1 Agenda for 21st Class Review of Rights Realism and Cohen Intro to Rules & Standards Before Class Name plates out Slide handouts Assignment for Next Class Read #128 (pp ) Questions to Think About / Writing Assignment for Group 1 –Pp. 612 ff. Questions 4, 5, 7, 8

2 Summary of Rights Rights as “trumps” or “side constraints” (Nozick, Dworkin) –Some things cannot be done to individuals unless they consent, even if there would be large benefits to others Utilitarians –Rights are ordinarily the best way to maximize utility People are generally happy if they know their liberty and bodily autonomy will not be violated BUT in extreme situations rights should give way to benefit to others Intermediate position –Rawls. Limitations on liberty ok, if shared by all and beneficial to all Gould virus –In reality, benefits and burdens are never shared precisely equally –With power to tax, restrictions on liberty can often be transformed into inducements to consent Is there a real difference? Nozick and libertarians – limit power to tax Liberals – poverty makes poor susceptible to economic coercion

3 Theories of Adjudication Formalism –Legal reasoning is primarily logical reasoning –Judges should not rely on moral or policy reasoning Realism –Logical reasoning cannot answer many legal questions –Legal reasoning does and must incorporate moral and policy reasoning Natural Law –Legal reasoning does and should incorporate unenacted principles –These principles are part of the legal system and distinct from policy reasoning

4 Legal Realism Textual interpretation and logic cannot resolve all legel issues Functionalism/Pragmatism. Meaning of legal concepts is found in their consequences. –To determine legal rule, analyze consequences of proposed rule and possible alternatives –Choose legal rule which has the best consequences Reasoning of judges is and should be similar to that of legislature Much traditional legal reasoning is metaphysical scholastic, equivalent to arguing “how many angels can stand on the point of a needle.”

5 Questions on Cohen 11. Reread International Shoe in your Civil Procedure casebook. To what extent does International Shoe reflect Cohen’s critique of Tauza? Are there particular passages which adopt Cohen’s reasoning? To what extent does International Shoe differ from Cohen’s vision of how a court should decide personal jurisdiction questions? Are there particular passages which Cohen would have disagreed with? 12. What Cohen calls the “functional approach,” with its emphasis on consequences, would today probably be described as a “pragmatic” approach. How pragmatic is the reasoning in International Shoe and subsequent cases, such as World-Wide Volkswagen? Do the Supreme Court’s criteria for personal jurisdiction – “minimum contacts,” “purposeful availment,” etc. – correspond to the considerations that Cohen thinks a “competent legislature” would have considered? Can you think of rules which would better satisfy Cohen’s desire for a pragmatic law of personal jurisdiction? If so, why don’t you think the Supreme Court has adopted them?

6 Questions on Cohen 7. Cohen finds it remarkable that one of “the most intelligent judges in America can deal with a concrete practical problem of procedural law and corporate responsibility without any appreciation of the economic, social, and ethical issues which it involves.” The author of Tauza, Judge (later Justice) Cardozo, is widely respected as a progressive jurist. Do you think that Cardozo really had no “appreciation” for the economic, social, and ethical issues raised by the question of whether the out-of-state corporation could be sued in New York? Or is it possible that Cardozo fully “appreciated” these issues, but chose not to talk about them? Could the latter be a legitimate judicial method? Even if the judge actually reached his conclusion on ethical, economic, or social grounds? 8. Cohen says that if a “competent legislature” had considered the matter, if would have made some useful factual and policy inquiries, of the sort that Cardozo completely ignores. Do you think that a real legislature would base its conclusion on such inquiries? Perhaps real legislatures talk about facts and policy, but reach decisions on political grounds, while real judges talk about semantic and metaphysical questions (is the corporation really in the state?), but reach decisions on factual and policy grounds. Does Cohen’s invitation to functionalism lose its luster if that is the way the real world (often) works?

7 Rules & Standards I Rule – law that requires adjudicator to make determinations that are primarily factual –E.g. Speed limit, whether contract in writing Standard – law that requires adjudicator to make judgments about what is permissible –E.g. “reasonable person” standard for negligence, pleading standards Advantages of rules –Easier to predict liability Unless rule gets very detailed and/or complicated –Cheaper to administer, litigate

8 Rules & Standards II Advantages of Standards –Easier to draft –Can be interpreted to prevent evasion –Applications can be better tailored to circumstances May be reasonable to exceed speed limit, if driving injured person to hospital Rules are often over-inclusive or under- inclusive –Driving age of 15.5 Over-inclusive. Some 16 year olds are not safe drivers Under-inclusive. Some 14 year olds would be safe drivers

9 Rules & Standards III Continuum between rules and standards –Negligence is pure standard –Sentence enhancements in Smith and Diamond are rules –Title VII is mixture Bans discrimination, does not allow allow judge to consider rightfulness of discrimination in circumstances But determining what discrimination is itself requires judge to make judgments about what is permissible (not just factual judgments) Legislation often incorporates both –Specific rules plus catch-all standard Tax law Title VII Adjudication can transform standard (or part of standard) into set of rules –Precedents may make clear that certain actions are negligence –Precedents may make clear that certain actions are anticompetive Rules more suitable when similar situation recurs Standards more suitable when dealing with uncommon events