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 by judicial 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 lead
to unpredictability in social and financial interactions. Law is a precondition for a
robust economy.
Precedent gives 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 the actual people that 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.

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 Law are 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.

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 is summary and is done on affidavits and summaries alone. There is no
live legal proceeding.
Differences between motions for dismissal and summary judgment:

o
o

For dismissal, the motion often occurs early on. Summary judgment usually
occurs after the discovery stage since more facts are required.
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: the question and answer session among 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 sampling
of 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 nonconsecutive 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 a prima facie case which is a case which has facts that the
burden of proof lies on the plaintiff.
o
The burden of production: In a civil proceeding the P must convince the jury that
its case is 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 a criminal case requires convincing a jury beyond 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 law is 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.

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.

III.

MOTIONS:

A Complaint is Filed and then a Summons is Served.

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 an answer, which is a formal
document responding each of 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 as
a matter of law because:
1
The Facts alleged by the plaintiff do not amount to a cognizable claim.
2
The Law does not recognize the defense advanced by the plaintiff.
3
There are no material facts in dispute an the judge can determine the winner
as a matter of law.
o
Pretrial Motions:

Motion to Dismiss:

Demurrer: This is a motion to dismiss for failure 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 are no material facts in dispute that 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 a factfinder:
either judge or jury.

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 as voir dire.
Trial:
o
After the opening statement, there is a direct examination and a cross
examination. If anything is done in a manner which violated the rules of evidence, the
opposing lawyer can object. After this, the plaintiff rests.
o
This is when only the defendant can motion for a directed verdict, saying that
even if the court accepts the evidence as the plaintiff has presented, it must still direct
a verdict for the defendant as a matter of law because in 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 is taken away from the jury.
o
To establish a prima facie case, 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 could reserve judgment, 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, both parties can move for a directed verdict. The
plaintiff would argue that the defendant's version of the events if no defense.
Judge's 'Charge':
o
The judge issues instructions to the jury which states the law which the jury will
apply in reaching its ultimate conclusion.
o
Lawyers on both sides submit, before the closing 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 can
choose to take the claim away from the jury and 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.

The trial court needs to have committed a reversible error because of which the
appellant has experienced some prejudice.

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

court acknowledges that no duty is generally owed by a landowner to a trespasser

and cites the New Hampshire case of Frost v. Railroad. However, here the court
refuses to apply that rule to children of tender years who lack the judgment to
appreciate and avoid danger. Therefore, the railroad owes children a duty of care in
proportion to their lack of judgment. The court says it is for a jury to decide whether a
landowners conduct, in view of all the evidence, was negligent.

From this, the notion of ATTRACTIVE NUISANCE is created. A landowner may be

held liable for injuries to children trespassing on the land if the injury is caused by a
hazardous object or condition on the land that is likely to attract children who are
unable to appreciate the risk posed by the object or condition. 'It is a matter of
common sense that a child of immature years is expected to exercise only such
case and self-restraint as belongs to childhood.

Peters v. Bowman I (1896)

Can a landowner be liable for a death occurring with a naturally occurring phenomenon
or body of water on his property?
Water is natural and ordinary, and its dangers are visible and obvious even if it is
dangerous. Here, the pond was open and apparent. This case is distinguished from
Barrett because the pond was natural. The defendant/landowner did not build it and had
no control over it. Landowners are under no duty to enclose or otherwise protect or
destroy naturally occurring bodies of water on their land to safeguard them against
injuring trespassers.
The exceptions to the general rule that landowners owe no duty to trespassers do not
apply in this case because a) bodies of water are natural dangers that are open and
obvious; and b) the turntable cases exception only applies where the defendant erected
the dangerous machinery on his property, not where the landowner had no control over
the situation.
For the court to hold the landowner responsible for the danger of naturally occurring
water on property would create an impossible burden on members of society to protect
all children. The responsibility for protecting children falls to their parents.

Peters v. Bowman II (1897)

Very similar to the previous case. This was a naturally occurring pit that filled with water
but was decided in the same way as before. Still duty for the parents, Barrett remains the
only exception. Owner's liability depends on character of the dangerous and attractive
thing.

The courts sets a standard for gratings and others so that there are less exceptions
made to the rule.

This resulted from a petition 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 involves
an 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 their inability to
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'

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 and
ordinary 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.
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.
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.

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 their JNOV. 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 decide in light of all the circumstances and there
are no inflexible rules, the decision is a question of fact.
What is important is not whether the danger is common, but whether it can be fully
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:

General demurrer to the complaint was sustained with no leave to amend, prompting
appeal.
From Coutrell it is up to a trier of fact to determine whether the child was injured by a
risk not obvious to her.

Section 339 of the Restatement of Torts

1.
2.
3.

4.

A landowner is liable for injury sustained by a young trespassing child on a structure or

artificial condition on his land when:
He is should know that children are likely to trespass there.
He should know about the condition and that it poses an unreasonable risk of injury to
trespassing children.
The children because of their youth dont either:
a.
Discover the condition or
b.
Realize the danger accompanying it
Cost/Benefit: The utility to the landowner is slight compared to the risk to young
children.
Excludes things done in a spirit of bravado where 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:

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.

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.

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.

VI.
1.

THEORIES OF STATUTORY INTERPRETATION:

Courts as 'Agents' of the Legislature:

a.
o
o
o
o

b.
o

Traditional Intentionalism:
The intent of the statute is the law. Courts should 'advance the will of Congress'.
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.
Intentionalism attempts to curb judicial policy making.
Sources of Statutory interpretation: legislative history, reports of congress,
language, structure, etc: gives judges a better handle on intent.
Doubts about legislative intent:
Fictional Intent: This is a theory advanced by legal realists who attacked the
idea that judges are apolitical and a legislature with multiple people can have a single
intent.

An example of this is in Deem where the court could not have thought
about murderous devisees taking under the 'statute of descents'.
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 are not
resolves by legislatures.

The factors that influence legislators are:

Self-interest as a result of interest group pressures which is

powerful because of the legislator's chances for re-election.

Strategic choices and logrolling: '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 agenda and the order in which alternative are considered.

Public Choice Theory flies in the face of the Intentionalist Model of

Statutory Interpretation.
Agents of a Principal Without intent:

These theories view the judiciary as a subordinate to the policymaking authority of the
legislature, but move away from the preocupation with 'legislative intent'
Broadening Intentionalism: The court might still defer to legislative authority by

Determining what the legislature would have decided if it had thought

about the issue.

Determining what resolution if most consistent with the broad

purposes underlying the statute.

Imaginative Reconstruction:

Put yourself in the legislator's shoes and decide how they would
have wanted the statute applied to the case.

If not, decide what attribution of meaning to the statute would

produce a reasonable result.

Criticism: Judges do not have the requisite imagination to

decide what the legislators would have wanted done and the judges will
vote his own preferences and decide that that was what the legislature
wanted done.

Posner says (For step 1): The judge's role is 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 applied to situations they did not foresee.

Posner (step 2): The reasonable result will require some

information as to the purpose of the statute or what makes good law and
what options are available. Posner is influenced by the public choice view
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 be a purposive activity. It assumes that "every statute must be
conclusively presumed to be a purposive 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 of reasonable persons
pursuing reasonable purposes reasonably". Thus we must carefully
consider the context of the statute to 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.

Narrowing Intentionalism:
Textualism:

Finding the objective meaning of the text.

As Scalia has 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 the average person's

understanding of the word milk.

In its strongest version, the textualist approach forbids reference to

anything but statutory text in any and all cases. This almost makes the
judge the agent of the statute.

Wadsworth had 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 the Public Choice Theory a statute had no intent, only and
outcome and a court's duty is to respect that stopping point.

The domain of the statute should be restricted to cases

anticipated by the framers and expressly resolved in the legislative
process.

Thus, if the case is not specifically covered by the statute, it

reverts to whatever other sources of resolution are available, notably the
common law.
This theory was put into words by Judge Frank Easterbrook: He said that
the work of legislation was to achieve goals 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 would agree with Wadsworth because 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 court refused to add to the rule because doing so
would 'get more of the goal' than the legislature wanted got from it- doing it
would override the 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 back skim milk because it is the healthiest.

Statutory Interpretation should be a creative act. This concept says that judges
can advance progressive social policy without imposing their own values onto
statutes.
The court in Riggs used this approach. It refused to be bound by a literal reading
of the text. It invoked what is reasonable and the claim that all statutes can be
controlled in the application by maxims of the common law.
Professor William Eskridge's description of dynamic 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.

Using the military analogy, whatever else the officer might do, he must not
disobey the orders.

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 statute that 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 from England to come to NYC as 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 perform labor 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 to manual laborers and not white
collar workers.

Reasoning:
Precedents:
o
US v. Kirby: The sheriff wasn't found to be obstructing the mail by arresting a
mail carrier who had been indicted for murder.
o
Bolognian Law: 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'.

1.
2.
3.
4.

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

fire.
Court uses different aspects of the statute to interpret it:
1
The Title 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
The Wrong being remedied: This requires looking at the historical context and
the situation as it existed. Court reads an excerpt from US v. Craig which shows that is
had become practice for capitalists to ship in large numbers of 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, while
recommended 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:

The Title of the Act
The Evil which was intended to be remedied
The circumstances surrounding the appeal to Congress
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 report came 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:

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 bill does get amended to 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:

Text: Did Brewer give up too quickly?
1.
a.
The statute makes specific exceptions for 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 be secular entertainers who appear to be coming to
the US as a one time thing.
c.
The language of the statute is very broad with 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
absurd
result. However, there's no real support for that.
an
Title:
2.
a.
The title didn't say 'manual' labor. The work of the minister could have been
described as work under the letter of the Statute's Title.
The official rule: is that the title has to yield to the actual statutory provisions.
b.
c.
From a public choice perspective, 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 the Riggs case, 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.

iii.
iv.

4.

5.

6.

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

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

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

VIII. STATUTE CASE SERIES:

Filmore (1910):
Man who was indicted and convicted of killing his wife cannot collect on the Life
Insurance even though the statute of descents doesn't specifically prohibit it.
Reading into statutory silence: Since the statute doesn't specifically cover it, we revert
to a common law question and 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 take on Elmer's mortgage of his mother's house even
though he had killed her- he still inherited under the statute of descents.
Reading into statutory silence: When the legislature speaks in clear terms the courts
remain silent 'index animi sermo': language determines intent.
Possible notion of him not being punished twice: he was already hanged.
Riggs ( 1889):
Grandson who poisons grandfather does not take under the will.
'It could not have been the enacting legislatures 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 of Posner's approach to legislative imaginative
reconstruction.
Wadsworth (1970):
Man who pled guilty to and is convicted of 'voluntary manslaughter' in killing his wife is
entitled to take under the slayer statute that 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 has NOT been convicted of killing his wife in a criminal court is still barred
from collecting because the civil court, acting as fact finder, decided he did it.
"A statute should not be construed to 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.

Barred by Common Law? Yes. Under the Filmore precedent which bars
someone who has intentionally and feloniously killed someone from taking.
3
Killer's Identity established by Civil Court? Yes, because the common
law rule 'one cannot profit from one's wrong' is a civil concept, the civil courts
are the proper forum to determine the identity of one who has intentionally and
feloniously caused the death of another.
2

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. You
can 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:

1.

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

2.

3.

4.
5.

c.
Should he be able to prove that the gun was not loaded?
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?
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.
Sale of a Controlled Substance: He never mentions the gun during the drug deal, so was
he 'using' it?
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 or value choices that 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 Trinity seemed to go against this by saying that though the statute had
mentioned some exceptions, ministers were still included.
a.
When a legislature expressly provides some information it creates a setting
where other information of the same type is expected to be conveyed. The
legislature is obviously capable of stating other areas in which the statute applies.

The Principle 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 easily abused when we would expect only silence, but there are
some (possibly incomplete) provisions. In these cases silence is found meaningful.
Criticism: The primary criticism is that the statute is unrealistic in assuming that
d.
the legislative body had a perfect appreciation for the problems that will be
encountered in the statute's application.
b.

4.

Substantive Canons:
These involve two problematic steps:
(1) The premise that the statute is ambiguous enough to need to resort to the
application of a substantive canons, and
(2) The locations from which the court finds the substantive canon.
Eg: The 'clear statement rule' which is a strong presumption that 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'.

Facts:
The statutes does not apply to an 'appointee on the policymaking level'
The governor contends that this includes judges since they are appointed by an elected
official and they make policy, therefore they are 'appointees on the policymaking level'.
The judge claims that 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 the clear statement rule.
Therefore, it is pretty much enough for the court to just say that the statute is 'unclear'. Holy
Trinity was 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.

The Clear Statement Rule is derived from the Tenth Amendment. The constitutional source
lends it legitimacy.
If it had been semi-clearly stated, why should the principle of federalism, as promoted by
O'Connor, trump legislative supremacy.
The clear statement rule makes Congress' job harder. The rule is either superfluous since it
confirms a result that would have been true anyway or its just wrong because it cannot be
practically implemented in a statue.
Watered-down version of the absurdity rule. (Cross Reference This).
REVIEW: How common law deals with ambiguous statute and what sources are available
How legitimate are these approaches to statutory interpretation?
How qualified as judges to find and employ the sources that are required to engage
As advocates dealing with statutory cases arguing that a statue does or doesnt apply, how to do
we approach or apply those arguments to courts? What is the advocate's role and how do we
apply those arguments?

SCRIMGEOUR Case Brief:

United States v. Scrimgeour (1981)
Dispute over the word 'or': whether it is being used as a disjunctive or a conjunctive in the
wording of the statute.
Statement:

Facts:
Guy made false material declarations before a grand jury then reappeared and said they
were false.
He is being prosecuted under a statute that says that he would be exempt is 'the
declaration has not substantially affected the proceeding or is has become manifest that
such falsity has been or will be exposed'.
Principle of Strict Construction: A federal criminal statute must be contructed so
narrowly in order to only encompass what congress seeks to criminalize.
Procedural History and Outcome:
Question:

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, time will be a factor.
Unlike older exams, there are no short answers, just 3 essay questions on each part.
Bringing a laptop means you have to take the test on it.
No page or word limitations.
Point Spread: Will be given but is not set in stone. Points assigned to each issue and
each analysis in each question. Points will be given for issue 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 motion and decide what facts you'd use to support your
posture.
Discuss the application of the rule.
If there is a public policy argument, make it.
Use the case series and class notes.
Be fluent with the cases she gives during the exam.
AVOID being 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 both analogies and distinctions.
If asked to describe the likelihood of success, don't give a definitive answer. Are you
able to evaluate your argument when you step back from it and classify it as strong or
weak.

Feel free to use short hand like P and D.

Quote from 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.
You don't have to cite the case, just use a one word citation like Knight.
Get your answer on paper.
Don't recite the facts to her. Use the facts in clear arguments. Don't use 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 to always go 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.