LLE MASTER OUTLINE –Essay Script
STATUTORY SCRIPT
1. What is the issue and what is the answer to the question presented?
a. The legal syllogism:
i. In the x/y formation. Is a particular thing…..X…..a more general category, Y, supplied
by the legal rule.
ii. Can be multiple x/y formulations. Look to every odd fact and see if it relates to the
more general Y.
b. The other issue is the less formalist, more what is right question.
2. What makes the issue hard?
a. Semantic Meaning Ambiguous
i. Discuss Ambiguities, vagueness, multiple meanings.
ii. Include in sentence: How do we resolve ambiguities?
iii. Apparent Meaning(Scalia)
b. Legislative intent difficult to grasp
i. Particular Intention…usually many
ii. General Intentions…usually many
c. Best Justifications not always clear, usually two sides
i. best justifications, other policy concerns
3. Realist Argument
a. Drinking coffee and making a decision.
b. Moralist reasons (Cohen, judges make moral decisions when advancing considerations of
PPolicy) (Feinberg, Rights Based arguments and Utilitarian Justification are moral judgments.)
c. It is bad business to substitute impersonal criteria for what should be moral agony over hard
decisions (Huerwas) Criteria for hard questions, What is Human, are far too complex to be
reduced to something like criteria.
4. Resolving the issue
a. For one party
i. Discuss reasons semantic, legislative, otherwise…insert information from class
b. For the other party
i. Discuss Reasons Semantic arguments, otherwise…disscuss articles from class.
5. Recommendation to the trial court
a. Discuss why one type of analysis is better than the other. How all the X/Y formulation
arguments come out when deciding the case.
COMMON LAW SCRIPT
Hypo: A case is brought before the court which in turn applies several previous cases and authorities to
come to a conclusion.
1. What is the question that the court decided? (e.g. “Whether the railroad owed a duty of care to the
?)
1) How did they answer the question?
2) What was the ruling as a result of the answer?
2. What are the prior cases or authorities which the court or lawyers cite to? And is there a conflict
among the previous authorities? If there are, what are they? (e.g. break from the pattern of rulings
that does not create a clean scatter plot diagram?)
1) Similarities and differences between the previous cases?
2) State that the common law may be like arithmetic series, that can be added too.
3. What rule did the court apply and why is it a problem? Could the court have chosen another
rule from the previous cases, a different chapter of the novel, that is still one of integrity?
4. Apply various rules from past cases to current case  What result?
5. What question of law SHOULD the court have answered? (X/Y formulation)
6. What did the judge do wrong, did the judge assume that any interpretation of a law must be
based on some other Z factor? (e.g. J. Taney in Dred Scott assumed that he could not assume any
other interpretation of state citizenship requirement w/out depending on sentiment or public opinion)
7. Does the court’s analysis fall in line w/ the “best justification”?
1) Dworkin says that in order to maintain integrity (by staying w/in the constraints of the novel)
while making the novel the best it can be (find the interpretation that best fits the common law
decisions and apply it  thus conforming them to a rule or principle that is best justified)
2) If all interpretations are equally good, then turn to policy or moral questions
8. What policy or moral reasons would we have to pushing one rule over another?
9. Applying that best rule, what result.
Issues and Rules
1. Exploring the different ways one can analyze the X/Y syllogism and bring about an answer?
a. How to form the question?
i. In the traditional apply law to the facts formula.
1. Courts like this way because clean cut, technical, allows us use our forms of
analysis, allows us to use precedent in analysis.
ii. Ask the question posing the moral considerations.
1. Eastman, “Speaking Truth to Power”
a. Eastman was civil rights lawyer for Hattie Kendrick. Eastman argues for
thick pleading, telling the victim’s story of injustice so the judge can
experience the injustice for themselves. Also it helps the lawyer relate to
the case. Forces the judge to confront more than the formal legal
significance, forces judge to answer moral Q. More applicable to civil
rights, torts, than statutes, because with statutes law needs to be
predictable.
i. Reasons/Excuses we don’t thick plead:
1. Fed. Rules of Civ Pro
2. Professional Standards
3. Constraints of Legal Education
4. Lawyers saying the job is to solve a legal problem, not tell
a story.
5. We cant understand the other culture.
2. How to analyze a XY syllogism once it is formed?
a. Formalism
i. (Smith v. United State)
ii. Both majority and dissent frame the question as “Is trading a gun for drugs using a gun
under the drug trafficking crime under the statute.
1. O’Connor: looked at dictionary meaning as well as legislative intent. Use means
“to make use of” and intent was to remove drugs from entire scene of drug
trafficking.
2. Scalia: Looks at common word usage Looks at ordinary meaning of how we use
the word gun in relation to guns.
iii. Muscarello v. United States
1. Facts:“carries” a gun in glove compartment
2. Breyer: Looks at particular meaning as well as word in literary context.
Congressional intent-carrying in car imposes same dangers;
3. O’Connor concurs-gives particular meaning of the word; begins w/ XY issue
and then moves to social policy—so stating the issue in XY form was not
enough (not all questions can be formed in xy);
4. Ginsburg dissents--meaning given by average person on street, look at other
possibilities (federal sentencing statute);
5. Scalia dissents—statutes should be interpreted according to plain meaning of
language, not legislative intent
a. Example of when Formalism and judging an issue can go against your
political inclinations
2. Issues
a. What makes an Issue Hard
i. Ambiguity of Language
1. Multivalence: Two words can have similar meaning “Flies” “Sex”
2. Two phrases can have diff. meanings depending on context
3. Multivocality: The same sound has multiple meanings, like “bear”
4. Fruit
a. Unruh Act
ii. Vagueness of Language
1. Degree Vagueness
a. Grey. “Shades of Grey”
2. Criteria Vagueness-There are no necessary or sufficient conditions to satisfy
meaning of word. “Games, Religion, Vehicle”
a. Is the Boy scouts a Business under the meaning of the UNRUH ACT.
Analyze using semantic meaning, legislative intent.
3. Potential Criteria Vague: Natural Kinds, mammals, persons, water, because new
types of object could be discovered that may or may not be in criteria.
iii. Various ways to analyze syllogism move in different directions (Smith).
1. Semantic v. Intent
2. Ex: Unruh Act
iv. What is a fairer sentence may go against what law demands.
v. The right choice may be hard to decide because of the psychological aspects of the
choice.
1. Justice Scalia wants to put hard drug criminals away, but he cannot decide on
what he wants, he has to decide on what the.
b. Open v. Closed Questions of Law
i. Closed: A question of law that has already been decided by the highest court in the
relevant jurisdiction.
ii. Open question of Law: are questions that have not been decided by the highest court in
the land. Closed questions of law might not be easy for Supreme Court, but it is easy for
lower courts.
c. Ulane v. Eastern Airlines- Don’t pick the wrong issue.
i. Grady focused on normative argument that did not bear on the issue.
ii. He was concerned about plaintiff as a woman v. man, when that doesn’t matter since
the real Q was whether she was discriminated against based on her sex.
iii. Appellate Court: Re frames the X/Y syllogism to ask, Is firing plaintiff because she is a
transsexual an instance of discrimination under Title VII?
1. Court looks to legislative intent, plain language and legislative history, they had
opp. To include homosexuals, chose not too.
iv. Also poses the question are we constrained by the biases and notions of a previous
society, or can the law evolve with its people.
v. Unruh Act: All persons within this jurisdiction of this state are free and equal, and no
matter what their sex, race, color, religion, ancestry, or national origin are entitled to the
full and equal accommodations, advantages, facilities, or services in all business
establishments of every kind whatsoever.
d. Question of Law v. Question of Fact
i. Always want to figure out the question of law and then the question of fact?
1. That’s Where Grady Fucked Up
ii. Sometimes the question of law can be questions of community identity
1. EX: In Mexican cultures, what is considered Graffiti and what is Considered art.
THE LEGAL SYLLOGISM
e. Function
f. Applying the Conclusion as Precedent
i. Obiter Dictum- A decision rule that is broader than necessary to decide a case.
ii. You can state a holding broadly or narrowly.
g. Gomez v. Walt Disney:
i. Is “the Indiana Jones ride a “carrier of persons” under the statute.
ii. What makes case hard?
1. Case law, Legislative Intentions and Semantics all are contradicting each other.
3. Types of Legal Reasoning
a. Formalist Conscience
i. Takes Rules seriously by using a rule as starting legal inquiry and by offering a rational
for your decision.
ii. Normative Intuitive Reasons for why Formalism is a good idea:
1. Rules are worth having, some rules will be ambiguous but for most part rules are
understood.
2. The role of a judge is to apply some standard to a set of facts, and that standard
should be a rule.
iii. Excludes some moral considerations.
iv. Applies to both statutory and common law but in different ways.
1. Common law just faithfully apply leading ideas and concepts, which includes
morality and policy.
v. Does not forget that there moral implications involved in Formalist decisions,
characterized as best justifications, these just aren’t the only considerations.
vi. PEOPLE:
1. Scaliaa. One reason we should not look at legislative history is because the
legislature did not enact the history they enacted the words.
b. In representative democracy morality and policy should be decided by
legislatures not a judge.
b. Our Realist Conscience
i. Judges make decisions based on their political beliefs, backgrounds and experiences.
ii. Realists believe judges cant simply apply the law to the facts, way thick pleading is so
important.
iii. Deciding the question of law requires the decision-maker to enter into the realm of
moral and political judgment.
iv. Applying the law to the facts is a question, every semantic argument and legislative
argument is one shrouded in custom, politics, etc.
v. PEOPLE:
1. Joseph Stringer: Let’s be realistic in how far formalism can take us when
dealing with difficult moral or political questions. When we make decisions,
what we really do is drink a lot of coffee and then justify it later.
c. Natural Law Intuitions
i. Declaration of independence
1. The cornerstone of the constitution and its laws.
a. There are certain truths we hold self-evident
b. Equal Rights to life, liberty and pursuit of happiness.
c. All men created equal with certain unalienable rights given by creator.
i. Because based in the creator, they are natural rights.
d. Document is law, not because it is in our nature, but because of the
communal act of commitment reached when we all agreed to the doc.
2. Questions that arise:
a. Who are men?
b. What liberties arise from life, liberty and pursuit of happiness?
c. These questions, at some point, depend on moral determinations.
3. What natural law demands of us?
a. Make moral principle ingredients in the legal system and bear on specific
questions of law
b. To emancipate those moral principles from their earlier applications
4. Why do we deserve these rights:
a. Imagio Dei Syllogism: God is worthy, he made us in his image and
likeness, humankind is also worthy of some rights.
ii. People
1. Lincoln
a. Used moral principles in Declaration as method to view slaves as
citizens for the purpose of diversity jurisdiction. These values must be
equally progressed throughout the generations.
b. Principles of morality not limited to what the founders were capable of.
2. Thomas
a. Allows originalists like Thomas to be originalists but look farther back
from constitution to the declaration.
Persons
d. Thinking morally about persons. It is difficult to determine who is a person and who is not. Is a
person the aspirations that one has, is it their physical characteristics, what makes Data a
person?
e. Feinburg – Abortion
i. The question of personhood is important because it determines who will have moral
rights and who won’t.
ii. All and only persons are owed special duties, so it becomes crucial whether or not
fetuses are persons when determining abortion rights.
iii. He adopts a criteria “C”, if someone has these criteria then they are a person:
 Consciousness
 self awareness
 capable of experiencing pleasure and pain
 can reason and acquire knowledge
 can plan ahead
 can act on plans
 can feel pleasure and pain
iv. Feinburg calls this the “Actual-Possession Criterion” but the belief is circular. No being
can be a person without possessing C, but any being who possesses C is a person, yet it
is precisely C that directly confers personhood on whoever possesses it.
v. This C criteria makes infants not people, but Feinberg argues that you can’t kill infants
because of utilitarian values.
vi. It is called “actual possession” theory because Feinburg rejects the potential C and
gradualist potentiality C because potentiality for a right does not mean they deserve the
right now.
vii. Rights based arguments and utilitarian justifications are both moral reasons for making
a decision.
f. “Truthfulness and Tragedy” – Hauerwas
i. No moral decision maker should get hung up on what is a person
ii. To be human is to be able to give care to those who may not be just like you (isn’t this
just substituting one criteria for another?)
iii. Criteria that defines personhood is not useful
1. humanity is too complex to find criteria helpful
2. missing important moral judgments
3. make decision, not based on criteria, but on commonly shared notions of what is
right and wrong (narratives)
4. Point- While developing criteria of personhood we must be humble enough to
recognize that as humans there are limits to what we can figure out and bring
under our control. The hard question, abortion, right to did, don’t turn on who is
a person, they turn on the specifics of that situation,
g. Cohen - Transcendental Nonsense and the Functional Approach
i. A Straight up realist: All judicial decisions are ethical decisions; they force them to
make value judgments. Cohen does not say this is a bad thing.
ii. Ex: Tauza v. Susquehana Coal Company, (Is a corporation a citizen of a state for the
purpose of diversity jurisdiction?) Cohen: Why even argue this, just a façade for a value
judgment over a cup of coffee.
iii. BETTER ARGUMENT: When an argument in nonsense, then you shouldn’t deal with
it in the formalist sense. You should just use moral reasoning to deal with these
complex questions.
iv. “The meaning of a definition is found in its consequences”
h.
i.
j.
k.
v. Judges are making moral considerations when they are making considerations of public
policy.
Hutchinson v. Chase & Gilbert
i. Question: Is the ∆ Corporation present to be served.
ii. Learned Hand- Says that we understand the word “present” is meant as a short hand for
minimum contacts. Shorthands cause their own problems.
iii. Is this really a nonsense question, Starbucks is present in LA.
Pevensey v. Scrubb
i. The girl who “teased” the dog. Dog Bites girl. All caught on video tape.
ii. T. Court argued over what is teasing a dog and what is playing with a dog, but that
little girl could not be liable because she is not a “person”,
iii. Appellate Court says of course she is a person and nothing could be plainer but she
obviously did not tease the dog, she simply played with it.
iv. You don’t have to have C criteria to be a person who is injured by a dog but you have to
be a person with C criteria to understand you are teasing a dog.
Dred Scott v. Sandford
i. Taney made a terrible decision because:
1. He focused on the specific rather than the general intentions. General says that
all men are created equal while specific says who can or cannot be a citizen. He
gets the issue wrong because of his specific focus.
2. He said people and citizens are synonymous which made it an all or nothing
question as to Dred Scott’s rights
3. Taney was trying to be a formalist. He freed his own slaves and was against
slavery, but his formalist conscience kept him from doing what he knew was the
decent thing.
ii. The dissent got it more right by saying that it did not have to be all or nothing and that
person can mean different things (like in Pevensey).
iii. Effect of Dred Scott
1. Formalism can be a failure. Deciding a case using semantics and original intent
fails.
2. From a lawyering standpoint, Curtis, dissent, has it all over Tawney. If five
states have state citizenship for blacks then how can the nation take away
citizenship.
3. Tawney’s question of law, the way he sets it up, has him say that “did the
framer’s think that black people were citizens” not people. Asks the wrong legal
Montoya- Mascaras, Trenzas y Grenasi. We all wear masks to conform to the expectations society sets up for us.
ii. Montoya- is always wearing one.
1. At the end she is still wearing a mask, but she is living with her mask.
2. We should live with our masks if we can’t take them off altogether.
iii. Bigger Picture1. Relate to Dred Scott, he wore this awful formalist mask that covered the person
he really is and kept him from making the decisions that he should have made.
2. Ideas should not be hidden, they should be exposed.
a. Shows how to read cases in law school
i. Should be aware of our reactions, even if emotional
ii. Consequence to not speaking our reactions
iii. Masking and unmasking not universally felt in the same way, but
all mask in some form
3. Exposes Injustice in the Law
a. A legal system that forces a woman to abort their own baby is an unfair
one.
Common Law Precedent
1. Does not begin with a fixed text but with concepts, principles and policies that are expressed though
common cases.
2. Rationalizing the Precedents
a. Locus Classicus: You cant just dismantle the law and start anew, this is the idea of precedent.
b. Arithmetical Series Analogy: You find the new number that fits the old pattern.
i. Where there is precedent, case should be consistent with the principle that rationalizes
the precedent.
ii. More than one rule may rationalize the precedent.
iii. More than one possibility judge can exercise his own sense of judgment.
iv. Effects:
1. Addition of precedent trims down and illuminates new arguments that may
previously been unseen. Also common law gives us the opportunity for
creativity.
c. The Scatter plot Diagram Analogy: Precedents are like data points
i. What about the outliers, they could be just wrong decisions, or they could be new
species or trends in law. The outliers could be different cases that need to be decided
differently.
ii. Common law gives judges the opportunity to throw out wrong cases, but also to make
“outlier” decisions, and then justify the,
d. Chain Novel Analogy - Dworkin “The law is Like Literature”
i. Each succeeding writer must be creative within a given constraint.
ii. Aesthetic Hypothesis: The author is trying to make the novel the best it can be and has
to do so within his own constraints.
iii. “Constrain on Integrity”: If the next chapter is to have integrity then you cant supplant
the work of the other’s for your own.
iv. Internal Constraints- The one where we want our interpretation to be the best it can be.
v. External Constraints- Political forces or being fired.
vi. Must find a principle or policy of law that makes it the best it can be.
3. Macpherson v. Buick Motor Company
a. Cordozo retroactively changed the law. Bad.
b. Cordozo sort of like Eerie, he is not changing the common law, he is looking for it in a way that
people in Burkett and other cases were looking for it.
c. Holmes says, “Common law is not some brooding omnipresence in the sky, the articulate voice
of a soveriegn” Responding to Justice Story in Swift v. Tyson,
i. Holmes way of judicial lawmaking is ok by Scalia.
4. Scalia, “The Role of the United States Federal Courts in Interpreting the Constitution
a. In common law cases its ok to use legal realism, but a judge going against a democratic
institution is somehow wrong. Deciding law against statutes is taking that law away from the
people.
5. The Parable of the Woodcarver
a. Law is like woodcarving, once you start chipping away at the wood there is no going back, but
sometimes you have to step back, turn the law upside and look at it from a new perspective
What is Law?
1. Positivism
1. Law is a social and historical fact.
2. Goes against common law reasoning because positivists would see old common law rules as
the law because it is a historical fact, common law reasoning says that we are making the law
pure and that old law is not even law anymore because it is bad law.
3. Dworking criticizes Positivism- no set of descriptions or evaluations determine what law is, it
is the interpretations that mix the descriptive and evaluative elements. To know the law is to
interpret to make it better.
4. The rule of law is the theoretical authority for the judge.
2. Natural Law
a. Law is not a social or historical fact, it’s a moral fact.
b. The experiences of the ship captain or the judges that have come before you are ones of
accumulated wisdom and that is why they should be given deference.
Fact?
There is no real truth to fact, we all view the truth of facts differently. What inferences do we allow in the fact
finding process?
Statement of facts is the minor premise of the second syllogism.
1) Smith v. Bocklit
a. Did the bus driver motion for the kids to cross the street, or did he make some nice motion from
east to west?
i. Your sense expressions can change what really happened, your biases and ideologies
change what you see and hear.
b. An example of formalism for the jury, the judge is able to control what the jury hears and sees.
2) A jury of Her Peers
a. These woman’s experiences shaped their interpretation. No one else could have understood
what happened because they were her peers. Martha sees a “lonesome house” and a home
without “love”
b. People watching the Rodney king beating sees different things.
c. Garet points out if people can come to an understanding together in the jury room, it is
important for those women to share their story.
3) Guardianship of Terry Shiavo
a. The finding of fact is the third tool in the legal syllogism battle. Finding of fact can be what
makes the case hard or not.
4) Huermanuetics File
a. Does the text manifest testimony intent.
b. Shows that a fact becomes what you want it to be. The poem became a will so that public
policy, a judgment that serves the best interests of the greatest number. Colleague.
5) Susan Estrich “Palm Beach Stories”
a. Date rape has become accepted as rape but that a woman still needs others to come forward and
accredit her testimony.
b. Palm beach woman was suing for rape, the judge would not allow three other women to testify
that they were also raped by the ∆, but the judge would not allow the information to go
forward. In Tyson case other women were allowed.
c. This other information determines that fact.
6) Ann Scales, “The Emergence of Feminist Jurisprudence”
a. Distinction between objectivity and subjectivity is an impossible standard. Claims of
objectivity are simply just a male viewpoint.
b. Objectivity is really the projection of the male psyche.
c. Instead of objectivity there should be justification of court rulings based on experiences.
Emphasis on figuring out the moral crux of matters.
d. Goes along with Judge in Philip Becker case.
7) State v, Rusk
a. Women who said no, but did she really say no, and did he force her. Was there no consent, was
there a threat of force.
b. Rusk saw the situation as one of consent.
c. Women felt threatened by the entire situation. In this case the fact is the hard question, not the
law.
8) Angela Harris- “Race and Essentialism in Feminist Legal Theory”
a. Feminism is dominated by the voice of the white woman.
b. For black woman and men, is an entirely different experience. The white woman rape to
control the black man and the white man could rape the black and there was no big deal.
c. White woman’s feminist rape theory relies on racist ideology that participates in racial
terrorism.
i. The fact of race could be different for different cultures and for different cultures.
9) Mashpee Case
a. What is a tribe? Hard question because of objective/subjective differences.
b. To white man buying a bandana does not make one part of a tribe, to Mashpee it does.
c. The judge used Western, and not Indian ideologies about community to decide the answer.
i. Images of the Indians told part of the story, explained the facts.
10) What make a question of fact hard.
a. Different faces of the truth that depend on your correspondence to the world.
b. What does it mean to apply an objective and a subjective standard.
c. By having of different people, cultures, understandings people can come together and reach a
common understanding of facts, but if you exclude those people there will never be that
understanding. Example: Mashpee’s, Looking at Rape from an Objective Standard
LAW
Ideal of the Rule of Law
1. The ideal of the rule of law must be one of an internal morality.
2. Fuller, Natural Law,
a. says that the Nazi’s proved that something is not law at all if it does not meet the moral
requirements that make law. The best way to improve law is to have moral consideration
behind them.
b. Whether law is moral or not will determine whether we must follow it or not.
3. H.LA. Hart (Positivist)
a. says that the Nazi law is bad law, and is evidence that law can be simply atrociously bad. We
should not be mystified by law, we should be be able to discern between good and bad
instructions.
Morality that Makes Law Possible-Fuller
1. Rex the King, who makes the eight mistakes that are crucial to the rule of law. The citizens were
fedilitous to the law, they did not disobey it. The citizens were faithful to their king, they were never
faithful to his law though/.
a. Failure to achieve rules at all.
b. Failure to publicize the rules.
c. The abuse of retroactive legislation. (Doesn’t provide a guide for people,
d. Failure to make understandable rules
e. Enactment of contradictory rules
f. Rules that require conduct beyond the power of the parties
g. Changing the rules to frequently that people cannot follow them
h. Failure of congruence between the rules as announced and their actual administration
2. Positivism and Fidelity to the Law
a. Law is a human striving for goodness, its more than just a moral question, and Hart simply
objectifies law.
3. Karl Llewyllyn-The Bramble Bush
a. Law is not what is written down, but instead it is what government officials do about the
resolution of disputes.
b. To be an effective advocate you need to understand your client and your community so you can
influence the judge most effectively.
c. The law is not a system of rules, positivism is a bad way to view things.
d. His picture of what judges do is a close vision of what Scalia believes the first year law student
does. Fidelity to the law is completely different to the idea of law being about justice. You
have to understand what your client is acting like and their situation, and the law is value
neutral and that you should manipulate the law it is a little harder to take.
e. Not a great system:
i. Gives people the opportunity to disregard the morality in the law and simply be a
machine that argues the best result for their client.
Folktales of Justice
1. Our common stories influence our morality.
2. The law can be a bridge from the current state of affairs to what we believe to be morally right from
our folktales of justice. It sets the bridge to build our committed social behavior.
3. There could be 100 legal worlds all coexisting in space and time. He defines law as commitments to
justice. Stupid, what happens when two justices conflict with each other, say Muslim and Christian.
f. Courts appeal to the stories of courage and resistance that justify the fundamental choices that
people make.
i. The story of the judge as an anology to a batter, who has to have the courage to hit a
100 mile fastball out of the park.
ii. The story of King Yannai and the judge who wanted to try him for killing a man. The
angel Gabriel kills smites all the other judges who do not have the courage to stand up
to the king. But the story ends that kings should not be judged at all…..
iii. 17th century story, Judge Coke stood up to King James after he relegates Fuller to the
prison. The king, according to Coke, is under God and the Law. The parallel story, the
true one, is that Coke folded in front of James and lived to plea his technical merits in
other cases.
iv. IT IS THE MYTHS THAT SUPPLY PURPOSE FOR HISTORY. And history tells us
how hard it will be…
v. To speak truth to power, there must be a jurisdiction of the judge, in which the king
cannot share.
Positivism
 Proposition of law is true if it corresponds with social and historical history.
o What was enacted with what intentions by lawmaking bodies.
o What judges do, as opposed to what they say
o What communities believe and what commitments they have to those beliefs.
Natural Law (Modern)
 Law is not really law if it fails to meet some minimal standard of moral justification:
o Fuller’s eight thin and ambiguous criteria
o Integrity, (a legal proposition fits the legal sources and gives them their best justification)
o Moral equality of all persons as such,
o Moral equality of all persons as such, expressed in the earnest dialogue about the commitments
and experiences that render life meaningful and valuable.
Reflections on Human Nature-Ron Garet
 The Constitution is based on the theoretical judgments made when the declaration of independence.
 The Tenth Federalist essay assumes that people generally have a darker side.
o To control this darker side we must set power against power. This is why we have gov.
Rivka Yosselevska
1. The woman from the holocaust that had the horrific story. She was able to bear witness on the human
condition and what it is capable of.
The Milgrim Experiment
1. The Yale Experiment that allowed people to hurt each other, shows how far people will go without
authority checking them, or with authority giving them the opportunity.
a. People act this way because they can’t articulate the wrong; they can’t apply the articulated
principle to the concrete present dilemma
b. society doesn’t provide for us a model of disobedience;
c. People resolve moral conflict of following “evil” authority by placing responsibility on
authority (Issue of big “I” and Integrity.)
d. Subjects complained and objected to being forced to give electric shocks to people – but they
couldn’t physically stop themselves.
e. The presence of an authority figure (scientist, Nazi commandant) who takes responsibility
overrides a person’s perceptions.
Billy Budd-Herman Melville
1. Vere’s dilemma between the demands of his role as a captain and the voice of his realist conscience
conscience.
a. Vere knows that Billy is not guilty; but is afraid to speak truth to power. Owes allegiance to
King, not Natural Law. Afraid of mutiny breaking out if he doesn’t take a stand.
b. He’s admirable as a naval commander at wartime, but not as a judge/lawyer. He’s a realist &
doesn’t allow his doubts to overcome him. Billy used fatal violence v. Claggart because he.
could not speak
c. Vere is a positivists and he shuts out his realist conscience. Melville uses Vere to ask us
questions about Postivism.
Justice Accussed- Cover
1. We have many leaders for civil disobedience
a. Antigone, Luther, Gandhi, King
b. The model for Captain Vere was Melville’s father in law, Justice Melville Shaw (strong
opponent of slavery yet handed the law down firmly and succinctly. Was vilified by
abolitionists. Could not speak truth to power.
c. Makes comparison between Fugitive Slave Act and Mutiny Act. Billy did not have the ability
to speak, The fugitive could not speak in his own defense.
d. Judge has 5 choices:
i. apply law,
ii. apply conscience,
iii. resign,
iv. cheat
v. legitimate role to determine what the law will become.
e. To understand the process of injustice we must understand how Judges can be minions of the
king.
Anthony Burns Case-Paul Finkelman
1. Fugitive Slave Act barred Burns from speaking at own rendition hearing.
2. Judge Loring lets us down– doesn’t speak truth to power. Although he didn’t agree w/ morality of the
law, he believed the law must be enforced for good of the nation, & also the good of his polit allies &
career.
3. Ruled that fugitive slave Burns be returned to his master in VA.
a. At end of the day, to J. Loring the appearance of process seems good enough. After the
decision, Loring lost everything & Burns was beaten to a pulp back home.
b. Would he have had more integrity to resign his commission?
c. Dana, attorney sacrificed Burns on the altar for his own idealism. Dana’s choice: whether to
work within system.
i. Atty. should listen to client & make it clear whether client should make choice to take
the risk.
The Floating Opera-John Barth
1. Battle of the wills between two attorneys for who gets Mr. Mack’s “pickle jars
2. Todd Andrews tries to postpone appeal by manipulating teh system to get decision he was looking for
(Llewellyn) until the appellate court had undergone elections and would be shifted in his favor.
a. Did he do the right thing – by bending the law to suit his purpose?
b. IF YOU ARE AN OUTSIDER TO JUSTICE, HOW CAN YOU ARGUE JUSTICE
EFFECTIVEL
3. Tension between the commitment we made to the DI and the commitment we have to winning for our
client, which one is more important.
4. Discussion of the invisible hand that would take all the vices of people and result in terms that benefit
the public.
Guardianship of Philip Becker
1. Fernandez is able to use his feelings to strengthen his legal reasoning. He is able to speak truth to
power because he was able to dip his well into the bucket.
2. Judge Fernandez makes decision against precedent ]) to award psychological parental rights to Heaths
(as opposed to biological parents, the Beckers) and admits decision based on his own feelings,
emotions, sense of justice, etc. (judges are human, not machines).
3. Stretched legal doctrine to the breaking point to save the life of a child.
4. LION because of the conflict of parental rights v. best interests of child.. Whether the Heaths are
“psychological parents”. X (Q’s of LAW): Unrelated to the child; Overnight visits; Weekly visits;
Care about educ. + basic skills. Q. of FACT: Do the Heaths love Phillip? Used sacred narratives to
illustrate his point and guide his decisions:
o King Soloman tells dueling moms to just divide the child in ½--“real” mom comes forward to
spare child’s life
o Pontius Pilate condemning Jesus to murder against his conscience & then washing his hands of
responsibility – J. Fernandez didn’t want to be P.P. & wash his hands clean.
o Marley’s Ghost (the case) leading Scrooge (Fernandez) to save the life of Tiny Tim (Phillip). J.
Fernandez didn’t want to be Scrooge
Empathy, Legal Storytelling and the Rule of Law-Tori Massaro
1. There has been a call to context in the legal world.
2. Rule of Law model and empathy are not antagonists. The gaps in the law allow us to personalize
stories and for judges that are sympathetic to a party’s cause—stories work directly from this
understanding & bring in the empathy factor—don’t want legal discourse to be too removed from
individual experiences
3. Can have empathy, but must be w/i the rules, for a mapless journey you need not only a lamp, but a
compass –
4. Problem of Empathy
o Q of how do you treat like cases alike.
o How can you have consistency when empathy is dependent on indiv. experience.
o Law calls for objectivity and trans-substantive law in question. Hard to be a formalist and
empathize.
5. America is a pluralistic society, do we really want people using their experiences to judge others, what
happens when that experience goes against the norm. Ephraim’s point about people judging blacks.
Before the Law-Franz Kafka
1. Kafka wanted work burned, his friend would not do it.(Hermuenitics File). We are complicit in the
disobedience.
2. The man and the gatekeeper, he spends his entire life trying to get into the castle of law, and the
gatekeeper never lets him in. “No one but you can enter the door, and you can never enter so I am not
going to shut it.
3. Law is entwined w/ the basic issues of our existence--these narratives express idea that law is “finally
affirmed, even though its meaning will never be fully understood, even though its promise will never
be fully realized.” We are constantly striving to reach the true meaning of law, but we will never get
there.
4. Reading before the law is participating in one of Cover’s folktales of justice. The Priest says, “It is not
necessary to accept everything as true, one must accept it as necessary.” – a melancholy conclusion.
Law Like Love- W.H. Auden