Agenda for 3rd Class

1. Agenda for 3rd Class • Misc. • Name plates • Weber • National Society • In re Blanche Flower • Introduction to Common Law

2. Assignment for Next Class • Common Law Cases Handout • Questions to think about & Writing Assignment for Group 3 • All questions in Common Law cases handout

3. Review of Last Class I • Interpretation of ambiguous statute can be thought of as form of legislation • “interstitial legislation” • Tools of statutory interpretation often don’t produce single, definitive answer • Judges must choose interpretation • Some say inevitable to judges influenced policy preferences (Realism) • 4 principal methods of statutory interpretation • Textualism, intentionalism, purposivism, pragmatism • 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 • Need not label methods

4. United Steelworkers v. Weber • Historically, African-Americans were excluded from Steelworkers union • Union and Kaiser Aluminum entered into agreement with quota • 50% of craft trainees must be black, even if whites had more seniority • White passed over sued, alleging violation of Title VII of Civil Rights Act • Issue: Does voluntary quota in favor of group that had been subject to prior discrimination violate Title VII? • Holding: No. Voluntary quota in favor of group that had been subject to prior discrimination does not violate Title VII. • Brennan for majority • Blackmun concurrence • Rehnquist dissent

5. Questions on p. 45 • 1. Would a textualist interpretation of Title VII support the majority or dissent in this case? Can you think of textualist arguments to support both sides? Which is stronger? • 2. Would a purposivist interpretation of Title VII support the majority or dissent in this case? Do you think that the majority and dissent would agree on the purpose of Title VII? If not, what purpose would each ascribe to the statute? Which is more plausible? • 3. A central issue in this case is what did Congress intend when it enacted Title VII. Both the majority and dissent quote extensively from the legislative history of Title VII. Which is more persuasive? Which quotes, if any, address directly the issue in this case – voluntary affirmative action to redress prior discrimination? For each quotation in the Rehnquist opinion, consider how the dissenters would interpret it. Similarly, for each quotation in the dissenting opinion, consider how Justice Brennan would interpret it.

6. Legislative History Excerpts • P. 37 (Brennan opinion) • “What good does it do a Negro to be able to eat in a fine restaurant if he cannot afford to pay the bill? What good does it do him to be accepted in a hotel that is too expensive for his modest income? How can a Negro child be motivated to take full advantage of integrated educational facilities if he has no hope of getting a job where he can use that education?” • P. 37 (Brennan opinion) • “No bill can or should lay claim to eliminating all of the causes and consequences of racial and other types of discrimination against minorities. There is reason to believe, however, that national leadership provided by the enactment of Federal legislation dealing with the most troublesome problems will create an atmosphere conducive to voluntary or local resolution of other forms of discrimination.”

7. Legislative History Excerpts (cont.) • P. 42 (Rehnquist opinion) • “[T]he charge has been made that … a ‘Federal inspector’ could then order the hiring and promotion only of employees of certain races or religious groups. This description of the bill is entirely wrong…. . • “Even [a] court could not order that any preference be given to any particular race, religion or other group, but would be limited to ordering an end of discrimination. The statement that a Federal inspector could order the employment and promotion only of members of a specific racial or religious group is therefore patently erroneous. • “…The Bill would do no more than prevent . . . employers from discriminating against or in favor of workers because of their race, religion, or national origin. • “It is likewise not true that the Equal Employment Opportunity Commission would have power to rectify existing ‘racial or religious imbalance’ in employment by requiring the hiring of certain people without regard to their qualifications simply because they are of a given race or religion. Only actual discrimination could be stopped.”

8. Legislative History Excerpts (cont.) • P. 43 (Rehnquist opinion) • “Title VII would have no effect on established seniority rights. Its effect is prospective and not retrospective. Thus, for example, if a business has been discriminating in the past and as a result has an all-white working force, when the title comes into effect the employer's obligation would be simply to fill future vacancies on a nondiscriminatory basis. He would not be obliged-- or indeed permitted--to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier.” Ibid., at 7213 (emphasis added).

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

10. Questions on p. 45ff. (cont.) • 5. The Garrett excerpt on statutory interpretation (reading #7) refers to a theory of statutory interpretation which states that the relevant intentions are those of “pivotal lawmakers whose support is necessary for enactment.” Consider the following drastic simplification of the debate over Title VII. Congress was composed of three groups. 40% were racists who opposed equal treatment for African Americans. They would vote against any civil rights bill. 40% were ardent advocates of civil rights, who favored not only equal treatment, but affirmative action, quotas, and other means of swiftly integrating African Americans into the mainstream of American life. Although ardent advocates of civil rights would favor a bill which allowed affirmative action, they would support a bill which required only equal treatment. 20% were moderates who favored color-blind decisionmaking and equality of opportunity, but who opposed (and would vote against any bill that permitted or required) affirmative action or quotas. In this situation, the pivotal lawmakers are the moderates. So, according to the theory that statutes should be interpreted in accordance with the intentions of the pivotal lawmakers, Title VII should have been interpreted to forbid affirmative in United Steelworkers v, Weber. Does it make sense to interpret Title VII this way, even though two-thirds of those who supported the statute would have favored a contrary outcome?

11. Questions on p. 45ff. (cont.) • 6. Title VII also forbids discrimination on the basis of sex. This provision was inserted by opponents of racial equality who thought that gender equality would be so unpopular among legislators that even those who favored racial equality would vote against the bill. There was no debate on banning gender discrimination, and Title VII eventually passed. How would an intentionalist interepret Title VII’s provisions relating to gender discrimination? Would an intentionalist refuse to enforce Title VII’s ban on gender discrimination even in blatant cases, such as a case where an employer announced it would not hire any women? • 7. Do you agree with Dworkin’s analysis?

12. National Society of Prof. Engineers • Engineering Society Code of Ethics forbade competitive bidding • Sued by US Government for violation of antitrust laws • Sherman Antitrust Act states “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. . . . • Sherman Act interpreted according to Rule of Reason, which focuses on “challenged restraint’s impact on competitive conditions.” • Restraint legal if serves competition • Covenant not to compete with sale of bakery • Congress has made “policy decision” that “favoring competition is in the public interest” • Ct. for plaintiff • Ban on competitive bidding has detrimental impact on competitive conditions • Not outweighed by concerns for safety or quality • Good example of purposivist interpretation • Vague statute interpreted to foster competition, efficiency • References to intent are weak and historically inaccurate

13. National Society of Prof. Engineers • 1. If the text of § 1 of the Sherman Act were interpreted literally, who would win this case? Be sure to consider textual arguments for both sides. See the first footnote in Section II of the opinion for the full text of the Sherman Act. • 3. Some historians argue that the lawmakers who enacted the Sherman Act were more interested in protecting small producers than in protecting consumers. That is, they might disfavor unfettered competition that led to a small number of large firms to dominate the market, even if such competition would lead to lower prices and higher quality for consumers. How might the outcome of this case change if the Court were to adopt that interpretation of legislative intent? Note that, in many contexts, unrestrained price-competition leads to the dominance of a few large firms.

14. National Society of Prof. Engineers • 4. Suppose that the Court is correct that Congress intended courts to “draw on the common-law tradition.” Does that mean that the common law is frozen in the state it was in 1890, when the Sherman Act was passed? For example, suppose that courts in 1890 had held that manufacturers could not fix the prices at which retailers sold their products (a practice called resale price maintenance). Suppose, further, that advances in economic theory suggested that resale price maintenance benefited consumers by giving retailers incentives to provide better service. Would it be permissible for a court to allow resale price maintenance?

15. In re Blanche Flower

16. Common Law Interpretation I • Common law means many things • Body of law established by judicial decisions • Not based on statute or Constitution • Most of US contract, tort, and property law • “Judge made law” • Opposite of civil law • Common law is legal system derived from England and used in US, Canada, Australia and other former English colonies • Civil law is legal system derived from France, Germany, or other continental Europeans systems in used in their colonies as well as in Japan, China, and other countries which voluntarily adopted such legal systems • Opposite of equity • Any judicial interpretations, even if of statute or the US Constitution • “common law” of Sherman Antitrust law • In this course, especially in this section, focus is on first meaning of common law

17. Common Law Interpretation II • Common law built up case by case by judges trying to do what seems both consistent with precedent and just • Prior cases inevitably leave undecided questions, which judges must try to resolve • Language of prior decisions not as important as language of statutes • No one is a textualist when it comes to common law interpretation • Policy, what seems just, is more important • Although judges are not always explicit about policy or vision of justice which justifies their decisions