CHAPTER 1IMPORTANT TERMS AND PROCEDURE OF CASES THROUGH THE COURTS

Constitutional Law- federal and state constitutions and their judicial

interpretations and applications
Statutory Law- enacted by legislature
o Regulations- rules made by administrative agencies in
accordance with statutes
Common Law- made of past judicial decisions
o Always evolving
o Precedent is binding
o Made solely by judiciary
Stare Decisis- courts are bound by the decisions of courts above
them
o Vertical- courts are bound by higher courts (only those w/in
their jur)
o Horizontal- courts are bound by and can overrule their
decisions
Hierarchy of Courts:
o Highest court- Supreme Court (NY is the Court of Appeals)
o Intermediate- Appellate Court
Appellate Courts are made up of a tribunal- minimum 3
judges
o Lowest- Trial Court/ Courts of the First Instance (NY is the SC)
Judges
o Federal Appointed by President and hold office indefinitely
Merit selection- shortlist is drawn up and governor chooses
o State- elected and hold terms
Cases
o Mostly appellate decisions
o Burden of proof is on the P
The P must show a preponderance of evidence
o Steps for bringing a case to trial:
Cause of Action
Forum- SMJ and PJ
Bringing Suit- file complaint and serve D with summons
Complaint informs ct of relief P is seeking
D responds to complain w and answer
o If D ignores summons, a default judgment will be
issued against D
D can raise a counterclaim or affirmative defense (facts
brought forth by D that if true negate the Ps claim)

D can move for a dismissal- demurrer (even if claim is

true there is no legal basis for relief) or lack of
jurisdiction
Pre-Trial Motions
Motion to Dismiss/ Demurrer- even if Ps claim is true,
there is no legal basis for it
Motion for Summary Judgment (can be requested at any
time before trial begins)- the facts are so one sided that
no reasonable jury can find for the non-moving party.
The facts are looked at in the light most favorable to the
non-moving party.
During the Trial Motions
Motion for Judgment as a Matter of Law moving party
asks for verdict after P has presented case but before D
does
Renewal of Motion for Judgment After Trial- judge
overrules or amends the jurys verdict
Discovery- pre-trial exchange of evidence
Interrogatories, depositions, production of documents
Jury Selection/ Voire Dire
Trial by jury can be waived- both parties must agree
Trial- P presents case, rests, and presents closing
arguments first
Direct/ Cross Examination
Objection- Overruled/ Sustained
After P rests, either party can move for a JNOV
o If P has not made out a prima fascie case, the case
can be taken away from the jury
The judge can also allow the trial to go on but
reserve judgment to take the case away at any
point
Closing arguments- charge to jury
Appeal
Decisions by all AC and SC are written in an opinion
o Dissent
o Concur in judgment but dissent in reasoning
o Dissents can be used in future cases
o Ratio Descidendi- grounds for the courts decision
o Petitioner/ Appellant- files appeal
o Respondent/ Appellee- non-appealing party
The AC and SC can either reverse and remand or affirm
lower ct
Cases first go to the intermediate court

o The intermediate court doesnt hold a trial they

only review the evidence presented at TC
o If appeal fails, party can seek a writ and appeal to
the highest ct
The highest courts have discretionary docket
Res Judicata- once a case is exhausted and a final
decisions is granted, the parties are barred from
bringing a future suit on any claim, even claims not
brought up in this case, arising from the facts in dispute.

Chapter 2KELLY V GWINELL (SC NJ 1984)

Facts:
Zak provided Gwinnell with alcoholic beverages and then allowed him
to drive home. Gwinnell was involved in a head on collision with Kelly
on his way home. Kelly sued Gwinnell, Zak for negligence.
Procedural Posture:
The TC granted Zaks motion for summary judgment based on the law
that a social host is not responsible for the negligent behavior of an
intoxicated adult social guest. AC affirmed (NJ has no Dram Shop Actimposes liability on licensees).
Issue:
Is a social host responsible for the negligent behavior of a guest who
becomes intoxicated at the hosts home?
Holding:
A social host is responsible for the negligent behavior of an adult guest
that results from the guests intoxication at the hosts home.
Reasoning:
A reasonably prudent person could foresee the risks involved in
allowing an intoxicated person to drive.
There are too many drunk driving accidents that result in
unnecessary deaths
There are crim sanctions for this activity- there should be civil too
A host who continues to provide liquor knowing the guest will drive
should be liable
Dissent:
Places too heavy a burden on social hosts
Social hosts may be subjected to financial liabilities beyond their
resources
The implications of this decision are limitless
It is not the judiciarys job to make laws- thats reserved for the
legislature
The legislature allowed for liability involving minors and explicitly
left out adults

SC reversed decision of summary judgment and remanded to TC to

adjudicate based on this new law.
Chapter 3:
SCHOOLS OF THOUGHT ON THE BASIS FOR JUDICIAL DECISIONS and
HYNES
Holmes- a sound body of law should correspond to the feelings of
the community
Gray- if a judges opinion differs from that of the community, he
should follow his own judgment
Saleilles- a judge should base his decision on his opinion and find
the legal allowance for it later on
Hutcheson- law is fully grown and all laws originate from the original
principles. Judges should rely on intuition
Carodozo- the mind uses learning to make informed decisions
The law translates policies into legal directives. Diff types of legal
directives:
Rules- constrain the decision maker to the rule and they offer
minimal discretion
Standards- less constraining and allow the decision maker to take
all aspects of situation into account
HYNES V NEW YORK CENTRAL RR
Facts:
D owned land along the river. Projecting from a bulkhead on the
land was a springboard that hung over the Hudson River.
Children would jump off the board into the river and the D was
aware of this but made no attempt to stop them
As Hynes was about to jump, the wires holding up the bulkhead
snapped and fell onto the board causing Hynes to plunge into the
river and die
Procedural Posture:
Mother of boy brought suit
Until now the courts held that b/c the boy was a trespasser, there is
no liability
The suit is now before the NYS Court of Appeals (highest court)
Issue:
Is the fact that the P was a trespasser sufficient to deny redress
despite the fact that the D was aware or should have been aware of
the danger and mitigated it?
Holding:
B/c the P was engaged in behavior normal to that of swimmers and b/c
the D failed to take precautions to enclose the board, the duty owed to
the boy did not cease even though he was technically a trespasser
PALSGRAFF V LIRR
Facts:

P was standing on platform waiting for train

A train came in the opposite direction; two men rushed to catch it
One of the men was pushed and helped onto the train by a RR
worker
The man was carrying a package containing fireworks and b/c he
was pushed it fell from his hand and exploded
Caused scales to be knocked down and they injured the P who was
standing at the other end of the platform
Procedural Posture:
Judgment for P in both lower courts. D now appeals to the NYS Ct of
Appeals.
Issue:
Does the D owe a duty of care to s/o outside the reasonably
foreseeable are of danger?
Holding:
B/c the wrongful action was not directed at the P and there was no
direct invasion of
Cardozo was more
Cardozo was more matter
bodily harm and the
compassionate in his
of fact in his language
D had no was of
language
foreseeing any
Judgment for P
Judgment for D
possible danger to
her, there is no COA for negligence.
Differences b/w the two cases:
HYNES

PALSGRAFF

PASSION IN JUDGES
Brennan: passion is essential to the judging process
Cudahy: judges that invoke passion ultimately help the have-nots.
Agrees w/ Brennan but criticizes him b/c Cudahy feels passion should
be invoked across the board, not just in cases where the judge decides
to invoke it.
In order to ensure passion doesnt get in the way of a just outcome,
the ACs are made up of a panel of judges
EMPATHY IN JUDGES (as opposed to passion)
Empathy is more important b/c at the end of the day, an essential
part of adjudicating is taking the parties situations into account
Empathy can be applied to both cases if empathy is viewed as a
mindset
UTILIZING THE RULE OF LAW
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Sticking to the rule of law ensures that there is an arbitrary system

of judgment
The extent to where there is concern for the rule of the law is the
extent to which there will be empathy in the law
Chapter 4:

CASE SEQUENCE
Case law is made up of a series of evolving statutes and cases.
Barrett v Southern Pacific Co. SC Cali 1891- attractive
nuisance doctrine/ turntable
Opinion written by: Haven with Beatty and McFarland concurring
Facts:
D owned a turntable. It was only protected by a latch and key and the
RR company knew children would trespass there. The P was playing
with his friends when his foot got caught and it was amputated.
Procedural Posture:
Suit for personal injuries due to negligence. A jury trial awarded the P
8500 and the D appealed b/c of the jury charge. SC affirmed judgment
of lower court.
Issue:
Can a D who knowingly keeps on his property an attractive nuisance
and knows that children play on it, be liable to trespassers?
Holding:
Because the D has a duty to protect children from an attractive
nuisance who he knows or reasonably should know, trespass on his
property, the D can be held liable for injuries sustained by those
trespassing children.
Judgment for P
Peters v Bowman SC Cali 1896- zero liability in water related
cases
Opinion written by: McFarland with Henshaw and Temple concurring
Facts:
Ps son drowned in a pond on a lot owned by the D. The pond was not
made by the D. The D no longer lived on or visited the property. The
son who was 11, was considered highly intelligent, and his friends were
playing on a raft in the pond when the son fell off and drowned.
Procedural Posture:
Jury trial returned a verdict for the D and on that basis plus the denial
of a new trial, the P appealed. SC affirmed lower courts judgment.
Issue:
Is the owner of a body of water under a duty to enclose it to prevent
harm to trespassers?
Holding:

Because water is a common, known danger, and a cognizable risk, and

the only means of ensuring the safety of the pool is by destroying it,
there is no liability imposed upon the owner of a body of water who
fails to enclose it.
***established zero liability for water related injuries***
Judgment for D

Peters v Bowman II 1897

Opinion written by: Beatty

Petition by P for rehearing en bank based on a judgment in Pekin
Pekin v McMahon requires the court to clarify further its decision in
Peters I. in Pekin, the pond was excavated by the D himself. Further,
the ct says that even though that court chose to go in that direction,
they wouldnt have imposed liability on the D so Pekin is irrelevant.
The court further distinguishes b/w Peters and Barrett:
1. Ponds are common to children
2. A turntable can be properly secure w/o rendering it useless; not
so for ponds
3. A failure on the part of a parent to properly warn their children
doesnt translate into liability for e/o else
Rehearing denied.
Sanchez v East Coast Contra SC Cali 1928- hidden trap
theory/ exception to Peters
Opinion written by: Langdon with Richards and Shank concurring
Facts:
P and his family lived in the housing supplied by the D. On the Ds
property was an irrigation canal with a siphon at the bottom. There was
no notice of the siphon posted or given. The Ps son drowned in the
irrigation canal on the Ds property after being sucked in by the siphon.
Procedural Posture:
Appeal by D following judgment for the P.
Issue:
Although there is zero liability for damages sustained by water, are
there exceptions when there is a concealed trap the P is not aware of?
Holding:
When there is a concealed trap in water that the P has no way of
knowing exists, b/c by going into the water the P only assumed the
dangers of the water, not the hidden trap, the D is liable for damages
sustained by the hidden trap.
Judgment for the P
Copfer v Golden AC 1955- trailer case
Opinion written by: Vallee with Parker Wood and Ashburn concurring
***First mention of Civil Code 1714***
Children of tender years have no foresight of danger and a very low
understanding of danger; therefore, s/o who owns instruments which

bring a potential danger to children must bear in mind that it is every

individuals duty to exercise due care as the situation requires.

Facts:
P moved to lot owned by the D. on the adjacent lot also owned by the
D, the D kept trailers and random junk. D knew they would play therehe warned them but didnt take any measures to secure the lot. The P
was injured on a tubular part of the trailer.
Procedural Posture:
Action for damages. The case was tried w/o a jury with judgment for
the P. D is appealing. Judgment for P affirmed.
Issue:
Is an owner who knows children trespass, liable for damages sustained
by an attractive nuisance that he failed to properly secure?
Holding:
S/o who maintains on his property things which are enticing to children
and he either does or should know that they pose the risk of serious
harm which the children are not old enough to appreciate the danger
therein is obligated to exercise reasonable care in protecting the
children from the item.
Judgment for P affirmed.
***First Mention of the Restatement 339***
1. The owner is aware that children play in the place where the item
is located
2. The possessor knows or should know that the item is risky to
children
3. The children, bc of their youth, are unaware of the dangers
created by the use of the item
4. The cost to the owner of maintaining the safety of the item is
small compared to the damage to the children that could result
from the item not being properly secured.
5. Also it is not reasonable to expect parents to hover over their
children all the time that is where the liability comes in on the
part of owners of property dangerous and enticing to children.
This case is similar to Sanchez in that the fact that the children were
trespassing isnt so clear-cut. By Sanchez they lived on the property
where the accident took place and by Copfer they were playing in the
lot adjacent to the lot where they lived.
Wilford v Little AC Cali 1956- first pool case- no liability
Justices in opinion: Valee with Parker Wood and Ashton concurring
Facts:
P fell into neighbors pool and drowned. There was nothing surrounding
the pool and the Ds could have easily installed a gate at minimal cost.

**Error: Ps lawyers could have argued the trap theory on the diving
board- instead they argued it on the pool but Peters said no COA in
water related injuries**
Procedural Posture:
D objected to Ps amended complaint; P failed to respond so a motion
to dismiss was granted. P appeals.
Issue:
Is there a COA where a 4 yr old child fell into the pool of a neighbor and
drowned?

Holding:
B/c the attractive nuisance doesnt apply to water and Sanchez only
extended liability in water cases to hidden traps and the pool is not a
hidden trap, there is no COA.
Wilford modifies the hidden trap theory from Sanchez by
saying that the trap must be artificial, uncommon, and dangerous
Judgment for D affirmed.
Knight v Kaiser AC Cali 1957- established zero liability in sand
piles
Opinion written by: McComb with Schenk, Schauer, and Spence
concurring
Facts:
Ps son was playing on sand piles maintained by the D. There was a
conveyor belt nearby. The son was asphyxiated and died.
Procedural Posture:
D was granted a demurrer against the Ps third amended complaint
and the P was not granted the opportunity to amend his complaint. P is
recovering for damages for his sons death.
Issue:
Do sand piles constitute an attractive nuisance thereby imposing
liability on the D?
Holding:
because sand piles are naturally occurring- similar to water, there is no
liability imposed on the D to secure the sand piles from trespassing
children.
This is similar to Knight in that the P could have argued the attractive
nuisance doctrine or trap theory on the conveyor belt but failed to
recognize that just as by Knight when they failed to identify the diving
board as a hidden trap. The court in Reynolds calls Knight a failure of
proof.
Judgment for D affirmed.
Dissent written by: Traynor

Created a blanket rule of zero liability when it comes to sand piles is

not smart. We need to move away from rigid categories and towards a
case by case analysis.
Reynolds v Wilson SC Cali 1958- swimming pool case with
liability to D
Opinion written by: Schenk with Gibson, Carter, and Traynor concurring
Facts:
Ds owned a swimming pool surrounded by a gate with a big gap. The
pool was visible from the street and the P, 2, was invited there to play
many times. The babysitter was supposed to be watching him. He
climbed out of a window, fell into the algae filled pool, and suffered
brain damage.
Procedural Posture:
Suit for personal injuries. Appeal by D based on a denial of a JNOV
following a verdict for the P.
Issue:
1) Can this case be applied under 339.
2) If 339 doesnt apply, can action be brought under the trap theory
b/c the pool was covered in algae.
3) If 1 and 2 dont work, can the D still be held liable based on the
fact that the child was an invitee rather than a trespasser.
This is similar to Sanchez and Copfer in that it isnt so clear that the
child was trespassing as he had been allowed in the pool before
Holding:
When every element of 339 is present and there is a hidden trap, there
is liability for injuries occurring to trespassing children in swimming
pools.
Judgment for the P affirmed
Dissent written by: Spence
In regards to the trap theory, this case is different from Sanchez b/c:
In Sanchez the trap was maintained and operated by the owner
o Over here, the condition was present w/o any active effort
of the D to maintain it.
In Sanchez there was no way for a/o to know it was there
o Whereas over here the water at the top was clear.
Garcia v Soogian SC Cali 1959 case where the girl jumps over
the windowpanes
Opinion written by: Gibson with Shenk, Traynor, and Peters concurring
Facts:
P was 12 and was trespassing with her friends on Ds lot when it was
dark out. Not knowing that there was a stack of glass windowpanes she
jumped, landed on them, and broke her leg. D was aware children
would trespass and constantly warned them away and there was a
neighborhood man who would also warn them away.

10

Procedural Posture:
Trial w/o a jury, P recovered damages for injuries. D appealed.
Issue:
Did the D exercise reasonable care sufficient to remove liability.
Holding:
The P should have, b/c of her age, been able to recognize the danger in
jumping around a construction site after dark. The walls were stacked neatly
and the cost of further care would have been great. There is no additional
duty imposed beyond the reasonable care that the D did in fact exercise.
The circumstances that a condition giving rise to injury is
common in character does not necessarily exclude liability, that
the ability to appreciate danger varies with the age and mental
capacity of the child, and that what is important is not whether
conditions are common in character but whether their dangers
are fully understood by children.
Liability must be determined on a case-by-case basis and not by
placing cases in rigid categories
Restatement 339 has now been adopted as the law in California
Judgment for P is reversed
Concurrence in judgment but dissent in reasoning written by: Spence
The reversal should just be based on the precedent set in Knight
regarding no liability for injuries sustained by or on building materials
or construction sites.
King v Lennen SC Cali 1959Opinion written by: Gibson with Traynor, Peters, and White concurring
Facts:
Ds owned a pool with a partially constructed fence. There were animals
surrounding the pool that were visible to the children. At the time of the
accident the pool was dirty and opaque. An 18-month-old child drowned in
pool that he frequented with his family by the invitation of the Ds.
This is similar to Reynolds, Sanchez, and Copfer in that it isnt so clear
that the child was trespassing as he was invited to the pool by the Ds.
Procedural Posture:
Ps brought action for wrongful death of their son. Demurrer to the complaint
was sustained w/o leave to amend and P now appeals.
Issue:
Did the failure to maintain the pool constitute a trap?
Holding:
B/c the pool was murky and a child of 18 mos cant be xpected to understand
the danger of going into it, and erecting a fence would have been
extremely low cost to D, the D is liable.
Judgment reversed with a new judgment for P
11

The common nature of a danger, such as that of drowning in a

pool, should not bar relief if the child is too young to realize the
danger.
Even very young children cannot always be kept under the
supervision of their parents
o The question whether a parent in a wrongful death case
was guilty of contributory negligence in permitting his
young child to play unattended near the defendant's
property will ordinarily be for the trier of fact.
This case officially overruled Peters and Knight
Chapter 5:
Precedent
Frederick Schauer- precedent is a way of life. It allows impartiality in
that judges are bound by earlier decisions and dont have as much
personal leeway.
Loose view of precedent- any decision or point made in the case
is binding
o The courts argue about the language of the decision and the
previous courts intention
Narrow view of precedent- there is one holding and that is the binding
law. There is less leeway for future decisions.
Criticisms of precedent:
Lower courts are bound whether they agree w previous decision or
not
The first time an issue is raised and precedent is formed,
regardless of whether done correctly, it will create precedent
Based on the precedent est, before the case even begins one side may
have a bug advantage
Even though the court may want to decide one way, b/c they have to
think about how this decision will impact the future, they may decide
differently
Defenses of precedent:
Fairness
Predictability
Efficiency
Legitimacy
Planned Parenthood v Casey
The court refused to overturn Row b/c they felt that the impact on the
countrys morale would affect the legitimacy of the court.

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B/c the court has no real power, their legitimacy lies in the peoples
faith in the court and constant overruling of previous decisions may
make people question whether the court knows what its doing.
Chapter 7- Statutes and the Common Law
The law in statutes is spelled out whereas in common law it must
be found.
o Statutes are therefore harder to get around whereas
finding the courts absolute meaning in common law is
more difficult and therefore easier to get around.
o Common law is only made by the judiciary whereas with
statutes the legislature gets involved.
Legislative supremacy means that the legislature can
alter the judiciarys ruling but as long as statutes are
within constitutional bounds, the judiciary cannot
alter the legislatures ruling.
Bills are applied prospectively

Case Sequence

Filmore v Metropolitan Life Insurance (SC Ohio 1910)

Facts:
P alleged that he is owed 239,000 w interest as part of a life insurance
payment which should have been made to him. The insurance
company said that b/c the P killed his wife and was convicted of
manslaughter, they should not have to pay.
Procedural Posture:
P filed a demurrer objecting to the Ds claims on the grounds that they
were insufficient to mount a defense. The demurrer was overruled and
the P didnt want to pursue it anymore so judgment was entered to
dismiss the petition and the judgment was affirmed by the circuit
court.
Issue:
Can the P collect b/c he alleges the murder wasnt intentional and the
statute only denies recovery for intentional killings?
Holding:
Because the objection is purely technical and the action was caused
intentionally and there is no recovery of insurance for intentional acts,
he cannot collect.
Intentionalism
Judgment affirmed
Deem v Millikin (Ohio Circ Ct 1892)
Ohio Statute:
1) A person, subject to only specific limitations, can direct who
should be the beneficiaries of their estate
2) If the person dies w/o a will, the estate goes to the closest
surviving relative

13

Facts:
A widow died and bc she had no will her estate went to her son. The
son mortgaged the property to cover debts. This is a suit bw the
lenders and the sons siblings who claim he didnt have a right to
mortgage the property b/c the son was hanged for being found guilty
of murdering his mother.
Procedural Posture:
Lower court said bc the son inherited the entire estate, the mortgage
was valid.
Issue:
Does the fact that the son murdered his mother change his rights to
the estate?
Holding:
The statute should be taken as it was written and under the textualist
interptetation of the statute, he is entitled to inherit the estate.
Judgment affirmed
Riggs v Palmer (SC NY 1889)
Opinion written by: Earl
Facts:
A grandson lived with the grandfather until the GF died. When the GS
was 16, knowing his GF may limit his inheritance, poisoned his GF to
get access to the $.
Procedural Posture:
Appeal by P from a judgment dismissing complaint.
Issue:
Can the GS inherit even though he murdered the estate owner?
Holding:
The court ruled in favor of the plaintiffs. The court reasoned that
allowing Elmer to profit from his crime would violate tenets of universal
law and maxims. The court held that the legislature could not be
reasonably expected to address all contingencies in crafting laws and
that, had they reason to suspect one might behave in the manner
Elmer did, they certainly would have addressed that situation. This
interpretation is a purposivism interpretation.
Dissent written by: Gray
He argued that the criminal law established punishment for the
murder. For the court to deny the estate to Elmer was to add
significant further punishment to what Elmer received under the
criminal statute, something the court was not permitted to do without
the express, written statute. The written statutes that existed did not
sanction the action of the court and the court cannot simply create or
imagine such statutes so as to obtain a morally pleasing result. Gray's
view of literal interpretation of the statute was in contrast with the
majority opinion that gave the legislators' intentions influence over the
actual statutes in place.
Judgment dismissing complaint affirmed. Judgment for the P.
14

Wadsworth v Siek (TC Ohio 1970)

Facts:
Rosaline Seik made out a will leaving her mother, brother, nieces, and
nephews as beneficiaries of her estate. Later that year she married
John and he beat her to death. He pled guilty to manslaughter and was
sentenced to prison.
In Ohio there is a statute that gives the spouse at least some part
(50%) of the estate even if there was nothing left for the spouse in the
will
But there is another statute in Ohio that says:
A/o found guilty of 1st or 2nd degree murder cant inherit any part of the
estate the person they killed
Issue:
Can the P inherit based on his statutory right even though he was
convicted of manslaughter?
Holding:
The court said that b/c the statute didnt include manslaughter, the P is
entitled to his half of the estate.
The fact that he was charged w murder is irrelevant bc he was
ultimately found guilty of manslaughter.
o It is not the courts job to legislate and add in the
conviction of manslaughter. The fact that the court forgot it
or chose not to is not the courts option to change.
Following this case, Ohio amended the statute to include one who is
convicted of or pleads guilty to manslaughter, murder in the 1st, or
murder in the 2nd, and it added that they should in no way benefit from
the estate- not just the will.
Shrader v Equitable Life Assurance Society (SC Ohio 1985)
Facts:
A woman was strangled in a parking garage and no one was ever
arrested or charged for her death. D had two life insurance policies
that named her husband as the primary beneficiary and her parents as
the secondary. Insurance co left the funds w the court and had the
parents and husband argue it out.
Procedural Posture:
TC found he killed her. AC reversed and said he needed to be proven a
criminal in the SC.
Issue:
Can someone against whom no criminal charges were filed, be found
civilly liable for the death?
Holding:
Yes. The court found that he did murder her and based on the following
reasons found that he could not have any part of her estate:

15

The statute was enacted to prevent criminals from benefitting

from the estate of their victims, this statute doesnt apply bc the
husband was never convicted or charged with the murder but
common law can still be used to preclude the murderer from
inheriting.
If s/o feloniously commits murder he cannot inherit but bc he was
not convicted the statute doesnt stand
Bc the statute prohibiting a murderer from inheriting the estate
of s/o who they murdered is a civil statute, civil courts should be
allowed to determine whether the individual in fact murdered
and therefore should not be able to inherit.
Judgment of AC reversed.
Chapter 8:
Theories of Statutory Interpretation
Agency- they are the agents of the legislature and carry out their
decisions based on how the legislature made the statute with
minimal discretion
Partnership- courts work with the legislature to create a sound
body of law
The legislature is superior to the judiciary in every respect except when
it comes to constitutional issues.
Courts as Agents of the Legislature- the courts place in interpreting
statutes
1. Traditional Intentionalism
a. Judiciary focuses on the intent of the drafters of the statute
b. Judiciary looks at the circumstances surrounding the
enactment, transcripts, congressional hearings, and texts.
2. Imaginative Reconstructing
a. This approach requires the judge to study the language
and history of the time as well as values and attitudes at
the time the statute was enacted.
3. Purposivism
a. Intent is what the legislature had in mind when making the
statute- purpose, however, is what they wanted the statute
to accomplish (intent is about means, purpose is about
ends).
b. They believe that in order to properly understand a statute,
its more important to focus on the purpose of the statute
rather than the intent
4. Textualism
a. Focus solely on what the text says and introduce in no
other sources.
b. They are supporters of the Public Choice criticism of
intentionalism which says that trying to determine the
intent of a statute is pointless b/c statutes are usually the

16

result of a series of compromises and not the result of one

main idea.
Courts and Legislatures as Law Making Partners
1. Independent judicial agreement
a. The majority legislature should not have the authority to
make legal decisions- the legislative process should take
place in the court room.
2. Dynamic statutory interpretation
a. Courts should interpret the statutes based on the current
times. They believe that even the statutes themselves can
change based on the evolving times.
3. Legislative supremacy
a. The courts should not have a hand in the legislative
process b/c it impedes the supremacy of the legislature.
Church of the Holy Trinity v United States SCOTUS 1892
Facts:
Holy Trinity Church signed an employment contract with a minister in
the UK named Warren. At the time, such employment contracts were
illegal under US law (23 Stat. 332).
The law explicitly prohibited any "...person, company,
partnership, or corporation, in any manner whatsoever to prepay
the transportation, or in any way assist or encourage the
importation or migration, of any alien or aliens, any foreigner or
foreigners, into the United States... under contract or
agreement... to perform labor or service of any kind in the United
States..."
There was an exception in the Statute (5) that included actors,
artists, lecturers, or domestic servants.
Procedural Posture:
TC found for the US that Holy Trinity was in violation b/c the exceptions
to the statute expressly left out pastors. Holy Trinity appeals to the
SCOTUS.
Issue:
Is there an exception for pastors under the law?
Holding:
The court said that pastors were not included b/c the intention and
purpose of the legislation doesnt match up to preventing pastors from
coming to the US.
Canons of Interpretation- a letter may be w/in the statute but not
w/in the statute b/c its not w/in the intentions of the legislature
The US is a Christian nation. There is no way the legislators
intended to prevent pastors from coming here.
The statute includes the words manual laborers. Pastors are
not.

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At the time the legislation was enacted the purpose was to

prevent the influx of illegal immigrant workers to perform cheap,
unskilled labor- pastors dont qualify under this purpose.
The reason for the reversal was that the pastor was a public speaker
and therefore not included in the ban.
Judgment reversed.
Sources of Statutory Interpretation:
1. Text
a. Over here b/c the plain meaning of the text disallowed the
pastor from working in this country Brewer didnt dwell on
it.
2. Beyond Text
a. S/t can be included in a statute w/o necessarily being in the
letter of it
b. It was noted by Justice Frankfurter that one of the most
difficult parts of statutory interpretation is figuring out how
far external sources should be allowed to determine the
text
3. Statute Title
a. Over here the title invoked the word laborers which the
court used by saying ministers arent considered laborers.
4. Purpose
a. Brewer used the purpose of the legislators intentions in
drafting this statute rather than their intentions- their
purpose being to keep out migrant laborers.
b. Criticism:
i. Not the courts job to interpret
ii. Its one sided
5. Historical and Legislative Content
a. Look at the social and political conditions during the time
when the statute was passed
b. At the time the statute was passed, they were trying to
prevent an influx of unskilled workers.
6. Legislative history
a. Holy Trinity relied on the hearings, testimony, and house
report that surrounded the passing of the statute as well as
a discussion in the Senate Report which directly addressed
the legislative intent of the statute
7. Later amendments
a. Amendments that affect the outcome but were passed
after the initial courts decision was rendered
8. Public policy
a. It seems that what is most important to Justice Brewer is
the fact that this nation was founded on a religious premise
and he refuses to read any legislation in any other way.
Statutory Uncertainty:
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Statutes are never clearly resolved or understood b/c:

1. The intricacies and nuances in statutes can never be fully
expressed w mere words- language is limiting
2. Statutes are often applied in situations where they were not
meant to be applied so drafters attempt to think of every
possible scenario
3. The legislative process makes it inherently difficult to construct a
statute
4. Statutes are often the product of a group effort so trying to get a
very specific and detailed statute passed can be difficult so they
are usually more general.
Vagueness and Ambiguity of statures differ in that with vagueness,
adjectives can present the most issue- what does the word actually
mean such as the word cool- what are its parameters- where does s/t
go from cool to hot. Whereas ambiguity can mean two different thingsseizure has two completely separate meanings.
Chapter 10:
Reading Statutory Texts
Nix v Hedden
Tomatoes are grown and eaten as vegetables. Dictionary definitions
are only aids to help the memory and understanding of the court.
University of Utah Hospital v Bethke
There was an argument over whether as such only included hospitals
in Idao. The court interpreted as such to include all hospitals like the
one in Idaho.
Punctuation and Grammatical Uncertainty
Young v Community
o Said that the commissioner should mitigate risk in food as
he finds necessary
Court said it was unclear, relied on doctrine of
deference and deferred to the agencys internal
views
Justice Stevens in dissent said it did require the
commissioner to regulate the aflatoxin
Rule of the last antecedent
o In the phrase is ambiguous, the words qualify the phrases
right before it
A provision that may seem ambiguous can be clarified when it is
viewed in context
United States v Ressam
Facts:
D gave false information when passing through customs. His car was
searched and explosives that he intended to use in the US were found.
He was convicted under 18 USC 1001 for making a false
statement

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Also convicted under 18 USC 844h for carrying an explosive

during the commission of a felony that can be prosecuted within
the US
o Issue with the meaning of the word during
Procedural Posture:
TC convicted of the D. AC overturned saying that during means in
relation to the crime.
Issue:
Does the word during mean in the commission of the act or whether
the explosives just happened to be there?
Holding:
The word during does not mean in relation to. Regardless of whether
the explosives were used during the actual act or not, the statute
applies.
Majority used the most natural reading of the statute
The statute was modeled after another statute that was later
modified but the explosives statute was remained intact which
means that the legislature intended for it to remain the same.
Dissent:
Cited house report that the statute was intended to criminalize
and impose harsh penalties on the misuse of the explosives
Meaningful silence- the omissions of something in one part
and its inclusion in another means Congress intended for it to be
omitted.
Literalism- different form textualism b/c it requires the word to
be used in context
o Smith v US- the use of a gun means its use for its intended
purpose
***In Ressam they are looking at the actual enacted versions of two
statutes and saying that the two statutes that became law diverge in
their meaning so the debate is about the actual statutory
interpretation. In Ashcroft, theyre looking at the internal legislative
history of the statute- theyre not comparing two enacted statutes***
US v Scrimegeour (5th circ 1981)
P appeals from DC dismissal of 5 count indictment against D for
knowingly making false statements before a grand jury
P admitted statements were false
Dismissal was based on DC interpretation of statute that said if the
statements hadnt affected a/o or they were recanted, there would be
no charges
Although criminal statutes are construed narrowly, that does not
mean that the intent of the legislature should not be utilized
o According to the SC, unless the context says otherwise
disjunctive statements are one or the other. However, b/c
in this context its not possible that the legislature meant
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to allow a/o who recants to get off scot free, the word or
means and in this instance

Canons of Interpretation
Linguistic Canons:
Ejusdem Generis
That when a general term follows a list of particular terms, the
general term only applies to things similar to the particular
terms.
o Cars, trucks, tractors, or other vehicles with four wheels
doesnt include plains
Noscitur a Sociis
Determine the meaning of a statute based on the words around
it
Expressio Unius
There is a theory that the inclusion of one set implies the
exclusion of another
o Holy Trinity- the inclusion of a group of exceptions implied
the exclusion of those not listed
o Brockamp- suit against IRS for missing deadline to claim
rebate and the court rejected the argument that it was due
to disabilities b/c the provision allowed certain exemptions
but didnt include disabilities
Why canons are applied inconsistently:
o If the legislature chooses to remain silent regarding certain
topics, that can be taken to mean many different thingsthey are implying certain things by their exclusion and the
exclusion doesnt mean that they forgot to address it
o Many times a lack of inclusion is the result of a poor job on
the part of the legislature in properly drafting a statute in
that the issues that will arise from its application are not
properly addressed
Popkin: the omission of Y may only have to do with the fact that
X had the legislatures intention and so thats why they focused
on X- omission doesnt mean exclusion
Block v Community Nutrition endored by Easterbrook- rules
against the Ps by saying that b/c the process by which the milk
was sold did not include consumers, that omission is tantamount
to exclusion
The Rule Against Surplusage
We avoid reading statutes in ways that render words useless
Bethke- mentions that had the legislation wanted to
include all hospitals, as such would be extra so the ct
interprets the statute in a way as to make the words
as such make sense
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The Rule of the Last Antecedent

A doctrine of interpretation by which a court finds that qualifying
words or phrases refer to the language immediately preceding
the qualifier, unless common sense shows that it was meant to
apply to something more distant or less obvious.
o The qualifiers should only apply to the words immediately
preceding

Substantive Canons
Absurdity Canon
Arguments for ignoring the plain meaning of text:
1. Absurd results- many believe that when following the plain
meaning leads to absurd results, the literal definition shouldnt
be used
a. Issues with absurdity doctrine:
i. What justifies this exception- who said removing the
interpretation from the text is allowed
ii. Where does the text go from absurd to not absurd
2. Legislative intent- oftentimes the text can conflict with the intent
a. Posner said of the decision in Locke that the intention of
the legislatures was obviously to include the 31st
i. The critique of the dissent in Locke was that in the
statutory text doesnt convey what the legislation
wanted, then is the statute ever binding? Also, by the
judiciary determining the intent, arent they really
determining their own intent?
1. Although the court could have voted for
including the date, that would undermine the
faith in the statutes
3. Background norms- if the textual meaning conflicts with
background norms
Rule of Lenity
Where there is ambiguity in a criminal statute and there are
equal differing interpretations we resolve it in favor of the D
Federalism Canons
There are canons that say that if theres ambiguity that weighs
federal and statutory interpretations that may infringe on state
autonomy, we go according to the interpretation that rules in
favor of the states
o Gregory v Ashcroft- we want states to be able to choose
their own judges and policies about how to hire and fire
them
Issues with applying a substantive canon based on the general policies
surrounding it:
1. Statutes are ambiguous- who said the court should rely on
background principled to settle the ambiguity
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2. Where does the court find the principle on which to base its
decision and how does it know its the correct one
3. Their interpretation isnt necessary in every case so when are
they used- they cant be applied sporadically when the court
decides to do so
United States v Locke
Facts:
Under federal statute, in order to preserve claims on federal land, the
notice must be filed prior to December 31st. P filed on December 31st
and lost his claims to the land.
Procedural Posture:
DC said Ds complied by filing on the 31st
Issue:
Does the meaning of the statute prevent filing on the 31st?
Holding:
The plain meaning of the text of the statute provides the filing should
be before the 31st and b/c its unambiguous theres no reason to
interpret any other way.
Dissent:
Most deadlines are on the 31st- the end of the calendar year and the
fact that it said before the 31st is merely a legislative oversight.
Chapter 12- Legislative History
You only look at the statute when the meaning of the statute is
ambiguous- Justice Stevens
o This rule implies that words are the best evidence of the
meaning and intent of the legislature
The criticism of this is that whether s/t is ambiguous
or not depends on whos reading it
Hierarchy of legislative sources:
o Committee reports and especially conference committee
reports carry the most weight, statements made by
sponsor of the bill or floor manager are also pretty weighty
(statements by others carry less weight and statements
by opponents carry virtually no weight), concerns or
particular witnesses and the weakest are statements made
after the bill is passed b/c they bear no weight on what
happened at the time the statute was passed.

Constitutional illegitimacy
Legislation is passed through a system laid out
in the constitution. Legislative history has not
gone through that process and relying on it as
a means for achieving intent is wrong
Inaccurate evidence of actual views

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Now, b/c the legislatures know what their reports can

influence, their legitimacy is in great question- they
are merely publishing them to affect judicial opinion
Indeterminacy
o Legislative history is infinitely manipulatable- it is so vast it
can be construed in a million different ways
Unavailability and Cost
Chapter 13- Statutes in the Administrative State
o Executive:
Appointed by president and serve within the scope of
the executive branch
Includes cabinet and other free standing agencies
The leadership of executive agencies changes with
each presidency
o Independent:
Multi member, bi partisan commissions
The positions are staggered and last for longer
periods than executive
The appointees can be fired by president but only for
good cause
They have a greater degree of independence than
executive
There has been a shift from independent to executive agencies
o Executive:
Appointed by president and serve within the scope of
the executive branch
Includes cabinet and other free standing agencies
The leadership of executive agencies changes with
each presidency
o Independent:
Multi member, bi partisan commissions
The positions are staggered and last for longer
periods than executive
The appointees can be fired by president but only for
good cause
They have a greater degree of independence than
executive
There has been a shift from independent to executive agencies
Duties:
They are in charge of setting regulations
They are in charge of issuing permits
They inspect and enforce their regulations
Judicial and Executive aspects to all agencies:
Their judicial function exists in:

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Applications for permits and licenses

Alleged violations of statutes, regulations, and licenses

executive aspect functions in:

Inspecting, policing compliance, and bringing enforcement
actions either before the agency or in court
o Executive:
Appointed by president and serve within the scope of
the executive branch
Includes cabinet and other free standing agencies
The leadership of executive agencies changes with
each presidency
o Independent:
Multi member, bi partisan commissions
The positions are staggered and last for longer
periods than executive
The appointees can be fired by president but only for
good cause
They have a greater degree of independence than
executive
There has been a shift from independent to executive agencies
They are in charge of setting regulations
They are in charge of issuing permits
They inspect and enforce their reg
The judicial function exists in:
o Applications for permits and licenses
o Alleged violations of statutes, regulations, and licenses
The executive aspect functions in:
o Inspecting, policing compliance, and bringing enforcement
actions either before the agency or in court
The agencies are required to interpret the statutes under which they
operate
Agencies are also required to explain and refine their
understanding of the statute
Regulatory precedents are just as important as judicial decisions
Regulations are subject to interpretation and amendment by the
courts
Whether the court chooses to conform will depend upon:
Thoroughness of evidence
Validity of its reasoning
Consistency with earlier and later
pronouncements
o This is similar to horizontal stare decisis for
persuasive authority
o
o
Their
o

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Skidmore v Swift and Co. (SCOTUS 1944)

When the views of an administrator are put forth in an informal way
they should be respected b/c of administrators expertise even though
no statute requires his views be conformed to.

Chevron USA v NRDC (SCOTUS 1984)

Chevron Steps:
When a court reviews an agencys construction of a statute:
1. If congress has addressed the ambiguity, the regulation
must give way to Congresss interpretation
2. If congress hasnt addressed the matter then the q is
whether the agencys interpretation is permissible under
the statute
a. Silence of the other branches is tantamount to delegation
to the agencies

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