Elements 3
Outline
*Every point is tricky
*Evaluate Costs (Societal & $)
PRECEDENTS
1. Development of precedents (Cardozo’s justifications & criticisms)
Following precedents:
Pro:
- Predictability—people plan their affairs (Dworkin)
- CA: bad precedents/laws (Swift) cabin judges
- CA: deciding if X fits into rule based on judge discretion/bias
- CA: underground discretion
- Inefficient to critique every law (Langdell—master & apply principles)
- CA: society is in flux (Cardozo, Holmes—social science)
- Judges can’t be random and abuse powers—cabin judges
- CA: first judge may have been random
- Change rules midstream—unfair
- CA: new bright line/rule, better for future (Kuhn-paradigm)
- Reverence for past (Burke)
- Must treat people the same
- CA: anti-predictability arguments
- Rules are better than nothing (Bad rule, Scalia)
Con:
- Rules are subject to interpretation
- bad precedents/laws (Swift)—cabin judges
- society is in flux (Cardozo, Holmes)—social science
- 1st judge may have been random
- precedents not predictable (MacPherson)
- change rules midstream—new bright rule, better for future (Kuhn-paradigm)
FREEDOM OF K
*volunteering can be construed as Freedom of K—non monetary exchange for feeling good, moral superiority, self-sacrifice—benefit like cash payment
**evaluate why sale & not donations/volunteering should be banned
***statutes like Title VII, anti-employment discrimination & anti-SH are freedom of K
- will limitations hurt those who are supposed to be helped by law?
- How will each party benefit w/o the limitations? How will limitations hurt them?
- Does each party reflect the interests of all affected?
- Whether an amendment makes sense depends on the purpose of the act.
1. benefits to both parties (Lochner—now cited as wrong)
2. autonomy, no 3rd parties affected, free will to enter (Hayek)
3. if restrict, X = worse b/c X may not get higher wages b/c Y has to pay for safety, etc.
Limit Freedom of K
1. externalities—3rd party effects (no K’s to murder)
2. moralisms—externalities, (ex. X hates slavery) (Calabresi & Melamed, patern. OK)
- CA: benefits might outweigh costs (ex. no selling organs so organ shortage?)
- CA: might be a good alternative (ex. drug testing better than jail b/c help society)
- CA: John Stuart Mills—hate paternalism, meddlers—freedom of K
- CA: if moralism issue is cloudy, maybe we should allow X to make his own morality decisions
- CA: courts shouldn’t be @ whim of public moralisms
- CA: but courts should represent the best interests of the people—justice for the people
3. incapacity—can’t tell what’s in his best interest (minors, disabled), not valid K
4. coercion/exploitation—uneven bargaining power, but extreme (Viscusi)
- legitimate use of pressure?
- CA: choice not different from other alternatives, not real coercion
- CA: is it coercion if there is complete information?
- CA: are we certain there can be complete information?
- poor people are likely to overestimate the value of $ to them compared to their harm
- CA: not coercion if 1st option would have gotten anyway & 2nd option = bonus
5. Information failure—
- leave it up to X to know must need info, sufficient?
- can X get info?
- CA: maybe X’s decision is not diff. from decisions we allow other people to make
- CA: weaker b/c employer can supply info
- CA: don’t want to go overboard & give graphic information (AIDS), might steer to other choice
6. bounded rationalities (Tversky & Kahneman—availability—one’s own knowledge, biases)
- can people process risk? understand only up to a pt. even w/ info, how know when people understand? Ex. easier to understand occupational health than safety
- is there bounded rationality in one of the choices and not in another? One concrete the other not?
- CA: how can we determine someone’s thought process? Futile, so shouldn’t do it
- CA: bounded rationality is everywhere w/ majority of decisions—why diff. here?
- CA: government paternalism-- what’s to say the individual doesn’t know more than legislature?
- CA: don’t want to go overboard & give graphic information (AIDS), might steer to other choice
7. collective action—(Green v. School Board) concerned w/ power differential
- CA: hard when views divided almost evenly
- CA: some problems not important for collective action (ex. law firm cutting salaries, we don’t want govt. helping them to do this)
8. adaptive preferences (Sour grapes)—product of injustice
- not go too far—hinges on loss of original right (slave freedom v. no BB player)
- CA: paternalism where shouldn’t be? Govt. starts to call desires “false”
9. crystallization—(MacKinnon) finally able to define problem to attack
- CA: after name, can put specifics in K (but could be branded a troublemaker)
10. non-commodification—specifically why we hate it
- MUST THINK OF SIMILAR SITUATIONS
- altruism = volunteer is sucker (Titmuss)
- so cut down on number of volunteers—bad
- CA: volunteers see OK for people in K to do it, maybe more willing to do it, more volunteers
- (Carlyle)—certain relationships preclude $ exchange (ex. friendship)
- (Marx)—if everything is for sale, degrades human interaction
- ?always wrong to allow people to do X if hurts them? (donation/volunteering vs. selling)
- ?what about volunteering, donationswhy different & not banned?
Statute freedom of K (like Title VII)
--if Congress has already adopted statute in area X, assume OK w/ limiting freedom of K
A. Employees want protection
- CA: over-inclusive of employees who don’t want protection, what if ½ & ½?
B. Employees don’t want protection
- CA: bounded rationality(may not understand repercussions & ask for protection like statute provides)
- CA: crystallization (after name can ask for it in K) (then branded a troublemaker)
- CA: collective action problems
RULES V. DISCRETION
Rules
Pro:
1. Predictability—fair notice, people can order their affairs, help govt. (Papachristou, Fuller)
- CA: under/over-inclusion
- CA: rules are subject to interpretation
2. No paralyzing fear
3. Accountability—burden fall on all alike (Railway Express)
- CA: (Anatole France) not all rules evenly applied to rich and poor
4. No arbitrary enforcement, strict
- CA: no exceptions (Stanley), under/over-inclusion (teens w/ curfew)
5. Efficiency—less administrative costs—govt. & citizens
6. Pragmatic—make choices, face consequences
- CA: assume people make consequences based on rules
7. Dignity, Limit interference in people’s lives (freedom of K) (no czar discretion) (Locke, Weber)
8. People w/ bad judgment not given discretionary power—cabin judges
Con:
SEE IF APPLICATION OF RULES IS SUBVERTED BY ALLOWING DISCRETION ANYWAY
- So better off w/ discretionary system, call it what it is
1. Rules can create exceptions (MacPherson cases)
2. Judges must decide if something fits into a rule—discretion/bias
3. underground discretion anyway (Ex. prosecutor & drug laws)
- arbitrary & discriminatory enforcement
4. roadmap for evasion
5. overinclusion/underinclusion
- treat people one-dimensionally (Stanley)—no exceptions
4. rules can discriminate against poor (France)
Discretion
Pro:
1. Exceptions, go case by case (Ex. prosecutor & drug laws), no over/under-inclusion (Stanley)
2. No roadmap for evasion
3. Tap into your own sense of justice (wisdom, Aristotle, Nussbaum)
4. Can never completely eliminate discretion (underground discretion)
5. Allow altruism, sympathy (Kennedy)
6. ?what to do if rules conflict?
- CA: courts have power to create new rule to resolve (MacPherson), w/ new rule bright line, initial instability but can be overcome w/ time
Con:
1. Unfair surprise—mushy definitions (Papachristou)
2. Arbitrary enforcement/arrests (Papachristou)
3. Interference in people’s lives (Locke, Weber)
4. People w/ bad discretion given power to make rules
STATUTES
Plain Language
- Consider if statute includes/excludes group (ex. no sellers, omits mention of donors) effect?
- Consider, how is this situation alike/different from statute
- Does it further the policy for which it was adopted?
- Is there a purpose for interpreting statute to provide for X’s conduct?
- Who is it targeted at?
- Law targeted by an incident?
Pro:
1. Predictability (Scalia, push statutes in a rule-like direction, furthers intent of legislature)
2. Cabin judges (prevent bad discretion)
3. Hold Congress accountable to what they pass
- Clarity
- No cheap talk
4. Only true measure of intent of legislature—Social Darwinism
5. If get courts wrong, Congress will fix it
- CA: Congress can speaks w/ diff. voices to diff. audiences (TVA—statute & $)
- CA: Assume new Congress has same intent as old Congress
6. Prevents interest group opportunism hoping judge will use discretion & find for them
7. Expressio unius (name the consequences of the omission)
- If can point to examples of carefully crafted, must been thought out & thus, intent is clear
- CA: can we be certain of this?
Con:
1. No leeway w/ unforeseeable future instances
2. No leeway w/ exceptional case particulars
3. Can’t assume that Congress will fix problems
4. Strict construction of statue is roadmap for evasion of policy of statute
- CA: assume know what policy is
Discretion/INTENT/POLICY—judges fill in gaps (some statutes have room for vagueness)
Pro:
1. Congress can’t provide for every unforeseeable future instance (air force)
2. Congress can’t know particulars of every case to add to law (bounded rationality)
3. Spirit of law/legislators intent so no absurd results/drafting errors (Riggs v. Palmer, Holy Trinity)
4. Maybe Congress purposely left statute vague, expect judges to fill in gaps
5. Resolve ambiguous laws
Con:
1. Futile to guess legislators intent
2. Judges shouldn’t be legislators
3. Give judges too much discretion—slippery slope
4. W/ broad construing, people wont’ know how to act
5. W/ broad construing maybe unfair surprise
How should courts decide?
1. Plain language
2. If plain language not clear (if it is confusing) look @ legislative history for intent
- CA: argue intent is in plain language b/c that is what won in struggle (Holmes)
- CA: cross cutting purposes (Weber, majority v. dissent)
- CA: disagree about purposes (Weber)
- CA: interest groups cloud what is real intent (Elhauge)
- CA: may not be intent of current Congress
- CA: Congress has no intent, people do (Radin)
3. analogize exceptions/new problems—like common law w/ precedent
- 1)don’t update, 2)update w/ narrow discretion, 3)update under broad statute
- CA: “to say one thing is to exclude others,” Cong. would have drafted exception if they wanted it
4. Choose course w/ fewest irreparable consequences
- CA: could be subjective standard (TVA—sacrifice dam or species)