1

Agenda for 17th Class• Review of Identity• Rules & Standards

• This is last regularly scheduled class– Classes F 11/30, M 12/3, W 12/5 & F 12/7 are canceled

• Review class– M 12/17 10AM-noon, Rm.1– Assignment

• Exercise 16. In re Akers-Baker Transfer• Bring questions

• Office hours– M 11/26 4-5– M 12/3 4-5– M 12/17 1-5

• TA office hours as usual, through 12/7• Additional old exam

– Ex 10. Los Paisanos– Memo & model answer on Secure Docs

2

Review of Last class• Identity

– Identity shapes judicial response to issues• Can be seen as bias• Can be seen as wisdom, expertise

– Different backgrounds clearly a benefit on multi-member appellate panels (and juries)

• More problematic at trial court level, where only one judge– Confirmation hearings

• Demand judges disavow influence of identity• Demand fidelity to “I’m just an umpire” simplistic idea of Rule of Law

– To Have Been a Beetle• Strategically. Probably best to counsel Gilson to pledge fidelity to law

and fairness– Disavow relevance of economics

• More honest answer– Fairness can often be given efficiency explanation

» Good information to shareholders about mergers is not just fair, it helps ensure informed decisionmaking and thus enhances shareholder and societal welfare

– Fair price ensures that company goes to those who value it most

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Rules & Standards III• #24 “Alternatives to the vehicle-in-the-park ordinance”

(Materials pp. 142-43)

4

Summing Up Class I• Integration of interpretive and normative reasoning

– Statutes• If text calls for “fair,” “reasonable,” or “efficient” action• If legislative history suggests efficiency, reasonableness, or fairness

are important• If purpose is plausibly efficiency or fairness

– Common law• When new issues arise, judges must form new rule that best fits

precedents AND makes law best it can be (Dworkin)• Normative reasoning (economic or non-economic) helps ascertain

what best law would be– Relevant not just for judges, but also for lawyers, because good

lawyer will supply normative (policy) justifications that favor her client AND that judges find plausible and adopt as law

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Summing Up Class I• Goal is to provide tools that can use in all classes• 2 main themes – Interpretation & normative analysis

– Interpretation• How to interpret statutes

– Will be especially useful in BusOrg, Tax, Administrative Law, and other

• How to interpret cases & how common law evolves– Useful in all classes

– Normative reasoning• Economic analysis

– Cost-benefit analysis, externalities, Coase Theorem, Information– Should be useful in all classes, especially Property

• Ordinary Understanding; Rights; Fairness