Agenda for 1 st Class

1. Agenda for 1st Class • Administrative Stuff • Newspapers & Public Radio • Clerking • Smith v. United States • Methods of Statutory Interpretation

2. Assignment for Next Class • Additional Questions on Smith v US (next slide) • ## 5-8, pp. 17-35 • (WG1) Exercise 12, pp. 534-35 • Questions to think about • Any questions from today’s reading that we don’t finish • Additional Questions on Smith v US (next slide) • Notes and Questions, p. 35, ## 5-10 • (WG2). Qs 5, 8 • (WG3). Qs6, 9 • (WG4). Qs 7, 10 • Notes • (WG1) means Writing Group 1, (WG2) means Writing Group 2, etc. • Encouraged to write and submit answers to questions not assigned to group • Especially Exercise 12, which is an old exam question • Need to think about questions even if do not turn in writing assignment • Because they are questions we will discuss in class

3. Additional Questions on Smith v. U.S. • 1) (WG2) For a brief period after the French Revolution, French judges were forbidden to “interpret” statutes. If doubt about the meaning of a statute arose during a case, judges were supposed to petition the legislature to interpret the statute and then apply the legislature’s interpretation to the case. The procedure was known as référé législatif. Do you think that’s a good procedure? Should we adopt it in the United States? Can you guess why it was abandoned in France? • 2) (WG3) The United States has among the harshest drug laws in the world and among the highest prison populations.  Should those facts influence judges in interpreting 18 U.S.C. §924(c)(1)?

4. Administrative Stuff • Everyone get at least one email from me? • Everyone successfully access the website? • See www.klerman.com. Click on “LL&V” • Nameplates • Bring to class every day • First & Last name: Write first name you want me to use • Seating Chart • Put name you want me to use on chart • Office Hours. • Wednesdays 2-3PM, Fridays 3-4PM. • Rm 460 • Audio recording posted to Portal • Attendance is mandatory • May not consult materials from last year’s class • Not advisable to read ahead or do writing assignments in advance • Exam will be open book • part in class MC; part take-home

5. Socractic Method Starting next class I will call on you, even if you don’t raise your hand Much of what you do in the law practice will be oral Arguing your case to a judge or jury Responding to a client's legal questions Negotiating with opposing counsel Discussing a case with a supervising attorney or partner in a law firm Many of those situations will be ones in which others will be asking you questions and you will be expected to answer Judges and partners set the agenda and they will expect you to answer their questions You can't say "I pass" to a judge If you say it to a partner you may not be at the firm much longer If you say it to a client, you are not likely to have many clients I will sometimes try to argue you out of your position Even if I think you are right Good lawyer knows when and how to defend position, when to give in Can be frustrating, but important 5

6. Newspapers • I strongly advise you to keep up with the news • Major Newspaper: New York Times, Wall Street Journal, Financial Times • Online or hard copy • Hardcopy available in library • Public Radio: 89.3 KPCC, 89.9 KCRW • Law is in the news nearly every day • More generally, you will be a much better lawyer if you are up on current events • Also you will interview much better • Not to mention, you will be a better citizen

7. Clerking • I also strongly advise everyone to apply for a clerkship • Clerking for a judge is the very best job you can take at the law school • Learn more about practice of law, more quickly, than at any other job • Best way to make good first impressions at next job • So can acquire good mentors and supporters • Apply in summer between 1L and 2L year • Judicial externships and internships also good • But not a substitute

8. What is LL&V About? • LL&V is about making good legal arguments. • Mostly learn how to make good legal arguments when learning specific legal subjects • But when you learn the law that way, you often miss things that are common to legal arguments in many areas • Thinking about legal argument more generally will help you make good arguments in any particular area of law • In particular, in all areas of law need to think about: • Interpretation of words • Relationship between words and intentions/purposes of those who wrote or uttered them • What’s good law? What’s good for society? • How do you make a good “policy argument”? • Relationship between interpretation and what’s good for society • When is a “policy argument” appropriate, and when is it not?

9. Smith v. United States • Statute: 18 U.S.C. §924(c)(1). “Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years…” • Issue. Does a person who offers to exchange a gun for narcotics “use” a gun within the meaning of the statute? • Holding. Yes. An offer to exchange a gun for narcotics is “use” of a gun for the purposes of the statute • Opinion by O’Connor • Dissent by Scalia

10. Questions • 1) What is O’Connor’s best argument in favor of her interpretation of the statute? • 2) Which of O’Connor’s arguments did you find least persuasive? • 3) What is Scalia’s best argument in favor of his interpretation of the statute? • 4) Which of Scalia’s arguments did you find least persuasive?

11. O’Connor’s Arguments • Ordinary or natural meaning = dictionary meaning (p. 7) • Congress could have written “use as weapon” (p. 7) • Other part of statute: § 924(d)(1) (pp. 8-9) • Purpose: Danger to society even if used as medium of exchange (p.10) Scalia’s Arguments • Ordinary use = meaning in context (pp. 10-11) • “Strange dichotomy” (p. 12) • “carry” in statute means “carry in such a matter as to be ready to use as a weapon” • “use” not similarly limited • “use during and in relation to any crime of violence” clearly means use as a weapon (p. 12) • Rule of lenity (p. 13)

12. 18 USC 924(d)(1) • 924(d)(1). “Any firearm or ammunition involved in or used in any … knowing violation of section 924 … or any firearm or ammunition intended to be used in any offense referred to in paragraph (3) of this subsection …shall be subject to seizure and forfeiture…” • 924(d)(3). “The offenses referred to in paragraphs (1) and (2)(C) of this subsection are...(C) any offense described in section … 922(a)(5) …” • 922(a) “It shall be unlawful … (5) for any person … to transfer, sell, trade, give, transport, or deliver any firearm to any person….

13. Questions • 5) Scalia emphasizes interpreting words in their context. What about the context of § 924(c)(1) supports the idea that "uses a firearm" should be interpreted to mean "uses a firearm as a weapon." In what context would "uses a firearm" have a different meaning? • 6a) Defendant Don arranges to meet Buyer in the woods, to sell marijuana to Buyer. But police intercede before the exchange, causing Don to flee with his baggie filled with marijuana. Don sprints by the shore of a lake. He can toss the marijuana into the lake—but it will float! Don looks around for something he can use as a sinker, but there is no time to stop. Then he remembers the MAC-10 in his pocket! Don quickly places the gun in the baggie and tosses the whole thing into the lake. Under the statute and Smith, has Don “used a firearm” during and in relation to a drug-trafficking offense?

14. Questions • 6b) Suppose that police officer Jones brandishes his service revolver while arresting Mr. Smith. Prosecutors seek a five-year sentence enhancement for Officer Jones, who literally “used a firearm during and in relation to a drug trafficking offense.” • 7) What is the purpose of 18 U.S.C. § 924(c)(1)?  Which interpretation of that provision is most in accord with its purpose?  Does either the majority or dissenting opinion refer to the statute's purpose?

15. Questions • 8) Do the opinions make any reference to evidence of what Congress intended in passing 18 U.S.C. §924(c)(1)? • 9) Suppose, during the formal debate preceding passage of 18 U.S.C. §924(c)(1), a Senator said the following: “I think this is a wonderful statute.  We need to make sure that those who use guns while committing drug crimes serve long prison sentences so they don’t cause further harm to the community.  Of course, the statute should only apply where the offender discharged or threatened to discharge the gun.  Other situations don’t really count as ‘using’ a gun.”  Should the Senator’s statement influence judicial interpretation?  • Would it matter if the number of Senators making similar statements were 2, 10, 60 or 80?  • Would it matter if the Senator making the statement was the chair of the committee which drafted the legislation?  • Would it matter if the vote on the statute was 51-49, and the Senator who made the statement voted for the statute, but would have voted against it if he thought judges would interpret the statute broadly?

16. Methods of Statutory Interpretation I • Textualism – Courts should look only at text of statute • Should not look at legislative history • May use “canons of statutory construction,” • rule of lenity; interpret statutes so that they are constitutional • Intentionalism – Courts should try to figure out what the legislature intended • Should look at legislative history, where informative • Purposivism – Courts should try to figure out the purpose of the statute and then interpret ambiguous parts of the statute to further that purposes • Purpose may be inferred from text, legislative history, or other sources • What problem was statute trying to address? • Purposivism is sometimes a variant of intentionalism and textualism • Purposivism is distinct if judges infer purpose from sources other than text or legislative history • Purpose may be public good, even if statute is actually just interest group deal 16

17. Methods of Statutory Interpretation II • Pragmatic interpretation -- Judges should take into account real-world consequences • In practice, use all methods • Good lawyers and judges try to show how all methods point to same conclusion • But sometimes methods point to contradictory conclusions 17