1. Agenda for 5th Class Misc Review of statutory interpretation
Slide handouts
Name plates
Review of statutory interpretation
Intro to Common Law
Winterbottom v Wright

2. Assignment for Next Class
Common Law Cases Pp
Thomas v Winchester, Loop v Litchfield
Questions for everyone to think about Pp
WG3. Qs 1, 5
WG4. Qs 2, 6
WG1. Q3
WG2. Q4
P. 590
WG1. Qs 1, 5
WG2. Qs 2, 6
WG3. Qs 3, 7
WG4. Q4.

3. Statutory Interpretation
4 methods
Textualism
Dictionary versus ordinary meaning
Meaning in other parts of statute; other statutes
Canons of construction
Intentionalism
Legislative history
Purposivism
Sometimes purpose is explicit in legislative history
Sometimes purpose is inferred from text or history
Disregard special interest purposes
Pragmatism
What are real world consequences of different interpretations?
But some consequences may be improper for judges to consider
Good lawyers and most judges use all methods
Methods are helpful in formulating good arguments
Key is good arguments, not labeling arguments

4. Common Law Interpretation I
Common law means many things
Body of law established by judicial decisions
Not based on statute or Constitution
Most of US contract, tort, and property law
“Judge made law”
Opposite of civil law
Common law is legal system derived from England and used in US, Canada, Australia and other former English colonies
Civil law is legal system derived from France, Germany, or other continental Europeans systems in used in their colonies as well as in Japan, China, and other countries which voluntarily adopted such legal systems
Opposite of equity
Any judicial interpretations, even if of statute or the US Constitution
“common law” of Sherman antitrust law
In this course, especially in this section, focus is on first meaning of common law
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

5. Common Law Interpretation II
Common law built up case by case by judges trying to do what seems both consistent with precedent and just
Prior cases inevitably leave undecided questions, which judges must try to resolve
Language of prior decisions not as important as language of statutes
No one is a textualist when it comes to common law interpretation
Policy, what seems just, is more important
Although judges are not always explicit about policy or vision of justice which justifies their decisions
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

6. Common Law Interpretation III
Holdings
Rule of law is not always stated in case itself
Even if rule of law is stated in case itself
Later judges not bound by that statement of holding
Later judges are free to interpret case in different way
Free to construct different holding, as long as consistent with
Facts and ruling in prior case
Convincing policy argument
Example
Case 1. Facts: Loaded MAC-10 traded for drugs
Decision . Violation of 924(c)(1)
Rule stated in case: “trading gun for drugs violates 924(c)(1), because guns increase the danger of violence in drug transactions”
Case 2. Facts. Unloaded Beretta 93R traded for drugs
Could say holding of Case 1 was “trading loaded gun for drugs violated 924(c)(1),” because trading an unloaded gun does not make the drug transaction any more dangerous
Implausible to say holding of Case 1 was “trading MAC-10 for drugs violated 924(c)(1),” because no policy-relevant difference between MAC-10 and Beretta 93R
Class list for preferences and sign in
Digital voice recorder
Nameplates and marker
Handouts of PowerPoint slides
IP chart

7. Common Law Interpretation
Question on Winterbottom