Agenda for 6th Class

1. Agenda for 6th Class • Handouts • Slides • Readings packet • Catherine MacKinnon, Sexual Harassment of Working Women (1979) • Meritor Savings Bank v Vinson (1986) • Stapled together • Longer Writing Assignemnt • Name plates • Review of Last Class • Theories of Statutory Interpretation

2. Assignment for Next Class • Review any questions from today’s assignment that we don’t discuss in class • Read “Sexual Harassment” handout • Catherine MacKinnon, Sexual Harassment of Working Women (1979) • Meritor Savings Bank v Vinson (1986) • 5 Blackboard questions on Harassment • Questions to think about / Short papers • Everyone should be prepared to discuss all the questions on the last two pages of the Sexual Harassment handout • Mandatory writing • Group 8. Q4 & Q8 • Group 7. Q3 & Q7 • Group 6. Q2 & Q6 • Group 5. Q1 & Q5 • Optional writing -- All questions that are not mandatory • 1st Longer Writing Assignment • Due Friday, 9/20 at 5PM • Questions?

3. Review of Last Class I • Weber • Both majority and dissent use legislative history • But careful reading of quotes they rely upon suggest that legislative history was much more ambiguous • Legislative history focused on • Goal of improving African American economic conditions • Not requiring affirmative action • Because it had been required under federal contractor executive order • Not much attention to voluntary affirmative action • Not really imaginable in 1964 • Problem was getting employers not to discriminate against African Americans • No one really imagined much less feared that employers would voluntarily start discriminating against whites

4. Review of Last Class II • Dworkin • In hard cases, traditional legal methods (textualism and intentionalism) don’t provide answer, so judge must decide case based on “political morality” • Political morality means what judge thinks is most just • Controversial • Some think traditional legal methods (almost?) always provide an answer • Some think it is illegitimate for judges to decide based on their views of political morality • Dworkin would respond. How else decide? • Is it better for judges to pretend that traditional legal materials provide an answer?

5. Methods of Statutory Interpretation I • Textualism – Courts should look only at text of statute • Should not look at legislative history or purpose • Intentionalism – Courts should try to figure out what the legislature intended • Should look at legislative history, where informative • Purposivism – Courts should try to figure out the purpose of the statute and then interpret ambiguous parts of the statute to further that purposes • Purpose may be inferred from text, legislative history, or other sources • What problem was statute trying to address? • Purposivism is sometimes a variant of intentionalism and textualism • Purposivism is distinct if judges infer purpose from sources other than text or legislative history • Purpose may be public good, even if statute is actually just interest group deal 5

6. Methods of Statutory Interpretation II • Pragmatic interpretation -- Judges should take into account real-world consequences • In practice, use all methods • Good lawyers and judges try to show how all methods point to same conclusion • But sometimes methods point to contradictory conclusions 6

7. Methods of Statutory Interpretation • 1. Which method of statutory interpretation is most consistent with democracy? • 2. Which method of statutory interpretation is most likely to result in interpretations that promote social goals such as justice, efficiency, or fairness? • 3. Which method of statutory interpretation is most likely to constrain judges so that a judge’s ideology or policy preferences have the least effect on judicial decisions? • 4. Which method of statutory interpretation is likely to give citizens and corporations the clearest notice of their obligations? • 5. Which method of statutory interpretation is likely to give legislators the best incentives to draft statutes carefully? 7

8. Methods of Statutory Interpretation • 6. Consider the following drastic simplification of the debate over Title VII. Congress was composed of three groups. 35% were Southern Democrats. They were racists who opposed equal treatment for African Americans. They would vote against any civil rights bill. 35% were Northern Democrats. They were ardent advocates of civil rights, who favored not only equal treatment, but affirmative action, quotas, and other means of swiftly integrating African Americans into the mainstream of American life. Although ardent advocates of civil rights would favor a bill which allowed affirmative action, they would support a bill which required only equal treatment. 30% were Republicans. They were moderates who favored color-blind decisionmaking and equality of opportunity, but who opposed (and would vote against any bill that permitted or required) affirmative action or quotas… So, according to the theory that statutes should be interpreted in accordance with the intentions of the pivotal lawmakers, Title VII should have been interpreted to forbid affirmative in United Steelworkers v, Weber. Does it make sense to interpret Title VII this way, even though most of those who supported the statute would have favored a contrary outcome? 8

9. Methods of Statutory Interpretation • 7. In what way is the simplification of the debate over Title VII in question 6 accurate? In what way is it inaccurate? • 8. Which method of statutory interpretation would you adopt if you were a judge? 9