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Agenda for 9th Class

Agenda for 9th Class. Handouts Slides Readings: Finders Name plates Review of Last Class First Longer Writing Assignment (Healthy World) Introduction to Common Law. Assignment for Next Class. Read “Finders” packet Questions to think about / Short papers

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Agenda for 9th Class

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  1. Agenda for 9th Class • Handouts • Slides • Readings: Finders • Name plates • Review of Last Class • First Longer Writing Assignment (Healthy World) • Introduction to Common Law

  2. Assignment for Next Class • Read “Finders” packet • Questions to think about / Short papers • Everyone should be prepared to discuss all the questions on the last pages of the “Finders” handout • Mandatory writing • Group 8. Qs 1 & 5 • Group 7. Qs 2 & 6 • Group 6. Qs 3 & 7 • Group 5. Qs 4 & 8 • Note that these are groups that ordinarily write on Tuesdays • Need to give some Thursday assignments to Tuesday groups because more Tuesday classes have no writing or are canceled. • Note that Th 10/24 assignment will have mandatory writing for all groups • Optional writing -- All questions that are not mandatory

  3. King v Burwell • §36 of Affordable Care Act authorizes tax credits if an individual enrolls in an insurance plan through an “Exchange established by the State…” • Can there be subsidies for exchanges established by the federal government? • Textualist approach • Plain meaning – no • Meaning in context of rest of statute – yes • Part of statute -- 42 USC 18091(2)(I) – states the act has goal of preventing adverse selection • So yes • Purposivist approach • Clearly yes • Intentionalist approach • Probably yes, but neither Scalia nor Roberts wants to cite legislative history • Pragmatic approach • Yes • Tricky position of Justice Roberts • Probably disliked Act • But did not want Court to divide ideologically in eviscerating signature achievement of Democratic President

  4. First Longer Writing Assignment

  5. 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

  6. 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

  7. Common Law Interpretation III • Holdings • Rule of law is not always stated in case itself • Even if rule of law is stated in case itself • Later judges not bound by that statement of holding • Later judges are free to interpret case in different way • Free to construct different holding, as long as consistent with • Facts and ruling in prior case • Convincing policy argument • Example • Case 1. Facts: Loaded MAC-10 traded for drugs • Decision . Violation of 924(c)(1) • Rule stated in case: “trading gun for drugs violates 924(c)(1), because guns increase the danger of violence in drug transactions” • Case 2. Facts. Unloaded Beretta 93R traded for drugs • Could say holding of Case 1 was “trading loaded gun for drugs violated 924(c)(1),” because trading an unloaded gun does not make the drug transaction any more dangerous • Implausible to say holding of Case 1 was “trading MAC-10 for drugs violated 924(c)(1),” because no policy-relevant difference between MAC-10 and Beretta 93R

  8. Common Law Interpretation IV • Example (continued) • Case 1. Facts: Loaded MAC-10 traded for drugs • Decision . Violation of 924(c)(1) • Rule stated in case: “trading gun for drugs violates 924(c)(1), because guns increase the danger of violence in drug transactions” • Case 2. Facts. Unloaded Beretta 93R traded for drugs • Can’t say holding of Case 1 was “trading gun for drugs does not violate 924(c)(1),” because that is inconsistent with result of Case 1.

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