elements gilles fall 2007

8/10/2019 Elements Gilles Fall 2007

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I. Introduction:

What are the elements of law?

Common Law:

Common Law is self generative, a body of past judicial decisions as they were rendered

in previous cases. There are no authoritative texts with common law. The only way to

exactly know the entirety of common law is to know all the cases.

Common law is purely decided byjudicial decisions. This system recognizes two very

important points:

o Precedent: Factually similar prior case law that lawyers and judges can draw on.

1.Similarly treated people should be treated similarly. You must remove prejudices and biases before making a

judgment.

2.There must be a basis for deviating from the precedent.

o Stare Decisis(starry de-sise-is): translates to let stand that which has been

decided. Therefore, follow the rules that courts have decided in the past. Following

precedents. The principle of Stare Decisis dictates that Common Law is binding on

factually similar cases. Similar cases will the treated similarly.

If every claim was decided independent of previous cases, it would render the

legal system unpredictable. Legal liabilities would be hard to determine. Would leadto unpredictability in social and financial interactions. Law is a precondition for a

robust economy.

Precedentgives each individual lawyer the ability to change things. Precedent affords

judges and lawyers a head start on the legal proceedings of a case.

The legal system shouldnt forget theactual peoplethat the cases are about and the

fact that the outcome affects their lives. The facts of the case are important to them,

because they are events that happened to them and affected their lives.

When and for what future cases will a judicial decision apply as a precedent?

Jurisdiction:

A prior decision is binding only in that jurisdiction.

A precedent is a Binding Precedent if it is made by a court higher up in the

hierarchical ladder in that judicial system.


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Persuasive Precedent is a precedent that isnt binding due to jurisdiction or other

considerations, but can still be used to persuade a court due to similar facts and

circumstances in the case, for example from another state court.

The reason that cases survive the early motions to dismiss is because there exists some

precedent that offers hope of a favorable outcome.

Material Facts: The precedent must involve factually similar prior cases. The legal case

being argued determines whether the lawyer will stress the similarities or differences

between the case being considered and the precedent.

Greater Weight: Some judicial decisions will have greater weight than others. Decisions

from courts of last resorts obviously carry more weight than decisions from lower courts.

The interactions between the 3 points of deciding a precedent is something that can be

manipulated and the interaction between these 3 points is dynamic.

Statutory Law&Constitutional Laware the other 2 types of law

Res Judicata(pronounced: race judi-catter): The first effect of any appellate decision. If a

case if final, all appeals have been exhausted. You cannot bring another claim on the same

facts and on the same claim. The judgment is final and cannot be challenged in a later

proceeding. Even if the case is later overruled in the sense that the court of last resort later

rules the other way in a similar case at a later date, a case that is Res Judicata can never be

ever reopened, since if it was, litigation would never end. Res Judicata makes the decision

final and leads to Stare Decisis, which makes the case precedential in nature.Overruling is what a court does to itself- its a peer effect. Reversing is what a higher court

does to a lower court.

II. CASE PROCEDURE:

Case Headings:

For example in the heading Brown v. Board of Education, 347 US 483 (1954).

347 is the volume; 483 is the page in the volume; 1954 is the year the case was decided.

Steps in Getting a Case Started:

Lawyers Evaluation: Can the law provide the plaintiff with a remedy for his cause of

action? Problem Situations: The defendant does not exist. The victim has experienced an

act that cant be legally compensated. Cost/benefit analysis.


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Forum: Which court has jurisdiction over the people involved and the issues involved.

Subject/Personal Jurisdiction. Which court has better procedural norms or offers the

promise of a better outcome for the client.

1.Motion to dismiss is more likely granted for frivolous lawsuits.

2.Plaintiff lawyers are hardwired to get to a jury while defense lawyers want to get it

done and over with.

Methods of filing: File and Serve or Serve and File

Counterargument

Claims for dismissal:

1.Lack of jurisdiction

2.Claim that there was no legal grounds.

Send an answer

The judge cannot sua sponte (on its own) dismiss a claim without a D moving the court for

such a motion.

Defendant could default: then held liable

1.D did not receive the summons

2.Worried that itll lead to something worse, like if the D is an illegal immigrant.

3.The D is judgment-proof he has no assets.

Discovery phase:

Ordered by the court after the initial filing, serving and answer/counter-claim/etc.

85-92% of money is spent on the discovery stage.

Exchange of information at this stage can lead to the case being dismissed at this stage.

Motion for Summary Judgment:

Argues that the facts are so conclusively proved that there are no facts remaining to be

decided at trial. The material facts have been so well documented and uncontested that the

undisputed facts can have the law applied to it by the judge right away and the decision can

be made.

Motions for summary judgment are more likely to be won by the defendant.

o Victim would rather be put in front of a jury because its easier to win.

1.Short of that, they would much rather want a quick settlement and more

money. Jury is not necessarily a good thing.

2.Extent of injuries is not something that can be dismissed through

summary judgment.

The process issummaryand isdone on affidavits and summaries alone. There isno

live legalproceeding.

Differencesbetween motions for dismissal and summary judgment:


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o For dismissal, the motion often occurs early on. Summary judgment usually

occurs after the discovery stage since more facts are required.

o Motions to dismiss are often a simple case of subject matter or personal

jurisdiction. Motions for a summary judgment involves a decision on the fact and

application of the law to the fact by a judge.

Trial:

Only about 2% or less of filed claims actually go to trial.

Voir Dire: thequestion and answer sessionamong the judges, attorneys and potential

jurors. Its the process of picking the jury.

Both parties may waive their right to a jury trial. Why?

o It could take longer to empanel a jury.

o Sympathy for the defendant like in a case against the police.

o

The technical facts surrounding the case are too complex for a random samplingof the community to understand.

o Bench trials can be scheduled for non-consecutive days which might work better

for a corporate trial. You cant empanel a jury and then have them sit on non-

consecutive days.

o If a judge may disallow evidence from appearing before a jury, but the judge

himself has seen it. Therefore, in a bench trial, the judge has to first see the evidence

to disallow it, which might work in the favor of the plaintiff in the case of gory pictures

involving personal injury.

o jury consultants

Plaintiff must establish aprima faciecase which is a case which has facts that theburden of proof lies on the plaintiff.

o The burden of production: In a civil proceeding the P must convince the jury that

its caseis more likely than not. Its a question of quantity- there is a sufficient

quantity of facts that would convince the jury that

o The burden of proof in acriminal caserequires convincing a jurybeyond a

reasonable doubt, whereas civil courts only require the Ps version of the story to be

more likely than not. The reason for this is that the criminal cases deprive the

defendant of liberty/life which is more valuable than the usually

Judgment as a matter of lawis a motion by the D.

D presents evidence that would present counter claims.

o This is the only point in legal proceedings where there are live witnesses

brought before the court.

Next,the judge instructs or charges the jury. The judge reads the instructions to

the jury, stating the law and rules. The P and D lawyers give their instructions to the judge

for the jury. The judge may use his own charge.


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Appeals:

The appellant brings the appeal alleging a prejudicial or reversible error.

Questions of fact or the determinations of questions of fact are not appeal-able. Only

questions of law or procedure which led the jury to make a wrong decision.

1.Appellate courts do not retry the case. They just try the trial court, no witnesses

and maybe a small amount of talking by the lawyers.

1.You cannot appeal the jury decision. You have to appeal different things.

Should have granted a motion or allowed certain things. Didnt sustain

objections or changes jury instructions. These changed the outcome of

the case.

2.You want the higher court to reverse the decision. You may sometimes

have to remand it back to a lower court.

The appellate court has the authority to change the law more than the trial court does,therefore appeals that are presidential in nature are usually allowed?

The next motion is a motion for the new trial. This motion can be appealed by the other

side that won the ruling. The motion for a new trial involves the live witnesses and the whole

trial being run again.

An appellate court can remand a trial back down to the trial court if a motion for

summary judgment or something like that is being appealed. If a verdict is being appealed,

the appellate court can reverse the verdict, remand the case, affirm the verdict, etc.


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III. MOTIONS:

AComplaintisFiledand then aSummonsisServed.

If the defendant ignores the summons and complaint, the court will enter a 'default

judgment' for the plaintiff and the case is over.

The defendant should respong to the complaint with ananswer, which is a formal

document respondingeachof the specific allegations in the complaint. The answer may

include either:

o Affirmative defenses: the 'yes, but' defense which alleges other mitigating

circumstances.

o Counterclaims:Reverse the liability

Motions:The following motions ask the court to enter judgment for the moving party asamatter of lawbecause:

1 The Facts alleged by the plaintiffdo not amount to a cognizable claim.

2 The Law does notrecognizethe defense advanced by the plaintiff.

3 There areno material facts in disputean the judge can determine the winner

as amatter of law.

o Pretrial Motions:

Motion to Dismiss:

Demurrer: This is a motion to dismiss forfailure to state a claim

upon which relief can be granted.This is filed pre-trial, before or after

answering. This is a 'so what?' motion, which says that even if the events

occurred the way the plaintiff alleges, the law provides no remedy.

Lack of Jurisdiction: This is a question of personal or subject

matter jurisdiction.

Motion for Summary Judgment:The granting of this motion implies

that there areno material facts in disputethat would need resolution by either

a judge or jury at trial stage. This can be asked for at any point until the trial

starts. For each complaint, is there any genuine issue of material fact for which a

trial is required.

o

During the Trial: Directed Verdict: Motion for Judgment as a Matter of Law

o After the Trial:

Renewal for Motion for Judgment after the Trial (JNOV).

Trial: When a question of fact exists, the outcome if placed in the hands of afactfinder:

either judge or jury.


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Discovery: This is the stage in the litigation where there is a pre-trial exchange of

information.

o Interrogatories: Written questions served on the opposing party to which a

written response is required to be produced by that party with the aid of a lawyer.

o Depositions: Oral Examinations of witness and parties conducted by the

opposing party before a court reporter.

o Production of Documents: Relating to the opposing party, witness, the event

itself, insurance coverage and related information.

Jury: The jury is picked through a question and answer session between the judge, attorney

and potential jurors known asvoir dire.

Trial:

o After the opening statement, there is adirectexamination and across

examination. If anything is done in a manner which violated the rules of evidence, the

opposing lawyer canobject. After this, the plaintiffrests.

o

This is whenonlythe defendant can motion for adirected verdict, saying thateven if the court accepts the evidence as the plaintiff has presented, it must still direct

a verdict for the defendant as a matter of lawbecausein light of the proof, no rational

jury could render a verdict for the plaintiff. This can happen before the defendant even

presents, and the case istaken away from the jury.

o To establish aprima faciecase, the plaintiff's lawyer must present evidence

which tends to prove the facts as alleged by the plaintiff. A prima facie case is, on the

face of it, sufficient to establish whatever you seek to prove.

o On motion for summary judgment, the judge couldreservejudgment, sending

the claim to the jury along with the rest of the case, but the judge has 'reserved' the

right to change his mind after the jury deliberations.o After the defendant's case,bothparties can move for adirected verdict. The

plaintiff would argue that the defendant's version of the events ifno defense.

Judge's 'Charge':

o The judge issuesinstructionsto the jury which states the law which the jury will

apply in reaching its ultimate conclusion.

o Lawyers onbothsides submit,beforetheclosing arguments, proposed jury

instructions which present the law in a manner most favorable to their clients.

JNOV:

o

The defendant can renew his motion for judgment after trial. The judge canchoose totake the claim away from the juryand direct the entry of a judgment for

the defendant.

Appeal:

o Appeals can only be based on errors that the trial court committed with regards to

questions of law. The fact finding of the jury cannot be questioned.


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o The trial court needs to have committed areversible errorbecause of which the

appellant has experienced someprejudice.


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IV. COMMON LAW CASE SERIES:

Kelly v. Gwinell

This case questions the possible tort liability of a social host who serves his or

her adult guest alcoholic beverages beyond the point of visible intoxication while

knowing that his or her guest will drive shortly after consumption, in a situation

where the guest inflicts personal injuries on a third parties.

The Zaks were granted a motion for summary judgment by the trial court. The

Appellate Division confirmed this. The Supreme Court of New Jersey reversed

and remanded this decision.

HOLDING -A social host is responsible for the actions of his or her guest if the

guest inflicts personal injuries upon a third party if the host serves alcohol to the

guest while the guest is visibly intoxicated and the host is aware of the fact that

the guest will be driving shortly after consuming alcoholic beverages. There was

no precedent in most other jurisdictions that did not address an issue similar to

this. Previous cases only applied to negligence on the part of a licensee.

Conventional negligence law does not apply to social hosts, an oversight that the

Court sought to correct. While the legislature could address this issue, the courts

are an equally viable means to remedy the dangers that drunk driving poses.

Justice Garibaldi dissented. He argues that the matter of deciding a social policy,

such as the dangers of drunk driving, should fall upon the legislatures and not the

courts.

Barrett v. South Pacific Co. (1891)

Common Law Maxim - One must so use and enjoy his property as to interfere

with the comfort and safety of others as little as possible consistently with its

proper use. In a case like this one always argues on the basis of law rather than fact in a case

like this. If one wins on the matter of the law then they can always file for a motion to

dismiss.

In this specific case, however,the judge dismisses on the notion of children not

knowing any better. The landlord actually has the knowledge to protect injury. The


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This resulted from apetition for a rehearing en banc, which was denied.

Attractive Nuisance:Liability is based on:

o Character of the thing

o Comparative ease of preventing the danger without impairing the usefulness

o Reasonableness and propriety of his conduct in the circumstances

Sanchez v. East Contra Costa Irrigation (1928)

The child is a non trespasser so Bowman does not apply here.

There is an addendum to the attractive nuisance theory, there is now the Trap

theory. We now have precedents for concealed dangers.

The rule of nonliability is not to be applied in "instances where the owner maintains

on his land something in the nature of a trap, or other concealed danger, known to

him, and as to which he gave no warning to others." Property owners (in California)

are generally not negligent for injuries incurred by trespassers, children or adults,

who incur injuries or death in property owners' open and obvious streams of water. Because the syphon was more like a trap than an open and obvious stream of

water. The property owner was under obligation to guard, give warning, or take

some type of precaution, especially since he knew children would be playing near

water.

Copfer v. Golden(1955)

One who maintains upon his property a condition or piece of machinery or

instrumentatlity which is dangerous to children of tender years by reason of their

inability to appreciate the peril therin, and which is realizes or should realize involvesan unreasonable risk of death or serious bodily harm to such children, and which he

knows is a place where tresspassing children are likely to resort or do resort, than

he is under a duty to exercise reasonable care to protect them against the dangers

of the agency.

Because property owner knew that children played on the machinery and because

he knew or should have known that materials and machines on that property would

present a danger to children of tender years who trespassed onto his property, and

who may not fully realize their danger, the trial court was warranted in calling the

duty of reasonable care into play.

'One who maintains upon his property a condition, instrumentality, machine or other

agency which is dangerous to children of tender years by reason of theirinabilityto

appreciate the peril therein and which is one he knows or should know and which he

realizes or should realize involves an unreasonable risk of death or serious bodily harm to

such children'


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Wilford v. Little (1956) A very similar case to Peters, except in this case its a pool.Pool was constructed

that it was hard to hold onto the sides of the pool. The boy and his companions were too

young to appreciate the dangers of playing on the diving board and pool.

A natural body of water or a body of water that exhibits all characteristics of a

natural body such as a pool does not fall under the "Attractive Nuisance

Doctrine." The court finds that a swimming pool exhibits all the pertinent

qualities of a natural body of water. Thus, precedent for this case should be

found in similar cases like Peters. It falls under the common law rule that's

been established in regards to the non-liability of property owners with ponds

or reservoirs. The reasoning behind this rule (according to this court) is that

ponds and other natural bodies of water are very common and ordinary, and

it is the duty of parents to protect children of tender years from common andordinary dangers (and not other people), so the rule is justified.

Knight v. Kaiser (1959

LANDMARK CASE

o The defendant filed for demurrer and it was granted. The plaintiff amends

three times. Copfer and Wilford are being litigated at the same time as this

case. This is very similar to Copfer because the junkyard is more like the

sand pile.

However the court states a sand pile is more like a body of water.

o Shenk, Shauer, McComb, and Spence in the majority.

Court finds that a sand pile does not constitute an attractive nuisance

because san piles are naturally occurring as well.

They feel that the attractive nuisance standard should be more

restricted and not expanded.

The turntable always meant as a narrow exception and they

shouldnt include other things into it.

If they were to expand it, they would add more liability to landowners.

o Traynors dissent. MOST IMPORTANT PART Restates Civil Code 1714 at the beginning.

Its not easy to read the cases and make rules of law

Holding them liable is not unreasonable burden on the defendant

Common dangers are on the parents

They are the primary ones who are economic detractors

However sand piles arent really common dangers.


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Sometimes a jury might find no liability even with a landowner.

Specialized dangers are more the fault of landowners

They may have a duty but they are not always liable

The court is either making a special sand pile rule alongside a water

rule.

Or a they taking judicial notice facts not noted in evidence?

o Judicial Notice something that is so well known that

there is no need to present it as evidence.

Traynor sees that the case was dismissed so early- and the Court

assumed too much.

Traynor sees things have changed and wants to overrule previous

cases and try them under nuisance because rules are static.

Reynolds v. Wilson (1958), Cal Appellate Court: Appeal by defendants from the order denying theirJNOV. The plaintiffs had recovered a

judgment for 50,000 which was not contested.

The case was brought under

1. The Restatement: The court says that the structure could be a pool. A pool is not

an attractive nuisance as a matter of law. The condition and maintenance may impose

the duty of ordinary care on the owner towards children of tender years.

2. The Trap Rule: by trying to semi-drain the pool, the defendant left it in the condition

amounting to a trap.

3. Defendants owed ordinary care.

Spence's Dissent:o Sdf

Garcia v. Soogian (1959), Cal Appellate Court:

Judge was factfinder, plaintiff recovered and defendant appealed based on whether the

judgment is supported by the evidence.

Since questions of liability must be decidein light of all the circumstancesand there

are no inflexible rules, the decision is aquestion of fact.

What is important is not whether the danger is common, but whether it can befully

understood by children.

Defendant couldn't have foreseen a child over 12 years old jumping over glass building

blocks when it was too dark to see clearly. There is no sound basis for liability.

Spence's Dissent:

King v. Lennen (1959), Cal Appellate:


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Generaldemurrerto the complaint was sustained with no leave to amend, prompting

appeal.

FromCoutrellit is up to atrier of factto determine whether the child was injured by a

risk not obvious to her.

Section 339 of the Restatement of Torts

Alandowneris liable for injury sustained by ayoung trespassingchild on astructureor

artificialcondition on his land when:

1. He is should know that children arelikely to trespassthere.

2. Heshould knowabout the condition and that it poses anunreasonablerisk of injury to

trespassing children.3. The children because of their youth dont either:

a. Discoverthe condition or

b. Realizethe danger accompanying it

4. Cost/Benefit: The utility to the landowner is slight compared to the risk to young

children.

Excludes things donein a spirit of bravadowhere they comprehend the dangers

associated as well adults would.

COMMON LAW WRAP UP:

Contemplative Note:

Did the law take too long to form and result in too many deaths due in part to the unclear

laws?

Even if there were statutory laws, would people have acted on them unless they were

forced to by kids actually dying.

If there was a statute, you cant really point to it and expect your neighbor to follow it.

How do you enforce it without a violation?

The swimming pool common law evolved in 3 years. A statute probably wouldnt get

enacted any sooner.

A statute wouldnt really get enacted unless there were deaths and if these were

brought to the judicial level. Would the statute that was implemented (pg 225-226) really

have resolved the cases we went over or does the statute just look like ordinary negligence

law elements?

Wrap-Up of Case Series:


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Emphasized precedent. Lends consistency and credibility to the system. Helps judges be

bound by rules so judges are bound by rules.

How binding should binding precedent be? Giving judges more active role in

distinguishing and disapproving precedents might make sense in evolving the law and doing

away with bad law, but might also make the system less consistent.

Most important thing is to see what a prior court said on the issue, not just what it did.

Chapter 3:

o Rules of relevance: identifying rules of precedents. Relevance depends on how we

characterize the facts in the prior cases. What makes Barrett the precedent for Peters and

Peters the precedent for Knight.


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V. STATUTES:

From the Text:

Things to consider about an ordinance:

The justification: What leads to the enactment of this ordnance- insufficiency of the

common law or easier application of a statutory rule rather than a common law rule.

The effect:

o The effect on the common man

o The effect on the common law: does it clarify it or displace it.

The meaning :

o Legislation is never completely clear and often requires 'interpretation'.

o

Cases that fall in the 'grey area' of the law and how they should be adjudicated.

Differences between Statutory and Common Law:

Authority:

o Statutory law involves the consultation of an 'authoritative text'.

o In common law, the most important thing is what a court 'did'. The language of a

court could be interpreted in many ways, or discarded as dictum by future courts.

Source of Law:

o Common law is a product of litigants and courts and the body of cases

generated.o Statutes are a product of issues and legislatures. They are based on binding

statements of the law. By the theory of 'legislative supremacy', subject to constitutional

limitations, a statute trumps other sources of law.

Class Notes on Chapter 5 Statutes:

What roles do judges have in interpreting statutory law.

Statutory law is what more modern lawyers spend most of their time doing

Certain areas of law are dominated by statutes.

Some Points on Statutes:

Common law has to be on cases already brought to court.

Judges making broad statements about classes of cases in common law would be

considered a violation of the principle of common law where a judge can only decide on the

case before him and anything else he says is dictum.


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On the other hand, a statute can cover a broad range of hypothetical which need not

have been adjudicated on and need not be confined to one class of cases.


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VI. THEORIES OF STATUTORY INTERPRETATION:

1. Courts as 'Agents' of the Legislature:

a. Traditional Intentionalism:

o The intent of the statute is the law. Courts should 'advance the will of Congress'.

o The 5 cases in chapter 5 purported to carry out the will of congress through

legislative intent, disagreeing only over what the intent was and how to determine it.

o Intentionalism attempts to curb judicial policy making.

o Sources of Statutory interpretation: legislative history, reports of congress,

language, structure, etc: gives judges a better handle on intent.

b. Doubts about legislative intent:o Fictional Intent: This is a theory advanced bylegal realistswho attacked the

idea that judges are apolitical and a legislature with multiple people can have a single

intent.

An example of this is inDeemwhere the court could not have thought

about murderous devisees taking under the 'statute of descents'.

o Public Choice Theory:

This assumes that people are 'egotistic, rational utility maximizers' in

political as well as economic areas. Many if not most public problems arenot

resolves by legislatures.

The factors that influence legislators are: Self-interestas a result ofinterest group pressureswhich is

powerful because of thelegislator's chances for re-election.

Strategic choicesandlogrolling: 'you vote for my bill I'll vote for

yours' is more of an influence than any sincere pursuit of sound policy or

the public interest.

Legislation is an incoherent compromise, directly or indirectly negotiated

by private interest groups.

Arrow's Theorem: Nobel laureate Kenneth Arrow showed that given

certain assumptions, it is impossible to design a voting system that will relaibly

represent majority preferences. The outcomes are hugely contingent on who

controls the agendaand theorder in which alternativeare considered.

Public Choice Theoryflies in the faceof theIntentionalist Modelof

Statutory Interpretation.

o Agents of a Principal Without intent:


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These theories view the judiciary as a subordinate to the policymaking authority of the

legislature, but move away from the preocupation with 'legislative intent'

o Broadening Intentionalism:The court might still defer to legislative authority by

Determining what thelegislature would have decidedif ithadthought

about the issue.

Determiningwhat resolution if most consistentwith the broad

purposes underlying the statute.

Imaginative Reconstruction:

Put yourself in thelegislator's shoesand decide how they would

have wanted the statute applied to the case.

If not, decide whatattribution of meaningto the statute would

produce a reasonable result.

Criticism:Judges do not have therequisite imaginationto

decide what the legislators would have wanted done and the judges will

vote hisown preferencesand decide that that was what the legislaturewanted done.

Posner says (For step 1):Thejudge's roleis not to keep a

statute up to date in the sense of making it reflect contemporary values but

to imagine as best be can how the legislators who enacted the statute

would have wanted it appliedto situations they did not foresee.

Posner (step 2):Thereasonable resultwill require some

information as to thepurposeof the statute or what makes good law and

what options are available. Posner is influenced by thepublic choiceview

of things.

Attribution of Purpose: Intent v. Purpose: 'Intent'refers to what the legislature meant:

the specific understanding it had in mind: the immediate motive (buying the

desired kind of milk).'Purpose'is what the legislature ultimately sought to

accomplish: its ulterior motive (using the milk to feed a child/bake a

cake/lose weight).

Hart and Sacks Approach:This is an approach that considers

law to bea purposive activity. It assumes that "every statute must be

conclusively presumed to be apurposive act. The idea of a statute

without a intelligible purpose is foreign to the idea of law and inadmissible".

It assumes that "legislature was made up ofreasonable persons

pursuing reasonable purposes reasonably". Thus we must carefully

consider thecontext of the statuteto decide what purpose out to be

attributed to it. In their opinion,purpose is even more important that text

since the words, in historical context, limit the meaning the statutes can

bear.


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o Narrowing Intentionalism:

Textualism:

Finding theobjective meaningof the text.

AsScaliahas said, the court's task is 'not to enter the minds of

the members of congress- who have nothing in mind in order for their votes

to be both lawful and effective- but rather to give fair and reasonable

meaning to the text of the United States Code'.

Therefore in buying that milk, you use theaverage person's

understandingof thewordmilk.

In its strongest version, the textualist approach forbids reference to

anything but statutory text in any and all cases. This almost makes the

judge theagent of the statute.

Wadsworthhad a strong strain of textualism.

Textualism's justification is that the text is illuminating and that

other sources are illegitimate and hardful. Beady Eyes:

Under thePublic Choice Theorya statute had no intent, only and

outcomeand a court's duty is to respect that stopping point.

The domain of the statute should be restricted tocases

anticipatedby the framers andexpressly resolvedin the legislative

process.

Thus, if the case is notspecifically covered by the statute, it

reverts to whatever other sources of resolution are available,notably the

common law.

This theory was put into words byJudge Frank Easterbrook: He said that

the work of legislation was to achievegoals through rules.The selection

of the rules is a measure of what the goal was worth to the legislature, how

best to achieve the goal and where to stop in the pursuit of the goal. Thus

he wouldagree with Wadsworthbecause there, the goal was to stop

murderous devisees from taking and the rule was to deny inheritance to

those convicted of killing the decedent. While the rule in that case was

underinclusive, the courtrefused to addto the rule because doing so

would 'get more of the goal' than the legislature wanted got from it- doing it

wouldoverridethe legislative selection of ways to achieve it.

2 Courts and Legislatures as Lawmaking 'Partners':

o This involves the court making decisions after the legislature makes decisions, in

a sequential manner. Thus, the court makes decisions within the boundary of the

legislature's language. Bringing backskim milkbecause it is the healthiest.


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o Statutory Interpretation should be acreativeact. This concept says that judges

can advance progressivesocial policywithout imposing their own values onto

statutes.

o The court inRiggsused this approach. It refused to be bound by a literal reading

of the text. It invoked what isreasonableand the claim that all statutes can be

controlled in the application bymaximsof the common law.

o Professor WilliamEskridge's description ofdynamic statutory interpretation.

As the societal, legal and constitutional context of the statute changes, its

interpretation changes. It involves the reconciliation of the 3 perspectives:

The statutory text

The original legislative expectations surrounding the statute's creation

The subsequent evolution of the statute and its present context.

o Using themilitary analogy, whatever else the officer might do, he must not

disobeythe orders.


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VII. CHURCH OF THE HOLY TRINITY:

Church of the Holy Trinity v. United States 143 U.S 457 (1892)

Statement:

This is an appeal by Church of the Holy Trinity to the Supreme Court over the

interpretation of a statutethat stood in the way of them paying for and bringing a pastor

from England to the US.

Facts:

The Church of the Holy Trinity was a corporation incorporated as a religious society and

made a contract with Warren fromEngland to come to NYCas a pastor. He did so. The state says that this contract was forbidden by an 1885 statute.

The statute says that no one is to prepay for transportation or encourage the immigration

of foreigners into the US to performlabor or service of any kind under a contract

decided before them immigrate.

Procedural History and Outcome:

The US claimed that the contract was forbidden under the statute. ?

Customs office through the Solicitor General

Issue (Questions Presented):

Whether a contract signed with a religious pastor to assist with his immigration to the US

is prohibited by a statute that forbids such assistance to foreigners coming to the US to

perform 'labor or services of any kind'.

Holding:

No.The statute is interpreted to only cover assistance tomanual laborersand not white

collar workers.

Reasoning: Precedents:

o US v.Kirby: The sheriff wasn't found to be obstructing the mail by arresting a

mail carrierwho had been indicted for murder.

o BolognianLaw: The surgeon who opened the vein of someone who had a fit in

the streets was not found guilty of 'drawing blood on the streets'.


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o Statute of 1st Edward II: Prisoner not guilty of prison break when fleeing aprison

fire.

Court uses different aspects of the statute tointerpretit:

1 TheTitle of the act: ' under contract or agreement to perform labor'. The

court says that in this case the common understanding of the word 'labor' as work

being performed by a manual laborer is what Congress meant.

2 TheWrong being remedied: This requires looking at thehistoricalcontext and

the situation as it existed. Court reads an excerpt from US v. Craig which shows that is

had become practice forcapitalists to ship in large numbersof ignorant and servile

foreigner laborers. The act was enacted to enhance the quality of immigrants and

prevent the importation of immigrants who didn't have the necessary means to pay

their own passage.

3 In this case, the court also had access to the 'Report of the Committee of the

House' which recommended the passage of the bill. This recommendation states that

the phrase 'labor and service' should be replaced with 'manual labor' which, whilerecommended to help in passage, shows the intent of the bill. It also describes that the

bill is to prohibit the importation of low-wage manual laborers.

Religious Considerations: Justice Brewer cites numerous examples of how this country

was founded on religious lines. He says no legislation can go against religion.

The Court's Four Considerations:

1. The Title of the Act

2. The Evil which was intended to be remedied

3. The circumstances surrounding the appeal to Congress

4. The Reports of the Committee of each house

These all add up to the fact that the intent of Congress was to stay the influx of cheap

skilled labor.

House and Senate Report:

The house report is talking about the issue in general.

The house reportcame first. This is obvious since the Senate Report references the

House report. The House report originates at the lower body and is thus more important and

broader.

They say that there wouldn't have been enough time to send the bill back down, amend it

and send it back up.

'Buy and Hold': could the committee have sat on the issue till closer to adjournment to

force the house's/senate's hand to pass it without the amendments?

Morgan and Blair's Exchange:


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Blair seems receptive of Morgan's argument that the bill is too broad and he says that it

could be amended that if there.

The billdoes get amendedto include artists, which seems to go against Brewer's

argument.

It's hard to use legislative history in a meaningful way.

Expressio unius: If its not in there then its not in there.

If you need so many resources to weigh against the text- is it a valid exercise in statutory

interpretation.

The Court concedes that the Church's act falls under the letter of this section.

'It is a familiar rule that a thing may be within the letter of the statute and yet not within

the statute because not within its spirit nor within the intention of its maker.

The sources of interpretation in HOLY TRINITY:1. Text:Did Brewer give up too quickly?

a. The statute makesspecific exceptionsfor actors, artists, lecturers, singers and

domestic servants. A pastor could have been considered a lecturer for the purposes

of this case.

b. However these all seem to besecular entertainerswho appear to be coming to

the US as a one time thing.

c. The language of the statute isvery broadwith 6 uses of the word 'any'. This

might signify that the exception are the only exceptions to the very sweeping rule.

d. The court should stop with the text of the statute unless its application leads to

anabsurd result. However, there's no real support for that.2. Title:

a. The titledidn'tsay 'manual' labor. The work of the minister could have been

described as work under the letter of the Statute's Title.

b. The official rule:is that the title has to yield to the actual statutory provisions.

c. Froma public choiceperspective, we can never know if the legislature voted

only on the title of the statute and not the text.

3. Purpose:

a. Is the court straying by trying to find the 'purpose' of the statute.

b. In theRiggscase, the court had said there was no way that the court wanted

that outcome and therefore it looked at the purpose of the text.

c. Objections to using purpose:

i. It is not the court's job to rewrite the statute by interpreting the purpose

(Textualism view).

ii. The purpose is theoretically relevant but just too hard to determine. You

can never reconstruct the legislature's actual purpose.


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iii. There is no such thing as legislative purpose (public choice).

iv. The court is not equipped to interpret the statute because they have not

have the relevant training or tools to advance a legislative task. (Beady

eyes/textualism/not sure).

4. Historical and Legislative Context:

a. The Order of the Knights of Labor says they are trying to unite 'all workers by

hand or brain'. Textualists would say that it is irrelevant what the Knights said.

b. The legislature is a group of reasonable people trying to pursue reasonable

policies reasonably.

c. Traditional Intentionalist: There has to be come congruence between what the

Knights of Labor (the interest group) wanted and the act that they helped bring before

Congress.

d. Possner: Put yourselves in the shoes of the legislature and see what factor's

you'd consider.

e. The Knights of Labor had to have represented more labor class thanprofessionals.

f. Anger towards immigrant competitors in the face of an economic depression. As

a descriptive matter, this would lead to broader readings of this statute and narrower

readings of the exceptions.

5. Legislative History:

a. Difference between the House and Senate Reports: The House report talks

about the purpose of the statute, the evil to the remedied. The Senate Report talks

about the language and the specific intent: whether the language is only meant to

cover manual labor

i. The Court is condoning poor draftsmanship. They will bail out the Senate.ii. The Senate voted on the bill and not on the report.

iii. The House version of why they didn't pass the amendment might be a lie

and they didn't pass the amendments because they knew it didn't have enough

votes.

6. Public Policy and the Nature of Things (and Religious):

a. Congress couldn't have meant to do that: Positivist, deferential

b. Court is ignoring the statute to pursue its own policy goals.

c. Assigning the case:should Brewer have been assigned the case: The senior

most judge acts as assignor of the case. Therefore, Brewer had been assigned the

case.Bias: Brewer obviously didn't care that he seemed biased. Contrast that with

justices today who 'refuse' to comment on sensitive issues during nomination.

d. Should the religious part have been left out?

Concluding HOLY TRINITY:


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1. We see every possible approach taken in this one case. Is it a legitimate exercise of

statutory interpretation when only one of the sources (title/legislative history/etc) doesn't

support the conclusion. On the other hand, is looking at the big picture like this the only

legitimate way of statutory interpretation


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VIII.STATUTE CASE SERIES:

Filmore (1910):

Man who was indicted andconvictedofkilling his wifecannot collecton theLife

Insuranceeven though thestatute of descentsdoesn't specifically prohibit it.

Reading into statutory silence: Since the statute doesn't specifically cover it, werevert

to a common law questionand perhaps a question of legislative and judicial intent.

Common Law Maxim: One should not profit from one's wrong.

Deem (1892):

Let the lending companies takeon Elmer's mortgage of his mother's house even

though he hadkilledher- he still inherited under thestatute of descents.

Reading into statutory silence: When the legislature speaks in clear terms the courtsremain silent 'index animi sermo': language determines intent.

Possible notion of him not being punished twice: he was already hanged.

Riggs ( 1889):

Grandsonwho poisons grandfatherdoes not takeunder thewill.

'It could not have been the enactinglegislatures intent'

Reading into statutory silence: They assume that the legislature was silent because

they just didn't think about a situation like this.

The case has a heavy dose ofPosner'sapproach to legislativeimaginative

reconstruction.

Wadsworth (1970):

Man who pled guilty to and is convicted of 'voluntary manslaughter' in killing his wife is

entitled to take under theslayer statutethat only prohibits him taking if it was 1st or 2nd

degree murder.

The statute was later changed, but it was only proactive not retroactive.

Shrader (1985):

Man who hasNOT been convictedof killing his wife in a criminal court isstill barredfrom collectingbecause the civil court, acting as fact finder, decided he did it.

"A statuteshould not be construedto impair pre-existing law in the absence of an

explicit legislative statement to the contrary. "

o Issues:

1 Covered by Statute?No, since the Statute only cover those who are

'guilty' and he hasn't been convicted in a criminal court.


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IX. READING STATUTORY TEXT:

1.CASE OF THE SUSPENDED TEACHER

For all statutory interpretation, start with a careful reading of the text.

Backpay:

Under 44940 (b) the possession and use of cocaine is an optional leave of absence

offense.

He could post a bond if he wants to, it covers

Through a clear plain reading of the statute, he gets backpay.

For the school board: they say he gets backpay only if the employee is acquitted. Youcan argue that the legislature meant that the employee took only if it was proved he didn't do

it.

The penal code part says that if he completes the program, he

Offset:

Even if he does get backpay, it gets offset by the backpay that he got.

The statute is silent on offset

Court says its absurd that he essentially gets 70000 for doing cocaine

Interest:

The question of interest is never discussed in the case

He ends up getting post judgment interest since they take a long time to cut him a check.

The clerk has to decide.

2.FIREARM CASE:

Must look at each offense individually to see if the 924 (c) applies to it.

1. The Larceny:a. Was the gun 'used' in the theft of the gun? The statute says nothing about him

needing to have used it to shoot someone.

b. Definition of a 'crime of violence' in section (3) A and B. Does it apply to larceny?

When you take a firearm, there is a substantial risk that it will be used, which under

3B is a 'substantial risk' of physical force against someone else while the crime is

being committed.


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c. Should he be able to prove that the gun was not loaded?

2. The Robbery Conviction for the mugging of the soldier:

a. He did not actually display the gun. For all practical purposes was he an unarmed

mugger?

3. The 'assault': This is definitely 'using' the gun. Is this a crime of violence? By the

definition in section 3, it appears to be? Congress didn't want 924 to be applied for gun

crimes that were not crimes of violence.

4. Sale of a Controlled Substance: He never mentions the gun during the drug deal, so was

he 'using' it?

5. Possession with intent to distribute:

If you're arguing for Wilson/the govt how would you respond?

X. CANONS OF CONSTRUCTION:

TYPE OF CANONS:

1. Linguistic Canons:

a. These reflect basic rules of grammar and construction.

b. They help identify legislative intent and help the courts in their roles as agents of

the legislature.

2. General Substantive Principles:

a. Frank Policy orvalue choicesthat direct courts toward their particular

substantive outcomes on the face of statutory ambiguity. Eg.Riggs' common law

maxim which states that someone should not profit from their wrong.

b. They are more controversial

3. Expressio Unius est exlusio alterius: Expression of one thing means the exclusion of

the other.Holy Trinityseemed to go against this by saying that though the statute hadmentioned some exceptions, ministers were still included.

a. When a legislature expresslyprovides some informationit creates a setting

whereother information of the same type is expectedto be conveyed. The

legislature is obviously capable of stating other areas in which the statute applies.


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b. ThePrinciple of the Negative Pregnant: Even if something is not inconsistent

logically, it is still expected that it has been excluded because the statute has

mentioned some things in that category as permissible.

c. This principle is easilyabusedwhen we would expect only silence, but there are

some (possibly incomplete) provisions. In these cases silence is found meaningful.

d. Criticism: The primary criticism is that the statute isunrealisticin assuming that

the legislative body had a perfect appreciation for the problems that will be

encountered in the statute's application.

4. Substantive Canons:

These involve two problematic steps:

(1) The premise that the statute isambiguousenough to need to resort to the

application of a substantive canons, and

(2) The locations from which the courtfindsthe substantive canon.

Eg: The 'clear statementrule' which is astrong presumptionthat Congress has or

hasn't done something.

Public Choice v. Expressio Unius:

Public Choice Theory serves to undercut expressio unius since it asserts that there is no real

legislative intent and therefore you can't expect a complete list of exemptions.

However, the Public Choice theory says that statutes are a product of self-serving deals, interest

groups and re-election pressure. Therefore, shouldn't everything that brought about the bill and

that the bill is about be in the body of the statute? Therefore, the bill should have a complete list

of the exemptions.

Just because a particular group 'had the ear' of the legislature, it doesn't mean they are the only

group that merits inclusion under the statute. This is a caution against the use of expressio

unius.

Easterbrook (p. 328): Endorses expressio unius because if its not in the statute, then the interest

groups didn't strike a deal to put it in there, and therefore its not covered?

GREGORY v. ASHCROFT Case Brief:

Statement:

This is an action by a State Governor seeking clarification of whether judges are excluded

from the provisions of a statute on the grounds that they are 'appointees on the

policymaking level'.


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Facts:

The statutes does not apply to an 'appointee on the policymaking level'

Thegovernor contendsthat this includes judges since they are appointed by an elected

official and they make policy, therefore they are 'appointees on the policymaking level'.

Thejudge claimsthat judges merely resolve factual disputes and decide questions of

law.

Issue:

Whether a judge is an 'appointee on the policymaking level' for the purposes of a statute

that doesn't apply to such people.

Holding:

Yes.

Reasoning:

Court decides that it must be 'plain to anyone reading the act that it covers judges'. It is

not plain to see, therefore it does not cover judges.

'Appointees on the policymaking level' is sufficiently broad that it would include state

judges. Therefore, they are excluded from the statute.

Dissent:

This ruling imposes a 'plain statement' requirement on Congress. The plain statement

approach has never been extended this far and it is odd that it is being extended that far

now. Congress has specified that 'individuals employed by any employer' are exempt, unless

they are expressly excluded. However, the majority opinion seems to require them to be

expressly included instead of it being sufficient that they are not specifically or clearly

excluded.

Substantive Canons are different because they are promoting policy preferences rather than act

as neutral guides to legislative meaning.

Justice O'Connor was an advocate of state's rights.

The court finds that the provision is unclear. We see an application of theclear statement rule.

Therefore, it is pretty much enough for the court to just say that the statute is 'unclear'.Holy

Trinitywas a kind of application of the clear statement rule. Brewer wasn't going to read that the

statute excluded ministers without a clear statement to that effect.


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Whether a man is guilty of perjury even is he fulfills only one clause of an 'or' construction in

a statute.

Holding:

Yes

Reasoning:

Legislative Intent takes priority over statutory language. A court must construe a federal

statute so as to give effect to the intent of Congress.

Since Congress intended for this man to be guilty, the 'or' is considered a conjunctive.

NOTES FOR THE FINAL EXAM:

2 parts: Common Law and Statutory Sections. Draft Outlines, think quickly, timewillbe a factor.

Unlike older exams, there arenoshort answers, just 3 essay questions on each part.

Bringing a laptop means youhaveto take the test on it.

No page or word limitations.

Point Spread: Will be given but is not set in stone. Points assigned toeach issueand

each analysisin each question. Points will be given forissue and depth. Judge which

issue require deeper analysis and engage in it.

Don't overcomplicate issues and pick your battles.

Common Law Session:

Which side are you advocating and at which point in the case are you procedurally. Think

about what the procedural posture is during the response.

What is the task and what are the standards employed in the task. Think about the

standards employed for each motionand decide what facts you'd use to support your

posture.

Discuss theapplication of the rule.

If there is apublic policyargument, make it.

Use the case series and class notes.

Be fluent with the cases she gives during the exam. AVOIDbeing conclusiary. Make arguments, not answers.

Don't avoid bad cases.You won't always have good cases on your side, so include bad

cases and make bothanalogiesanddistinctions.

If asked to describe thelikelihood of success, don't give a definitive answer. Are you

able to evaluate your argument when you step back from it and classify it asstrongor

weak.


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Feel free to useshort handlike P and D.

Quotefrom cases, but she'd rather see our own language.

Answers don't have to be long or narrative. They just have to be clear and can be

concise.

Youdon'thave to cite the case, just use aone word citationlike Knight.

Get your answer on paper.

Don'trecite the facts to her. Use the facts in clear arguments.Don'tuse rhetorical

questions.

Write full sentences and narratives not outlines.

Are cases that have been overruled still good law?Pay attention to dates!!

Statutory Materials:

We'll be given a statute that is a little unclear on certain points.

Resolve the unclear points. Read

Interpret

Who are you and what is your task to accomplish

Cite to the state for language you're basing your argument off of.

Start with the text. Dont just straight to intent. The problem will become clear through

focusing on the test. Cite a quote from the statutory provisions.

Do want toalwaysgo beyond the text.

She doesn't need to treatise on what approach you'd be using. Just mention what

approach you are using in each part: 'an intentionalist would say'.Use as many

approaches as you can and as many as the statute can bear.Even if the approached

don't support what you're trying to say.

Cite back to statutory cases.

Summary Judgment: What is the standard for winning a summary judgment. If you are a judge

used to adjudicate the issue

Should we take the P's facts as true, what do the P and D need to do in terms of facts.

There had been no fact finding, therefore assuming the Plaintiff's facts are true This would

change at other stages of the case.


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