Legal Interpretation and Analysis

Professor Fee
Fall 2009

 Legal Interpretation and Analysis – Fee

 Legal Theory Concepts That Should Be Familiar
 Ex Ante and Ex Post……………………………………………………………………………………………………………..…………3, 5
 Natural Law…………………………………………………………………………………………………………………………………...6
 Formalism…………………………………………………………………………………………………………………………….….2, 5, 6
 Legal realism………………………………………………………………………………………………………………………………..2, 6
 Rules and Standards………………………………………………………………………………………………………………………….14
 Slippery Slopes………………………………………………………………………………………………………………………11, 12, 13
 Various Theories of textual interpretation: Textualism, Purposivism, Intentionalism………………………………………………..…16, 17
 Economic Analysis of Law (or Utilitarian analysis)……………………………………………………………………………..26, 27, 28, 29
 Single Owner………………………………………………………………………………………………………………………………...26
 Least Cost Avoider……………………………………………………………………………………………………………………....26, 27
 Coase Theorem………………………………………………………………………………………………………………………..……..28
 Baselines…………………………………………………………………………………………………………………………………..…28
 Liberal Feminism………………………………………………………………………………………………………………………….…27
 emphasis on treating women and men the same, avoiding stereotypes about differences) (seeks individual rights and equality)
 Cultural Feminism…………………………………………………………………………………………………………………………...27
 emphasis on different tendencies of men and women, seeks inclusion and respect for women’s perspectives and experiences in law, seeks equality but in a
broader sense than formal equality)
 Ethic of Care…………………………………………………………………………………………………………………………………27
 Role of Rhetoric (or choice of terminology) in Law…………………………………………………………………….15, 16, 17, 18, 19, 32
 How Law Affects Social Preferences and Social Morals……………………………………………………………………………………27
 Formal Equality and Substantive Equality (some would break into more categories)……………………………………………………....27
 Examining How Legal Rules Advantage or Disadvantage Distinct Groups………………………………………………………………...27
 Experience (as opposed to logic) as Foundation for Law…………………………………………………………………………………3, 27

I. 5 TYPES OF LEGAL ARGUMENT AND EX ANTE V. EX POST ANALYSIS

 TEXT – What it says

 Plain Meaning
 Plain meaning is only appropriate if it does not lead to an absurd result
 Canons of Construction
 Rules of inference that draw meaning from the structure of context of a written rule
 Textual Canons
 rules of syntax that infer meaning of a rule from its textual structure
 Substantive Canons
 Interpretive principles derived from the legal effect of a rule
 Intratextual Arguments
 Compare words from one part of text to words in another part
 Deduce meaning from position in text
 INTENT – Intent of the authors (broader than text)
  Evidence of Intent
 In the Text Itself
 Statements of purpose contained in the law
 Previous Versions
 Changes indicate intent to change the law
 History
 Historical background of the decision
 Specific sequence of events leading up to the decision
 Departures from the normal procedural sequence
 Legislative or administrative history
 Rare testimony from lawmakers regarding intent
 Official Comments
 Contemporary Commentary
 PRECEDENT – What was decided before
 TRADTION – Expectations of the people
 POLICY – Something that ought to be the law
 History of Policy Arguments
 Formalism was abandoned
 Legal Realism
 Structure of Policy Arguments
 Predictive Structure
 Predict the consequences of a particular interpretation
 Evaluative Judgment
 Decide what consequences are more consistent with the values of the law

 Ex Ante and Ex Post

 Concept
 Ex post perspective: looking back at a disaster or other event after it has occurred and deciding what to do about it or how to clean it up.
 Ex ante perspective: looking forward and asking what effects the decision about the case will have in the future
 LEGAL APPLICATIONS
 Encroachment (i.e. you make a mistake building a house and it encroaches onto the neighbor’s property)
 Ex post: fix the problem by letting the neighbor sue for the value of the land encroached upon
 Ex ante: the neighbor gets an injunction that allows him to insist that the house be torn down
 This makes encroachment less likely to happen again
 Confidentiality (i.e. doctor-patient privilege)
 Ex post: get revealed information to the court
 Ex ante: make sure that this information is still created in the future by protecting the privilege

Univ. of Pennsylvania v. EEOC

ISSUE: Whether or not the University has to turn over confidential peer review files or not in light of an associate professor’s claim of sexual
harassment/discrimination.
 Majority opinion: Unless specifically provided otherwise in the statute, the EEOC may obtain “relevant” evidence
Dissenting opinion: Human experience teaches that those who expect public discrimination of their remarks may temper candor with a concern for
appearances, which may prove detrimental to the decision-making process.
Text
University says Federal Rule of Evidence 501 applies
“Except as otherwise required by the Constitution ... as provided by Act of Congress or in rules prescribed by the Supreme Court ...,
the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the
United States in the light of reason and experience.”
EEOC says § 2000e-8(a) applies
“[T]he Commission or its designated representative shall at all reasonable times have access to, for the purposes of examination, and
the right to copy any evidence of any person being investigated ... that relates to unlawful employment practices covered by [the Act]
and is relevant to the charge under investigation.”
Intent
EEOC retracted Exception
“We begin by noting that Congress, in extending Title VII to educational institutions and in providing for broad EEOC subpoena
powers, did not see fit to create a privilege for peer review documents.
When Title VII was enacted originally in 1964, it exempted an ‘educational institution with respect to the employment of individuals
to perform work connected with the educational activities of such institution.’ § 702, 78 Stat. 255. Eight years later, Congress
eliminated that specific exemption by enacting § 3”
Precedent
University privilege has been adopted to establish free communication
“Acceptance of petitioner's claim would also lead to a wave of similar privilege claims by other employers who play significant roles
in furthering speech and learning in society. . . .
We perceive no limiting principle in petitioner's argument. Accordingly, we stand behind the breakwater Congress has established:
unless specifically provided otherwise in the statute, the EEOC may obtain “relevant” evidence. Congress has made the choice. If it
dislikes the result, it of course may revise the statute.”
Tradition
Academic freedom
“These institutions are special, observes petitioner, because they function as ‘centers of learning, innovation and discovery.’
We do not create and apply an evidentiary privilege unless it ‘promotes sufficiently important interests to outweigh the need for
probative evidence....’”
Policy
University says people passed over tend to be angry and perhaps vengeful, hurts the system
“Tung stated that the department chairman had sexually harassed her and that, in her belief, after she insisted that their relationship
remain professional, he had submitted a negative letter to the University's Personnel Committee which possessed ultimate
responsibility for tenure decisions. She also alleged that her qualifications were ‘equal to or better than’ those of five named male
faculty members who had received more favorable

Jaffee v. Redmond
ISSUE: whether statements made by an officer to her therapist (who was a social worker) during the counseling sessions are protected from compelled
disclosure in a federal civil action brought by the family of the deceased (who is charging the officer with the unlawful shooting of their family
member). Basically: whether or not it is appropriate for federal courts to recognize a “psychotherapist privilege” under Rule 501 of the Federal Rules of
Evidence
Majority
Intent
 Redmond says Federal Rule of Evidence 501 applies
“The Senate Report accompanying the 1975 adoption of the Rules indicates that Rule 501 ‘should be understood as reflecting
the view that the recognition of a privilege based on a confidential relationship ... should be determined on a case-by-case
basis.’”
Policy
Public good that transcends the normally predominant principle of utilizing all rational means for ascertaining truth
Ex Ante
Psychotherapist sessions depend on an atmosphere of confidence and trust so the patient can make frank and complete disclosures, and
thus the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment
Dissent
Text
Professional Status of the advice giving person matters
“the prototypical evidentiary privilege analogous to the one asserted here-the lawyer-client privilege-is not identified by the
broad area of advice giving practiced by the person to whom the privileged communication is given, but rather by the
professional status of that person.”
Ex Ante
 Once you allow such a privilege between social worker/patient, you are opening the door for privilege between mother/child, best
friends, siblings, etc.
 No rule should be so important as to overrule the necessity of finding all relevant/reliable evidence, and the implementation of the
privilege at issue here would result in occasional injustice by not allowing for all relevant evidence to be disclosed, and thus the courts
of law would not merely let a wrong stand, but also become themselves the instruments of wrong

People v. Gibbons (Huhn 71 – 83)

Sex Tapes
Both the majority and the decent use all five arguments to argue for and against classifying videotaping as “communication”

II. COMMON LAW, PRECEDENT, AND THE JUDICIAL ROLE

 The Common Law Method

 Blackstone’s Commentaries
 Formalism
 Doesn’t very easily accept or seek to uphold new laws (conservative)
 Judges are the oracles of the law
 Only declare law that has always existed
 Pavesich: no precedent, but judge declared the existence of an “absolute right” to privacy
 Precedent is very important, but is only evidence of the law, not the law itself, so it cannot be used as a reference point
 Places a lot of confidence in the judge to determine right and wrong.
 “subsequent judges do not pretend to make a new law, but to vindicate the old one from misrepresentation.”
 Edward Levi, Introduction to Legal Reasoning
 Legal Realism
 Reaction against formalism, though Levi was a moderate realist
 “In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible.”
 “A working legal system must therefore be willing to pick out key similarities and to reason from them to the justice of applying a common
classification.”
 Reasoning from examples
  Precedent should be based on the similarities to the present case, not based on the if the previous case was right or wrong

 Pavesich v. New England Life Ins.

 ISSUE: Pavesich appeared in a newspaper ad for New England life insurance depicting him as a clean-cut character who paid for NE life insurance.
Pavesich’s picture was obtained by NE from a negative obtained by a third party. The picture was made from the negative without P’s consent. P argues that
the advertisement is offensive to him, that the statement attributed to him is false, that the publication intends to bring him ridicule (he was an artist by trade,
not a fancy businessman), and that the publication in general is a trespass upon his right of privacy. “A right of privacy in matters purely private is therefore
derived from natural law.”
 “An individual has a right to enjoy life in any way that may be most agreeable and pleasant to him, according to his temperament and nature, provided
that in such enjoyment he does not invade the rights of his neighbor or violate public law or policy.”
 “Subject to the limitation above referred to, the body of a person cannot be put on exhibition at any time or at any place without his consent. The right of
one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty. The
right to withdraw from the public gaze at such times as a person may see fit, when his presence in public is not demanded by any rule of law is also
embraced within the right of personal liberty. Publicity in one instance and privacy in the other is each guaranteed. If personal liberty embraces the right
of publicity, it no less embraces the correlative right of privacy;”
 Majority opinion:
 Right of privacy is a natural, immutable/absolute right that has always existed, even if it has never been specifically codified into law.
 The individual who desires to live a life of seclusion cannot be compelled against his consent to exhibit his person in any place, unless demanded by
law.
 Right of privacy may be waived for one purpose and still asserted for another
 Right of free speech and right of privacy can co-exist. Right of free speech exists so far as it is not blasphemous, false, obscene, scandalous, may
injuriously affect the standing, reputation, or pecuniary interests of individuals, does not disturb public peace or attempt to subvert the government.
The right to speak does not necessarily carry with it the right to reproduce the form and features of an individual.
 This highlights the competing tradition of freedom of speech: can you always control the way your image is used? No, in fact, usually you
can’t.
 Pavesich should have the same right to be protected against the use of his face as he would have if they were publishing his literary compositions
 Authority relied upon? Bigger principles, innate liberties, logical reasoning, traditional notion of common law
 Right of privacy as an absolute/universal right
 Dissenting ideas: No previous right of privacy recognized, judicial activist notions of judges who shouldn’t be able to create law where there is not past
acknowledgment of it
 Essential elements of the holding
 Advertising purposes
 Likeness of another
 Without consent

 Midler v. Ford Motor Co.

 ISSUE: Midler turned down Ford’s offer for her to sing in one of their commercials, so they hired someone whose voice sounded exactly like Midler to sing
one of Midler’s songs on the commercial thus giving the impression that she had, in fact, sung on the Ford commercial.
 Majority opinion:
 The purpose of the media’s use of a person’s identity is central. If the purpose is “informative or cultural” the use is immune against right of privacy
claims. If, however, it serves no such function but merely exploits the individual portrayed, immunity will not be granted
 “Mere imitation of a recorded performance would not constitute infringement even where one performer deliberately sets out to stimulate another’s
performance as exactly as possible.” However, in cases where the imitation is used for commercial purposes, it’s a little different: In this case, Ford
sought an attribute of Midler’s identity, and by acquiring the sound of a sound-alike Ford appropriated what was not theirs.
  Not every imitation of a voice to advertise merchandise is actionable: only when a distinctive voice of a professional singer is widely known and
deliberately imitated in order to sell a product.
 “The human voice is one of the most palpable ways identity is manifested.”
 “To impersonate her voice is to pirate her identity.”
 Essential elements of the holding
 Distinctive voice
 Widely known
 Deliberately imitated
 Advertising

 Problem 2-1
 Pros of recognizing right of publicity:
 Protecting original works/traits
 Disallows people to profit from the accomplishments of others (disincentive for stealing creativity), and, on the other hand, creates an incentive for
people to be willing to put forth creativity if they know they will be able to benefit from it
 Cons of recognizing right of publicity:
 In some cases, too much of an infringement on First Amendment rights regarding freedom of speech (can be too overreaching)

 The Role of Precedent

 Karl Llewellyn, The Bramble Bush
 Realist
 Judges have a choice as to whether or not they follow precedent, and though there is some constrain, it’s not as obligatory as Blackstone’s theory.
 Two doctrines of precedent
 “it is not one doctrine, nor one line of doctrine, but two, and two which, applied at the same time to the same precedent, are contradictory of each other.
That there is one doctrine for getting rid of precedents deemed troublesome and one doctrine for making use of precedents that seem helpful.”
 LOOSE VIEW: applying general principles, used to help a case
 Includes taking things out of context and referring to dicta
 Looks at the broader statements/principles on which the case seems to rest
 Show that facts are not distinguishable and that because they are similar, the latter case is bound by the former
 *policy arguments are key
 STRICT VIEW: applying strictly facts: they don’t like the previous holding and want to rule differently on it, basically this is a way to make it not
applicable
 Distinguish facts
 Argument that times have changed (circumstances of an earlier case no longer hold true)
 Note if there was a divided court
 Faulty foundations
 Facts
 Reasoning/policy questionable use of precedent
 Conflicting line of authority
 How criticized a law has been
 *policy arguments are key
 There isn’t ever just one holding, there are a range of possible answers that depend on where you want to go with the case, although your ultimate
decision
 must be persuasive, make sense, be consistent with the past, and make sense in the future
  Doctrine of precedent is therefore two-headed
 Example: Kimbrough distinguishing from O’Brien solely on the basis of what the cause of action was, which they did just because they didn’t like the
ruling in O’Brien and wanted to change it.

 O’Brien v. Pabst Sales

 ISSUE: famous football player, and member of a group that advocated doing away with alcohol among young people and who had previously refused offers
of endorsement for beer, charged that his right of privacy was violated when Pabst (a beer company) obtained his picture and put it on the front cover of their
calendar.
 Majority opinion:
 O’Brien was publicized nationwide as a result of his football prowess, and therefore, as a public person, had no right of privacy (was the most
publicized football player of the year)
 Picture being complained of had been obtained in due course from T.C.U. and paid for
 No injury to appellant’s person, property, or reputation had been shown (he could prove no pecuniary damage), and also just because his picture
was on a beer ad didn’t necessarily damage his reputation because it didn’t show him drinking it or anything
 Dissenting opinion:
 If O’Brien, as a public figure, didn’t have a right of privacy, then he necessarily had a right of publicity, because every individual has to be
protected by one or the other
 Injury was caused to his reputation among the Allied Youth of America where he preached sobriety
 No explicit consent from O’Brien himself was obtained releasing his image to be used for this advertisement
 Authorized use of image for image for advertising
 Later courts limited this ruling to mean that if some advertising if okay, can’t exclude beer advertising
 Essential elements of the holding
 Used with permission of the college
 Had previously sought publicity
 No false representation tied to the image
 Did not consider the connection with a beer company a misrepresentation

 Kimbrough v. Coca-Cola
 ISSUE: Whether a person in Texas has a right of privacy against the unauthorized use of his name or picture for commercial purposes
 Majority opinion:
 A public figure does relinquish a part of his right of privacy, but such a waiver is limited to that which may be legitimately necessary and proper for
public information
 Privacy of a public personage cannot be lawfully invaded by the use of his name or picture for commercial purposes without his consent, not
incidental to an occurrence of legitimate news value
 Privilege of freedom of speech does not extend to commercialization of a figure’s personality
 Distinguishes from O’Brien on the grounds that this case seeks damages for unauthorized appropriation and use of his name and likeness in an
advertising program, unlike O’Brien, who was seeking recovery on the basis of violation of right of privacy. This distinction is thin, however, and
not very persuasive, they’re basically just trying to get around it (strict view of precedent)
 “The privacy of a public personage may not be lawfully invaded by the use of his name or picture for commercial purposes without his consent, not
incidental to an occurrence of legitimate news value.”
 “It is unfair that one should be permitted to commercialize or exploit or capitalize upon another's name, reputation or accomplishments merely because
the owner's accomplishments have been highly publicized.”
 Essential elements of the holding
 Was not presented as advertising when permission was obtained
 Image was used as part of an advertisement
 Intra-Type arguments of Precedent (Huhn 115 – 29)
 The court’s opinion was not holding but rather obiter dictum
 Problematic language is not essential to the holding, thus stare decisis doesn’t apply
 The court opinion did not command a majority of the court
 The opinion was not issued by a controlling authority
 Depends on the level and jurisdiction of the court issuing the opinion
 The case is distinguishable because of dissimilar facts
 Facts of one case may make a ruling sufficient
 Different facts may lack the necessary condition to reach the same ruling
 The case is distinguishable for policy reasons
 “the rule . . . no longer has that restricted meaning.”
 Have to rely on more than facts to distinguish a case
 “Different factual situation are inarticulate; they do not impose order on themselves. . . . Whether one case is analogous to another depends on
substantive ideas that must be justified.”
 There are two conflicting lines of authority
 “When there are competing lines of authority from prior case law, it is important to not simply identify which facts or the previous cases are most
similar to the case at hand. It is also necessary to identify which values or policies from previous case law are at stake in the case at hand, and to
identify which rule from the prior cases best serves those policies”
 The case has been overruled
 Not always clear how much of a ruling may still stand in such circumstances
 The case should be overruled
 Is the existing rule workable?
 Precedent may have created too much confusion
 Does society still rely on the rule?
 Settled expectations
 Has the rule been undermined by other decisions?
 Related precedent doesn’t stand
 Have the premises of the facts underlying the decision changed?
 E.g. Separate but equal is not equal
 Less likely to overrule decisions interpreting statutes that constitutional issues

 Lawrence v. Texas
 ISSUE: The validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct, and whether or not to
overrule the Bowers case (which is case law implementing this statute)
 Overrules Bowers v. Hardwick
 Different sort of privacy case
 Reviewing a legislative rule for constitutionality
 Textual argument from the 14th amendment
 Tradition
 “there is no longstanding history in this country of laws directed at homo-sexual conduct as a distinct matter”; that “[l]aws prohibiting sodomy do
not seem to have been enforced against consenting adults acting in private”; that “American laws targeting same-sex couples did not develop until
the last third of the 20th century”
 Emerging Tradition
  “the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for ‘criminal penalties for
consensual sexual relations conducted in private.’”
 Majority:
 ALI’s statement that it did not recommend criminal penalties for consensual sexual relations conducted in private
 Conflicting lines of authority: Bowers vs. Recent decisions that have weakened Bowers, recent decisions should be the line of authority followed (a law
that is seldom used can’t just be brought out whenever) (conflicting lines of authority)
 At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery attributes of human life (case
should be overruled)
 Due Process Clause which extends protection to unmarried as well as married persons: the fact that the governing majority of a state has traditionally
viewed a certain practice immoral is not a sufficient reason for upholding a law prohibiting the practice. Liberty of sexual autonomy (slippery slope
problem)
 Judges have a role of, as society changes, clarifying statute according to insight that the original drafters of law may not have had (laws once thought
necessary and proper in fact serve only to oppress)
 Dissent:
 Opposition to law is not a reason to overrule it
 Doctrine of stare decisis
 Case that majority relies upon, Casey, that cast doubt on Bowers, was pulled from the dictum not the holding and therefore isn’t binding (dictum
argument)
 If Casey didn’t overrule abortion, then this case certainly shouldn’t overrule Bowers because this case and Bowers aren’t distinguishable enough (case
distinguishable argument)
 The consequences of declaring that immorality is illegitimate grounds for making something illegal: gay marriage, incest, polygamy etc. You can’t
distinguish any of these acts from the case at hand using the majority’s reasoning (slippery slope problem)
 Due Process does not give an inherit right to liberty, you still have to have restrictions in place
 Nation’s longstanding tradition of laws prohibiting sodomy
 Majority opinion is not rooted in law or in tradition and this is worse than having a tyranny of majority (by having citizens vote on law) because you
have a tyranny of 5 judges (tradition)
 It’s not right that judges can enforce any right that they want, there must be constraints: you must be bound and limited by tradition and by the way
similar issues have been decided in the past (precedent)

 Intra-Type arguments on Tradition Arguments (Huhn 131-33)

 No such tradition exists
 There have been competing traditions
 A new tradition is emerging

 The Judge’s Role: Use of Authority and Policy

 Slippery Slopes (Farnsworth 172–81)
 The first decision lowers the cost of the second one.
 Decisions are made at the margins
 Lowers additional incremental cost
 Path dependence
 Based on stare decisis
 The first decision affects the attitudes brought to the second one.
 Laws  attitudes  laws . . .
 Hard to recognize until after it happens
 Ideas about equal treatment require the second decision to be made like the first one
  Distinctions initially used to separate the two issues do not hold up in practice
 Such distinctions may not seem important to future generations, and are not constraining
 The first decision affects the power of those interested in the second one.
 May give hope to supporters of seemingly linked issues
 Fear of slippery slopes may prevent marginal changes favored by everyone
 LEGAL APPLICATION
 Precedent
 Does stare decisis create path dependence?
 Distinguishing is what prevents precedential slippery slopes

 Martin Luther King Center v. American Heritage Products

 ISSUE: Is the right of publicity recognized as a right distinct from the right of privacy? If so, does the right of publicity survive the death of its owner? If so,
must the owner have commercially exploited the fight before it can survive his death? What is the guideline to be followed in defining commercial
exploitation?
 Majority opinion:
 Private citizens have a right of privacy, and public figures have a right of publicity
 The right of publicity survives the death of its owner and is inheritable and devisable
 A person who avoids exploitation during life is entitled to have his image protected against exploitation after death just as much if not more than a
person who exploited his image during life
 Concurring opinion:
 In proclaiming this new “right of publicity”, the court has created an open-ended and ill-defined force which jeopardizes a right of unquestioned
authenticity—free speech.
 The test, therefore, should be the unconscionable use of a person’s image, not the mere use itself
 Gives the example of a school child writing an essay on MLK and winning $25, must the child account for his winnings?
 If right of publicity were fully extended, it would eliminate scholarly research, historical analysis, and public comment

 ETW Corp. v. Jireh Publishing

 ISSUE: Does artwork depicting Tiger Woods violate his right of publicity?
 One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for
purposes of trade is subject to liability
 The use of a person’s identity primarily for communicating information or expressing ideas is not generally actionable as a violation of a person’s right of
publicity
 Essential Elements of the holding
 Significant transformative elements
 First amendment protection
 Less likely to interfere with economic reasons for right of publicity
 Informational and creative content

 Rules v. Standards
 Antonin Scalia, The Rule of Law as a Law of Rules

 Rules v. Standards (Farnsworth 163-71)

 Rules
 Advantages:
 Helps clarify/avoid confusion
  Lends itself towards consistency
 Helps eliminate court biases
 Emboldens judges when their opinion may be unpopular but still needs to be applied
 Provides clear directions
 Uniform application of the law
 Helps prevent judicial activism
 Inexpensive
 Disadvantages:
 Under-inclusive or over-inclusive
 May create unfairness when judges are bound by rules that don’t take individual circumstances into account
 Can become out-of-date very quickly
 Invites people to figure out a way around it (loopholes_
 Rules can’t think of everything, so it’s short-sighted sometimes
 Standards
 Advantages:
 Makes it easier to determine things on a case-by-case basis
 Allows for standards to change over time
 Allows for individual circumstances to be a factor in decision-making
 Disadvantages:
 Gives a lot, and sometimes even too much, discretion to judges
 Can create confusion
 Allows for court biases
 Litigation costs a lot higher when people debate over standards
III. LEGISLATION AND STATUTORY INTERPREATION

 Vagueness Doctrine

 Papachristou v. Jacksonville
 The Vagueness Doctrine: too much ambiguity is unconstitutional by undermining a key requirement of the rule of law: people should know what the law
requires of them, especially with criminal statutes. Must be in such broad terms that it can’t really be taken seriously.
 Overrules Jacksonville vagrancy ordinance against “loitering” on this ground
 “wandering or strolling” could by anyone
 “without any lawful purpose” may be a trap for innocent acts

 Chicago v. Morales
 ISSUE: Does an anti-loitering ordinance violate the due process clause of the 14th amendment?
 Advantages of this broad statute
 Gives police necessary authority to take care of any problem
 Prosecutorial discretion
 Problems?
 Gives police too much power
 People don’t’ know what they are/ are not allowed to do (violates notion of rule of law)
 So what should the city do?
 Differentiation between probable cause and mere suspicion?
 This could be corrected by having the Illinois Supreme Court better define loitering

 Plain Meaning (Text) Huhn 97-101 (review 19-22)

 Intra-Type Attacks on Plain Meaning Arguments
 The Text is Ambiguous
 The Text Has a Different Plain Meaning
 Sometimes the meaning of the operative statutory text is so clear that other considerations (like fairness or congressional intent) seem irrelevant
 Struggle between plain meaning and intent

 U.S. v. Locke
 ISSUE: Land recording that was required to be filed “on or before December 30” but was instead filed on December 31 by defendant.
 The court will not pass on the constitutionality of an Act of Congress if a construction of the Act is fairly possible, or some other non-constitutional
ground fairly available, by which the constitutional question can be avoided
 Plain language cannot sustain appellee’s “gloss”
 The fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve
that which Congress is perceived to have failed to do. There is a basic difference between filling a gap left by Congress’ silence and rewriting the rules
that Congress has affirmatively enacted. The Judiciary is not licensed to attempt to soften the clear import of Congress’ chosen words

 TVA v. Hill
 ISSUE: Prohibiting the finishing of a nearly completed dam as a result of its endangering of the snail darter species
 Plain meaning of statute supports NOT finishing dam: “actions authorized cannot jeopardize the continued existence of…endangered species”—the rule
is strict and absolute, and ultimately, in this case, wins out over the other considerations
 However, there’s also a policy argument here that laws are meant to be prospective not retrospective
 Legislative intent: committee did not view Endangered Species Act as prohibiting the completion of the dam
  Dissent: prohibiting dam completion would be an absurd result

 Statutory Purpose

 Church of the Holy Trinity v. United States

 Spirit of the Statue, v. Letter of the Statute
 Somewhat controversial
 Plain meaning: unlawful to assist or in any way encourage the migration of immigrants. Basically, it’s pretty clear that this case violates the letter of the law,
so what is there justification for ruling otherwise?
 Absurdity doctrine: avoiding ridiculous outcomes that arise from following literal meaning

 Theories of Statutory Interpretation (Excerpts from Eskridge, Scalia)

 Textualism
 What do the words mean? Context + objective audience, see plain meaning above
 *Try to be a textualist first
 Negative outcomes/criticisms:
 could create bad policy
 words may not be as clear as purported
 increases cost of legislation (forcing them to think of every single thing)
 Objective meaning of words is assumed along with objective audience
 Smith and Muscarello
 Meaning of the word “use” as Smith didn’t use the weapon, but used it to barter for drugs
 30-year sentencing provision helps define “use”
 Common/ordinary usage of a word vs. specialized meaning
 Held: common use
 Why? Leniency should only be used when there is ambiguity
 Meanings of words are complicated and suspect
 United Sates Workers of America v. Weber
 Shows that textual argument isn’t as limiting as you would think because words can be interpreted quite differently. Should judges be limited to
plain meaning only or should more unconventional definitions be allowed?
 Purposivism
 What is the statute aiming to do/what interpretation would best accomplish it?
 Scalia is critical of this interpretation because it should be the same process as common law
 Negative outcomes/criticisms
 Makes assumptions/guesses about policy—purpose at what level of generality?
 Rand v. Hearst corp.
 Intentionalism
 What did this Congress intend? What would they have intended had they thought of it? (Exclude inappropriate politics)
 Negative outcomes/criticisms
 Impossible most of the time to know the intent of the whole legislature, once again, there’s a lot of guess work
 Assumes a singular intent
 Impure intent
 Some interests are political rather than policy based
 Intent isn’t what was enacted, statute is
  Rand v. Hearst
 Statute on the right of publicity (different than above common law): “any person whose name, portrait, or picture is used within this state for advertising
purposes or for the purpose of trade without the written consent” of that person “may maintain equitable action” against the person using his name and
recover damages
 Was Rand’s name used for advertising purposes? Yes
 Purpose of the statute: to protect against selfish, commercial exploitation. “Therefore, in considering books and publications, courts must take a broad view”
and to hold otherwise would be an impermissible restriction.
 Shows that sometimes purposivisim can be persuasive.

 Intratextual Evidence (Huhn 101-105)

 Intra-Type Attacks on the Canons of Construction
 The Canon of Construction Does Not Apply
 Meaning of the text is plain
 A Conflicting Canon of Construction Applies
 Llewellyn says they are simply conclusory
 Intra-Type Attacks on Intratextual Arguments
 There is a Conflicting Intratextual Inference Drawn from the Same Text
 There is a Conflicting Intratextual Inference Drawn from Different Text

 Smith v. United States

 924(c)(1) requires specified penalties if one “during and in relation to any crime of violence or drug trafficking crime, uses or carries a firearm.”
 ISSUE: Is exchanging a firearm for drugs USE under 924(c)(1)?
 Is use as a weapon implied in the language use?
 Specialized or Ordinary meaning

 Muscarello v. United States

 ISSUE: What does it mean to carry a gun?
 Specialized or Ordinary meaning of carry
 Majority says it is using ordinary meaning to include carrying in trunk or glove compartment

 Llewellyn, Canons (Table)

 Textual canons: plain meaning rule
 Linguistic inferences
 Expression unius: expression of one thing suggests the exclusion of others
 Noscitur a sociis: interpret a general term to be similar to more specific terms in a series
 Ejusdem generis: interpret a general term to reflect the class of objects reflected in more specific terms accompanying it
 Ordinary usage of terms
 Dictionary definition of terms
 “may”= precatory “shall”= mandatory
 “or”= in the alternative
 Grammar and Syntax
  Punctuation rule: Congress is presumed to follow accepted punctuation standards, so that the placements of commas and other punctuation are assumed
to be meaningful
 Textual Integrity
 Each statutory provision should be read by inference to the whole act. Statutory interpretation is a “wholistic” endeavor
 Avoid interpreting a provision in a way that would render other provisions of the act superfluous or unnecessary
 Avoid interpreting a provision in a way that is inconsistent with the structure of the statute
 Interpret the same or similar terms in a statute the same way
 Specific provisions targeting a particular issue apply instead of provisions more generally covering the issues
 Substantive Policy Canons:
 Constitution-based canons: avoid interpretations that would render a statute unconstitutional. Inapplicable if statute would survive constitutional attack,
or if statutory text is clear
 Statute-based canons: in pari materia—similar statutes should be interpreted similarly, unless legislative history or purpose suggests material differences
 Common-law based canons: presumption in favor of following common law usage where Congress has employed words or concepts with well settled
common law traditions. Follow evolving common law unless inconsistent with statutory purposes.

 Legislative History (Huhn 107-113)

 The Intent was Different
 The Evidence of Intent in Not Sufficient
 The Framers of the Law Did Not Anticipate Current Conditions
 The Person Whose Intent Was proven Did Not Count

 United Steel Workers of America v. Weber

 ISSUE: Does title VII prevent private employers from using affirmative action plans?
 Shows that textual argument isn’t as limiting as you would think because words can be interpreted quite differently. Should judges be limited to plain
meaning only or should more unconventional definitions be allowed?
 Ways of attacking intent arguments:
 The intent was different than what opponents say
 Evidence of intent is not sufficient
 Framers did not anticipate current conditions
 Person whose intent was proven didn’t count
 Enforcement of Title VII looks to
 Civil Rights Act
 Remarks of the President and a Senator
 Legislative history of the title itself
 Dissent looks to
 Civil Rights Act
 Title VII itself—no exceptions mentioned
 Representative Celler (repeated by several other supporters)
 Debate on sending bill to committee
 Amendments to Title VII
 This shows, by their use of a lot of the same sources, that pragmatic interpretation is inevitable, so in a way, it’s like judges can’t help but to be guided by
their own policy preferences.

 Green v. Bock Laundry

  ISSUE: Under rule 609(a)(1), in a civil proceeding, does the right to impeach the character of a witness extend to both the plaintiff and defendant?
 Often in civil proceedings, the roles of  and  depend more on who files first, rather than their roles in the event being litigated

 Substantive and Constitutional Canons

 NLRB v. Catholic Bishop
 ISSUE: Did congress intend to allow the National Labor Relations Board to have jurisdiction over teachers in church-operated schools?
 Avoid constitutional issues whenever possible
 If an act of congress might be considered to be unconstitutional, but another interpretation may also be possible, the unconstitutional interpretation
should not be adopted.

 Gregory v. Ashcroft
 ISSUE: Does a mandatory retirement age violate the federal Age Discrimination in Employment Act of 1967?
 Judges didn’t fall under ADEA
 Congress didn’t explicitly include state employers in the act
 Rational Basis review
 Very few things fail
 Demonstrates confidence in the legislative process

IV. JUDICIAL REVIEW OF TRIAL COURT, ADMINISTRATIVE, AND LEGISLATIVE ACTION

 Presumptions
 Concept
 If the evidence is weak or the right answer to a question is too hard to figure out, the default rule – the presumption – takes over and gives us a practical
answer anyway by declaring who the loser in such cases is in advance
 Often the rules assigning burdens of proof are based on the cost to each side of figuring out that there’s a claim worth making in the first place and then
coming up with evidence to support it.
 Whoever can do those things more easily is the automatic loser if they aren’t done adequately.
 The size of the burden may depend on how much evidence we expect the party to have access to.
 The burden may shift between parties to get them to provide enough evidence and explanation for the two sides to then be able to argue productively

 Standards of Review of Trial Court Decisions

 Anderson v. City of Bessemer
 “Clearly Erroneous” Standard for Review – Is this within the proper range of fact-finding?
 As a matter of law, is the evidence supportive of the conclusions? (In reference to the limits of discretion, even when looking at factual findings.)
 Why should Trial Court have more deference? They engage in more fact finding, they are better at it. And, it is wasteful to a have a “practice run” at a trial
level only to have three appellate judges re-rule later.
 Does witness evidence get more deference? They should get deference (just ask for credibility.)
 The de novo rule: provides greater efficiency and greater uniformity because it allows appellate courts to handle more issues dealing with questions of law,
and more cases because the time to determine fact is removed.

 Notes on Review of “Mixed” Questions of Law and Fact

 Which does it look more like? (court will probably call it what it looks more like.)
 Is it a question of law or of fact?
 Law – Look at the definitions, the law often deals with the actual policy or application to define a standard
  Fact – Going back in time, look even at psychological issues, look at the intent
 How to decide:
 Sliding scale
 The answer itself is mixed
 Sometimes reviewed de novo – if the constitutional implications or policy issues are important enough – courts will simply review. (Is it significant to
other parties or just to these parties? – J. Posner. The Supreme Court only takes cases with much impact on many parties.)

 Standards of Scrutiny
 Ask:
 What is the purpose?
 What is the governmental Interest? Compelling? Valid?
 Will the regulation substantially advance that interest? Is it justified?
 In relation to that interest, is the text over-inclusive or under-inclusive?
 Are there less restrictive alternatives?
 Rational Basis for Scrutiny
 What Qualifies?
 Any right under the Constitution
 Includes many rights, not fundamental but clearly recognized (i.e., it is a right that is disputed sharply by society)
 Cannot use rational basis if it is a right that is enumerated (e.g., hand guns in D.C., other individual liberties)
 Government cannot violate the right with a Rational Basis
 More confidence in the political process
 Majority access to political power
 It is a valid governmental interest
 Intermediate Scrutiny
 What Qualifies?
 Something in-between
 Probably along the lines of a right to raise children
 Something in-between (1) insular/discrete minorities who don’t have ease of use of the legal system and (2) those who may be an insular minority but
are successfully using the legal system to handle their issues (because they clearly have the power to get redress)
 Government interest without undue burden (i.e., health, welfare, morals, media, gender, parenting, marriage, race)
 Tradition
 Purpose of the right
 It is an important governmental interest
 Strict Scrutiny
 What Qualifies?
 Discrete and insular minorities
 Fundamental Liberties – deeply rooted in history and traditions o the country, considered essential to the existence of an ordered society
 Compelling governmental interest
 Includes: abortion, sexual intimacy, if it clearly implicates speech
 Interests of the highest order
 Generally determined by what the statute defines as what the interest is
 Less confidence in the political process (see it as less reliable)
 It is difficult to pass this type of scrutiny: a law is presumed unconstitutional unless strong public policy dictates otherwise
 It is a valid governmental interest
  Least restrictive means necessary to accomplish the interest
 Narrowly tailored to achieve the interest
 Ash Majority
 Counts non-binding legislation
 Uncertain technology – if technical advances may make some other means less restrictive, counts even if unknown
 Under and Over-inclusive
 Vagueness of statute (how hard is it to know what is restricted?)
 Effectiveness, alternative must be as effective or more
 Is there another way to regulate that would not burden the right?
 Breyer dissent

 Standards of Review of Administrative Action

 Chevron USA v. NRDC
 What is the Chevron Doctrine? The 2-part test:
 Whether Congress has directly spoken to the precise question at issue. Have they unambiguously expressed their intent? (How confident are we, based
on the text or other tools, that there is one answer?)
 Is the agency’s interpretation reasonable/permissible? (look to the text and policy in particular)
 NOTE: In the Chevron Doctrine – the first step is the battleground. If an agency can win the first step, they usually win in court. However, the degree of
deference may depend on the degree of technicality the agency is dealing with. (How much does the court want to deal with such a foreign issue? If not,
deference to Chevron.)
 How does this fit with Theories of Interpretation?
 Eskridge & Frickey: Policy making is inherent, and we recognize it is inherent. We should give the job to the people who do it best.
 Sotomeyer: Judges don’t make policy. Because judges shouldn’t be engaged in policy making, we should push the job to the agency that is responsible.
 Scalia: Textualist. Supports Chevron, but every statute does not have one good answer. Greater respect ought to be given to executive branches, and
less to courts. BUT, if the statute is unambiguous, NO DEFERENCE to the agencies.
 Implied Congressional Intent – it is implied that Congress intended the agencies to have more power.

 Formal Adjudication = due Chevron deference (at least in part)

 Formal Rulemaking = due Chevron deference
 Informal Rulemaking = due Chevron deference
 Informal Adjudication =
 If this is where the agency usually plays, or where they made their decision, there will be little deference given Skidmore/Mead deference, meaning the
agency’s interpretation is useful as far as it is persuasive
 If you want deference, make sure adjudicative proceeding occurs before decision, make process transparent, clear, and well-documented (i.e., pass
‘hard-look’ review)

 U.S. v. Mead Corp.

 ISSUE: How the US custom service classified day planners as “diaries” for tariff purposes
 No Chevron deference because it was informal adjudication
 Classification rulings should be treated like “interpretations contained in policy statements, agency manuals, and enforcement guidelines.”
 Did not go to de novo review in place of Chevron, rather adopted Skidmore
 Vague and malleable
 Depends on persuasiveness of underlying decision

 FDA v. Brown & Williamson

  ISSUE: Can the FDA regulate tobacco as a drug and/or device
 FDA says that Nicotine is a Drug
 FDA says that Cigarettes are Drug Delivery Devices
 Gives FDA control
 Congress had “Directly Spoken” to the issue, precluding the FDA from regulating tobacco products
 FDA could only approve tobacco products if there were a showing that they were safe.
 Court ignored broader general safety to the general population, and focused on safety of the device itself.

 Citizens to Preserve Overton Park v. Volpe

 Arbitrary and Capricious Review
 Applies to findings of fact by agencies as mandated by statute
 Id it appears that the agency is required by statute to make findings, or consider certain elements before making a decision, the court will apply the ‘hard
look’ doctrine
 If the decision is committed to the agency by law, the court will deem it unreviewable. This is a very narrow category of cases, and generally applies to
prosecutorial discretion budget determinations, and other areas where it is wise…
 Substantial Evidence
 Agency findings are affirmed if a reasonable person might accept a particular evidentiary record as adequate to support a conclusion.
 Also considers contradictory evidence
 More art than science
 Looks for flaws in analysis
 Problem 4-2
 Blutox

 Standards of Scrutiny of Legislative Action

 Williamson v. Lee Optical
 ISSUE: Are opticians allowed to fit and duplicate lenses for existing eyeglasses
 The court gives deference in the face of illogical problems
 The law has both over and under inclusiveness
 “The law need not be in every respect logically consistent with its aims to be constitutional.”
 Purpose
 Protect from inexperience/incompetence
 Valid? Compelling?
 Valid public interest, thus decisions made in favor of the government
 Over inclusive
 Broken frames
 Replace existing lenses
 Under inclusive
 Off the shelf eyeglasses still okay
 Less Restrictive Alternatives
 Probably

 City of Cleburne v. Cleburne Living Center

 ISSUE: Can the city deny a permit to a group home for mentally retarded adults
 Court said it was using rational basis, but it doesn’t look very differential.
  Purpose
 Near School/may be unsafe for patients or children
 Number of people in the home
 Built in the flood plain
 Valid? Compelling?
 Near school is strong
 Number of people is valid
 Flood plain, good but of questionable necessity
 Under inclusive
 Near school, Inconsistent, does not deal with mentally disabled students
 Number of people, other types of group home are not excluded
 Flood plain, elderly may have the same problems

 Ashcroft v. ACLU
 ISSUE: Does COPA violate the first amendment?
 Purpose
 Protect minors online from porn exposure
 Empower parents to make choices to protect their children
 Public morality
 Valid? Compelling?
 Both protection of minors and giving power to parents are compelling interests
 Over inclusive
 Protection of minors, burdens adults with privacy concerns and vagueness
 Vagueness is less compelling when people find the issue particularly offensive
 Public morality, regulation of more than obscenity
 Under inclusive
 International publishers
 Less Restrictive Alternatives
 Filtering Software (may also be more restrictive)

V. Policy and Critical Perspectives

 Economic Efficiency
 The Single Owner (just another way of looking at cost-benefit analysis) (Farnsworth 37-46)
 Concept
 If all the interests at stake were owned by a single owner, what would he choose to do?
 i.e. if you own the baseball stadium and the nearby building where baseballs are breaking the windows, would you build a higher fence or just
replace the windows? Which is cheaper?
 Whichever outcome the single owner would choose is the efficient outcome.
 But need to make sure this approach is not taken advantage of
 Recall encroachment example
 LEGAL APPLICATION
  Mitigation: if you owned both companies in a contract dispute, you would make the victim of the breach do all it could to minimize the cost of the
breach
 The Least Cost Avoider (Farnsworth 47-56)
 Concept
 When there is an expense, just send the bill to whoever could have avoided that expense most cheaply, either by taking precautions or by switching to
some other activity less likely to create the expense.
 The least cost avoider is sometimes based on who was in the best position to know about the danger or who was in the best position to provide
insurance
 Forces the least-cost avoider to do the cost-benefit analysis
 LEGAL APPLICATION
 Strict liability: assumes that the Δ is in the best position to reduce the risk of injury
 i.e. blasting dynamite. The party doing the blasting is really the only one in position to prevent damage it may do.
 Special relationship liability (i.e. innkeepers, railroad conductors, etc.)
 Identifies certain classes of people who are in the best position to protect certain victims (like hotel guests)
 Frustration, impracticability, and impossibility in contract law
 These are exceptions meant to protect the least cost avoider in special situations where he is no longer the least cost avoider
 Such as situations where avoidance was simply impossible

 The Ethic of Care (Gilligan, Bender)

 How would a compassionate neighbor (caring friend)…
 As a contrast to a “reasonable person”
 Puts the focus on interdependence
 Does making an Ethic of Care a legal responsibility take away the responsibility of actually being caring?
 “Comodification of Ethics”  leads to unclear boundaries
 Law can affect people’s preferences/values

 A Feminist and Economic Account of the Law of Sex Discrimination (O’Connor, Posner)
 Cultural feminism is dangerous because it justifies drawing distinction that may not hold up

 Cultural Feminism
 Interconnectedness
 Ethic of Care
 Non-autonomous individuals
 A connected society
 The need to recognize that men and women contribute
 Morality, Equality or Justice as a Basis of Law (not just economics and efficiency, utility)
 Personal v. Group Experience and Narrative (experience should shape law as well as ideals; should take women’s and minorities’ experiences into account
when writing or applying law to come up with effective laws.)
 Radical feminism
 Liberal Feminism
 Waves of Feminism

 The Coase Theorem (Farnsworth 75-84)

 Concept
  In a world with no transaction costs – where parties can bargain and make contracts with no trouble at all – rights naturally flow into the hands of whoever
will pay the most for them
 The law, by determining who originally owns the right, determines which party reaps the windfall
 Reciprocal causation: all damages go both ways
 My music my intrude on your peace and quiet, but your desire for peace and quiet intrudes on my desire to practice with my band
 LEGAL APPLICATIONS
 When there are significant transaction costs, the court should try and make the contract that the parties would have made in the absence of transaction costs.
 “general purpose of law: it’s a set of substitutes for the agreements that people would reach with each other if making agreements were as easy as
thinking about them.”
 Negligence
 Breach of a hypothetical contract that the parties would have made if they had seen the accident coming
 Choosing a default property right rule against the party most likely to know the rule to encourage negotiation

 Behavioral Economics
 By owning something people value it more than if they simply purchased it
 Ownership empowers people
 Libertarian Paternalism can be used to nudge choices in the right direction
 e.g. have to opt out of a savings plan

 Baselines (Farnsworth 198-06)

 Concept
 In determining what counts as action and inaction, we need a starting point or baseline
 LEGAL APPLICATION
 Con Law: When does the govt actually act?
 Shelley v. Kraemer implications
 Is the baseline defined by an individual’s rights at common law? (Lochner)
 Or is the baseline legislatively determined? (Legal Realists)
 What constitutes a taking?
 What property rights did you have to start with? This determines whether or not the govt is taking anything from you.
 Search and Seizure: when is a warrant necessary?
 The baseline is determined by a reasonable expectation of privacy.
 Who should resolve these cases?
 The Courts feel qualified to rule if the baseline is the common law.
 The courts don’t feel qualified to rule if the baseline is the degree of economic freedom that people ought to have.
 COMMON LAW RIGHTS OF PRIVACY & PUBLICITY

 “Privacy” right: liability for use of name or likeness of another

 Originally based on analogy to traditional freedom servitude, restraint, freedom of seclusion, silence (as correlative of speech), copyright; extended (Pavesich) to
“withdraw from public gaze.”
 Policy: protection of right to live life of seclusion and of emotional harm associated with loss of that right.
 Pavesich recognized common law liability for insurance co’s unauth. use of π’s photo in newspaper ad.
 Recognized concern re public interest in speech/press, but suggests that such interest is minimal in case of private figure’s likeness used for advertisement.
Some public figures may “consent” to use of their likeness for some purposes.
 Courts in other states (NY-Roberson) refused to recognize common law right, leaving it up to the legislature to define the right.

 Early cases limited right to private plaintiffs; held public figures waived right by rejecting seclusion and seeking publicity.

 Modern cases extend private plaintiff’s right to encompass harms from commercial as well as personal (privacy) interests. Rights of privacy / publicity tend to merge.
 Note: “privacy” right today encompasses torts of unreasonable intrusions on seclusion, public disclosure of private facts, publicity placing another in false light,
and appropriation for defendant’s advantage the plaintiff’s name or likeness.

 “Publicity” right: liability for use of name, likeness for commercial purposes if used in advertising user’s goods or services or used on merchandise or with services
marketed by user. Use in news reporting, commentary, entertainment usually excepted, as are some incidental advertising uses.

 Policy protects commercial interests in publicity (both for fairness “reap what you sow” reasons and to preserve incentives), weighed against public interests in
speech and press.

 “Likeness” may encompass voice (Midler), distinctive character or persona (“Coach Monson?).
 But note difficult balance of publicity and speech interests. Some courts engage in “totality of circumstances” balancing; others have adopted some objectives
rules of thumb: parodies, criticisms of likeness, voice, character probably immune from liability; extent of false implication of endorsement often weighs against
defendant.

 Consent or waiver? O’Brien illustrates difficult issues that arise when π has consented to some uses and seems to disclaim certain damages (commercial interest in
promoting beer). Kimbrough shows that even public figures who have not sought to promote the product may receive “unjust enrichment” damages to deter
infringement.

 Cases involving ads in newspaper, magazine, TV, radio, etc ordinarily subject D to liability. Same result if use of identity for TM or trade name or for solicitations for
contributions or memberships by nonprofit entities.

 Cases where the image is the product are most difficult (MLK, ETW, Wurzlebacher). Again, some courts (and legislatures) expressly balance under subjective case-
by-case weighing; others have established more objective rules of thumb.
 Some weighing standards borrow from copyright law (ETW): impact on market for π’s goods; degree of “transformativeness” of D’s product; extent of
expression / creativity of D’s product.
 News reporting, commentary, entertainment, works of fiction or nonfiction ordinarily not an infringement. Same result if use of name or likeness in ad for
biography of public figure (unless false suggestion of endorsement ).
 Posters, buttons, memorabilia more difficult; sometimes deemed an infringement; sometimes deemed immune if information content or commentary deemed to
outweigh publicity interest (e.g., political bumper sticker).
 Regulatory-Type Question Outline:

 Does the plaintiff or defendant (agency) have plausible grounds to appeal an injunction on legal and/or factual grounds?

 Where is success most likely to come from? Challenging an assumed definition? Challenging factual findings under a “clearly erroneous” rule?

 Section 1: The Regulatory Definition of a Word. What is the definition? What words are essential? Does the evidence show that these definitions were fulfilled? How
would the opposing side argue differently, would they ask for a broad interpretation? Is the rest of the definition consistent with a localized broad interpretation, if the
rest of the definitions fairly narrow? “Since the regulatory definition requires something more than habitat change to constitute a taking, the injunction cannot rest on
this evidence alone.”

 Section 2: Is the Regulatory Definition Controlling? Notice-and-comment rulemaking procedures are valid (Mead) and Chevron Deference still would likely occur,
even if an agency attempts to claim, on appeal, that their own word choice is too narrow and that the courts should not defer to it, but to their own interpretation of it.
However, the proper way to address those types of changes is to have another rulemaking process – and a court should defer to the previous definition until that
occurs. This is particularly true given that private parties rely on regulatory definitions, such as the one at issue, to govern their own behaviors. This gives an
additional policy reason for courts to give greater deference to agency regulations than to agency litigating positions.
 One Canon of Construction = don’t take a word in a list out of context, it’s context is found in the meaning of the collectiveness of the words. That could also
indicate Congress intended a broad interpretation.
 If one section of the regulation is to be broad and one narrow – how to give Chevron deference? Can a court reasonable sever a part of the regulation from the
other? Probably not.
 Does a de novo review apply? Were some of the findings simply insufficient to prove violation, and a de novo review would be enough? (Asking for de novo
review is usually in direct opposition to using agency deference under Chevron or Skidmore. De novo review is used for findings of law, when you throw out
what the trial court used and review the facts again with a clean slate.)
 What is the plaintiff’s strongest argument? Narrow interpretation? Why?
 However, the counter-argument would ask that each word in the list needs a separate definition, and Congress’s full intent for this provision included each
version.

 Section 3: Is this issue one of Mixed Law or Fact?

 The dc’s factual findings are subject to deference under the “clearly erroneous” standard.
 Are the factual issues difficult to entangle from the ultimate question of whether such a violation has actually occurred?
 On appellate review, some courts give deference to the law, and some to the facts. Meaning –as a matter of law, did the agency make sufficient findings to show
their interpretation of the regulation is valid; OR, is this more of a factual dispute over whether the plaintiff’s actions actually violated the regulation?

 Section 4: Did the Offense Actually Occur, as defined, or as accused?

 Can the plaintiff prove that under the agency or dc court’s findings, that they were “clearly erroneous” in applying the definition/rule?
 Were the plaintiff’s attempts at compliance in sufficient given the nature of the regulation? (For example, Hunter provided man-made shelters, which may or may
not be acceptable to the owls. The agency could argue their efficacy, but the regulation also doesn’t specifically mention habitat destruction or the making of
man-made solutions.)
 Judge Posner’s theory of mixed questions – mixed questions don’t happen a lot, and so we should use standards of review for factual questions. (The owl issue
had a legal policy component to the question, but it was also highly fact-sensitive.)If the issue is to be treated as a mixed question of law and fact, “one might
support the district court’s finding as a hybrid of the two theories stated above.”
 When looking at mixed questions – the district court has some freedom to decide whether to accept more of the legal ideas, and imposing those ideas on an
interpretation of the facts, and the factual conclusions.