Transcript Presentation Two The Historical Arguments

Presentation Two:
The Historical Arguments
Intent, Precedent, and Tradition
Wilson Huhn
© 2013
1
The Five Types of Legal
Arguments
Text
Intent
Precedent
Tradition
Policy
2
The Three Historical Types
of Legal Arguments
Intent
Precedent
Tradition
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2. Intent
“Intent” refers to the intentions of the
persons who drafted a constitution, statute,
ordinance, or regulation.
It also includes the intent of the persons
who draft private documents that change legal
rights, such as contracts, deeds, and wills.
It may be known as “original intent,”
“legislative intent,” regulatory intent,” “the intent
of the parties,” or “the intent of the testator,”
depending on what document is being
interpreted.
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INTENT
The Signing of the Constitution
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Intent Is Different from Text
The text of the law consists of the
words of the law itself, written in a
constitution, a statute, an ordinance, a
regulation, or privately written legal
documents like contracts, wills, deeds, and
trusts.
The intent of the law is what was
meant by those words.
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Which Is Really the Law?
Text or Intent?
If you had to choose just one, which is
really the law?
Is the law the plain meaning of the
words contained in the legal document, or is
the law what the drafters of the text meant
by those words?
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Why Text Is the Law
This argument is simple and
straightforward.
The law consists of legal text itself. The
constitution, statute, ordinance, or regulation
is what was adopted or enacted into law.
Evidence of intent such as legislative
history, editorials, or newspaper reports are
not the law.
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Why Intent Is Law
The Declaration of Independence says that
the people have the right to establish their own
government – that all “just powers” of government
are derived from the consent of the people.
The people elect legislatures to enact laws
on their behalf – the legislatures speak for the
people.
People have a right to enter into contracts,
adopt wills, grant deeds – based upon their own
personal choices.
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Different Names for “Intent” in
Different Fields of Law
Constitutional Law – The “original intent” of
framers of the constitution
Statutory Law – The intent of the legislature
or “legislative intent”
Administrative Law – “Regulatory intent”
Contract Law – The “intent of the parties”
Law of Wills – The “intent of the testator”
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Intent Expands the Field of
Evidence of What the Law Is
As we saw earlier, arguments based on
plain meaning, intratextualism, and canons
of construction sequentially expand the pool
of data that is considered in determining
what the law is.
Arguments based upon intent expand
this pool of data even further.
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Proof of Intent
•
•
•
•
•
The text of the law itself or preamble
Previous versions of the text (intertextual)
Legislative history
Official comments
Contemporary commentary
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Textual Evidence of Intent:
Preamble to the Constitution
“We the People of the United States, in
Order to form a more perfect Union, establish
Justice, insure domestic Tranquillity, provide for
the common defense, promote the general
Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and
establish this Constitution for the United States
of America.”
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Previous Version:
The Articles of Confederation
Article II, Articles of Confederation:
Each state retains its sovereignty, freedom, and
independence, and every power, jurisdiction,
and right, which is not by this Confederation
expressly delegated to the United States, in
Congress assembled.
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Forms of Legislative History
Records of comments and remarks on the
floor of the legislature
House and Senate committee reports
Transcripts of hearings before legislative
committees
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Official Comments
Advisory Committee Notes for the
Rules of Civil Procedure
Advisory Committee Notes for the
Rules of Evidence
Official Comments to the Uniform
Commercial Code
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Other Evidence of Intent
News stories and editorials
Speeches, press releases, blog entries,
letters
Other statements or testimony
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Example: The Federalist Papers
The Federalist Papers
were a series of essays
written by Alexander Hamilton,
James Madison, and John
Jay, attempting to persuade
the people of America to ratify
the Constitution. These
essays are considered to be
an important source of
information about the intent of
the framers.
Hamilton
Madison
Jay
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Problems with Proof of Intent
Whose intent counts? – What if Madison
and Hamilton disagree about the relative
powers of Congress and the President?
How many members of the group must
share that intent? – What if a minority or
only a few members of Congress expressed
their intent?
Is there such a thing as “group intent”? –
Is “intent” a fictional concept?
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General versus Specific Intent
Another common problem with
determining the intent of the people who
drafted a law is to ascertain the appropriate
level of generality.
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General Intent:
Liberty and Equality
Did the framers of the Equal Protection
Clause intend that people should be people
to be permitted to make intimate and
personal choices about their own lives,
without interference from the law, so long as
they do not harm others? Did the framers
also intend that people who are in similar
circumstances must be treated alike by the
law?
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Specific Intent:
Marriage Equality
Did the framers of the Equal Protection
Clause intend that persons of different races
should be permitted to marry?
Did the framers of the Equal Protection
Clause intend that persons of the same
gender should be permitted to marry?
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Congress’ Power over
Commerce
Did the Framers intend that Congress
should have the power to regulate interstate
commerce as well as conduct that
substantially affects interstate commerce?
Did the Framers intend that Congress
should have the power to regulate wages
and hours, health and safety of factory
workers or miners?
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Influential Legal Treatises
Some legal treatises are so influential
as to be considered almost authoritative.
This sometimes occurs because the
authors of the treatise participated in the
drafting of the law.
For example, White & Summers on
Commercial Law is persuasive legal
authority in part because of their
involvement in the revision of the Uniform
Commercial Code.
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3. PRECEDENT
The term “precedent” means a formal
judicial opinion in a previous case.
Over the centuries the courts have
rendered millions of decisions.
In recent centuries judges explain their
decisions in written opinions.
This immense body of case law
constitutes “precedent.”
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The Common Law
The “common law” is that law that
developed in the courts, first in England, and
then in the American courts.
Originally there were no written
constitutions and statutes were rare, so
almost all of the law was the “common law.”
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The Law Used to Be the Will of
The King
Law was originally conceived as the will
of the sovereign, and the highest court in
medieval England was called the “King’s
Bench” or “Queen’s Bench” because
originally the king himself or queen herself
dispensed justice, seated on a bench.
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The Independent Judiciary
The courts are now an independent branch
of government, thanks to courageous
judges such as Sir Edward Coke and
Chief Justice John Marshall.
Sir Edward Coke (1552-1634)
Coke labored for the principle that
the King is subject to the law,
while Marshall ruled that the President
is governed by law.
Both stood for the principle of judicial
review – the idea that the courts have
the power to determine the validity
and the meaning of statutes.
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John Marshall (1735-1855)
Codification and Model Acts
Today, much of the law has been
“codified,” meaning that it has been enacted
into law as statutes or rules. Federal laws
are national laws. Many state laws are also
similar across the United States because
they are modeled after federal rules like the
Federal Rules of Evidence and the Federal
Rules of Civil Procedure, or model acts like
the Uniform Commercial Code or the Model
Penal Code.
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Administrative Agencies and
Regulations
In addition to codification, our law has
witnessed another revolution. Over the last
eighty years we have created thousands of
administrative agencies which are
responsible for issuing regulations that have
the force of law.
Administrative agencies now create far
more law than legislatures do.
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The Present Scope of the
Common Law
Today, the common law (judge-made
law) still governs certain areas; contracts,
torts, and property are largely uncodified
and remain subject to the common law.
Even in those fields of law, however,
federal and state statutes and regulations
govern many aspects of the law.
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But Codification Has Not
Reduced the Importance of the
Courts
Even though most areas of the law are
governed by statutes or regulations, the role
of the courts has not diminished. Instead the
courts are busier than ever interpreting the
law that is created by statutes and
regulations.
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What Do the Courts Do?
The courts
continue to develop the
“common law.”
The courts also
interpret legal text …
constitutions, statutes,
regulations, ordinances,
contracts, wills, and
deeds.
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Constitutional Law and the
Power of Judicial Review
The courts perform one other function
besides developing the common law and
interpreting legal text.
In the United States, the courts have
the power to declare laws unconstitutional.
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“Stare Decisis”
The principle of “stare decisis” is what
gives strength to precedent. It is what makes
judicial precedent a type of “law.”
“Stare decisis” means “to stand by the
decision.” It is a duty on the courts to
respect the decisions of previous courts.
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Vertical Stare Decisis
Vertical stare
decisis is the obligation
that a lower court owes
to a higher court. If a
State Supreme Court
has interpreted the law in
a particular manner, all
of the lower courts in that
state have to interpret
that law the same way.
Ohio Supreme Court
Ohio District Courts of Appeal
Ohio Common Pleas Courts
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Horizontal Stare Decisis
If the court that previously decided the
question is at the same level – or if the same
court decided the question previously – then
stare decisis requires the courts to take the
previous ruling into account and to give it
some weight before coming to a different
interpretation of the law.
Ohio Ninth District Court of Appeals
Ohio Eighth District Court of Appeals
Ohio Eighth District Court of Appeals
Ohio Eighth District Court of Appeals
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Vertical and Horizontal Stare
Decisis Compared
Vertical stare decisis is a binding
obligation on the lower courts to defer to the
previous decisions of higher courts in the
same jurisdiction.
Horizontal stare decisis is an obligation
to give some weight to the previous
decisions of the same court or other courts
at the same level.
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Other Factors Affecting the
Weight of Precedent
What level was the court that
previously decided the same case? A state
supreme court, an intermediate appellate
court, a county court, a municipal court?
Was the opinion a majority opinion, a
concurring opinion, or a dissenting opinion?
Was the case really the same as the
case under consideration, or could the case
be distinguished?
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Precedent Is an Important
Source of Law
The courts interpret the law
and dispense justice.
A court’s interpretation
of the law must be
followed by lower courts
and will probably be
followed by other courts
as well.
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Using Precedent Is
Reasoning by Analogy
In law, to cite precedent is to assert
that the case that is presently before the
court is similar to another case that was
previously decided; that therefore the rule
that governed the first case must also
govern the second case; and that the
outcome must also be the same.
This is reasoning by analogy.
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Example:
Maimonides and the Talmud
Rabbi Moshe ben Maimon,
twelfth century author
of the fourteen volume
Mishneh Torah. His brilliant
exegesis on Jewish law
relies heavily on reasoning
by analogy.
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Following or Overruling Cases
If a previous case is similar to the
present case we are trying to decide, we
“follow” the previous case by applying the
same rule and coming to the same
conclusion.
To “follow” a case is to apply the
principle of stare decisis and shows respect
for precedent.
To “overrule” a case is to say that it not
necessary to respect a previous decision. 43
The Plurality in
Planned Parenthood v. Casey
In 1992 in the case of
Planned Parenthood v. Casey,
Justices Sandra Day O’Connor,
Anthony Kennedy, and
David Souter reaffirmed Roe v. Wade
despite their opposition to abortion.
Their joint opinion in that case
remains the single most extensive
analysis of the principle of
stare decisis, and provides guidance
on when a court should follow a
previous case, and when it may
overrule it.
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Four Factors to Consider in
Stare Decisis
1. Is the rule announced in the previous
case unworkable?
2. Has our society relied upon the previous
decision?
3. Has the previous decision been
undermined by later cases?
4. Have the facts or our understanding of
the fact changed since the previous
decision?
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Distinguishing Cases
If a previous case is different from the
present case we are trying to decide, we
may “distinguish” the previous case.
If we distinguish a previous case, then
we either apply a different rule or we apply
the same rule but arrive at a different
conclusion.
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Analogies May Be Either
Factual or Based on Policy
You may draw an analogy to another
case based upon similarities of the facts of a
previous case.
You may also draw analogies based on
similarities to the policies that were involved
in a previous case.
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Example: McPherson v. Buick
Motor Co.
In the case of Buick Motor Co. v.
McPherson, an automobile driver was
injured when the wheel of his car fell apart.
The car had been assembled by the Buick
Motor Company, but sold to the injured
person by an automobile dealer.
Was the manufacturer (Buick) liable to
the plaintiff for the injuries caused by the
defective part, even though they had no
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contractual relationship?
Is a Car More Like a Wagon or
More Like a Scaffold?
In previous cases, the courts had ruled
that the maker of a wagon was not liable
for injuries caused to passengers when a
wheel fell apart, but that the maker of a
scaffold was liable for injuries caused to
workers when the scaffold fell.
Is an automobile more like a wagon or
more like a scaffold?
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Cardozo – Look to the Purpose
of the Rule
On the surface, a car is more like a
wagon, and that analogy would lead you to
the conclusion that Buick was not liable to
the owner of the car.
But Judge Benjamin Nathan Cardozo
looked to the purpose of the rule, which was
to prevent an unreasonable risk of danger.
He found that automobiles, like scaffolds,
present an unreasonable risk of danger to
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the public if not properly made.
Cardozo’s Opinion in
McPherson
“From this survey of the decisions,
there thus emerges a definition of the duty of
a manufacturer which enables us to
measure this defendant's liability. Beyond all
question, the nature of an automobile gives
warning of probable danger if its
construction is defective. This automobile
was designed to go fifty miles an hour.
Unless its wheels were sound and strong,
injury was almost certain.”
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Cardozo’s Opinion, cont.
“The maker of this car supplied it for the use
of purchasers from the dealer just as plainly
as the contractor in Devlin v. Smith supplied
the scaffold for use by the servants of the
owner. The dealer was indeed the one
person of whom it might be said with some
approach to certainty that by him the car
would not be used. Yet the defendant would
have us say that he was the one person
whom it was under a legal duty to protect.” 52
Cardozo’s Opinion, cont.
“The law does not lead us to so
inconsequent a conclusion. Precedents
drawn from the days of travel by stage
coach do not fit the conditions of travel today. The principle that the danger must be
imminent does not change, but the things
subject to the principle do change. They are
whatever the needs of life in a developing
civilization require them to be.”
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Cardozo’s Use of Analogy
Judge Cardozo rejected the simple
factual analogy between a wagon and an
automobile, and embraced the policy
analogy between the rule governing the
liability of the manufacturer of a scaffold and
the rule that should govern the liability of the
manufacturer of an automobile.
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The Difference Between
Factual and Realist Analogies
“Some judges seldom get
beyond that process in
any case. Their notion of
their duty is to match the
colors of the case at hand
against the colors of
many sample cases
spread out upon their
desk. The sample
nearest in shade supplies
the applicable rule.”
Benjamin Nathan Cardozo
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Another Example of Formalist
and Realist Analogies:
Davis v. Davis (Tenn. 1992)
Junior and Mary Sue Davis were being
divorced. They had no children, but they
had undergone fertility treatments and
owned six embryos which were frozen and
in storage at the fertility center. Mary Sue
wanted the embryos so that she could have
children in the future. Junior wanted the
embryos to remain in storage because he
had vowed never to have children he was
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not taking care of.
Which Is the Correct Analogy?
Are Embryos Property or Children?
Mary Sue said that the proper analogy is that
the embryos are like “children” and that “custody”
should be awarded to the spouse who will act in
their best interests – herself. The trial judge ruled
that the embryos are a form of “property” and that
they should be evenly divided between the parties.
Which analogy is correct? Is there a better
analogy?
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The Tennessee Supreme Court
Rejected Both Analogies
The Tennessee Supreme Court ruled
that the embryos were neither “children” nor
“property,” but rather a new entity unto
themselves, and that neither “factual
analogy” was entirely appropriate.
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The Tennessee Supreme Court
Adopts a Policy Analogy
The Tennesse Supreme Court found
an analogy between this case and Roe v.
Wade – not on a factual level, but on a
deeper level of constitutional values.
In the end, the court gave priority to
Junior’s right not to become a parent without
his consent, as in Roe v. Wade.
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John Dickinson: The Law
Behind Law
“The choice which a judge makes of one
analogy rather than another is an expression of ...
a value-judgment; and the possibility of competing
analogies therefore arises not merely or so much
out of the doubtfulness of the factual
resemblances among his materials, but rather out
of the possibility of differences of opinion as to the
comparative value of the different results which
one analogy or the other would bring about.”
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4. TRADITION
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How Is “Tradition” Different from
“Precedent”
“Precedent” means “judicial precedent”
– decisions and opinions rendered by judges
over the years.
“Tradition” refers to the behavior
patterns of a society over decades,
centuries, or millennia.
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Ubiquitous Yet Invisible:
The “Unwritten Law”
Tradition arguments are unique in that
they are extremely influential yet often
appear only briefly in judicial opinions.
The traditions of society represent how
people have understood the law over long
periods of time. Traditions form our
“baseline assumptions” and “cognitive
schemas” for understanding how people are
supposed to behave.
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Tradition is the “unwritten law.”
Some Influences of Tradition
Our “fundamental rights” include those rights
that that are “deeply rooted in our nation’s history
and tradition.”
The powers of the government include those
that the government has traditionally wielded.
The law of tort is derived in part from how
people have traditionally been permitted to act.
Commercial law is heavily influenced by
“trade usage” – how businesses have conducted
themselves in the market.
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Torts: Unreasonably Dangerous
Products
If any of these products
were invented today, would
it be legal to manufacture
and sell them to
consumers?
No, they would all be
considered “unreasonably
dangerous.”
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Other Examples of
“Tradition” Arguments
“Children of different races have been
assigned to separate schools for
generations!”
“Marriage has always consisted of the union
of one man and one woman!”
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When Should We Break from
Tradition?
One of the central questions in all of
law is when is it necessary to abandon a
traditional way of doing things? Under what
circumstances should we break from
tradition – and create a new tradition?
Our next lesson on policy arguments
will in part address that question.
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End
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