1. Agenda for 9th Class Admin Name plates out Slide Handout
Lunch on Friday, Rm :30-1:30
Then no probably lunches for a month
Today
Dworkin
Scalia
US v Diamond
Assignment for next class
Readings 40-42
Questions to think about
Pp. 195ff Qs 1 (WG1), 2 (WG2), 3 (WG3), 4 (WG4), 5 (WG1)
In answering Question 4, substitute for “Boyd-Liggett-Crigger line of cases” the common law cases we discussed in class (Winterbottom v Wright, Thomas v Winchester, Loop v Litchfield, Devlin v Smith, MacPherson v Buick).

2. Theories of Adjudication
Formalism
Legal reasoning is primarily logical reasoning
Judges should not rely on moral or policy reasoning
Realism
Logical reasoning cannot answer many legal questions
Legal reasoning does and must incorporate moral and policy reasoning
Legal reasoning similar to legislative reasoning
Judge is “interstitial legislator”
Natural Law
Legal reasoning does and should incorporate unenacted principles
These principles are part of the legal system and distinct from policy reasoning
Different from realism, because relies on moral reasoning, whereas realism is open to many kinds of policy and pragmatic arguments

3. Dworkin I An ideal judge (“Hercules”) should decide cases by
Identifying one or more principles which fit the precedents (and perhaps even relevant statutes)
If more than one principle fits the precedents, she should choose the “best” principle the precedents can be taken to serve
Analogy to chain novel
Judge not free to do what best, irrespective of precedents
Judge must make moral/political choices
Coherence and integrity
Necessitated by fairness– need to treat like cases alike
Sharp distinction between policy and principle
Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole.
E.g. argument for subsidy based on national defense
Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right.
E.g. argument for anti-discrimination statutes based on right to equal respect and concern.

4. Dworkin II Judging is different from legislating
Because legislator need not legislate based on principle which makes sense of all prior legislation
Legislator can use policy, not principle
Contrasts
Legal Realists
Judge is “interstitial” legislator
Posner
No sharp distinction between principles and policies
Judge should decide common law cases to promote economic efficiency
Could reconcile with Dworkin
Economic efficiency is a principle which best fits with common law precedents (“positive economic theory of the law”)
Economic efficiency is the best such principle
Economic efficiency is an attractive principle for utilitarian and pragmatic reasons
Dworkin would reject reconciliation, because he views efficiency and utilitarianism as implausible moral theories and thus as unacceptable principles

5. Scalia Realistic view of common law
Judges make the common law by selecting rule they think best and distinguishing troublesome precedents
Common Law mindset: “What is the most desirable resolution of this case, and how can any impediments to the achievements of that result be evaded?”
Remarkably similar to what Posner was quoted saying in NY Times (9/11/2017):
“I pay very little attention to legal rules, statutes, constitutional provisions. A case is just a dispute. The first thing you do is ask yourself – forget about the law – what is a sensible resolution of this dispute?” The next thing, he said, is to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case. When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
Common law is small part of federal judging
“We live in an age of legislation, and most new law is statutory law.”
To apply “Mr. Fix-it mentality of the common-law judge is a sure recipe for incompetence and usurpation.”
Inconsistent with democracy, too much discretion to judges

6. U.S. v Diamond 21 USC §841. mandates
a 5-year minimum sentence for selling more than 1 gram of a “mixture or substance containing a detectable amount” of LSD,
a 10-year minimum sentence for selling more than 10 grams of a “mixture or substance containing a detectable amount” of LSD
Lucy Diamond sold 1000 doses (50mg) of LSD on heavy blotter paper weighing 10.5 grams
Does the weight of the blotter paper count for the purposes of the mandatory minimum?
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

7. U.S. v Diamond
1. Are the dictionary definitions of statutory words such as “mixture” and “substance,” together with any other linguistic or semantic facts relevant to the legal meaning of the §841(b)’s phrase “mixture or substance containing,” conclusive on the question of whether the weight of the LSD carrier should be included when determining whether the amount of drugs sold reaches the 1 gram threshold for a 5-year mandatory minimum sentence, and the 10 gram threshold for a 10-year mandatory minimum sentence? Explain.
2. Suppose we give §841(b) the meaning that best advances the statute’s purpose or purposes (either actual intended purposes or purposes judicially imputed to the statute to make sense of it). Does §841(b) likely have just one purpose, or more than one purpose? What is that purpose (what are those purposes)? Is construing §841(b) in light of its purpose (or purposes) conclusive on the question of whether the weight of the LSD carrier should be included? Explain.
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

8. U.S. v Diamond
3. Assume that consistency in statutory interpretation is desirable. Does the consistency value argue in favor of including the weight of the carrier; excluding the weight of the carrier; or does it cut both ways? Explain.
4. In his dissent in Marshall, Judge Posner describes two theories, positivism and natural law or legal pragmatism. He sets out what he takes to be the benefits and costs of both theories. Admitting that neither view is perfect, Posner ultimately prefers natural law or legal pragmatism and applies it to the problem of interpreting §841(b). Posner concludes that the best reading of §841(b) is one in which the “filler” counts in the sentence calculus in cocaine and heroin cases, but the “carrier” does not count in LSD cases.
4.1. What does Posner mean by positivism? Do you agree with Posner that within a positivist understanding of the statute, the weight of the LSD carrier must be included?
4.2. What does Posner mean by natural law and legal pragmatism? Do you agree with Posner that within a natural law or legal pragmatist understanding of the statute, the weight of the LSD carrier should not be included?
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart