Agenda for 8th Class

1
Agenda for 8th Class

• Name plates
• Voice recorder on
• Review of Last Class
• Cohen Personal Jurisdiction

2
Assignment for Next Class

• 21-24 (pp. 137-50)
• Please pay special attention to
• P. 138. If you were on the city council of your
  Los Angeles, what kind of ordinance would you
  support to regulate conduct in LAs parks? Would
  it look like the ordinance of the City of
  Mudville, Hollytown, or any of the other
  ordinances on p. 138?
• In the US Tax Code, tax evasion is generally
  defined as a transaction whose primary purpose is
  tax avoidance and which as no bona fine business
  purpose
• Is that a rule or a standard?
• Why do you think the Code does not describe in
  detail all possible forms of tax avoidance?

3
Administrative Stuff

• Friday lunch.
• CD. sign up today for Friday
• Office Hours
• Today, Monday 9/21, 420-5, Rm 460
• NOT Tuesday 9/22, 145-245, Rm. 460

4
Review US v. Diamond I

• Posners view
• Positivist would interpret statute to require 10
  year minimum sentence, because that is most
  plausible textualist reading
• Pragmatist or adherent of natural law would
  interpret statute not to require 10 year minimum
  sentence, because such a sentence would create
  arbitrary distinctions between LSD dealers
  (depending on whether used heavy or light blotter
  paper, sugar cubes, etc.) and between LSD dealers
  and cocaine and heroine dealers
• Pragmatic view most closely related to
  purposivism purpose of statute is to give equal
  sentences for equal number of doses for drugs of
  equal dangerousness
• Pragmatic view also justified by canon of
  statutory construction, which requires
  interpretations which avoid constitutional
  difficulties

5
Review US v. Diamond II

• Alternate Views
• Positivist could give lt10 year sentence
• By interpreting substance or mixture to exclude
  blotter paper
• By viewing equal protection clause as part of
  enacted law
• Statute not irrational
• Because most retail LSD dealers use light blotter
  paper
• And Congress can reasonable legislate for most
  common circumstances
• Because wholesale LSD sellers distribute using
  alcohol, which weights about as much per dose as
  light blotter paper
• Judges dont know enough and so should not
  lightly infer irrationality
• Is wholesale LSD generally sold dry or wet?
• What are typical doses of heroine, cocaine and
  LSD?
• There may be a good reason to punish LSD more
  heavily per dose.

6
Legal Realism

• Functionalism/Pragmatism. Meaning of legal
  concepts is found in their consequences.
• To determine legal rule, analyze consequences of
  proposed rule and possible alternatives
• Choose legal rule which has the best consequences
• Reasoning of judges is and should be similar to
  that of legislature
• Much traditional legal reasoning is metaphysical
  scholastic, equivalent to arguing how many
  angels can stand on the point of a needle.

7
Questions on Cohen

• 11. Reread International Shoe in your Civil
  Procedure casebook. To what extent does
  International Shoe reflect Cohens critique of
  Tauza? Are there particular passages which adopt
  Cohens reasoning? To what extent does
  International Shoe differ from Cohens vision of
  how a court should decide personal jurisdiction
  questions? Are there particular passages which
  Cohen would have disagreed with?
• 12. What Cohen calls the functional approach,
  with its emphasis on consequences, would today
  probably be described as a pragmatic approach.
  How pragmatic is the reasoning in International
  Shoe and subsequent cases, such as World-Wide
  Volkswagen? Do the Supreme Courts criteria for
  personal jurisdiction minimum contacts,
  purposeful availment, etc. correspond to the
  considerations that Cohen thinks a competent
  legislature would have considered? Can you
  think of rules which would better satisfy Cohens
  desire for a pragmatic law of personal
  jurisdiction? If so, why dont you think the
  Supreme Court has adopted them?
• 7. Do you think that Cardozo really had no
  appreciation for the economic, social, and
  ethical issues raised by the question of whether
  the out-of-state corporation could be sued in New
  York? Or is it possible that Cardozo fully
  appreciated these issues, but chose not to talk
  about them? Could the latter be a legitimate
  judicial method? Even if the judge actually
  reached his conclusion on ethical, economic, or
  social grounds?