Elements of the Law (Strauss, 1998)

Elements of the Law (Strauss, 1998)

v Precedent/Formalism/Legal Realism

Ø  Formalism (Langdell)

§  Law is about calm mastery of principles

§  One must be consistent not only with the holdings of previous cases, but also with their reasoning.

§  Once the precedents have been analyzed and distilled, all that remains is for a judge to decide which cases are analogous and thus controlling.

Ø  Legal Realism (Holmes, Cardozo, Dworkin, Levi)

§  New reasoning is acceptable if it explains previous holdings.

§  Judges use their conception of social justice in rendering their decision and should do so self-consciously and progressively

§  Social science is employed in deciding where the new reasoning should come from.

§  An emphasis on taking responsibility for your choices

§  Holmes

·  separate law from morals -- law is a just a prediction of what judges will do

¨  objections:

Ø  good concept for lawyer

Ø  bad concept for judge deciding a case

¨  how does this square with Cardozo’s idea that morality and justice need to be involved in the law?

Ø  Holmes says “the law is the witness and external deposit of our moral life” and that he only wishes to separate the two for purposes of study.

§  Dworkin – chain novel theory – each case adds to the whole, trying to maintain some sort of stylistic consistency.

§  Levi – reasoning by analogy – rules are distilled from many cases, not taken from one case and applied to many.

§  Kuhn – paradigm shifts, Ptolemic to Copernican revolution – when one theory becomes unduly complicated a revolution is needed

Ø  Burke – individual human reason not to be trusted, rather wisdom of the ages

§  No abstraction can cover every case

§  If change becomes the order of the day the rules will never be themselves respected, for they can always be changed

·  Objection: Path dependence (we can select levels of generality)

Ø  Case Study – Privity of Contract

§  Objection: New rule will cause more lawsuits (slippery-slope)

·  Answer: If it is clearer than the old one, people will just settle

§  Objection: Shouldn’t the legislature make new laws?

·  Answer: This was judge-made law to begin with

Ø  Argument for precedent and common-law:

§  The gain we get from limiting bad judges outweighs the loss from limiting good judges with precedents, especially if we think that judges are generally good, thus making the corpus of precedents good

v Freedom of Contract

Ø  Reasons against limiting Freedom of Contract

§  People are the best judges of their own situations

§  Allowing the state in can make things even worse than they already are

§  Taking the ability to make certain kinds of contracts away does a harm to those you are trying to protect

§  Bi-lateral monopoly – both sides have equal power (lawyers, pro athletes) – labor unions create such situations from previously unilateral monopolies

§  Even if there are the reasons below to limit freedom of contract, these can be hijacked by interest groups and used to persecute minorities (Lochner)

Ø  Reasons in favor of limiting Freedom of Contract

§  Externalities

·  Assassination contracts not legal

·  Also moralisms (Calibresi -- psychic externalities)

§  Incapacity

·  Children or the mentally incompetent cannot be held to contracts

§  Coercion

§  Information Failure

·  The contracting party does not have enough information to make a reasonable decision – can we solve this simply by giving that information?

§  Bounded Rationality

·  People are poor probabilistic predictors

§  Redistribution (sort of discredited)

·  Poor people are more likely to be the victims of certain kinds of risks

·  Why take their ability to barter their willingness to accept risk though?

§  Monopoly – there is no one else to deal with

§  Collective Action Problem

·  No one will bargain on a certain issue until someone does first à no action

·  Voluntary school integration – who will be the first black kid to go to the white school?

§  Information asymmetry

·  One party has more information than the other

·  Sexual harassment – only the potential employee knows what kind of a litigation-prone person she is

§  Bad-preference/false consciousness/adaptive preference

·  I don’t want what I believe I cannot have

·  Stockholm syndrome

·  Again, voluntary school integration, maybe blacks conditioned themselves to not want to be with whites because before they simply could not

§  Noncommodification

·  Title VII rights – sex harassment

¨  Prostitution

·  Blood donation in England – reduces benefit of voluntary donation (Titmuss) – makes an altruist into a sucker

·  Surrogate parenting

·  Marx

¨  Noncommodification of virtues is the argument which defeats capitalism

Ø  Lochner

§  Maximum working hours law for bakeries upheld because on freedom of contract grounds – passed to keep immigrants from taking jobs from Americans?

§  Holmes dissent:

·  Legislation is a fight, there are winners and losers, let this happen – the state can limit freedom of contract in whatever way it chooses

·  The job of the judge is to get out of the way of society

§  Safety v. Health

·  Safety easier to regulate through freedom of contract, easier to evaluate – bounded rationality concerns with health

Ø  Green v. Country School Board of New Kent County

§  School “choice” implemented instead of forcible integration after Supreme Court ordered steps taken to dismantle segregation

§  What’s wrong with allowing choice here?

·  Adaptive preferences

·  Collective Action Problem

Ø  Harris v. Forklift Systems sexual harassment

§  Crystallization Argument

·  Before sexual harassment became a legal claim women did not recognize it as wrong – adaptive preference

·  Information asymmetry – employee knows more about whether she is likely to file suit than employer. When hiring, employer looks for these signs and this makes employee less likely to ask for something (like the right to sue under Title VII) that she might want.

·  Do people really need standards on which to measure their own subjective satisfaction?

§  Question: Why not allow women to bargain away right to sue under Title VII?

·  Externalities/Moralisms, gender discrimination is inimical to our ideas of society – this is a noncommodification argument, we do not want the thing to be bought and sold

Ø  Surrogate Parenting Associates, Inc. v. Kentucky

§  Surrogate system held to be not in violation of statute prohibiting the sale of children

§  The court says statute designed to prevent people taking advantage of the bounded rationality of a new mother by pressuring her to sell her child

§  The argument to prevent this sort of contract is the moralism of noncommodification.

v Rules or Discretion

Ø  Arguments in favor of rules

§  Cost efficient/easy to enforce

§  Want to be able to predict legal results

§  Want the same result in the same situation

§  Preserves the dignity of those governed (Locke)

§  Appeal of the market (only aggregate forces affect you -- Locke)

§  Discretion is primitive, rules are refined (Weber)

§  Don’t want to give judges too much power

§  Don’t want discriminatory enforcement

§  Don’t want to chill behavior perceived of as good

§  Bounded rationality – people have limited ability to address fine distinctions, so over or underinclusive rules are better than such fine-line enhancements (Scalia)

§  Examples/Authors

·  Papachristou (discretion = bad, rules = good)

¨  Vague (discretionary) vagrancy statute struck down

¨  Gave too much discretion to police and was enforced in a discriminatory way

·  Justice Jackson in Railway Express Agency – equal protection will result in good laws because equal enforcement will reveal a law’s injustice, if there is any

·  Hayek – freedom of contract requires predictability (rules) so that you can be master of your own fate

·  Weber – rules are more highly evolved from discretion – irrational justice à Kadi justice (common law justice) à pure bureaucracy (civil law system)

Ø  Arguments in favor of discretion

§  Discretion allows justice to be tailored to the individual case

§  Rules are overinclusive or underinclusive

§  Harsh rules can create underground exceptions and discretion (in enforcement)

·  Repeat players understand this web (so businesses-regulation can be more vague)

§  Rules provide the deviant with a roadmap for evasion (no rule against fraud – just common-law)

§  Rules are primitive, discretion is refined (Nussbaum on Aristotle)

§  Examples/Authors

·  Stanley v. Illinois (discretion = good, rules = bad)

¨  Illinois statute presumed unwed fathers to be unfit parents – statute held to be unconstitutional

·  Aristotle – equity is better than rule-bound justice – “Such a rectification corresponds to what the lawgiver himself would have said if he were present…”

·  Anatole France – some laws, even equally enforced are substantively unjust

·  Rousseau – the perfect state cannot create bad laws

v Statutory Interpretation never paraphrase a statute!

Ø  TVA v. Hill – plain language adhered to

§  Snail darter Endangered Species Act case – plain language indicates that dam cannot open

§  Legislative history – Congress did not consider this scenario, still Court holds them to their language rather than taking from continued appropriations that they did not intend this result

Ø  Church of the Holy Trinity v. United States – plain language ignored, legislative history used

§  Imported foreigners statute at issue – exceptions laid out in statute, pastor not among them

§  Court ignores language of statute and says that it would be absurd for Congress to want to prevent this sort of importation – the inner meaning of the statute is to prevent cheap foreign manual labor from coming in – underground exceptions

Ø  Pro plain language (TVA, Fitzpatrick)

§  Closest to intentions

§  Discipline judges

§  Discipline legislature

·  Clarity

·  “Cheap talk” – it doesn’t take much to get something into the legislative record

·  Accountability

Ø  When not to follow plain language?(Church of the Holy Trinity, Weber, Smith)

§  Absurd/drafting error

§  Defeat purposes? (Weber)

·  Unforeseen circumstances? The language covers the case but the legislature did not foresee this. Do we just follow the language or do we try to extract and extrapolate the purposes?

§  Ambiguous or unclear(Smith)

New Textualism – Scalia
Only look at plain language, ignore legislative history as it can be taken any way one likes / Legal Process
Should look to legislative intent/purpose
Text should be downplayed when leading to absurd result / Public Choice
Interest group politics dominate legislation – smaller groups have disproportionate influence
Judges should keep this in mind when interpreting statutes / Legal Realism
Legislative intent undiscoverable
Maxims of statutory construction are inconsistent – can self-set level of generality to stage interpretation from
Holmes, Lochner dissent, law cannot long stand in the face of the popular will

Ø  Two maxims of statutory construction worth knowing:

§  Expression unius est exclusio alterius – to say one thing is to exclude the other – see Church of the Holy Trinity exception list, nothing else is an exception.

§  Ejusdem generis – “and other” means “things like the previous list”

v Moral Objectivity/Moral Relativism

Ø  Strauss – lawyers easily become unreflective moral subjectivists

§  Bork – prime example of this – judicial decision making should not be based on fundamental values

§  Bowers – justices say that morality does not inform the decision

·  Counter: Extreme legal realists – only moral principle controls decisions

Ø  Moral relativism -- you have no right to interfere, essentially objective argument)

Ø  Science v. Ethics

§  Science is cross-cultural, and treated normatively – ethics are not cross-cultural and are therefore treated positively

§  Diversity

·  Good in ethics (Rawls)

¨  Really? What about religiously homogeneous societies like Pakistan or Iran?

·  Bad in science

¨  Really? What about differing theories about the nature of light? Do we want people agreeing about bad science just so that we have agreement and no diversity?

§  Proof of correctness

·  Science uses our perceptions

·  Ethics?

¨  Could say we all have an intuition about these things – the Rawls grammar analogy

¨  Social contract?

¨  Autonomy arguments?

Ø  Rawls – in any tolerant society, disagreements about a lot of moral issues arise – and this is all good as long as we have a common core à incompletely theorized agreements (tolerance and mutual respect)

§  Morality is a matter of reasonableness not truth