1. 1 Misc. –Name plates –Lunch on Friday National Society In re Blanche Flower Introduction to Common Law Agenda for 3rd Class

2. 2 Assignment for Next Class Read Materials #127 (pp. 581-590) –Winterbottom v Wright, Thomas v Winchester, Loop v Litchfield –NOT Devlin v Smith Questions to think about & Writing Assignment for Group 1 –Questions following the 3 cases you read (pp. 583-84 587- 88, 590

3. 3 Review of Last Class I Weber Intentionalism, like textualism, doesn’t always determine a unique outcome Legislators often don’t foresee the legal issues, like voluntary affirmative action, that will come up, so neither text nor legislative history is likely to squarely address those issues Purposivism may also lead to different results, because it is usually possible to think of different purposes Dworkin. When strictly legal tool run out, then judge should choose solution that is best as a matter of political morality AND consistent with text, legislative history, and plausible purpose Query. Do strictly legal tool ever really run out? Does one side always have arguments that are at least slightly better? Query. Why choose based on political morality rather than economics or some other basis? Historical note. Union may not have been as racist as portrayed

4. 4 Questions on p. 45ff. (cont.) 5. The Garrett excerpt on statutory interpretation (reading #7) refers to a theory of statutory interpretation which states that the relevant intentions are those of “pivotal lawmakers whose support is necessary for enactment.” Consider the following drastic simplification of the debate over Title VII. Congress was composed of three groups. 40% were racists who opposed equal treatment for African Americans. They would vote against any civil rights bill. 40% were ardent advocates of civil rights, who favored not only equal treatment, but affirmative action, quotas, and other means of swiftly integrating African Americans into the mainstream of American life. Although ardent advocates of civil rights would favor a bill which allowed affirmative action, they would support a bill which required only equal treatment. 20% were moderates who favored color-blind decisionmaking and equality of opportunity, but who opposed (and would vote against any bill that permitted or required) affirmative action or quotas. In this situation, the pivotal lawmakers are the moderates. So, according to the theory that statutes should be interpreted in accordance with the intentions of the pivotal lawmakers, Title VII should have been interpreted to forbid affirmative in United Steelworkers v, Weber. Does it make sense to interpret Title VII this way, even though two-thirds of those who supported the statute would have favored a contrary outcome?

5. 5 Questions on p. 45ff. (cont.) 6. Title VII also forbids discrimination on the basis of sex. This provision was inserted by opponents of racial equality who thought that gender equality would be so unpopular among legislators that even those who favored racial equality would vote against the bill. There was no debate on banning gender discrimination, and Title VII eventually passed. How would an intentionalist interepret Title VII’s provisions relating to gender discrimination? Would an intentionalist refuse to enforce Title VII’s ban on gender discrimination even in blatant cases, such as a case where an employer announced it would not hire any women? 7. Do you agree with Dworkin’s analysis?

6. 6 National Society of Prof. Engineers Engineering Society Code of Ethics forbade competitive bidding Sued by US Government for violation of antitrust laws Sherman Antitrust Act states “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.... Sherman Act interpreted according to Rule of Reason, which focuses on “challenged restraint’s impact on competitive conditions.” –Restraint legal if serves competition Covenant not to compete with sale of bakery –Congress has made “policy decision” that “favoring competition is in the public interest” Ct. for plaintiff –Ban on competitive bidding has detrimental impact on competitive conditions Not outweighed by concerns for safety or quality Good example of purposivist interpretation –Vague statute interpreted to foster competition, efficiency –References to intent are weak and historically inaccurate

7. 7 National Society of Prof. Engineers 1. If the text of § 1 of the Sherman Act were interpreted literally, who would win this case? Be sure to consider textual arguments for both sides. See the first footnote in Section II of the opinion for the full text of the Sherman Act. 3. Some historians argue that the lawmakers who enacted the Sherman Act were more interested in protecting small producers than in protecting consumers. That is, they might disfavor unfettered competition that led to a small number of large firms to dominate the market, even if such competition would lead to lower prices and higher quality for consumers. How might the outcome of this case change if the Court were to adopt that interpretation of legislative intent? Note that, in many contexts, unrestrained price-competition leads to the dominance of a few large firms.

8. 8 National Society of Prof. Engineers 4. Suppose that the Court is correct that Congress intended courts to “draw on the common-law tradition.” Does that mean that the common law is frozen in the state it was in 1890, when the Sherman Act was passed? For example, suppose that courts in 1890 had held that manufacturers could not fix the prices at which retailers sold their products (a practice called resale price maintenance). Suppose, further, that advances in economic theory suggested that resale price maintenance benefited consumers by giving retailers incentives to provide better service. Would it be permissible for a court to allow resale price maintenance?

9. 9 In re Blanche Flower

10. 10 Common Law Interpretation I Common law means many things –Body of law established by judicial decisions Not based on statute or Constitution Most of US contract, tort, and property law “Judge made law” –Opposite of civil law Common law is legal system derived from England and used in US, Canada, Australia and other former English colonies Civil law is legal system derived from France, Germany, or other continental Europeans systems in used in their colonies as well as in Japan, China, and other countries which voluntarily adopted such legal systems –Opposite of equity –Any judicial interpretations, even if of statute or the US Constitution “common law” of Sherman Antitrust law In this course, especially in this section, focus is on first meaning of common law

11. 11 Common Law Interpretation II Common law built up case by case by judges trying to do what seems both consistent with precedent and just –Prior cases inevitably leave undecided questions, which judges must try to resolve –Language of prior decisions not as important as language of statutes No one is a textualist when it comes to common law interpretation –Policy, what seems just, is more important Although judges are not always explicit about policy or vision of justice which justifies their decisions

12. 12 Common Law Interpretation III Holdings –Rule of law is not always stated in case itself –Even if rule of law is stated in case itself Later judges not bound by that statement of holding –Later judges are free to interpret case in different way Free to construct different holding, as long as consistent with facts and law –Example Case 1. Facts: Loaded gun traded for drugs –Decision. Violation of 924(c)(1) –Rule stated in case: trading gun for drugs violates 924(c)(1), because guns increase the danger of violence in drug transactions Case 2. Facts. Unloaded gun traded for drugs –Could might say holding of Case 1 was “trading loaded gun for drugs violated 924(c)(1),” because trading an unloaded gun does not make the drug transaction any more dangerous –Holding is rule that is consistent with facts and outcome, and for which can make plausible policy argument.