Review of Rules and Standards in Legal Realism

1. Agenda for 21st Class Admin • Name plates out • Review class W. 12/7 10AM in Rm 101 • Followed by office hours until 4:45PM • Slide Handouts Assignment for Next Class • (WG1) Exercise # 18 (pages 550-52) Old Exams • All my prior exams are writing assignments, except • “To Be a Beetle” (Exercise 11, p. 532). Model answer distributed F 11/17 • 2nd part of In re Akers Baker Transfer. • Model answer posted as model answer to today’s assignment • Other exercises in materials are Garet exams Today • Review of Realism • Rules & Standards

2. Legal Realism • Textual interpretation and logic cannot resolve all legal issues • Functionalism/Pragmatism. Meaning of legal concepts is found in their consequences. • Reasoning of judges is and should be similar to that of legislature • Very influential • Erie, International Shoe • But not always done well • Hard to identify relevant consequences • Hard to craft coherent doctrine in light of consequences • Long list of consequences (WWVW) not very helpful • Outcome-determinative test (York) unworkable • Realists often landed up with indeterminate standards • “fair play and substantial justice,” International Shoe • Desire for sharper, more predictable rules • McIntyre • Hannah v Plumer

3. 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

4. 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 16 • Over-inclusive. Some 17 year olds are not safe drivers • Under-inclusive. Some 14 year olds would be safe drivers

5. 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

6. Vance v Ball • Under Title VII, employer is liable for harassment • By co-worker, if plaintiff proves employer was negligent in controlling working conditions • By supervisor, unless defendant proves (1) it exercises reasonable care to prevent harassment and (2) employee failed to take advantage of preventive or corrected opportunities • Who is Supervisor? • Majority: Person with power to hire, fire, demote, promote, transfer or discipline (Rule) • Easier to resolve in SJ, easier to write jury instructions • Dissent: Person with ability to exercise significant direction over daily work (Standard) • Such persons have employer-conferred power that facilitates harassment • Majority rules isn’t so clear either • When is change in job a transfer or demotion? • What about person who has ability to recommend promotion, but not power to promote him/hersef?

7. Questions on Rules & Standards • 4. The first three questions, above, accept the majority’s characterization of its holding as the choice of a clearer rule over a less clear standard. But Justice Ginsburg, dissenting, says that “the Court has adopted a standard, rather than a clear rule.” Does the majority’s holding state a rule or a standard?

8. Questions on Rules & Standards • 5. Dan Ortiz, for petitioner Maetta Vance, argues that adoption of the Seventh Circuit’s criteria for “supervisor” in hostile work environment cases does not achieve the result that Justices such as Alito and Roberts want: streamlined adjudication organized around legal norms that enable the parties to make confident predictions about how those norms apply to provable facts. … Which answer to Ortiz, if any, is convincing? • Ortiz’s prediction is wrong • Even if Ortiz’s prediction is right, the Seventh Circuit rule still generates somewhat more predictability in application than the alternative standards mooted in the arguments. • Because of stare decisis, the Court is stuck with a hostile work environment doctrine that requires courts to judge which bad conduct in the workplace crosses over an invisible line, never articulated by Congress… Though the Court (perhaps with the exception of Justice Thomas) does not think it should overrule itself and abolish the concept of hostile work environment employment discrimination, nonetheless the Court adopts narrowing doctrines (such as the Seventh Circuit’s conception of “supervisor”) in a legitimate effort to cabin what it cannot or should not destroy.

9. Questions on Rules & Standards • 7. Justice Ginsburg, dissenting, says that “the appropriate question is: Has the employer given the alleged harasser authority to take tangible employment actions or to control the conditions under which subordinates do their daily work? If the answer to either inquiry is yes, vicarious liability is in order, for the superior-subordinate working arrangement facilitating the harassment is of the employer’s making.” Is the second of the two proposed triggers of vicarious liability plausible in the absence of some standard-like qualifier: e.g., “substantially control the conditions under which subordinates do their daily work,” or “control the work conditions in ways that materially assist the creation of a hostile work environment”? • 8. If you think the dissent is better than the majority opinion, is that because you think standards are more appropriate in this context than rules? Or is it because you think the majority’s rule was insufficiently protective of employees? Can you formulate a rule that is appropriately protective of employees? Can you formulate a rule that you think is too protective employees (and thus would hold employers liable too often)?