LL&V plot summary: weeks one and two

Transcription

1 LL&V plot summary: weeks one and two Lawyers have decisions to make. Some of these decisions are easy to make, because reasonable minds do not disagree about which choice is best. Smith v. U.S. You represent defendant Smith. At trial he has been convicted of a drug crime and also received a sentence enhancement under 18 USC 924. Which is your best argument on appeal of the sentence enhancement? (a) A MAC-10 is not a firearm within the meaning of 924. (b) Cocaine is not a drug within the meaning of 924. (c) Trading a firearm for drugs is not using a firearm within the meaning of 924. The Court has handed down its decision in Smith at T1. You represent Jones at T2. The trier of fact found that Jones traded his Colt revolver for marijuana; Jones was convicted of the underlying drug trafficking crime and also received a 924 sentence enhancement (the trial court concluded that Jones used a firearm within the meaning of 924). Do you appeal the sentence enhancement decision, or is the question of law presented by the enhancement decision controlled by the holding in Smith (and if it is controlled, did the trial court reach the result required by Smith)? But sometimes lawyers face decisions that are hard to make. Sometimes the decisions are hard because we don t know all the facts, e.g., we re not sure how others will react. Smith v. U.S. You are prosecuting Smith. As you prepare for trial, should your sentence enhancement theory be that Smith used the firearm or that he carried the firearm? That s a hard judgment call for several reasons, including your uncertainty about whether the trial judge and the appellate court will agree with you that Smith s acts (as found by the jury) can fairly be described as using a firearm and/or carrying a firearm. In LL&V, we are calling these hard judgment calls of type 1. (See Study Aid, p. 1.) Sometimes decisions are hard to make not only because we don t know all the facts (and can t predict with certainty how others will react), but also because the choice requires us to make a value judgment and there are plausible moral or policy reasons on both sides. Treason exercise. You are prosecuting Consolidated Chemical Co. Should you charge the corporation with treason, or rest content with the lesser (but still very serious) charge of materially assisting a terrorist organization? Shoes exercise. You are the hearing officer. Lucy has testified that one of the items she purchased was Sunday shoes for her children. Do items of clothing worn for purposes of religious observance count as life necessities within the meaning of 101? In LL&V, we are calling these hard judgment calls of type 2. (See Study Aid, p. 1.) Sometimes hard judgment calls arise because there is reasonable disagreement about what a legal rule means and therefore also about how that rule applies to the facts. Smith v. U.S. Is trading a firearm for drugs using a firearm during and in relation to a drug trafficking crime within the meaning of 924? Shoes exercise. Does a nonverbal gesture count as authorization within the meaning of 103? 1

2 Steelworkers v. Weber. Does an affirmative action plan voluntarily entered into by the employer and labor union as part of their collective bargaining agreement, and designed to provide black workers with access to what had been a nearly all-white skilled position workforce, count as discrimination because of race within the meaning of Title VII 703(a) and 703(d)? Sometimes hard judgment calls arise because there is reasonable disagreement not only about rules but also about roles. Is the paramount duty of the lawyer to fight for the client s interests or to empower the client to make an autonomous and informed choice? (Shoes exercise.) Is the paramount duty of the prosecutor to charge everything that could plausibly be supported by the law and the evidence, or should the prosecutor refrain from some charges due to considerations of relative culpability or dangerousness and applicable constitutional values? (You are prosecutor; should you seek a sentence enhancement for Smith or rest content with the sentence he will serve for the underlying drug crime? Should you charge Consolidated with treason even if you are unsure whether the Constitution s two-witness rule applies, and if it does apply, whether you have two witnesses to the same overt act?) As we learn to recognize the hard judgment calls that we face as lawyers, we also become aware of how the dilemma exerts pressure on us. Is it putting pressure on our knowledge, our skills, our character, or some combination of them? Knowledge Skills Character How to use the diagram: When you face a judgment call that is hard because it puts pressure on your knowledge, skills, and character, locate the dilemma at the center of the triangle. If the dilemma you face is putting pressure on your skills and character but not so much on your knowledge, locate the dilemma in the lower center of the triangle, etc. Locating your dilemma on the diagram may also help you understand that a problem that could be framed as a knowledge stressor (if you are legal aid lawyer Dale Starr, do you know enough about the life circumstances of welfare recipients to form some provisional explanations for why Lucy might be hesitant to confront the county) can also be framed as a skills stressor (as you talk with Lucy, do you have the skill to pick up on her signals and respond to her in ways that are clarifying for both of you and help you predict accurately the tenor of her testimony?) 2

3 What is character? In our course thus far, we have understood character as sincerely meaning and keeping the promises that we make when we take the bar oath (Shoes exercise, p. 528). We have understood the content of those promises to include a promise to act faithfully, that is, with fidelity to law and to our client. We have understood this obligation of fidelity to include readiness to accept responsibility; we deserve our client s trust in us. Once we recognize our obligation of fidelity, we see that some judgment calls are not that hard because reasonable minds do not disagree about what fidelity demands from us. Here are two examples from the Shoes exercise. The hearing officer at Lucy s hearing has promised to apply the law to the facts. Grasping the import of this promise, the hearing officer should understand that if the facts satisfy all three elements of 103 (the caseworker authorized Lucy to spend the money; Lucy spent the money in reliance on that authorization; her reliance on that authorization was reasonable), the hearing officer should not regard his or her own identification with county employees and concern for their morale as reasons to rule for the county on Lucy s 103 claim. The hearing officer at Lucy s hearing has promised to apply the law to the facts. Grasping the import of this promise, the hearing officer should understand that it should make no difference to the outcome of Lucy s 101 life necessities claims whether the hearing officer perceives Lucy as asking nicely for mercy and compassion or as firmly asserting her statutory rights. Similarly, the hearing officer should say to himself or herself: The issue isn t whether ruling in favor of Lucy on her 101 claims makes me feel good (I like the feeling I get when I condescend to needy people who ask nicely) but whether items of food, furnishings, drug store purchases, etc. count as life necessities within the meaning of 101. But sometimes reasonable minds can differ about how to understand and apply our obligation of fidelity. Treason exercise. We prosecutors are debating whether to charge Consolidated with treason. Some of us think that our obligation of fidelity requires us to make the Constitution s values our own. Accordingly, we think that we should internalize the Constitution s reasons for setting a high evidentiary bar for treason convictions (the two-witness rule) and refrain from charging Consolidated with treason unless we re confident that the testimony really satisfies that special corroboration requirement. But others of us think that our obligation of fidelity requires us to leave it to the trial judge and appellate courts to determine, after adversary argument, whether the twowitness rule applies in our case and, if it does, whether the testimony of our witnesses satisfies that rule. Sometimes lawyers and judges frame the issue (the question of law presented for decision) in the formal (X/Y) format, where X = some description of the facts, and Y = some element of a legal rule. This way of framing issues seems to call upon the judges to decide a factual or descriptive question rather than a value question. Smith v. U.S. Does trading a firearm for drugs [X] count as using a firearm [Y] during and in relation to a drug trafficking crime, within the meaning of 924? 3

4 Shoes exercise. Do Sunday shoes [X] count as life necessities [Y] within the meaning of 101? But it is almost always possible to reframe the issue in such a way as to summon a value inquiry. Smith v. U.S. Has a defendant who trades a firearm for drugs done something so blameworthy or dangerous as to deserve thirty additional years of prison time [Z]? Shoes exercise. Should a welfare recipient be required to repay to the county any income she has received [Z], even if she spends the money on things that she believes that her family needs in order to honor God at religious services? Notice that the issue frames in these bullet points differ in several ways from those in the previous paragraph. (1) Unlike the X/Y frame, they include a description of the consequences of decision [Z]. (2) Unlike the X/Y frame, they include normative-evaluative words (blameworthy, dangerous, should, honor God). (3) Unlike the X/Y frame, they omit specific reference to the element (word or phrase) of the legal rule. (Cf. the Court s issueframe in Weber, which includes X but not Y.) There are advantages and disadvantages to each of the various ways in which any given issue can be framed. It might initially appear that the X/Y issue frame is always best, because most neutral. For example, one might say: let the issue in Weber be framed in the X/Y (formal) frame, because that frame leaves open to the Court all possible decisions, such as: X counts as Y in virtue of the ordinary language meaning of the phrase, discriminate against an individual because of such individual s race. X does not count as Y because counting X as Y would defeat Title VII s purpose or general intent (positioning labor unions and employers to take voluntary steps that integrate black workers into jobs from which they had been shut out). But the X/Y issue frame is not as neutral or value-free as it might initially appear. Typically, X can be stated at many different levels of generality; the choice of level of generality sometimes is or should be a value choice. So framing the issue already calls for a value judgment to be made. If we are prosecutors, defense attorneys, and judges in Smith, should we see the issue as about trading firearms for drugs? If we choose to see it that way, we choose to frame the resulting holding in a way that will not control reverse-facts scenarios (Watson). If we see the issue as about trading firearms for drugs, that s because we believe that ordinary language meaning is a paramount value in the criminal law. In ordinary language, one who trades a firearm for drugs has plausibly used the firearm in the transaction, but one who trades drugs for a firearm plausibly has not used the firearm in the transaction. Should we see the issue instead at a higher level of generality: as about exchanges involving firearms and drugs? We might choose to see it that way because we think that danger and blameworthiness should be paramount considerations in the criminal law. And from those standpoints, any defendant who participates at either end of the guns/drugs trade has roughly equal blameworthiness. It takes two to tango, so both participants in the exchange have contributed roughly equally to the social danger. In the Shoes exercise, consider this issue statement, which frames the Sunday Shoes issue at a low level of generality: Are Sunday shoes [X] life necessities [Y] within 4

5 the meaning of 101? Now ask yourself: Are there any strong reasons of morality or social policy (value reasons) to shift the X description to a higher level of generality? (Hint: Is it open to a court to hold that shoes worn by Sunday worshippers are life necessities but shoes worn by those who worship on Saturday are not?) Since the Constitution probably requires the law to treat all sincere expressions of religious conscience as prima facie similarly situated, doesn t a court have a strong reason to generalize X? E.g., Are items of clothing that people wear as they participate in religious activity [X] life necessities [Y] within the meaning of 101? The impulse to formalize legal reasoning (legal formalism) extends not only to issue-framing but also to the logical structure of deciding the issue. So we often represent the application of the law to the facts as a syllogism that proceeds in three steps (top of p. 2). E.g., 1. Defendant qualifies for a 924 sentence enhancement if he or she uses or carries a firearm during and in relation to a drug trafficking crime. (This is the major premise of the syllogism. It states the legal rule that one is about to apply.) Q. Is trading a firearm for drugs [X] using a firearm [Y] within the meaning of 924? (This is the issue presented on appeal, that is, the question of law. See the Court s statement of the issue on p. 5.) 2. A defendant who trades a firearm for drugs [X] uses the firearm [Y] within the meaning of 924. (This is the minor premise of the syllogism. It states the decision rule or holding; see the Court s statement of the holding on p. 10.) 3. Therefore defendant qualifies for a sentence enhancement if he or she trades a firearm for drugs. (This is the conclusion of the legal syllogism. It states the result of applying the law to the facts.) Notice that the law supplies the major premise. Once we have both the major premise (1 above) and the minor premise (2 above), logic entails the conclusion (3 above). But logic does not supply the minor premise (2 above). The question whether or not X is Y, the question whose answer is the minor premise, is a substantive question. So in Smith, the majority and the dissent are not disagreeing about logic, and they are not disagreeing about the application of logic. They are disagreeing about the answer to be given to the substantive question, Is trading a firearm for drugs using a firearm within the meaning of the statute? Something makes one answer to that question better and another answer worse, but that something is not logic. Scalia s dissent is neither more nor less logical than O Connor s opinion for the Court. In statutory interpretation cases, there are multiple competing ways to understand what one is and ought to be doing when answering the issue (that is, when deriving the decision rule that will serve as the minor premise in one s legal reasoning). The three theories of statutory interpretation that we read about and discussed in class textualism, intentionalism, and purposivism offer competing proposals for how a court should go about deriving the decision rule (answering the issue question). Note 3, p. 34, following Prof. Garrett s article, alerts us to the possible existence of a fourth theory or method of statutory interpretation: pragmatism. We have seen that: 5

6 Textualism in statutory interpretation rejects recourse to the legislative history, and rejects recourse to dictionary definitions of statutory words or phrases. Textualism gives statutory words and phrases their ordinary language meaning (determined by linguistic thought experiments, as in Scalia s Smith dissent). Prof. Garrett shows how political science may undercut the forward-looking (ex ante) case for textualism, but she does not offer comparable objections to the backward-looking (ex post) case for textualism. (See note 4, pp ) Intentionalism in statutory interpretation faces a threshold question: which legislative intent should carry more weight, the legislature s particular intentions or its general intentions? (See p. 18.) We have considered the separation-of-powers argument that when a court is interpreting a statute, the court ought to assign more weight to general intentions than to particular intentions. (The separation of powers argument goes like this: the legislature makes the general rule but does not get to apply that rule to particulars; the court does not make the general rule but gets to decide how it applies to particulars.) Prof. Garrett shows how difficult it can be for a court to figure out which positions asserted by legislators in the legislative history express the terms of the legislative deal. Sometimes it can be hard to know whether a reading of a statute (a proposal about what a statute means) is better characterized as an exercise of general intent intentionalism or as an exercise of purposivism. For example, the majority s interpretation of the sentence enhancement statute in Smith and the majority s interpretation of Title VII in Weber can be characterized as general intent intentionalist or as purposivist. Typically, intentionalist arguments adduce evidence from the legislative history. Since O Connor offers little if any such evidence, her danger reading of the statute might better be characterized as purposivist. Since Brennan s majority opinion in Weber quotes repeatedly from the legislative history, one could describe the opinion as intentionalist. However, to the extent that Brennan is reconstructing what a reasonable legislature would do, as distinct from trying to retrieve from historical data what the actual Congress did, one could describe the opinion as purposivist. In today s world of statutory interpretation, lawyers are ready to make and respond to all three (or four) kinds of statutory interpretation arguments. So if you represent defendant Smith, you are ready to make the prison overcrowding argument (p. 16, note 12), though you know that some judges will not treat such a policy argument as a cognizable reason for decision in a statutory interpretation case. The Justices in Watson (the reverse-facts case) generally agree with one another that it is not their role to figure out how dangerous it is to trade drugs for guns, and whether it is more or less dangerous to trade drugs for guns than it is to trade guns for drugs. They generally agree with one another that they do not get to make a value judgment about how much danger is enough danger to warrant a sentence enhancement. Instead, they think that their role in statutory interpretation is to decide, first, whether defendant s conduct can be described in ordinary language as using a firearm. If it can t be so described, that s the end of the matter. In Smith, Scalia s dissent has much the same content. (We re not here to decide how bad or how dangerous it is to trade firearms for drugs. We re not here to help 6

7 Congress avert the social evil that Congress meant to avert. Instead we re here to apply the rule -- the enacted words -- to the facts.) Some lawyers and judges think that textualism is the best theory of statutory interpretation. Those lawyers and judges think that judges should treat statutory interpretation questions as quasi-factual questions about the ordinary language meaning of words or phrases in the statute, not normative or value questions about policy. These textualists disagree with Dworkin when Dworkin takes the purposivist view, p. 48, that a case like Weber requires the court to decide which of the two competing justifications is superior as a matter of political morality. But even if we are persuaded by textualism, our conclusion is only that judges in statutory interpretation cases should not make value judgments of the kind: this reading of the statute is better than that reading because it makes the statute better (fairer, more welfare-promoting, more just, etc). This conclusion does not go so far as to hold that moral reasoning has no place at all in judicial thought. Indeed, for some judges, moral reasoning probably figures prominently in the case for textualism that they have come to accept. In other words, some lawyers and judges are persuaded by the moral case for textualism. These lawyers are committed to a value-based view of representative democracy. They believe that representative democracy works best, and best fulfills important criteria of legitimacy (such as rule of law and government by consent of the governed), when the judiciary gives the legislature tough love by forcing the legislature to say what it means. So textualism in statutory interpretation does not necessarily mean the judicial avoidance of value judgments. Some textualist judges may make big value judgments about how the legislature and the judiciary ought to relate to one another in a well-functioning representative democracy under the Constitution. Those big value judgments might urge these judges to abstain from making smaller value judgments about which reading of a statute achieves the better social policy. (And, as we will see later this semester, at least one textualist judge, Scalia, thought that it is quite legitimate for judges to make value judgments when deciding issues under the common law.) Finally, even if we are persuaded that judges should not carry out moral (normative) reasoning (make reasoned value judgments) when interpreting statutes in hard cases such as Smith or Weber, it does not follow that we lawyers do not and should not carry out moral (normative) reasoning (make reasoned value judgments). We lawyers need to exercise our powers of moral reasoning as we recognize, think through, and decide the hard judgment calls of type 2 that confront us in the lawyer-client relationship. (That returns us to the first several pages of this summary.) 7