Foundations: Lecture III

A story to cure you of exam anxiety:

Imagine yourself as Professor Boyle (entered law school at 16). All exams are at the end of the
spring (though some classes ended in the winter semester). The person next to you in the exam
room asks, How come you never came during the second semester? You accidentally didnt go
to the whole second semester of a course. Moral: That situation ended up fine, so you shouldnt
worry.
Questions from the survey:
How to apply arguments discussed today on exam? Youll get an email later, but well discuss it
briefly today.
First two classes:
These were not full classes on legal history/theory. They were meant to just give you broad
changes. Peoples attitudes on what constituted good legal arguments changed over time.
Classicistrealistpost realist (this will come in with law and economics).
It would be helpful to go back and reread the Mensch piece. It will probably make more sense
now.
Three examples of shift between classism and realism:
1) LeRoy Fibre case. A railroad runs its train negligently sometimes so a large amount of sparks
fly out of top of smokestack. A farmer stacks flax next to tracks, and a train accidentally sets it
on fire. Was there a contributory negligence issue?
The majority says property is an absolute sphere. If it is on farmers land, then they cannot even
conceive of any balancing of rights when it gets closer to tracks. The farmer has an absolute
sphere of rights in your property. And the railroad was admittedly negligent. We dont want for
rights (property rights) to be limited by wrongs (admitted negligence).
Holmes in dissent says that this is all a matter of degree. Property is a bundle of rights to
Holmes, whereas it is an absolute sphere of rights to the majority. This is a serious conceptual
difference between the two. Holmes says just because you can grow and sell flax on your
property, that doesnt tell you anything about where you can stack it. Property is a bundle of
different rights. Also, he points out that the railroad owns the property next to farmer too. So
there are burdens on both sides, and it is basically a joint activity.
2) Moore v. Regents (hairy-celled leukemia case): Moores cells are very valuable for research
purposes. The doctor takes his spleen out, and uses it to develop a line of drugs without Moores
knowledge.

The majority says you dont own your kidney. The property right in organs, the majority says, is
very limited (for instance, you are not allowed to sell your kidney), and therefore the court
cannot conditionally say that Moore has a property right in his organs.
The dissent says this isnt 1890--property is a bundle of rights. Just because you cant sell your
kidney doesnt mean you arent entitled to recover money from people who have profited from
cell lines developed from it.
3) Fontainebleau Hotel case: This was a suit for nuisance by a hotel against another hotel who
built right in front of them and blocked out the light.
The classicist approach: is there a right to sunlight? The realist approach: whatever rule we pick
will hurt the other party. There is no default/neutral rule between enjoining construction and
blocking sunlight, so we need to weigh interests and decide.
There are examples of this shift in a number of things youve studied as well: Erie, Pennoyer v.
Neff, Williston and Corbin in contract law, the formal and pragmatic distinction in constitutional
law.
The survey:
Thanks to those who took the survey. The results showed that there were a number of arguments
that you werent comfortable with, so well try to go as fast as possible.
I. Precedential Arguments:
1) Purposive v. Formalist Interpretation:
You were generally the most comfortable and familiar with purposive v. formalist arguments.
(Words in context v. abstract definition.) For example, there was a British statute that said, All
grinding wheels must be fully enclosed. But that makes them unusable, because you cant put
your hand in at all to grind anything with them. A man injured himself while operating one that
was mostly enclosed. Negligence per se? The British court said yes. Fully enclosed means fully
enclosed, even if that makes it unusable. This was a very formalist opinion.
With scriveners errors: it may depend on the judge, but typically even formalists will allow for
some corrections.
Hart-Fuller Debate: do we always interpret things in context? For instance, when you ask
someone How is it hanging?, you dont actually mean to imply that they are hanging. We never
interpret those statements literally, says Fuller, and the same can be said with statutes and
language more generally. We are always using the purposive approach, he argues, even when we
say that we arent.

The problem with the purposive approach: whose purpose are we taking? Justice Scalia says you
can find any purpose in legislative history. When is it appropriate for a judge to choose one to
latch onto? Is purposive interpretation better in some areas? Antitrust. Intellectual property.
Constitutional Law with the Founders (Justice Scalia seems to be a fan of that, but it isnt clear
why)?
For Constitutional law, the purposive argument is that the Constitution is not a suicide pact--it
has to be interpreted differently because it is a functionalist document. It is intended to make
society work under the law (see McCulloch).
The formalist v. purposive distinction is not a clear divide; it is a spectrum. Consider intratextualism, where you look for same words in different places in same documents. It is not
simple dichotomy.
2) Broad and Narrow Holdings:
These arguments are along the axes of abstraction. Most people seemed to be somewhat
comfortable with this type of argument. Think about the Vosburg case: How might we think
about a holding that a kid who kicks another kid is liable for all damage resulting from that
action? The only question on this from the survey was: how do you know if youve gone too far
one way or another? There is no firm answer really, because it often depends on the audience or
community receiving your argument. For instance, arguments against the ACA on an extremely
narrow understanding of Commerce Clause precedent were thought to be ridiculous until things
changed.
In property: there are narrow and broad readings of State v. Shack. Is this only about migrant
workers and non-profit organizations, or is it about ownership rights in real property more
generally? From the teachers perspectives, there is often a series of cases that extend or limit
previous precedent based on the level of abstraction used in describing the precedents holding.
3) General Manipulation of Precedent:
It is not all broadening or narrowing. There are other techniques. Two examples:
A. What is the heart of the precedent, and what is its most extreme limit? Sony v. Universal
Pictures: this case said it was legal to record television programs with VCRs (5-4 decision). The
Court said: we think this is a staple article of commerce. In order for a product to be illegal, it
has to have no substantial use other than an illegal use. (Think Ipods: they have other legitimate
uses, notwithstanding their potential illegal uses.) Later, Napster was sued for allowing the
exchange of music online. Was Napster covered by Sony? Napster has other substantial noninfringing uses. (Shakespeare, NPR, etc.) So did Sony protect it? The record companies said
Sony is only about a product that is sold once to consumers, after which time the relationship is
ended. Napster is about a continuing relationship. Napster knows exactly how many songs are
being transferred, and by whom. The Sony precedent is only about a one-time sale, after which
the manufacturer has no relationship to consumer.

Naptser argues that Sony was actually selling a product that was specifically designed to engage
in unauthorized copying, for the purpose of making money. Napster, conversely, is just a neutral
exchange system. This is just the Internet. So Sony is at a greater extreme than Napster.
B. Time-framing: If a battered spouse kills her husband while he is asleep and claims selfdefense, how do you evaluate that? With a narrow time-frame, self defense is ridiculous; he is
asleep. But with a broader frame, he may have killed her or caused her substantially bodily harm
in the future.
II. Nonprecedential Arguments:
Questions from the survey were about when and how to use them. It just takes practice. In class,
listen for when one argument in particular seems to dominate the debate. Non-precedential
arguments can be used for both this is what the rule should be arguments, and let me tell you
how to interpret the existing rule arguments (because of the policy behind it).
1) Firm rule v. flexible standard:
These are everywhere. Contracts: Williston and Corbin, the parol evidence rule. Constitutional
law: Marshallians and Jeffersonians. Civil Procedure: personal jurisdiction and jurisdictional
time limits on appeals. Property: takings. Criminal law: the definitions of different kinds of
homicides.
2) Institutional competence arguments:
This is not just about the courts and the legislature. Questions can arise about courts competence
with respect to the facts of the case, if the subject of the suit is particularly complex. Courts
typically respond that they are common law courts with hundreds of cases in front of them every
day. So they understand stuff better than most people. Another institutional competence argument
involves the theory that courts or legislatures should just leave certain issues to the market to
come to an efficient decision. With the administrative state, institutional competence arguments
are common depending on whether a person views agencies as balanced experts or incompetent
bureaucrats. Last, these arguments can be about juries. Are they noble repositories of the
common mans wisdom, or an ignorant group of people who are likely to make huge mistakes
with terrible consequences?
Institutional competence arguments are correlated with moves in legal thought. The legal realists
believed in administrative agencies and legislatures more than courts (think about the Cohen
article and the New Deal). The post-realists tend to believe that markets work well and
characterize government intervention as bad or less efficient.
Examples from classes: Civil Procedure: Twombly and Iqbal. Should courts be imposing
heightened pleading standards on their own. Constitutional Law: Roe v. Wade. Criminal law: why
cant courts determine what counts as crime? They apply the law all the time. Tort law: is a
regulatory framework better than our current system?

3) Moral arguments:
A lot of people said that they hadnt flagged these or were uncomfortable with them.
A. Morality as form v. substance. These arguments come up a lot in contract law. (Think
unconscionability, overreaching, contracts of adhesion, etc.) Should we look at the power of
parties or whether they actually made the deal?
The form and substance division other than in contracts: affirmative action. Should we seek
formal equality or substantive equality? How about the distinction in constitutional law between
pregnant and non-pregnant discrimination and gender discrimination? Should we consider age in
a statutory rape case when the defendant is 17 and the victim is a 16 year old?
In criminal law as well: you have a right to counsel, as in a right to an attorney, in a criminal
case. You have the right to retain counsel in a civil case, but not a right to an attorney.
Other examples: Civil Procedure: Forum selection clauses. Contracts: the various equitable
doctrines that have arisen. Criminal law: sentencing reform efforts to change the different
penalties for crack and powder cocaine. There is a greater chance of receiving the death penalty
or a harsher sentence if the victim is white and the defendant is an African-American, despite
that the law is formally equal.
And this is not just a liberal/conservative divide. Think about critics of widespread economic
regulation--formal equality may substantively disadvantage small businesses far more than large
businesses.
4) Deterrence or social utility arguments:
Economic arguments often overlap with deterrence arguments. Deterrence arguments focus on
changing behavior. This depends on how many people know what the rules are and how many
are willing to change. This can be debatable in certain situations, and less so in others. (Vehicle
manufacturers probably know the liability rules about cars and will change their conduct to meet
them.)
A couple of other points about deterrence arguments: you have to imagine the respondent. You
get to imagine the intensity of a respondents reaction, and his or her ability to work around the
new rule. In Moore v. Regents, we dont want to chill the ability of scientists to experiment on
cell tissues because they are worried about liability. But the dissent argues that it is hopefully a
minority of doctors who lie to patients to experiment with their cells, and the market could easily
adjust to it by creating a registry for tissue donors. Insurance plans would spring up as well.
You can also argue about the rules effect at deterring individuals. Think about speed limits-typically you can travel what is posted plus 5-8 mph. The limit is really whenever your conduct
is flagrant enough to merit a cop stopping you. There are many other examples in criminal law
because deterrence is one of its primary pillars. In torts: Good Samaritan laws are there because
we want to protect Good Samaritans. In contracts: are liquidated damages provisions good or
bad?

You couple these deterrence arguments with slippery slope arguments frequently. You should be
able to argue that any rule change, no matter how minor, should either lead to fascism or anarchy
(or both). The slippery slope or parade of horribles is the second stage of a deterrence argument.
5) Economic Analysis:
Mensch argues that after the legal realists people are casting about for something to stabilize law.
They turn to economic analysis. In the common law, property, torts, etc. all use economic
analysis. In statutory law, antitrust law has basically changed the analysis required by the
Sherman Act to be whatever maximizes consumer welfare. In the administrative state, most
agencies are required to issue cost-benefit analyses before promulgating new regulations.
Economic analysis is enormously important.
Judges may do formalized versions of economic analysis. For example, Learned Hands B
(burden of preventing harm < P (probability of harm) L (amount of harm) was an attempt to
formalize, as a legal principle, an economic analysis. Judges can also apply existing law in ways
that require economic analysis. Assume strict liability is typical for ultra hazardous activities and
Judge Posner has to decide whether the transport of highly dangerous chemicals by railroad is an
ultra hazardous activity. If he determines economically that the negligence standard would be
better for the public, he concludes that it is not an ultra hazardous activity.
Economics can be deployed for both liberal and conservative purposes. And these arguments
dont have to be done in dollars. The World Health Organization has an analysis for the worth
developing a certain drug, even when people wont be able to pay for it. They use a calculus
called quality adjusted life years. QALY is essentially how many people will be saved for how
long, and from how much misery. A cure for river blindness in children would be big deal under
QALY, but in terms of money the value is tiny. QALY is still an economic analysis.
Final point: we can use shadow markets to determine things. For example, how much should
Exxon have to pay for the Valdez spill? How do you value an otter? They are endangered
species, so you cant sell them. Thus, Exxon said their value is zero. The EPA used a contingent
valuation. They picked someone off the street and asked how much value he or she places in an
otter. That seems crazy, but is there another way to do it?
Offering price v. asking price distinction: if we measure the value of something by your ability or
willingness to pay for it, it depends on how much youre worth. That means poor cannot express
their value as much as rich. For instance, if a city was choosing whether to put in a golf course or
a basketball court, the golf course would win if the criterion was how much people would be
willing to pay for it. But we could flip it and ask how much would you need to be paid to give up
a basketball court? That changes the calculus. Think about the Peevyhouse case. How much is
their land worth vs. how much would they have to be paid for it to be wrecked? How you
calculate that analysis gives you different outcomes.
Last, the diminishing margin utility of wealth: how large does an amount of money need to be to
pick it off bathroom floor? That depends on whether youre you, or youre Bill Gates. Do we

include this in the analysis? Should we consider the pocketbook of the person paying? Or do we
need formal equality?
Remember that there is an assignment due at next class. 1-2 pages of argument.