1

Agenda for 16th Class• Review of normative analysis• Introduction to Rules & Standards• Identity

– Sotomayor confirmation hearings– Blank v Sullivan & Cromwell– MacDraw v CIT– To Have Once Been a Beetle

Assignment for Next Class• Handout on Rules & Standards

– Shauer– Kaplow

• Questions to think about / Writing Assignment– #24 “Alternatives to the vehicle-in-the-park ordinance” (Materials pp.

142-43)

2

Review of Last class I• Multiple normative approaches often appropriate for same issue

– Engagement ring• Economic

– Reduce litigation cost by choosing rule which doesn’t require judicial determination of fault

– Different rule for heirloom rings, where groom valuation may be much higher than market valuation

• Fairness– Person not at fault should get the ring– Bride should get the ring if her family has spent non-refundable

money on wedding– Ring should go to party which is less well off

– Gould virus• Economic -- Assign exemptions to those who value them most• Fairness -- Assign exemptions in a way that does not discriminate

against the poor• Equality – no exemptions, so that all are treated equally• Rights – pay people to immunize, so that no one is involuntarily

immunized

3

Review of Last class II• Sometimes conflict in approaches

– Trolley problem, surgeon problem, and open boat problem show conflict between utility and rights

• Often different approaches lead to similar conclusions– Surgeon problem

• Economic/utilitarian approach can lead to same result as rights approach, if take into account disincentive for healthy people to go to hospital

– Consent can provide a bridge between rights-based and utilitarian approaches to open boat problem

– Bushey • Friendly sees contradiction between economic approach (which he

asserts would not require liability) and the fairness (which he sees as requiring liability

• But more sophisticated economic approaches say there should be liability in situations like Bushey

– Ship owner in best position to supervise sailors, should internalize costs caused by presence of potentially drunken sailors

4

Review of Last class III• Economic analysis can help with fairness

– Rough congruence between auction, penalty, and pay-to-immunize approaches sheds light on fairness of those three approaches

• Highlights the way that pay-to-immunize may be better if WTA is better measure of value

• Highlights the different treatment of the medically exempt– They pay under pay-to-immunize, but not under penalty or

auction– Economic analysis suggests problem with lottery

• Without resale, exemptions not allocated to those who value them most

• With resale, exemption allocated to roughly the same people as penalty or auction

– But revenue goes to lottery winners rather than being shared with public

5

Review of Last class IV• Many different types of fairness arguments

– Distribute liability according to blame• Similar to economic rationality of negligence rule

– Person who caused harm should pay• Similar to internalization idea in economics

– Richer person should pay• Can be justified by declining marginal utility of money• BUT economic approach says usually better to redistribute through

tax system and social programs, than through litigation– Fair if people consent

• Similar to idea of Pareto optimality– Rights

• Not fair to require some people to sacrifice greatly for good of others• Economists generally favor respecting rights to encourage people to

engage in voluntary transactions (which are Pareto optimal) rather than in actions coerced by the government (which may make mistakes and thereby make people worse off).

6

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

7

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 15.5

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

8

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

9

Questions on Identity• What did Sotomayor mean by “I would hope that a wise Latina woman with

the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

• Judge Sotomayor, and the Senators questioning her, affirm “the rule of law” and say that this requires judges to apply law, not extralegal sources, to the facts. What does that mean? Is it realistic?

• How might Judge Motley’s experience affect her decisions in discrimination cases? Is this effect good or bad?

• Page 438ff Questions 3, 4, 8, 9, 10• To Have Once Been a Beetle