoids time-consuming and costly litigation.  Underlying purpose does not apply.  Legislature can correct absurdity.  Reasonable legislature would not want this.  Text is the best evidence of legislative intentions.  Doesn’t really embrace democratic considerations.  Holmes: “Do not inquire what the legislature intended  One can imagine cases in which there are clear errors but what the words mean.” in the drafting of the law.  Democratic pedigree of duly enacted law through  If there is ambiguity we must look elsewhere. constitutional channels.  Words are not self-defining and they depend on  Legislatures should engage in “policymaking” culture and context  Promotes predictability and goals associated w/rule of  Textualism can lead to unintended absurdity (in which law  rule of law “values” case even Scalia has made an exception)  Creates incentive for legislative responsiveness:  Changed and/or unanticipated circumstances- the information-forcing default rule literal meaning may become peculiar over time (see  If judges are not textualists, there is a greater Blackmun in Weber) likelihood of judicial blunders  A textual provision does not control if it leads to  In general, reliance on ordinary meaning of text bizarre results and if there is a readily available (Scalia) minimizes error/decision costs. alternative interpretation that would better serve its basic purposes. Ordinary Meaning  The strict textualist view requires an unambiguous  Use common understandings. statement from the legislature  Good incentives on legislators in choosing language.  Need a degree of casuistical interpretation.  Does not depend on dictionaries.

Structure  Produces coherence and consistency  May lead to extravagant inferences  Gives meaning to ambiguous terms by consulting  May lead to impermissible or unconvincing inferences legislative enactments  If Congress has used a word elsewhere in a provision  Relies upon meanings given by admin agencies and it may not be doing so to define or limit the meaning other bodies who have responsibility of of the term in question. Redundancy happens. applying/interpreting the law as well  If Congress has used a word elsewhere in law, it is  Gives a sense of Congress’s instructions very likely that Congress was not using it in relation  Might draw inferences from adjacent provisions or to the term in question. other statutes  Scalia cites a “benign fiction.” Problem with  structural analysis is elaborate inferences.

Legislative History  Useful to understand their meaning. May add  History only represents the views of some people determinacy to text.

26 Purpose ► Refers to the evil which the statute is enacted to remedy. Does NOT ascertain the intention of the legislature.  Impossible for lawmakers to foresee every possible application.  Legislature’s power to correct unreliable  Busy with other worries.  Not sufficiently pressing.  May be unaware of absurdity.  Courts in better position to remedy.

Canons Textual  Expressio unius est excludio alterius.  Llewellyn: Every canon has countercanon. Substantive  Judges can use canons to embed and disguise their  Rule of lenity own value judgments  If canons proliferate they may create indeterminacy  Tie-Breakers- some canons act as tie-breakers when and confusions (might undermine the Rule of Law there is statutory ambiguity, such as the rule of lenity values) Llewellyn’s concern of every canon having a  Clear Statement Principles- these canons establish counter-canon. principles about which Congress must speak clearly to overcome. (ex: no person may profit from his own wrong-doing; where a statute is ambiguous, defer to the administrative agency entrusted for its interpretations—most used in the last 30 years; construe national statutes to not interfere with state authority)

Summary With structure, it seems sensible to use surrounding provisions or other statutes to get a sense of Congress’ intentions, or to make the law coherent. Problem with structural interpretation is overreaching.

With purpose, the problem is the constructive dimension. Judicial value judgments disguised as leg. intent.

Could imagine what the leg. would do: imaginative leg. interpretation. But possible that leg. history contains material which couldn’t have been gotten into the statute; plus it may be weak evidence of the general understanding of the statute. Some think this is the error cost/decision cost all over again. Near ban (Scalia) v. cautious use (Breyer).

Policy analysis that legal realists invoke could be displaced by more general, public ruleslike the canons of construction (Focus on this: CS!!). Maybe tiebreakers requiring Congress to make more definite statements… Llewelyn showed that canons were ad hoc justifying devices which could go either way. Another study showed that each individual court tended to adopt the same set of canons. Maybe L. erred by thinking that a non-absolute canon was useless, since sometimes they carry different force.

Different Interpretive Methods  If courts insist on the “ordinary meaning” of legal terms they may be trying to limit judicial discretion- to make law more like a system of rules, and to give good incentives to legislatures, by encouraging them to speak clearly and in ordinary ways  Debates over interpretation are insistently institutional in that they raise issues about who should make what kind of decisions

27  Any approach to interpretation must be defended on the grounds that it will produce the best system of law, all things considered  Sunstein endorses the view (associated with Cardozo, Dworkin, and Posner) that any approach to interpretation requires a justification of some kind

Hart and Sachs on Purposive Interpretation  Decide the purpose that ought to be attributed to the statute and then interpret the words of the statute in question so as to carry out the purpose as best it can.  The words serve both as guides in the attribution of general purpose and as factors limiting the particular meanings that can be properly attributed  The words are what the legislature has enacted as law  Maxims of Construction help reassure about the meaning but should not be treated as rules  Inferring purpose: the purpose must be treated as including a larger and subtler purpose as to how the particular statute fits into the whole legal system  The judge should put itself in the position of the legislature in order to infer purpose  Legislative history should be examined for the light it throws on general purpose  Legislative history must yield if the result would contradict a purpose indicated or be disadvantageous to those w/our access to such history  Post-enactment aids: judicial, administrative and popular constructions of a statute  Last resort: an appropriate presumption drawn from some general policy of law

Problems w/Purposive Interpretation:  Purpose can be described at multiple levels of generality and one can manipulate the level of generality so as to not be “finding” but instead “making”. Purpose can become a disguise for judicial judgments and judges would then be casting a statute in its best constructive light rather than finding the legislature’s goal. E.g. maybe Weber majority.

Breyer’s Defense of Legislative History (cautious use)  Where words unclear, history gives one what animates the law.  Avoids absurd results & simple errors  Prevents judicial decisions from hinging on a drafting error  Helps understand the intended meaning of specialized terms or terms of art  Helps ascertain the reasonable purpose of a provision  Helps when choosing among several reasonable purposes in a controversial law  Ensures correspondence with legislative expectations

Scalia’s Objections to Legislative History (near-ban)  The history is not the law and has not been enacted as such, so it’s not really binding and authoritative  The history may be the result of staffers, a subset of Congress, or interest group judgment and individuals may be trying to get their views into the history, despite the fact that their views are not accepted by the entire Congress. Not reliable.  Rule of law values are compromised by reference to history that not everyone has access to and that is not law  Reference to text, instead, will create pressure for Congress to speak clearly  There is so much legislative history that one is essentially pulling out their favorite quotes- allows for opportunistic readings

Scalia’s New Textualism Sceptical of history, purpose, intent and of some canons. Not of linguistic ones, which are applied common sense, or of those verified by tradition.

Problems: 1. ambiguity 2. unintended absurdity (Riggs; maybe Holy Trinity) 3. changed circumstances

28 Seems to be a consensus that using the current rather than original meaning is justified (“psychopath” Θ).

Church of the Holy Trinity vs. US D made a contract w/an alien to come to NY and serve as a rector. Issue is whether that violates a statue which forbids the payment of transportation or the encouragement of the importation of foreigners into the US to perform “labor or service of any kind”. The court holds that the church did not violate the statute.

TEXT  The text appears unambiguous and would clearly apply to the rector  There is ambiguity, however, in the meaning of the words “labor or service” (dictionary definition vs. common understanding)  textualist wants general understanding of text.

STRUCTURE  Section 5 allows for exemptions: professional actors, artists, lecturers, singers; non-manual labor positions  rector not any one but analogical relation.  The court concedes that this suggests that the first section reaches every other kind of labor not exempted: “expressio unius” To express one is to exclude the other.  Also, it would not make sense to construe “labor” as meaning only manual labor and then to include non-manual labor exceptions- Section 5 would be unnecessary: Catholic view of structure.  But, Trinity could argue that the list was non-exhaustive: don’t overread Section 5

INTENT  The court concedes that the rector is within the letter of the statute, but decides that it is not within the spirit of the statute  The reason of the law should prevail over its letter  “a thing may be within the letter of the statute & yet not within the statute, because not within its spirit, nor within the intention of its makers.”

PURPOSE  The court looks to the “evil which it is designed to remedy” (the goal): “it was never suggested that we had in this country a surplus of brain-toilers and, least of all, that the market for the services of Christian ministers was depressed by foreign competition.” (190)

HISTORY  Legislative history indicates that the statute was meant to protect domestic labor from the influx of poor, servile, ignorant immigrants.  NOTE: Committee report accompanied bill in period it was not passed. Case does not refer to actual history: Vermeule.

CANONS  No purpose of action against religion can be imputed to any legislation b/c this is a religious people: a form of dicta, background constitutional principle of religious liberty

EVALUATION:  Perhaps this is Riggs v. Palmer  This is a case where the legislative history trumps the text  This involves a strong canon of construction (religion) Weak Arguments:  Pure textualism based on Sect. 1- dishonorable formalism (“labor and service”, which is ambiguous) Strong Arguments:  The text of section 1 is unclear but Section 5 resolves ambiguity and suggests that Section 1 is general and not limited to manual labor. The legislative history fortifies this judgment

29  The text is best understood to be unclear about brain-toilers and the history is unclear as well. Thus, we ought to exempt the church b/c there is no express congressional intent to include the church. We ought not to punish the church based on inadvertance.

30 Smith vs. US D offered to trade an automatic weapon for cocaine to an undercover officer. He was charged w/several offenses, including an indictment for knowingly “using” the firearm “during and in relation to” a drug trafficking crime, which imposes a 30 year sentence. The issue is whether “use” includes using a gun as barter. The Court holds that it does.

TEXT  The majority(O’Connor) looks to its ordinary or natural meaning (dictionary definitions) in 924(c)(1)  The majority construes “use” as “to employ” or “derive service from”  The dissent (Scalia) says that the ordinary meaning of “use” is “use as a firearm”.

O’Connor: Dictionary definitions and statutory purpose. Scalia: Look at context, not dictionaries.

STRUCTURE  The majority looks to the context of the word and the impact of “during and in relation to” a drug trafficking crime in the statute (deliberately expansive). Shouldn’t include one understanding of use to he exclusion of all others.  Other provisions include “barter” as “other uses” of a firearm: 924(d)(3) – 197 & 924(d)(1): “involved in” an offense  The dissent says that w/in the context and structure, there should be a narrow understanding of the word use because it appears alongside word “firearm” O’Connor: “The fact that the phrase clearly includes using a firearm to shoot someone, as the dissent contends, does not answer it.”

PURPOSE  The majority relies upon the legislative purpose as to prevent/punish the introduction of guns into drug transactions  promotes argument v. rule of lenity here.

CANONS  The dissent argues that when there is ambiguity, the rule of lenity kicks in  The majority responds that the mere possibility of a narrow construction does not necessitate the rule of lenity. Further, the more restrictive reading would lead to an implausible interpretation that would allow those deserving more severe punishment for introducing guns into drug crimes to escape.

Bailey vs. US D’s were convicted in part for using or carrying a firearm during and in relation to a drug crime. One D had a loaded pistol in his locked car trunk; the other had an unloaded, unholstered firearm locked in a trunk in her closet. The issue was whether the D’s had “used” the guns w/in the meaning of the statute. The court held that they had not “actively employed” the guns, and so had not used them]

TEXT  The court (O’Connor) concedes that the word “use” is ambiguous

STRUCTURE  In order to give “use” meaning, the court looks to the context and to other provisions of drug crimes  The court determines that Congress did not intend for possession alone to trigger liability (as the lower court suggested in its “availability and proximity” test) based on the frequent use of the word “possess” in gun crime statutes  To give “use” a broader meaning would be to eliminate the need for the word “carry”  An “active employment” also is in line with Smith decision.

HISTORY  The original wording “uses to commit” indicates that Congress intended it to reach active employment during the crime

31 Muscarello, Cleveland, Santana vs. US D was arrested for selling marijuana and a handgun was found locked in his glove compartment. The other D’s placed several guns in a bag, put the bag in their trunk, and drove to a drug sale where they intended to steal the drugs from the sellers. The issue was whether the D’s had “carried” the guns for the purpose of the statute. The court held that they had.

TEXT  The majority (Breyer) consults the dictionary meaning of the word “carry” and also its popular/common meanings as indicated by usage in society. In primary, “ordinary” meaning Breyer sees carrying in a wagon, car, truck or other vehicle.  The dissent (Ginsburg) argues that “carry” is ambiguous

PURPOSE  The majority refers to the basic purpose “as an effort to combat the dangerous combination of drugs and guns” and to persuade them to leave their guns at home  W/reference to this purpose, those who place guns in their car seem no less dangerous than those who carry guns on their person  Breyer elicits a purposive understanding of carry and attributes a reasonable purpose to the statute  The dissent argues that Congress intended to impose a harsher sentence for the most life-threatening cases, as when guns are in hand

STRUCTURE  This understanding of “carry” does not equate with “transport” b/c “carry” implies personal agency and some degree of possession. (carry is a sub-set of transport)  Section 926(a) exempts from penalties people transporting goods in a certain manner and it would be unnecessary to have this if Congress intended to have a narrower meaning of carry for drug crimes (not very convincing)  A narrower definition would put guns in cars out of the statute’s reach  The dissent argues that this broad understanding of “carry” is the same as “transport” and that the legislature has used the “transport” to describe travelling with a gun in vehicles.  The dissent argues for a narrower definition of “on the person”

CANONS  The majority argues that the rule of lenity does not apply unless there is grievous ambiguity or uncertainty  The dissent insists that the text, structure and history fails to establish that the gov’t is correct and the rule of lenity applies.

POSSIBLE POSITIONS ON THE GUN CASES: 1. Scalia was right in Smith: the natural meaning of the word “use” was its ordinary use as a firearm. Further, if there is ambiguity, the rule of lenity kicks in. 2. Ginsburg was right in Muscarello: the ordinary meaning of “carry” is on your person. Further, if there is ambiguity, the rule of lenity kicks in. Congress’ use of the word “transport” offers little meaning/direction in relation to “carry” and she offers a reasonable understanding of the purpose of the statute. 3. Bailey is the hardest case: proximity and availability may actually constitute “use”. However, to say that “use” means active employment is linguistically plausible and it reaches the most dangerous kind of use. The rule of lenity would kick in for the defendants who did not actively employ the guns. IF ANY OF THESE ARE WRONG, WHY ARE THEY WRONG?

Kaiser Aluminum and Chemical Co vs. Weber The United Steelworkers Assoc. and Kaiser entered into a collective-bargaining agreement that contain an affirmative action plan. The plan set goals for hiring blacks at the Kaiser plant and established training programs that reserved 50% of the spots for blacks (many of whom lacked the credentials of white applicants). White employees alleged Title VII violation for race discrimination. The issue was whether Title VII forbids affirmative action plans. The Court held that it did not.

32 TEXT  A formalistic reading of the text would suggest that Weber should win b/c the text forbids this under the definition of discrimination  limitation to 703(a).  The Majority (Brennan) rejects Weber’s literalist interpretation and says that a thing may be w/in the letter of the statute and not w/in its spirit/intention of the lawmakers. Here the textualist may be with the majority if the ordinary meaning of discrimination is understood in the context of garden-variety discrimination & not affirmative action.  In both instances one ought not be very confident: they are dishonorable formalism; taking words to answer when the answer actually depends on supplemental arguments.  The dissent (Rehnquist) argues that Title VII clearly and unmistakably prohibits all discrimination based on race

Holmes/Scalia: Find the natural meaning of the terms to the community at the time. Not a strict constructionist. Don’t make a fortress out of dictionaries.

STRUCTURE  Section (j) of the statute says that, “Nothing contained in this title shall be interpreted to require any employer…to grant preferential treatment to any individual or group b/c of race…”  The majority argues that its position is strengthened by Section (j) b/c Congress would have said “nothing shall require or permit” preferential treatment if it intended to prohibit affirmative action plans  Further, section (j) would be unnecessary/superfluous if the first section prohibited affirmative action (why would the gov’t say it doesn’t require affirmative action if it has already expressly prohibited it?)  The dissent counters that section (j) was adopted to allay fears that businesses would have to adopt affirmative action plans (clarifies the first section).

PURPOSE  The majority refers to the context/goal of Title VII, which was to address the “plight of the Negro in our economy” and to integrate blacks into the mainstream of society  The concurrence ( Blackmun) argues that allowing for affirmative action accords w/the purpose of Title VII b/c it allows businesses who have had “arguable violations” in the past to correct for such discriminatory practice (w/out becoming liable to white workers). This might work as a civil rights rule of lenity: we ought not to rule against an honest attempt to eliminate discrimination where the legislature has not explicitly said to do so. Like Holy Trinity.  The dissent insists that the goal of Title VII was a flat ban on all discrimination; i.e. color-blindness

HISTORY  All three positions have legislative history at their disposal  Brennan would say the most sensible understanding of the statute allows for affirmative action, since the statute was designed to overcome discrimination against blacks and affirmative action does that (Dworkin-esque)

EVALUATION:  Dworkin vs. Posner: Dworkin would say that the construction of the statute that puts it in its best light will support affirmative action. Posner would agree w/Blackmun on pragmatic grounds and that we should allow affirmative action if it is intended to address an arguable violation.

3 POSSIBLE VIEWS: ► The text leans in Rehnquist’s favor and the ordinary definition of discrimination is to treat differently. Section j fortifies the inference that there cannot be preferential treatment as does the legislative history. We must rely on the words Congress used and not try to guess what Congress would have done in these unanticipated circumstances. Problems:  Is “discrimination” unambiguous in its dictionary sense?  Even if not, it is ambiguous in its context, which is what matters. Discrimination may be used either in a neutral or an invidious way, i.e. basic or animus-based  Section j complicates Rehnquist’s position b/c the first section might not forbid affirmative action, in which case section j may permit it (and merely not require it). The legislative history doesn’t help and may only indicate that Congress wasn’t talking about aff action.

33 ► The words in their context are ambiguous but Congress did not intend to prohibit voluntary affirmative action. This is an unanticipated case that fits w/in the purpose of the statute and is supported by section j. Problems:  This allows for an extravagant inference from section j. We cannot infer that section j permits preferential treatment, especially since they might be clarifying their prohibition of it  History tends to lean the other way  The purpose could go in either direction and whatever characterization we offer won’t be a matter of “finding” something  The intentions Congress conceived of in choosing its wording are not the only applications to which such general words apply. General words often apply to unanticipated cases and Congress’s intended applications do not exhaust the meaning of the term. (consider: FDA’s regulation of anything “affecting the structure and function of the body”. Can this apply to tobacco? )

► It is difficult to answer this case without making a judgment on affirmative action (like the surrogacy case). Problems:  We don’t want the courts to give a best constitutional interpretation of the civil rights statute b/c the nation did not focus on the issue of affirmative action. We should not take the language of the statute to resolve an issue that has not been through democratic deliberation.  Don’t take ambiguous language to forbid private voluntary conduct, i.e. permit it unless and until Congress specifically decides not to allow. Don’t take Congress to have resolved the issue through inadvertence  this is institutionally wrong.

Choosing: If discrimination doesn’t have a single meaning, then we abandon hard textualism. We ask about the competence of judges, the responsiveness of the legislature, the importance of clarity and predictability vs. reaching sensible outcomes.

Weber and Changed Circumstances: We shouldn’t take Congress to have banned a practice they didn’t consider. Examples:  Homosexuals were once considered “psychopaths” for the purpose of immigration laws, but given the scientific evidence to the contrary, that understanding will yield. Use contemporary understandings.  Delaney Clause- said no carcinogens or food additives are allowed. If construed literally, the clause will eliminate things that have tiny risks. Congress can exempt such de minimus risks if it would otherwise harm health. Whether to invalidate may depend on 1. is the legislature responsive? 2. would court introduce considerable uncertainty? 3. would it make the statutory system worse? In whom do we have confidence? Courts or legislatures? Empirical project, and nobody has done much with it yet.

TVA vs. Hill TVA began constructing a dam in 1967 which would improve economic conditions in the area. It was discovered that a rare species of perch would be eliminated by construction of the dam. In 1973, Congress passed the Endangered Species Act, which required that actions funded, authorized or carried out by Federal Dept’s not jeopardize endangered species (of which the snail darter was one in ‘75). Congress continued appropriating funds for the dam and the House Committee of Appropriations insisted that the Act did not apply to projects over 50% finished. The issue is whether the Act requires that the dam be enjoined and whether continued congressional appropriations constituted an implied repeal. The Court held that the Act did apply and that there was no repeal.

TEXT  Majority (Burger) insists that, even w/ambiguity, the text affirmatively commands that federal agencies not jeopardize endangered species: “no action” is pretty clear. “the only relevant legislation was the Act itself, ‘[t]he meaning and spirit’ of which was ‘clear on its face.’” “One would be hard pressed to find a statutory provision whose terms were any plainer than those in” the Act.

34  Dissent (Powell, Blackmun) insist that allowing the Act to apply to a project that is almost complete is an “absurd result” and is an extreme example of literalist construction.

PURPOSE  Majority argues that the goal/purpose of the Act is clear: protection of endangered species  The dissent argues that since the legislature never discussed this problem, it cannot be abundantly clear that Congress intended to abandon a project almost finished (if that were possible, there would have been heated debate)

HISTORY  The majority insists that the legislative history, including the expansions upon past Endangered Species Acts, broadened federal involvement and omissions of any exceptions indicates that the result they reached was right  The dissent points to the fact that the Committee reports repeatedly addressed the problem and affirmed their understanding. Further, Congress continually approved the appropriations

STRUCTURE  The majority points out that there are “hardship exemptions” none of which apply to TVA & expressio unius est exclusio alterius

CANONS  The majority argues that implied repeals are disfavored and that “the intention of the legislature to repeal must be clear and manifest”  The dissent argues that the majority’s literalist interpretation ignores established canons of statutory construction and imposes retroactive legislation

EVALUATION (comparison w/ Holy Trinity)  There is no legislative history prior to enactment that supports extinction of the snail darter as court thought it had in Trinity.  The exception for which the government is arguing is hard to cabin and hard to define (whereas, both Riggs and Trinity involved clear and limited exceptions)  There is no constitutional principle or tradition on TVA’s side (as there was on church’s side in Trinity)

CANONS OF CONSTRUCTION  Subsequent history gets more weight than contemporaneous history.  Appropriations statutes will be narrowly construed & not assumed to amend law (we shouldn’t construe an appropriations statute as a contradiction/amendment of a statute passed by the entire Congress)  Implied repeals will be disfavored (so that Congress doesn’t inadvertently eliminate old statutes)

Radin (a Realist) on Statutory Interpretation  When stuck, make it the best it can be  What will lead to a desirable result/the best policy  Intention is undiscoverable & powerless to bind because they are not allowed to impose their will: “Once the expression is before the court, the intent becomes irrelevant.” (Sunstein v. this idea: “In searching for purposes and intentions, courts should feel free to take the legislative history as relevant . . . helpful in showing what legislature was concerned about.”)  History is not helpful (go with British exclusion rule)  Expressio unius & ejusdem generis are bad technical devices  “Plain meaning” offers large choice between maximum and minimum of extension  “Intent of legislature” is a futile bit of fiction.  Canons are of limited importance, purpose requires selection of one or many purposes, consequence involves prophecy for which courts are not particularly prepared  After determining whether a statute will permit a certain interpretation, the judge should ask if the interpretation will lead to a just, proper result. “It is hard to see how subjectivism can be avoided or how the personality of the judge can be made to count for nothing in his decision on statutory interpretation as on everything else.”

35 Easterbrook on Statutory Interpretation 1. One style of interpretation: “Remedial statutes are to be liberally construed.” Attribute a purpose to a statute and keep expanding its reach until hit objectionable results. 2. Contractual style of interpretation: “Statutes in derogation of the common law are to be strictly construed.”

 Identify parties  Discover what was resolved & unresolved.  Judge refuses to extend scope where there are omissions.

 Should ask whether statute is specific or general. The more detail, the more interest groups at work & less judicial liberty.  General-interest statutes are designed to vest discretion in courts  the decisions of the courts are the things for which the parties bargained.

“One way to approach the problem is to ask whether the statute is specific or general. The more detailed the law, the more evidence of interest-group compromise and therefore the less liberty judges possess.” Specificless judicial discretion Generalmore judicial discretion

Surrogate Parenting Association v. KY Involves the legitimacy of surrogate parenting arrangements (biological father enters a contract w/surrogate mother, whereby he pays for the birth and she agrees to terminate parental rights). KY insists that this violates “baby selling” statuts. The KY Supreme Court held in favor of S.P.A. largely b/c of their interpretation of legislative silence on the issue of surrogacy. “The court thought that it ought not take the language of the statute to foreclose a voluntary arrangement for which the legislature had made no considered judgment, at least where there is a plausible difference between that situation and the obvious or defining cases.” The dissent insisted that surrogate parenting constitutes the sale of a baby.

ARGUMENTS FOR SPA (this is not baby-selling):  Women are selling their gestational capacities, not babies  An agreement is made before conception  Disanalogy argument: this is not what the baby-selling statutes are about, statute only designed to protect women/children from anxiety/harm that come from being sold after they exist: neither concern applies so statute does not. Purpose Arg.  Textual ambiguity, so look to the purposes of the legislature (why do they ban baby-selling? Are there similar concerns here?)  Legislative silence- don’t extend statutes to unforeseen applications unless there is evidence that the legislature deliberated on it  There are no adverse 3rd party social affects; won’t change society’s view of babies  The contract is beneficial to all parties

ARGUMENTS AGAINST SPA (this is baby-selling):  The birth mother is selling her parental rights to the child, which is against the law  Commodification argument: some things don’t have prices and shouldn’t be commodified b/c it will change their nature  The moral intuition is that the woman has the right to the child; also, the five day waiting rule indicates an implicit understanding that the birth mother is the owner of the baby  The law makes an exception for in vitro fertilization but is silent on surrogacy (inclusion of one excludes all others)  Paternalistic argument: Children born may be hurt by surrogacy (this is not likely in comparison to adoption, etc); Children as a class may be harmed- Traditionalist view that social attitudes about children are adversely effected (this is not likely); Surrogate mothers may be harmed b/c of coercion (but, many surrog’s are not poor and probably do it for humanitarian reasons; even if they are poor, is it good to ban their best option?)

36 Women as a class may be harmed- commodifies reproductive capacity; reinforces notion of women as breeder class (others say it is a form of work for women)

STATUTORY INTERPRETATION:  Expressio unius est exclusio alterius: Does a provision expressing/allowing one procedure (in vitro fertilization) exclude other procedures?  Legislative non-action: Is non-passage of the law legitimizing surrogacy equivalent to indication of its illegality? Making such inferences from legislative inaction is hazardous.  Look to the purpose of the statute- but are we finding or making something? Two opinions: 1). The reason baby-selling is banned is to prevent pressure on poor mothers w/newborn babies. Response: that pressure doesn’t apply here b/c there is a preconception agreement, in which the prospective mother acknowledges that she will give up the baby. 2). Baby selling is banned to ensure that reproductive capabilities and children are not treated as goods. Such would have a negative effect upon family values and cultural norms (see the dissent). That argument can clearly apply here.  If we are not sure about the effects, there are tie-breaker options. We ought not to read the criminal law too broadly and we should err on the side of the narrower interpretation; or if there is a constitutional right, we should not read the statute so as to trample on that right.  We ought not to apply literal language to a situation that the legislature did not consider if it is plausibly different from settings that the legislature did consider.

Sunstein on SPA in book: This statute might not apply b/c it is far afield of what the legislature was thinking at the time of its enactment. Textualism is at a dead-end here: don’t know who has right to baby because don’t know KY law. “The use of the literal language to resolve the case is therefore a version of bad formalism: the pretense of deciding a case by reference to legally authoritative language, when some kind of supplemental judgment is required, as in the idea that ‘liberty’ necessarily includes freedom of contract.” If surrogacy is going to be banned, it ought to be banned after a considered judgment as to its merits. The legislature did not deliberately ban this procedure and the court should not do what the legislature was not willing to do. Too hard on theoretical question.  Purchasing what might be called gestational services and not a baby at all is quite different from selling a born child. The case is not covered by the statutory language at all.  Literal language of the statute will not be enough. Therefore, use of literal language to resolve the case is therefore a version of bad formalism.  It is necessary to ask why baby selling is prohibited, or to develop ‘the best constructive account’ of the prohibition, and then to ask whether that account bans surrogacy arrangements as well (Dworkin).  But that answer is too simple. A majority of the court asked: Is surrogacy arrangement relevantly similar to or relevantly different from the sale of a baby? The court reasoned analogically that there is a plausible difference between a surrogacy arrangement and the sale of a born child.  Don’t foreclose a voluntary arrangement when the legislature has made no considered judgment.  Dissenting judges thought that surrogacy was unlawful because it was analogous to what was unambiguously unlawful. They disagreed on the question of analogousness.

COMMODIFICATION and BANNED SALES  If market thinking spills over into other domains (family, religion, politics), then things will be altered in a fundamentally bad way.  Commensurability: we often lack a single metric along which to order our judgments about things and many things (children, etc) ought not to be given a dollar equivalent. Certain things are incommensurable and to put them up for the market would be to alter things for the worse. These things have nonmonetary valuation that resists monetization. Three examples: sale of blood, prostitution, surrogacy.

SALE OF BLOOD (Titmuss’ Article): Titmuss argues that the private market in blood actually decreases individual freedom and increases coercion. When you allow something to be sold, you diminish voluntary giving (unintended byproduct of commodification). This is an empirical claim. Thus, there are transformative effects of subjecting things to the market.

SURROGACY: three arguments about commensurability:

37 1). Market Position (Epstein): no externalities and mutually advantageous agreement, so surrogacy OK 2). Feminist Pro-Surrogacy: surrogacy benefits women b/c it prevents protectionism embodied in obstacles to women’s labor. (i.e., banning surrogacy would be Muller for the 20th Century b/c women are forbidden from selling their labor freely). 3). Feminist Anti-Surrogacy: the effects on women engaged are dehumanizing b/c women are treated as objects; the effects on women as a whole are bad b/c reproductive capacities are commodified. (i.e., surrogacy is like Muller and reproductive capacities are not objects to be bought and used by others). 4). Traditional Conservative (Burkean): to commodify reproductive capacities would have unintended consequences for our attitudes toward families. The risk is that the commodification is wrong and will have corrosive effects on values. (Attitude and social norms argument.)

PROSTITUTION: involves the same four positions as above, but with a stronger anti-commodification claim on behalf of the feminists (we can’t turn women’s sexual capacities into something others can own; this dehumanizes individual women and women as a class) There may be a conflict about what constitutes prostitution: some feminists can even say that, properly understood, prostitution is not bad and that the perceived meaning of it may be an artifact of certain views about women and sexuality. Many others argue that in any world, prostitution is bad b/c sex is owned by others.

Should we be worried about the effects on surrogates and prostitutes themselves? Θ: Suppose woman reneges on surrogacy agreement. She’s still got a fatherless child on her hands. Is this an empirical matter? Would it help to know if most surrogates are glad they did it? Freedom of contract advocate could reply that it’s not about the consequences, but about respecting autonomy.

What about the debate between freedom of contract-er, who doesn’t think adverse external effects will occur, and the traditional conservative, who thinks they will?

How do we help poor surrogates by banning the option they view as least bad? Why not just give them better opportunities, but not a ban on surrogacy?

Should people be able to sell bodily organs? Titmuss article: To commodify these things take away the altruism of donation. CS: How could adding sale take away donation? Maybe it’s just that it will decrease the incidents of altruistic giving.

Θ: Poor people are allowed to sell blood, but we set a limit on the number of donations for health reasons. Would we see a decrease in donations of blood? Extrinsic (reward) v. intrinsic (moral goodness) reasons. Titmuss: Extrinsic will crowd out intrinsic motivations. Evidence is that this happens. [But the question is whether the overall level of blood-giving drops. Study of blood-giving showed that when people were paid, overall blood-giving dropped. This study confirms Titmuss.]

Θ: Fine for picking up kids late. We would expect late pick-ups to drop, but instead they rise. Fine legitimates the behavior. Such data suggests Titmuss is right. Hidden cost of reward.

Titmuss: Notion of social capital. Reservoir of motivations to help others without prospect of reward. Titmuss thinks economic rewards will diminish social capital. Minnesota tax study in  tax-complying behavior. Only one method had an effect: Telling people that 90% of Minnesotans pay  People don’t want to be free-loaders. Intrinsic motivations worked better than punishment.

Responses to conservative Burkean objection: Surrogacy will not become the norm. People buy their animals, and they don’t love them any less. More difficult with prostitution?

38 Reflective equilibrium (John Rawls…back to Aristotle): When reasonable people are trying to make a judgment about a case, they try to bring their judgment into harmony with everything else that they think.

Levi: Analogical reasoning is a step in the direction of reflective equilibrium. Dworkin: Levi’s analogical reasoning is just a baby step in the right direction.

Levi would object to Rawls’ view that every belief is potentially revisable. Cts. are not always free to reject former decisions. Precedents should serve as “fixed points. Levi FORMALISM------REALISM  Dworkin  Law as deduction Law as policy choice from previous rules

“Finding” law: value-free, independent “Making” law: legal reasoning is the making of application of rules. political judgments. Claim for honesty.

Levi: Responding to formalist doctrine of 19th century. Recognizing the inadequacy of formalism. Dworkin: Writing against background of liberal, activist Warren court. Responding to realist claim that law is policy choice.

Sense in which they are both Burkean. Keep principled faith in the past.

Levi is responding to the post-New Deal/Lochner argument about the fatal indeterminacy of analogical reasoning. Levi tried to rescue legal thinking after Lochner from the assertion that law was purely political (response to New Deal criticism). Emphasizes role of community. Perhaps the cases re: public policy exceptions to at will (perjury, worker’s comp, etc.) reflect the community’s judgments.

1. Courtroom is like a little town hall. Democratic forum with participation. The court has a democratic element. The courtroom is a forum for participation by the parties and by different community factions. “It provides…a forum for the discussion of policy in the gap of ambiguity.” Lawyers are surrogates for community by presenting arguments.

2. Judiciary is like a legislature. Advocacy puts all the ideas out on the table, and then communal standards (in the form of the judge) take their pick. The judge is influenced by the community’s judgment. “The ideas have their day in court and will have their day again. This is what makes the hearing fair, rather than any idea that the judge is completely impartial, for of course he cannot be completely so.”

Although Dworkin isn’t arguing against analogical reasoning, there is a debate: courts should have lofty ambitions vs. courts should decide more narrowly and decide only the case at hand; avoid theoretical implications and decide shallowly. Dworkin says it is lawless to not treat similar people similarly. Levi’s response may be that judges have limited time and capacity and are not in a good position to make law coherent and justified in individual cases (esp. in lower courts, where reasoning by analogy is prime). “Analogical reasoning imposes a certain discipline & widespread moral or pol. consensus is therefore unnecessary.”

CHAIN NOVEL EXAMPLE: The judge is completing something that is already in progress and has the duty of internal consistency. The writer/chooser must consider:  Dimension of Fit: backward looking; fit w/precedent; put in best interpretive light; analogical dimension  Dimension of Justification: forward looking; put it in its best aesthetic light  Make a governing text “the best it can be.”

39 PRECEDENT

PROS CONS

The advantages of stare decisis (respect precedent except To overturn precedent, must prove: Precedent is in extreme circumstances): wrong; and precedent has not shaped expectations.

1. Promotes predictability 2. Efficiency gains: burden on judiciary is reduced 3. Limits judicial maneuvering 4. Respects the wisdom of past practices/decisions 5. Avoids the risk of unintended consequences if we depart from past practices.

Arguments that weaken the case for stare decisis: Arguments that strengthen the case for stare decisis: 1. Circumstances have changed- this is a strong 1. Expectations have built up around the past argument to overrule the precedent when facts or practice: This is a strong argument for upholding values dramatically change (e.g. Depression & the precedent. (Roe v. Wadewhen people have Lochner, Brown) ordered their lives around rules, we don’t want to 2. Precedent has been diluted- this is a strong disturb them. argument to overrule the precedent b/c it no longer coheres or fits with the fabric of law. (contract at-will rule- an exception was first made and then expanded so that it doesn’t even exist anymore). 3. It’s unworkable in practice- strong argument to overrule precedent. 4. It’s egregiously wrong- this is a strong argument to overrule the precedent.

40 BURKE BENTHAM

 Burke loved the common law and the science of  Bentham thought the common law was a mess. He jurisprudence said that analogical reasoning is unduly celebratory of  Backward-looking; skeptical of theory existing social practice. He supported codification  Burke argues for inherited rights vs. abstract as a system of rules under which cases are judged a rights and argues for tradition over reason in priori according to utilitarian goals. Analogy is “too judgment: tradition has lasted for many years and has lacking in criteria by which to assess legal practices stood the test of time, whereas reasoning is just an critically.” individual’s idea. We ought not to be hubristic;  Pascal: “We are the agents.” People now living know traditions often have hidden wisdom. more and have more experience than past generations.  Burke could be committed to stability as stare decisis Let’s not overly revere the past. Kind of view (if you respect the precedent of others, you create a adopted by Hamilton in the First Federalist: left to legal system in which your own decisions will be Americans to see if nation could be built on reflection respected) or to the affective ties of stability (which, and choice rather than accident and force. Jefferson if broken, will lead to revolution). himself was frustrated with framer worship: “The  We might think (as Holmes seemed to) that dead have no rights.” Burkeanism is good for the judiciary (strike down  There areas of the law in which we shouldn’t be laws only when they violate longstanding traditions), Burkeans but not for the legislature or democratic process.  Injustice in society militates against Burke.  Response to Bentham’s criticism: Common law  MacKinnon argues from the principle/norm of evolves. Analogical reasoning cannot work w/out equality, like Director and his econ. principle. criteria and the process of testing initial judgments by  What if tradition is a poor one? (Posner) reference to analogies can produce sharp criticism of many social practices and can yield reform (ie., Brown v. Bd. Of Ed. and the subsequent analogical decisions that resulted) Acoustic Separation: rules governing conduct broadcast  For the judiciary, traditionalism makes the best sense to public are different from rules governing decision- b/c judges lack info and may be hubristic otherwise. making communicated to judges Problems for Burke:  Problem: There are times when we want people to 1. There may be selectivity in describing think that the rules are flexible (i.e., breaking the “tradition.” speed limit to get a sick person to the hospital). 2. Maybe Burkeans are too fearful and humble; too  Response: The defense of necessity is present in timid; for unjust societies like China and S. every American jurisdiction. Africa, the traditions ought to be subject to  New Problem: Once people are aware of the rules’ criticism and they should only be followed if flexibility, their practices will change. good (not b/c they’re old). 3. Burkeanism may be inconsistent w/ American traditions: America is punctuated w/big breaks (New Deal, Civil War) and w/smaller examples. The tradition is used to reform itself and to justify large revisions. Would Burke agree w/ Martin Luther King, who says that his view is supported by the Constitution and the America must stick to its ideals?

ANALOGICAL REASONING CODIFICATION/THEORY (Director)  If we have a theory, what do we need with analogies? Features of Analogical Reasoning Levi/Director story: defeat of analogical reasoning by  Principled Consistency: judgments about specific economics. cases must be made consistent w/one another. (some general principle will be invoked to explain the cases) LAW AS INTEGRITY  Focus on Particulars: analogical reasoning develops from concrete controversies (“bottom-up” thinking). Problems:

41 Principles are developed from and w/constant 1. Dworkin needs a theory of mistake. Don’t want to references to particular cases ‘fit’ precedents that are wrong?  Incompletely theorized judgments: avoid deeply 2. His theory is too determinate. He doesn’t say how to theorized or foundational theories trade-off fit and justification. What to do if you can  Principles operating at a low or intermediate level of fit very well a principle that sucks? What counts as a abstraction: people can converge on the low-level good justification? principles. 3. Confers too much discretion on judges.  Precedents and analogies facilitate the emergence of Response: Justification comes up only when there’s agreement among people who diverge on most or not a definite fit. When there is a definite fit, you go many matters with the fit.  In absence of clear theory, analogical reasoning is 4. Should care about ‘fit’ only if precedent is good. best option. (Pragmatist: Want to make law good in a forward- 1. Unintended consequences may flow from the looking way, but uses fit only instrumentally- theory. Posner) 2. What if the theory is wrong? 5. What about the various fact-finding, theory-building,  Levi claims that Director had an economic and electoral weaknesses of judges? perspectiveone amongst many. No area of law has 6. Bounded Rationality argument: the effects of only one purpose. interventions and changes are hard to predict, so  Judges aren’t capable of Dworkin’s high-minded small, reversable steps are good- like the common ideal. law.  Analogical reasoning gives legal outcomes a democratic pedigree. Debate among representative NOTE: Lots of people can therefore be in the world of viewpoints; community ultimately determines the integrity even if they come to different conclusions. outcome. (Levi)  Respecting the past protects expectations.

Problems: 1. How does judge determine communal values? What’s the mechanism? 2. What if the community is wrong? 3. What if judges are often motivated by their own political judgments about how they want a case to come out?

Criticisms: 1. Overstated claim of community role- sometimes the community is or is not the source of judgments of analogy and sometimes we don’t want it to be. We want a right judgment on principle, not a reference to comm’ty opinion 2. A judgment of analogy depends on a rule/principle and we need a criteria independent of analogical reasoning to determine if the rule/principle is correct. The principle ought to be evaluated on its own right. 3. Analogical reasoning is bound to be defeated by someone with a good theory/framework, such as economic analysis.

ANALOGICAL REASONING’S RESPONSE TO DWORKIN’S HERCULES:  Importance of low-level principles  Analogical thinking is well-adapted to the institutional limits of the legal system  The search for integrity is too difficult for judges and is inconsistent w/the morality of judging in a

42 pluralistic society

Dworkin and Levi:  Both agree that legal reasoning is not just following rules or not just politics (both say that Formalism and Realism are wrong)  Both look to the past; Dworkin’s notion of fit has an analogical feature  Dworkin differs from Levi b/c when the judge is trying to decide the law he also tries to make the best constitutional interpretation; he then makes a judgment of his own along the dimension of justification, which is not democratic.  Dworkin’s idea is not purely analogical; he seeks continuity w/the past, but also seeks justification that depends on putting the past in its best light.  Law as Integrity is much more ambitious than analogical reasoning b/c Dworkin seeks vertical consistency and coherency.  More ambitious description of the judge’s role: Whereas Levi denies any judicial creativity in deciding outcomes in hard cases, Dworkin emphasizes creativity so long as both criteria of fit are met. Sunstein: Some say we ought not to take on deep theoretical commitments if we don’t have to. We can reach an incompletely theorized agreement as an outcome based on low level principles. People can often agree on an outcome w/out deciding on the theoretical foundation for a legal system.

Advantages:  Reduce the political costs of enduring disagreements (echo of Levi)  Allow for moral evolution over time  Best approach available for people of limited time and resources (“Full theorizing may be far too much to ask.”)  Well-adapted to a system that should or must take precedents as fixed points

**Most glorious moments in law are Dworkinian moments when we reach closure on an abstraction or high level of ambition. But this is an infrequent ideal.

LEGAL THEORY Began with legal realism. REALISM: Basic premise is that law is political and that legal language is really a camouflage for something else. Realism took two directions: 1. Llewellyn: effort to make law less conceptual, more reality-focused. (1920-1935) “Think things, not words”. (Holmes) The idea was to take reality and adjust law to it. Law should be more consistent with real world; immersed in facts and more empirical. In some sense, Llewellyn is the father of law and economics, law and sociology, etc. 2. Hale: he says “things, not words” is naïve. There is no prelinguistic way to think about things. Theory determines what data we are able to see. There is no pre-legal reality to which we can adjust. Descendants are law and feminism, critical legal studies, critical legal studies and race, etc.

Formalism------Realism 1. New Textualism 1. Llewellyn (law and econ.; law and society) (Scalia) 1a. Law and behaviorism 2. New Formalism 2. Hale feminism related (Bernstein)

LEGAL FORMALISM

Formalism (1880-1930) rebirth in 1990-the present: New Textualism: plain meaning rule: take the meaning of words in their ordinary sense as the presumptive meaning of the word in the statute. Emphasizes textual priority so that we don’t have problems trying to figure out the purpose,

43 intent or history; we limit judicial discretion; and increase democratic accountability. Aims at simplifying decisions and minimizing mistakes. (Scalia) Problem: may produce unintended absurdity; presents issues about contextual vs. acontextual meaning.

New Formalism: (1994-present): plain meaning interpretation of contracts and a rigid understanding of legal terms helps the legal system work better. Simple legal rules for common actors enable private rules that are flexible and malleable. (Bernstein)

LEGAL REALISM

Peller: “The Metaphysics of Law” 2 strands of legal realism: LLEWELLYN. Contextualist approach (economic analysis of law): Look at something beyond language. Social meaning can be determined by looking at the consequences of legal decisions – strip away the subjective & get objective facts. They called for an explicit legal science through which law would be guided by objective facts of social life. Social sciences looked to. On this theory, the problem with Lochner is that it ignored social contextapplied formalism in the face of facts. This second strand has been incorporated into mainstream legal discourse since less threatening. HALE. Deconstructive approach (CLS): metaphors of law have no positive content but were relational and socially created. Private sphere could not be prior to and source of public sphere because the private sphere was constituted by the public sphere and private free will was created by coercion. Emphasized the circularity of legal reasoning: decisions which purported to proceed from the prior legal “rights” of parties actually constructed the rights. No such thing as “private” law. Often dismissed as nihilistic, morally relativistic & nominalist. Led to Lochner criticism that liberty of contract discourse constructed what it purported to represent.

LLEWELLYN (First Strand of Legal Realism) Led to: Law & Economics (1970-present); Law & Society Movement (1970-present); Behavioral Law & Economics (1990-present)  He wants law to be highly empirical and to distrust abstractions, traditional rules and concepts  Involves piercing through the categories of words and concepts to get to the real world  Determine the consequences of law and how it affects the world: “law as a means to social ends and not as an end in itself”  Idea of adapting rules to society: “gear law to social reality”  Wants to maintain a sustained and programmatic attack on the problems of law  Insists that most of judicial opinions are just post-hoc rationalizations to make the decision seem plausible/legally inevitable

Scalia’s Response: There is a textualist way to do law which is apolitical. Law is about form.

 Recognize/emphasize the effects of law  Face policy questions (anti-Formalist move)

HALE (second strand of Legal Realism) Led to: Modern Feminist movement (1975-present); Critical Legal Studies (1970-1990); Critical Race Theory (1988- present)  There is no way to think about things without words or categories  Any classifications we give are a matter of social convention and reflect artifacts of our own categories. (ex: Plessy- the court justified segregation w/reference to people’s feelings- but those feelings are produced by segregation. Same w/Muller)  Legal rules are justified by reference to preferences which are a product of legal rules (i.e., use of value of labor as attack on min wage/max hour law, but value is a product of law; attack on freedom of contract b/c voluntary transactions are a product of coercive legal rules). There is no such natural or private market  The employment contract, like property rights, is the result of private coercion enforced by law, rather than the reflection of free will

44  More modern argument: attack on economic analysis of law b/c efficiency is relative to legal entitlements and we have to take a lot as given  Entire distribution of income in society can be seen as the result of legally sanctioned power of coercion  Public/ private distinction is artificial- the private is an artifact of public judgments in law; differences that are humanly constructed were being used to defend human actions

Recently: criticism of use of preferences: 1.In sex differences and equality: differences are effects, not causes and can’t be the justification for social practices. Differences are the outcome of inequality, not a justification for it. 2.Positive vs. negative rights: Hale would say that positive rights are no less positive than negative rights. A distinction such as: property or contract rights vs. welfare rights is misleading.

Llewellyn  seeing is believing Hale  believing is seeing

LAW AND ECONOMICS

SOURCES OF ECONOMIC ANALYSIS OF LAW

1.Legal Realism: 3 ways . Realist emphasis on facts and reality: reflected in Posner’s insistence on studying the consequences/effects of law on the world . Rejection of realist claim that common law is unpredictable and unruly: economic analysis argues that common law if efficient (merges Burke and Bentham) . Rejection of “law is politics” claim: economic analysis asserts that the domain of the common law judge is efficiency, whereas the domain of politics is distribution. Law pursues the unpolitical goal of efficiency, and leaves redistribution to politics. Efficiency is not politically contested. Notice that L&E arises as a critique of Llewellyn’s realism.

2.Utilitarianism: maximize pleasure and minimize pain and promote the greatest good for the greatest number. Economic analysis grew out of Utilitarianism.

Criticisms of Utilitarianism: (that may also apply to economic analysis)  Some things should be off-limits to util. calculus. Certain utility (such as that of a torturer [sadism]) are not worthy of being counted. If one person gets huge benefits from doing something which causes others slight harm, then it’s fine. Posner’s case for rape uses this, but reverses (benefit gained does not eclipse the harm done). Some don’t like that criminalization of rape is linked to social facts.  Human goods are qualitatively different. The utilitarian framework runs over the qualitative differences among social goods and the problems of commensurability. Goods are diverse and can’t be aligned linearly on a single metric: Mill’s criticism of Bentham  Disrespectful of individual autonomy. Morally monstrous b/c it does not respect individuality (Rawls) and it treats everyone as a cog in a machine. Has no answer for the utility monster who gets great utility from having resources and that great utility could outweigh others’ utility  point to a distributional concern  Utilitarians try to measure utility directly. L&E measures in terms of willingness to paycruder but it’s a usable standard.

CLAIMS OF ECONOMIC ANALYSIS

1.Consequential/Legal: Look at the effects of legal rules and use economics to assess the impact (this is the least controversial claim; Posner)

2. Behavioral: People act rationally and self-interestedly in all domains. Issue: Is this a testable claim? E.g. Tipping at a restaurant you will never go to again. How you choose often depends on how you frame the question.

3. Normative: judges should promote efficiency and everyone in law should promote efficiency, i.e. the maximization of social wealth should be the overriding goal of government (Posner). Here efficiency criterion is superior to

45 utilitarianism & theories that invoke rights. This is a controversial claim: widely taken as an attack on Dworkin. (Epstein: Law should be efficient?)

4. Positive/Causative: Causative claim: Common law is efficient. Displays an implicit econ. efficiency. At-will rule for employmentcommon law judges have chosen the efficient rules. Exceptions might even be efficient, too, especially if there are 3rd party effects. Legislative claim: Legislation is a product of interest-group deals; unprincipled compromises between self- interested private groups. This is Holmes’ view = public-choice theory. Gary Becker: This is why it is efficient! (Unusual view.)

COASE THEOREM Version One: When transaction costs are zero and there is perfection competition and perfect information, it does not matter on efficiency grounds to whom the legal system allocates the entitlement b/c parties will bargain their way to the efficient outcome. Close to a tautology. Just a definition of efficiency.

Version Two (more contested): When transaction costs are zero and there is perfect competition and perfect information, the initial assignment of the entitlement will not affect the ultimate end-state; the behavior will be the same. The result will be efficient and it will be the same. People will bargain their way to the identical solution, regardless of who gets the entitlement. Legal rules will produce no change in the world from the standpoint of efficiency or anything else.

Implications:  In a world with no transaction costs, the legal rule does not matter (if we are worried about efficiency). But Coase knew there were transaction costs. When there are transaction costs, the legal rule should attempt to reach the solution the parties would have reached if they had been able to bargain: market-mimicking  How do we figure out what parties would have bargained to? Ask: Who can initiate the bargains most cheaply? Who can avoid the costs most cheaply? Put liability on the “least-cost avoider” b/c that is what the parties would have done. (Calabresi) Also, let losses fall where they are if gov’t cannot act without great cost.

Impact and Importance:  Lawyer’s conception of the facts are changed from the ex poste to the ex ante. This expands the lawyer’s temporal vision and so they consider a broader fact pattern including all precautions the parties could have taken. Law thereby creates incentives for conduct before a dispute arises Huge jurisprudential effect! Look backward beyond immediate facts at untaken precautions, and forward at who will be best able to initiate bargains.

 Coase’s uncompleted revolution. Attack Pigou. Pigou saw these harms as certain people doing things to other people. Ex., railroad is imposing externalities on others, and should have to internalize these social costs in order to produce the efficient outcome. Coase: It’s not A harming B. It a choice between the social costs of A harming B, or B harming A. Avoid the more serious harm. Takes two to tort!

 Coaseans (not quite Coase, but some of his followers): Regulators and collectivists can’t solve problems, b/c market will adjust to whatever the gov’t does. Market will correct itself, such that freedom of contract can’t do much to alter the level of pollution. Regulators won’t be able to alter the distribution through rules b/c the market can adjust to rules.

46 Criticisms of Coase: 1.Rights-based criticism (Epstein): when there is a wrongdoer, it is not right to call it a social cost. This is like saying is a fist hits a face, it is the fist’s fault. This vindicates Pigou’s externality idea. Response: Inconclusive, b/c we’re not talking about intentional harms.

2.There are transaction costs and they are usually large. Coase’s Response: That is exactly my point. Trying to point out what to do given our transaction costs by what would be done w/out them.

3.Distributional Effects: the selection of the rule will matter b/c entitlement has distributional effects (even if there are no efficiency effects). Coase’s Response: He acknowledges that there are distributional effects and that the distribution will matter when the effects are substantial. They’ll affect relative wealth.

4.Wealth Effects: Complicates strong version of CT. If allocation of entitlement makes one side richer and the other poorer, then the state of the world will be different. Demand curves of the two sides for goods and services will be altered by redistribution. (Not extremely important.)

5.Preference- shaping effects: The initial allocation has an endowment effect b/c those who get it first demand a higher price than those who are not given it are willing to pay. There is a large disparity b/w willingness to pay and willingness to accept payment. Result will be efficient (and if that is all that Coase is saying, then there is no problem); but the result will not be the same (which may be a problem for Coase). Very important problem.

6.New Chicago School: Assaults the Coase theorem b/c it is too law-centric. People order their affairs on the basis of social norms that are mutually advantageous (such as norms of reciprocity, ostracism, etc). The entitlement doesn’t matter b/c people bargain in accordance w/norms that have nothing to do with law.

EVALUATION OF THE CLAIMS OF ECONOMIC ANALYSIS

1.Positive: describing/predicting what the law does and why it is what it is 2.Prescriptive: the best way to reach a particular end 3.Normative: what the legal system should do; involves an evaluative claim

Concepts: 1. Pareto Superior Moves: a move by which at least one person is made better off and no one is made worse. The normative claim is that we want pareto superior moves 2. Pareto Optimality: social state in which no one could be made better off without making another person worse. Normative claim is that the law should seek pareto superior moves b/c we want the pareto optimal state. 3. Kaldor-Hicks Criterion: we have efficiency if the winner is made more better off than the loser is made worse off (theoretically, the winner should be able to compensate the losers w/surplus). Someone will be worse off, but they are less worse off than the other is better off. (Ex: Epstein’s argument for contract at-will: everyone is not better off, but the vast majority are much better and the few losers aren’t much worse.)

Problems with Pareto: 1. Pareto Optimal system could be bad. For example, if one person owned everything and everyone else owned nothing. We would want movements w/in this system, even if they weren’t Pareto Superior moves. 2. Pareto improvements through law are hard to attain, except from voluntary contracts given full information. Any legal change will create winners and losers and we cannot have all Pareto Optimal laws. Changes described as Pareto Superior will have losers, too. 3. Pareto criteria are indeterminate: Reach multiple Pareto optimal outcomes from a given starting point. Starting points problem: Different efficient outcomes depending on the initial allocation of wealth.  Posner: Common law can take for granted that distribution, and then generate an efficient rule.  Sunstein: By setting up rules for property, the common law is already creating the distribution. Maybe Posner is being more specific: Take all existing distributions except the one before the court as given, and then figure out that one question in terms of efficiency.

47 Θ: Religious group getting bought out, or buying the right to be religious. Different outcomes, depending on who gets the legal entitlement. (Posner admits)

Evaluation of the Normative Claim: Wealth-Maximization  Efficiency = They are talking not about productive efficiency (GNP), but about allocative efficiency: the goods and services go to people who value them the most, w/value measured by their willingness to pay.

1.If you have an efficient outcome, people will be able to satisfy their preferences, and that is good. 2.A society with more wealth will be better off than a society w/less wealth b/c wealth is associated w/a lot of human goods and it helps promote good things. 3.Inefficiency can produce bad things: scarcity, unemployment, wage decreases, etc

Kaldor-Hicks: Relies on the idea of wealth-maximization- increase the sum of all tangible and intangible goods as weighted by offer and asking prices. Posner says that this is not simply a pecuniary measure and that non-pecuniary values are weighted. But, the measure is still willingness to pay.

Posner’s Defense of Wealth-maximization:  Provides an argument for traditional rights of private property & contract in a market economy, thus satisfying certain concerns introduced by people who believe in rights  Allows less coercion than does utilitarianism since goods are allocated though voluntary exchange  No place for the utility monster since monster would have to purchase victims’ consent  Counts things as goods only when someone is willing to buy them through markets. W-m thus acts as a bridge between utilitarian and rights-based approaches. It accords with everyday moral intuitions, supplies most advantages of the two alternative systems, & avoids their defect.

Criticisms of Wealth-maximization (Dworkinian) 1. Wealth is not an independent value and it is good only as an instrument to something else. It is too crudely connected w/anything that we should care about. We ought to care about rights and well-being. Utility might not be captured by a willingness to pay and wealth may not serve as a good proxy for utility. Posner: It is crude, but not terrible and it is the only thing that courts can deal with.

2.It is good to distinguish among various things for which people are willing to pay. Some things ought not to be honored (ie, a racist’s, rapist’s preferences). Wealth max. takes preferences as given and this isn’t always good. Some preferences should not count; some preferences are adaptive to limited information and unjust background conditions. (problem: we don’t want the gov’t assessing preferences)

3.Biases in the criteria: 1). Willingness to pay depends on ability to pay. The poor will not be willing to pay a lot for some things, even though they would get enormous utility. Economists: At least wealth is measurable, but utility is not. 2). Allows for uncompensated losers and we cannot comfort them. Posner acknowledges that this will be a problem to people w/ corrective justice intuitions. 3). Treats individuals as part of a whole organism and taxes some while subsidizing others.

4.Indeterminacy. Starting-points problem: given a certain distribution of rights, we can derive policies to maximize wealth, which is good. But, efficiency doesn’t tell us what the initial distribution should be. (ie, what if slavery was wealth-maximizing? If it promotes efficiency, we will run into a severe moral problem and Posner acknowledges that this is terrible. We would have to decide who should have the entitlement to the person’s right to himself and if it were efficient to give it to the slave-holder, wealth-max would do it.)

5. Juries dislike w-m. Θ: Car company which does math in advance. Knows safety device will cost $20 mil. Save 3 lives; values at $5 mil. apiece.  make CT-sense, so  install it.  Juries give high PD awards. Why do juries react negatively to companies attempts at w-m (CT-precautions)?

New Chicago School: effort to explore the role of social norms as distinct from the role of law in regulating social behavior (understand how the norms affect law; unenforced law promotes certain norms…)

48 Evaluation of the Positive Claim:  Posner: Common law is efficient in Kalder-Hicks terms (ex., at-will rule).  Sceptical Response: Any system with at-will and private property is going to be pretty efficient, but common law rules may not have been uniquely efficient. Ex., if StL rule is more efficient than negligence, then positive claim fails.  Current: Most economic analysts don’t think all of common law can be explained in terms of broad economic principles. The truth in the early claim was that a system w/private property and freedom of contract will necessarily be efficient. Many of the choices that judges made were good from the standpoint of efficiency, but it is not the case that common law rules were the uniquely efficient choice.

Criticisms:  Common law may not be wildly inefficient, but it is not clear that it embodies the precise rules that economists would recommend  Criterion of efficiency is ill-defined.  Furthermore, the common law has a number of rules that reflect rights-based thinking at the expense of efficiency. Response: Posner: rights-based approaches suffer from moral squeamishness or fanaticism.  Assumption that people are “rational, self-interested maximizers” is either false or tautological.  The rhetoric of judges is rarely economic. Unless we can show that wealth-maximization is attractive, we can’t show why judges would choose it. Absence of theory here. Response: Judges’ inefficient decisions will impose greater social costs and losers will have a greater incentive to press for correction through appeal.  You can’t have a price until you know who owns what, and this depends on the rights assignment. Thus, ownership has to pre-date the inquiry. We have to have a lot of legal rules in place b/c the efficiency argument can’t tell you what the rules should be. Response: You can hold everything else constant when evaluating particular common law rules.

Evaluation of the Behavioral Claim:  Posner: People are rational. Secondarily, people are materially self-interested.  Current: New behavioral reserch/empirical testing moving us beyond the old impasse between people as rational and people as non-rational.

Criticisms of Conventional Economics by Behavioral Economics:  Bounded willpower: People are often myopic. They discount future low probability events. Ex., if people care about the short-term, crim. punishment should be immediate and sure.

 Bounded self-interest: People are willing to sacrifice wealth for fairness (or the appearance of fairness). Ultimatum game: People limit w-m in interests of fairness. According to conventional economic analysis, the proposer will keep $9.75 and the responder will take .25. But people don’t behave that way and don’t follow their material self-interest. People care about being treated or acting fairly. The legal system may reflect reciprocal and spiteful behavior. Exs: People won’t bargain around nuisance injunctions b/c they’re spiteful; bad divorces. Anticipated punishment by responders matters a lot. Responders will sacrifice personal interest in order to punish unfair proposers. Employers are alert to this; don’t cut wages even in the middle of a recession. [Does this support Frank’s claim about relative positions? The resentment over perceived unfair divisions is like the envy in average utility-maximizations.] [Does it make a difference if you have to deal with people again? Θ: Play in Elements class?  Maybe there’s a rational explanation after all.]

Dictator game: Division is 80/20. Seems to support the rational/self-interested thesis. Does it make a difference where the money comes from? If everybody put $5 in the pot for the payouts to proposers/dictators, does that change things? What if the amounts are high in the ultimatum/dictator games? Studies show little shift. For millions, though, it would be very surprising if someone turned down $1 mil. just b/c the other guy got $9 mil.

Team dictatorship?

49 General shift toward fairness.  Effect of deliberation on groups. Reputational forces. Data suggests this is not accurate?

Juries on a bounded scale are consistent. On an unbounded scale, they’re all over the map. Data: 2 judges who are Reps. and 1 who’s a Dem.  Dem. agency wins 3 judges who are Reps. and no Dems.  Dem. agency loses Presence of like-minded people shifts them away from median toward extreme = group polarization. This happened with our juries. Reputational influences? The puzzle: It didn’t happen with dollars. All the awards went up, rather than tending toward the extremes depending on how guilty jurors thought the D was. General severity shift in puntive damage context.

How do we reconcile in groups the general fairness and general severity shifts? Thesis: Rhetorical asymmetry. It’s just easier to argue for higher awards. If true, should operate in a number of social domains. Exs., higher penalties for drug dealers; more money for scholarships.

Fairness-related behavior: In the ultimatum, 60/40 splits are usual. Dictator game = 80/20 splits. In games that test cooperation to a shared good, it’s in between no cooperation and full cooperation. Θ: Everyone has $10. For money put in a bowl, it’s doubled and redistributed. Studies show 50% donation. Prisoner’s dilemma. Individually rational behavior  group rational behavior. 1. If people can communicate, the level of cooperation . 2. If people share an identity, the level of cooperation . 3. Name of the game matters. Importance of implicit social understandings.

The Coase Theorem predicts that people will contract around dumb injunctions. Studies show that in fact they don’t seem to. There’s a lot of acrimony. The parties are not willing to do anything which would benefit each other. Is there an endowment effect issue? Framing effect?    Bounded rationality:

1. Mental heuristics: People use mental short-cuts and ways of minimizing the sum of decision and error costs; ways to figure out probability. But these heuristics don’t always work and they’re very hard to shake. a. Anchoring. When people don’t know what no. to use, or what argument to accept, they’ll take anything as an anchor. : What if co. had valued life at $3 mil.? Higher dollar awards if co. puts a high valuation on life. Θ: Two cases: personal injury and business fraud. Will there be a difference b/w juries that analogize them and juries that don’t? Yes. If they analogize them, they tend to give higher awards in the personal injury cases. Need for a modulus. i) Interest for law: relevant to jury damage awards for hard-to-determine injuries. Plaintiff’s demand has a big anchoring effect, but there is often no uniform anchor by which to promote predictability. ii) Judgments appear category-relative. When people are assessing a PD award, they will match it against the set of cases it naturally calls up. Can be used to push judgments in a particular direction. Sentencing guidelines in crim. law make some attempt to provide this necessary background.

b. Availability heuristic: People overstate risks when they can call to mind a particular example of the risk actualized. i) Interest for law: we want to know about the demand for regulation of a particular area, but the public may think something is really bad only b/c the occurrence of the problem seems highly salient.

c. Extreme-aversion heuristic: When people are unsure what to choose, they go toward the middle.  It’s possible to gain an advantage by framing your position as the middle one. Lawyering tip. Problem is that extreme-aversion might produce ridiculous outcomes by virtue of manipulation of the framing. Doesn’t work as well when the decision-maker has a lot of information.

50 Effect of introducing an extreme 3rd choice. Shifts choice to the middle. Compromise effect. See CS’ article.  Prosecutor introduces very harsh 3rd count (which is probably unprovable). Maybe pulls verdict toward severity. People are averse to extremes, so craft what you want as the middle.

2. Framing Effects: a person’s decision often depends on the framing of the statement (ie, survival vs. mortality rates). a. Interest for law: attorneys must frame their options and offers accordingly. b. Empirical ev.: Awards are higher when a lawyer says, “How much would you have to be paid for you to allow someone to do this to you?”

3. Biases: These are systematic tendencies in human cognition. a. People think they’re above-average immune. (Related to myopia.) b. Self-serving bias: in a married couple, each will overstate the amount of housework they do. c. Optimistic bias: 90% of drivers think they are safer than others and unlikely to be involved in an accident. Judgments about fairness are self-serving. i) Interest for law: highly relevant to settlement b/c some clients may be difficult in settlement negotiations b/c they are too self-serving and too optimistic. Lawyers may also be too self-serving and optimistic. They ought to have an ethical obligation to gauge the statistics correctly and to dampen their client’s optimism and self-servingness. d. Hindsight Bias: after something happens people judge its probability as extremely high. i) Interest for law: law is making ex ante decisions after the event has already happened, thus decision- makers will believe it had a high probability of occurrence. (negligence may then act as strict liability if people find negligence just b/c the thing happened.)

4. Prospect Theory a. People are risk-averse for gain. Rather have $50 than 40% of $150. b. NOT risk-averse for losses. Rather have chance of losing 40% of $150 than actually lose $50. i) However, people run away from sure losses. If labor was worth ‘x’ before the recession, they wouldn’t want to tell people it’s worth less than ‘x’ during the recession. It’s like an unfair takings. Employers: We don’t cut wages because it hurts morale. Performance suffers. c. People risk-averse to small probability large losses. i) Prospect theory explains why people pay more for insurance than they ought to. (1) Optimistic bias will cut in the other direction. If people are risk-optimists, they will not want to ensure low probability risks. ii) With respect to moderate probability losses, though, they are willing to take chances.

Losses risk-seeking Gains risk-averse Small probability large gains risk-seeking Small probability large losses risk-averse

d. People dislike loss more than they like equivalent gain. Can use this during framing to one’s advantage. i) Implications for possible framing effects in policy and legal initiatives: if you do “x” you will save “y”. This proposal will be much less successful than if you say: if you don’t do “x” you will lose “y”. ii) Implications for the Coase theorem: this is a problem b/c it suggests that the allocation of the entitlement does matter due to the endowment effect. iii) Speculative evolutionary explanation: In hunter-gatherer society, hang on like hell to what you’ve got, whereas (large) gains aren’t nearly as important. e. People like zero loss. Certainty effect: People will pay more than it is worth to get from a certain number to zero. i) Interest for law: regulatory descriptions of safety. Agencies will describe a “safe level”, but in reality there are only diminishing levels of danger. Determines phrasing--health and safety statutes. ii) Frivolous litigation will go further than it ought to; OR defendants will be paying more than they ought to.What is peace of mind worth?

5. Social influences on behavior. Cascading effect.

51 a. Informational cascade. In the absence of private information, people begin adopting each other’s beliefs. The more people fall into line, the more difficult it is to step out of line. Get good grades for a while; future teachers will give good grades. b. Reputational cascade. Adopt other’s beliefs in order to avoid reputational sanctions. Your behavior strengthens the cascade for everybody else. c. Group polarization. Groups tend to move in the direction of their pre-deliberation tendencies. Rhetorical asymmetry? Easier to argue for higher awards. d. Arbitrariness of jury awards. Ex., CS’ studies with sexual harassment. Couldn’t find any aggravating factor which explained inconsistency. Suggests juries are in the dark/don’t have a good baseline. What about the Aristotelian concern? Similar people aren’t going to be treated equally. i) Possibilities: (1) Set damage scales for different types of awards. Increase jud. control over awards.

C. Gilligan

“Images of Relationship”  There was a study suggesting that boys moved farther up the scale of moral development than boys. (Kohlberg). Gilligan is saying that the scale is biased.  Operating against the background of Kohlberg’s scale of moral maturity, but she argues that there are problems with the scale in that it is only explanatory of boys’ moral development, not girls’.  Amy sees a world comprised of communication in relationships (a web) rather than of individuals, a world that coheres through human connection rather than through systems of rules. On the Kohlberg scale this puts her a full stage lower in maturity than boys, but her judgments contain the insights central to an ethic of care.  Jake sees a system of logic and law based on hierarchy; as man-made and subject to error and change  Her judgments are in accord w/an ethic of care and his reflect the logic of justice approach  The woman’s experience brings to developmental understanding a new perspective on relationships that changes the basic constructs of interpretation and expands the concept of identity to include interconnection. Women need to delineate in their own terms the experience of their adult life  there is no single mode of social experience and interpretation  Gilligan: Women show ethic of care, seeking the inclusive solution through which no one is hurt.  She’s not saying all women do this and men the other; no claim about why; no claim about which ethic is better. Interest for law: Perhaps reflected in comparative negligence and mediation. Alternative dispute resolution is often better than adversarial proceedings. Attempts to include the ethic of care and attempts at inclusiveness have not been too successful; but Sunstein says they’ve been abandoned perhaps prematurely. Ask: Are some domains of law biased like Kohlberg’s scale (acc. to Gilligan)? Conception of reasonable man? [Go through cases and ask whether this is right.]

C. MacKinnon

Difference and Dominance: On Sex Discrimination  Gilligan is treating female difference as genuine and deserving of respect, instead of arising from male dominance.  A system of dominance should produce a different voice. Women are valued for the characteristic of care-giving, so it’s not surprising they’ve manifested it. The quality is necessarily a female one. Similar to Adaptive Preferences!

Formal Equality: Women should be treated the same as men. Aristotle: The similarly situated should be treated similarly.  MacKinnon doesn’t like this. The standard is male-referenced.  According to the Difference Approach, inequality is a function of stereotyping. The problem on this view is what constitutes a relevant difference, and hence grounds for inequality. Restricts combat to men; certain educ. institutions to either men or women.  On this view, inequality questions are not raised by abortion, workplace expectations, family law standards (primary wage-earner), sex-related violence, porn., discrim. on the basis of sexual orientation. Women had little to gain from Civil Rights Act.

52  The fact that women can’t prove they’re similarly situated to men but being treated differently shouldn’t immunize claims of discrimination against them.  The point is to make legal rules that are critical of reality.  Inequality occurs when a difference is turned into a social disadvantage.  This seems already to be the theory with the handicapped. It’s not a problem of stereotyping. It’s a problem of disadvantaging. So: We require a really good reason to disadvantage them. (High cost might be good reason, if cost is demonstrably really high.)  Canada and S. Africa have adopted McK’s approach. Formal differences are sometimes o.k. if they promote equality; while non-differences may not be o.k. if they promote inequality.

 Same-Sex Education: The one area in US in which McK’s approach has been accepted. SupCt struck down same- sex military education at VMI: Men and women are different. But the difference can’t be turned into a disadvantage. However, if the same-sex education promotes equal opportunity for men and women, then it might be o.k. This would be the good reason! (Separation  disadvantaging.)

 Same-Sex Marriages: Perhaps overtones here as well. SupCt overturned ban of same-sex marriages. No formal equality problem: All sexes and races are equally banned. But, the SupCt said, it’s clearly motivated by a desire for white supremacy. (Disadvantaging a group based on an accident of birth. Does the SupCt’s view rest on a view of homosexuality as innate?)  Female same-sex marriages curtial availability of women to men, which explains demand to limit them.  Male same-sex marriages blur sex lines in a way that makes us uncomfortable.

 Workplace Expectations: Male-referenced, and women who can’t meet those expectations because of having children are disadvantaged for an accident of birth.  Height and weight requirements for jobs. More controversial claim is that workplace expectations which may disadvantage women should be adjusted.  What about a law forbidding these workplace expectations? (i.e., parents who are caretakers and have been disadvantaged can sue). Tremendous productivity losses. [Think about this]  Abortion: May not raise an equality issue, because it doesn’t deal with women vis-à-vis men. Men and women are not similarly situated in that respect. Men have the freedom over their own bodies, but women don’t with abortion restrictions. Restrictions on abortion tends to perpetuate the second-class citizenship of women, and so they require a strong justification, which they may or may not have.  Privacy objection misdescribes what’s troublesome. That men can’t get pregnant doesn’t keep restrictions on abortion from being inequality. It’s what makes them inequality restrictions! Restrictions disadvantage women for being women.  McK: The free ability of abortion is a mixed bag for women: Might pressure them to have sex. McK herself is ambivalent on abortion.  Divorce: Legal system ought to ensure that female caretaker of child is as well off after divorce as she was before. B/c of her contribution to the joint earnings during marriageand her weighing of options when she’s thinking about leaving.  Sex-related violence: Not treated as a gender problem, but it is. Sex difference produces a disadvantage. = inequality problem.

Possible Criticisms of MacKinnon  Holmes would be nervous about using this approach to invalidate legislation arising from majority will.  Burke: Practices are likely to have a sense in them that theories lack.  Stronger claim: Practices have evolved which are mutually satisfactory to both sexes. They work, hence they have survived. If women are ambivalent about MacK’s picture, this would support Burke. McK: Obviously after long period of discrim., women will respond as you want.  Sex isn’t a dichotomy, but a continuum. MacKinnon is just urging that such a stark division is more than the facts require.

Interesting Problems with the Difference Approach  Many abuses to women are not considered sex discrimination precisely because they happen only to womenit’s seen just as a natural difference, rather than as a constructed one.  On this view, differentiation is discrimination, so any approach which further differentiates (i.e., affirmative action) in order to change inequalities, is seen as unfairly discriminatory. Bad baseline. 53  Difference approach sees McK’s demand for change in the distribution of power as a demand for special protection. It questions whether this special protection should be given to someone (women) who’s not up the standard.

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