Elements Questions:

1. Freedom of Contract/ For policy decisions that justify government interference (substantive due process):

-Types of Contract Invasions:

  • Maximum hour
  • Minimum wage
  • At will
  • Surrogacy
  • Discrimination

-General Effects of Legislation:

  • Who benefits? Employer? Employee? Customers? Competitors?
  • Are wages affected? Number of employees? Prices? Total hours worked? Class as a whole?
  • Should the right be waivable? (Endowment effects).
  • Who wants the law?
  • How important is the right that is being regulated? What is the right?

-Within the context of anti-discriminatory measure:

  • Is the group being protected going to be harmed by being hired less?
  • Less able to detect discrimination in these instances.
  • Who are the members of the protected group and what are their pre-legal differences?
  • Who are the non-members?
  • What will the effects of the law be (more hiring, etc.)?
  • Is the law effective enough to stop other forms of discrimination?
  • Does the law give “special protections” to group or are the protections just taken for granted as normal by other people? Does the status quo embody inequality and the law just puts people on an equal playing field? Possible counter-argument – other people are discriminated against on the basis of their appearances – why is this ok?

-Workers:

  • Is there an information problem?
  • Is there a collective action problem (Mill) like prisoner’s dilemma?
  • Is there a monopoly situation?
  • Is there a health or safety problem?
  • Is there more or less equality?
  • Do workers only care about relative wealth (Frank)?
  • Is it good to ban most-preferred option in some cases?

-Employer Effects:

  • Who benefits? Are there inter-company redistributions?
  • Do they lose money or pass on the costs to consumers?
  • Do they shut down operations?

-Policy Arguments:

  • What are the positive versus normative effects?
  • Is the group being discriminated against?
  • Are there third party harms/externalities?
  • Does the legislation involve the health, safety, or welfare of the public?
  • Does the law violate long-standing traditions?
  • Is the law directed by interest groups (bad)?
  • Is a crime being committed? Is a tort being committed?
  • Is a statute being violated?
  • Are inequalities justified if they benefit the least well off (Rawls)? People generally want highest average utility with a floor.
  • Will the law commodify sacred things/values?
  • Does the policy actual benefit the one you’re trying to help?
  • Are we promoting democracy with the court’s decision? (Warren Court)
  • Is the norm the policy is based on good or bad? Do we want to try to change that norm?

-Paternalism Arguments:

  • Are the people incapable of making their own decisions?
  • Is the law paternalistic or redistributive (bad under common law, ok under New deal)?
  • Will intended redistribution occur? Maybe not because everyone will just pass on the costs.

-Slippery Slope Arguments/Effects of Legislation:

  • What are the slippery slope effects?
  • Conceptual or Empirical?
  • Can you distinguish the principle in the argument from the rest of the slippery slope?
  • Or is it ok for the slope to slip?

-Pragmatic Reasons for Respecting law:

  • Is the legislature a good one?
  • Does it fix mistakes and make good laws?
  • Do we trust it?
  • What is the court’s role in deciding this policy?
  • Should we allow the legislature to make the decisions? More democratic.
  • What is the court’s scope of review?
  • Do we want our democratically elected institutions to decide facts?
  • Are they better situated to make factual decisions because they listen to experts, do research?
  • Should we impose the penalty on the one who is most able to make the decision? Information eliciting rule?
  • Or should we make the rule reflect the market – what the parties would bargain to if they were forced to decide?
  • Is there evidence that the law will work?
  • Will there actually be redistributive benefits?
  • Is the move Pareto superior? Move that makes at least one person better off without making anyone else worse off?
  • Is the move Kaldor-Hicks superior? Winners win more than losers lose. This might be good if we can compensate the losers and still have surplus.

-Legal Realist Arguments:

  • Is the status quo pre-legal or a legally created situation? Use “nature” to justify court inaction or action. Constitutive (creating situation) versus Reflective Law (reflecting situation).
  • Is the argument for the law produced in part by the law itself? People’s preferences adapt to what they’re given or what is available.

-Economic Effects:

  • Increased prices?
  • Decreased wages?
  • Decreased aggregate hours of employment?
  • Increased number of people working? – Need to know extent of increase in cost of labor
  • Disemployment effects for certain groups that lead to unintended redistribution?
  • Third party effects?
  • Waivers – because of myopia or information problem or endowment effects? See rationality below. How long does waiver last?

2. Rules and Standards:

-Error costs versus decisions costs? Which is greater?

-Does the rule apply to everyone or only to particular groups?

  • What is the valid reason if it only applies to particular groups?

-Does the rule-bound judgment lead to absurd results?

  • Is there a rule of law advantage?
  • Democracy reinforcing?
  • Promote stability where we need it?

-When are rule-bound judgments justified?

-When would rule-bound judgments not work?

-Are there many decisions that need to be made so a rule is justified?

-Do we need predictability (maybe in commercial law)?

-Do we trust our judges or our legislatures more or person who makes decisions on spot more? Front-loading or back loading?

-Do we believe in textualism? Originalism? Deference to legislature? Efficiency? Democracy?

-Does the new decision fit with prior law and have a good justification (Dworkin)?

-Scalia: argues not for rules in abstract or for textualism, but for rules as a central part of judge-made law, wants to reduce decision costs mostly, but thinks he can reduce error costs. (Burke is for traditions also).

-Schauer: formalism feasible. Look at dictionary definitions, instead of looking at history and “converting” the law to your own purposes. But formalism is sometimes not feasible and – if term is ambiguous, and maybe not in light of open texture and language (what Hart says). Formalism good because don’t need to look at detail or context, but the case for formalism depends on context.

-Benefits of rule-bound decisions: promotes predictability, ensures equal treatment (both appearance and reality), prevents shifting decision costs to others, constrains judges, stiffens judicial spine.

-Problems with rule bound-decisions: rules can be crude, judges may lack information to generate decent rules, shouldn’t give past any more weight than present, some complex/important issues require case by case, facts and values might rapidly change over time so we need flexibility.

-Llewellyn: courts should face policy questions and law should reflect the needs of society as it is – argument for case-by-case decisions.

3. Statutory Interpretation

-Text:

  • Is the text in vague or general terms?
  • What do the words mean? Should you look to dictionary or other sources?
  • What is the plain meaning/every day usage of the text?
  • Does the particular interpretation make the application more or less predictable?
  • Does the interpretation give the enforcers more or less discretion? Worries about abuse of discretion?

-Structure:

  • Do other provisions in the statute explain what the text means?
  • What does the text mean in context?
  • Do the other provisions expand or narrow the initial interpretation of the text?
  • Are there any other related statutes that can shed light on the situation?
  • Is the specific word/phrase focused on relatively similar or dissimilar to the related provisions?
  • Is there an exception to the clause in question that clarifies the section presented? If there is an exception later, then maybe the clause in question was not intended to include other exceptions or vice versa.

-History (If text is unclear):

  • Does the history of the statute shed light on the provision?
  • Does it broaden or narrow the provision?
  • Remember that amendments discussed were not added in!
  • Was the particular section discussed positively or negatively?
  • How has time changed the meaning of the statute?
  • Where is the history coming from – not the whole? Lack of authority problems; history was never voted on, etc.
  • What is the relationship of the people talking in the history? Who are they? Do they have authority?
  • Rule of law problems to use history.
  • Not reliable as judgment of entire Congress, but if text is really ambiguous may be the best way to go – better to reflect some of Congress than the dictionary.
  • Possible reflection of interest group power?

-Intent:

  • What does the record show?
  • Was there discussion involving what the terms meant?
  • Were there any possible amendments that were not passed? What does it mean if they weren’t passed – that congress decided on other meaning or that they assumed meaning was obvious?
  • How has time changed the meaning of the statute?
  • Should we use the original meaning/intent of the legislature or what we consider the words to mean today?

-Purpose:

  • Is the purpose narrow or broad?
  • Is the purpose general or specific?
  • Would the text lead to an absurd result in terms of the purpose?
  • Does it make sense to include this particular case in the statute or exclude it?
  • Would either outcome fit with overall sense of statute?
  • What has the long historical practice/custom been?

-Post-enactment Treatment

  • Not as reliable since we don’t want our future congresses undoing what we do (political reasons, etc.)
  • Maybe better because we want our laws to fit with current customs.
  • Shouldn’t interpret giving money to fund something to override the plain meaning of the terms (TVA).

-Canons:

  • Rule of lenity? Only when text is unclear.
  • Violation of constitutional right? Statute should be construed narrowly to avoid violating the due process clause because of vagueness or substantive due process (or other clauses).
  • Uncertainty: resolve in favor of defendant or democracy? Warren court.
  • Don’t interpret a statute to be in derogation of the common law or traditions unless it is clear.

-Constitutional Issues:

  • For criminal regulation – is fair notice given to the person?
  • Abuse of discretion? Predictability arguments? Vagueness? Substantive due process? Freedoms violated? Rights to (whatever) violated?
  • What are other alternatives? How helpful is this particular law in comparison? (Evidence here is good)
  • What is purpose of statute?
  • Empirical evidence needed? To prove benefits? No abuse (but what would count as abuse – discrimination, random dislike for people?)?
  • Does the law violate the issue of substantive or procedural due process (Hayek)? Or does the law violate the equal protection clause (Jackson)?
  • Is there a reasonable distinction between what the law covers and what the law doesn’t cover? Economic, safety, interest group pressure, etc?
  • Holmes view: allow deference to legislature and majority.
  • Originalism, textualism, democracy reinforcing, holmesian view?

4. Rationality & Legal Theory

-What would rational choice be?

-Do these concepts justify intrusions on liberty?

-Preferences are constructed rather than elicited by social situations.

-Loss Aversion

-Myopic Tendencies – can’t see broader picture, only focus on short term.

-The endowment effect

-Motivational problems: reduction of dissonance, adaptive preferences.

-The way matters are framed affects people’s decisions,

-Extremeness aversion

-Self-serving bias

-Unrealistic optimism and Overconfidence

-Temporal problems – people discount the future.

-Differences in the utility expected at the time of the decision and utility actually experienced

-People want to appear to be fair and cooperative.

-People make decisions based on heuristics

  • Biases based on availability of information,
  • Anchoring effects
  • People make decisions based on representativeness (is A like B?).
  • People make decisions based on past cases rather than weighing costs and benefits.

-People have probability related tastes.

  • There is an all or nothing effect in terms of risks.
  • Ambituity aversion – people prefer situations of uncertainty (where probability is assigned) to situations of risk (where probability isn’t assigned).

-People have status quo bias.

-People use mental accounts to keep track of money.

-People have a hard time mapping normative judgments onto dollars.