week 11 legal readings

precise rules vary standards continuum

• extremely vague (standards end)

• extremely precise ( rules end)

rules provide _ and limit _

certainty

discretion

standards

flexible and allow decision makers to adjust to each situation, but create more uncertainty

legal discretion

people may dislike outcome of a case, so they may not be equally right but they're both legally right, up to discretion

margin of appreciation

in the UK, flexibility of member states to make their own decisions about issues governed under EU law

discretion is in cases

where a general standard is written into law rather than a precise rule

ex of discretion

Montanas officer discretion for "reasonable and prudent driving"

clearly defined rules

limit discretion

ex of rules limiting discretion

in South Africa anyone who's arrested must be brought to court within 48h ( diff from americas 6th amendment to speedy trial)

Arguments against discretion

• distrust of officials

-unpredictable decsions

-discretion can be less efficient

-could produce unacceptable errors

-indivivdual circumstances matter more than applying the general rule to everyone

Sunstein minimalism

• minimalist judges focus strictly on the cases before them

• prefer leaving broad questions unanswered rather than rush to conclusions

-dont wanna settle deep foundational arguments

-look for practical legal grounds everyone can agree on

• minimalism is risky when you need predictable rules for the future

• can impose high decisional burdens on others

3 cases where minimalism is effective

• deep social division, judicial uncertainty, and value in public debate

per se rule

specific conduct is unlawful without need of proof of intent

Arguments for discretion

flexibility leaves room to adjust to specific cases

• current laws may be obsolete in the future (tech)

people in the future will be able to make decisions based on the circumstances at that time

Miranda v Arizona

• ruled how officers should be read their miranda rights. Not a lot of room or discretion.

• suspects confession only counts if he was read his Miranda rights

criticisms of courts using rule like directives

• appellate courts should decide one case a a time

• laying down detailed rules is for legislature, court goes beyond particular competence when it looks legislative

availability heuristics

belief that examples that come to mind are representative of. larger group of situations ( assume future cases will be similar to past ones)

breadth and vagueness

how much should officials do when laying down a rule?

scope

how many situations rules apply to

precision

how clearly rules define what's allowed/prohibited

ex: broad category being precise

insect

ex narrow category being vague

heroism

amicus curiae

friend of the court. not a party in the case but allowed to add info

title 7

unlawful for employers to discriminate based on gender, race, religion, sex, or national origin ( prohibits workplace discrimination and harassment)

• not a general code of conduct

• harassment needs to alter conditions of victims employment

Canakaris

• judge abuses discretion if no reasonable person on earth agrees with outcome (reasonableness test)

• incosistency violates the definition of logic and reason

• judges can't innovate at pleasure

• judicial discretion: judge makes decision when laws unclear

EEOC

Equal Employment Opportunity Commission

• provided enforcement guidance on title 7

• addressed supervisor as individual who can make tangible employment decisions about employees or individuals authorized to direct employee activity

Faragher v Boca Raton

farther experienced sexual harassment from 2 lifeguard supervisors. Employer failed to provide reporting mechanisms so they were held vicariously liable

Ellerth V Burlington

ellerth experienced sexual harassment from supervisor but didn't report it so company wasn't liable

Faragher and ellerth dissent

narrow definition of supervisor fails to reflect how workspaces operate ( should follow EEOCs definition of supervisor)

Faragher and Ellerth holding

If harasser is coworker- employer is liable if negligent in preventing/adressing harassment

If harasser is supervisor:if they had authority over victims employment, employer is automatically liable

Can avoid liability by proving

• steps were taken to prevent/correct harassment

• -victim unreasonably failed to report harassment

restatement of agency

masters are generally not liable for the torts of their servants, when committed outside scope of servants employment

Vance V ball state U

-vance sued her employer claiming her coworker Davis created a racially hostile environment in violation of title 7

holding: employee is considered a supervisor if employer gives them authority to take tangible employment actions ( firing/hirng)

• court ruled in favor of BSU because Davis wasn't a supervisor. BSU can't be liable for negligence bc it responded to what it was aware of.

Scalia

-general rules v discretion

-holdings decide outcomes and mode of analysis for future cases

• initially believed common law follows judicial restraint

• you constrain yourself and lower courts by adopting a general rule and making it the basis of your decision

• clear rules are more constraining than deciding cases "on balance"

• urges for laws of rules be extended as far as the nature of the question allows

consequences

• restricting definition of supervisor to those with hire(fire) power makes it harder to combat workplace harassment

• if companies are only liable for for supervisors there's less incentive to screen everyone else

• employers can't realistically screen for every position