1. 1 Weber (C2-E only) National Society (A-C1 only) In re Blanche Flower Common Law cases Agenda for 4th Class

2. 2 Assignment for Next Class Common Law Cases Handout II Questions to think about & Writing Assignment for Group 4 –All questions in second Common Law cases handout

3. 3 Review of Last Class I Weber Intentionalism, like textualism, doesn’t always determine a unique outcome Legislators often don’t forsee 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?

4. 4 Questions on p. 45ff. (cont.) C2-E only 4. How would you classify Justice Blackmun’s concurrence? Is it textualist? Intentionalist? Purposivist? Something else entirely? Did you find it persuasive? 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?

5. 5 (A-C1 only) 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

6. 6 In re Blanche Flower

7. 7 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

8. 8 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 Question in handout