I.

The Common Law Method

Overview
COMPLETELY INDETERMINATE--------------------------------COMPLETELY DETERMINATE

Indeterminate: There could be many outcomes to a legal question

o More flexible, similar to legal realism
Determinate: There is one right answer to a legal question
o More rigid, similar to formalism
Critical Legal Theorists argue that law is completely indeterminate: in every possible
case, any possible outcome is legally correct
Solems article: way to refute strong indeterminacy thesis is to show that there is at
least one possible case where one outcome is legally incorrect
o Ex.: Is guy at beach guilty of antitrust violation?

Legal Realists
Holmes-Social Science

Must look at the substance behind the logic

o Bad if rationale for rule is gone but continues to persist b/c of imitation of past
Law is through experience, not logicimagination and intelligence (questioning the
reasoning behind the role) is most important
Sometimes need to make changes if it is better for society (more just)emphasis on
social benefit
Law is trying to predict what the bad man will do (morality doesnt deter him but law
might)
Legal realists focus on predictionprecedent doesnt help shape society
Need social science to predict consequences of rules
o Look at consequences of decisions, not just the history

Cohen-Transcendental Nonsense

Law is not a science but a practical activity

Evaluate law in terms of substance and social changes, not just based on logic
Need to look at consequences of legal rules (substance)
Uses example of Cardozo opinion trying to determine where a corporation is to be
sued, basis in precedent (PA corp in NY; court bases rationale on whether corp was
physically in NY even though it had business in NY)
o Law doesnt focus on social factors but rather on technicalities that arent that
important; too much logic = nonsense

Kronman, The Lost Lawyer

Judicial creativity is constrained by rules and traditionsgave rise to interpretation

The In-Betweens
Cardozo, Nature of Judicial Process

Judges have discretion but there is a limit to how much freedom they have
Dont fully rely on precedent but precedent can be controlling and useful for cases
o If abandon precedent judicial anarchy
The main tools that shape the progress of law: logic, history, custom, accepted
standards of right conduct, morality

Dworkin-Chain Novel

Dont invent lawneed to look for principles that both fit and justify complex part of
legal practice
o Horizontal consistency of principles across range of legal standards community
now enforces
Two concerns of each legal question:
o (1) FIT: How do well make legal novel move forward? Must decide what will fit
given what is provided before (judge is not free to write whatever he pleases)
o (2) BEST OPTION: Find the best option given the circumstancesthere may be
more than one correct answer but there is a line b/w correct and incorrect
interpretations
o Overall, must decide which will be best fit in overall comparison with other
interpretations
Establishes some level of constraint (judges act as check on each other), but also some
room for creativity

Formalists
Burke Incrementalism-Precedent is Good
Precedent is importantwe inherent our rights from the past; societies rely and build
upon a foundation
Change the common law judges do is incrementaldraws from past wisdom and
applies to present
Individuals ignorant relative to mass of individuals (wisdom of crowds)
Important to respect precedent because:
o Legitimacy: people will respect law and unelected judges if respect precedent
o Accuracy: knowledge in pre-existing decisions might have info content
o Distrust of Abstract Theory
o Information: If something has been a certain way for a long time, then it is
probably working relatively well
o Law of Unintended Consequences: Leads to uncertainty/instability-not certain
that drastic change will lead to a better result than incremental change
o Wisdom of crowds: Judges of past generations are like a crowd, and collectively
have incrementally created better changes rather than working individually

Slippery Slopes

All legal change could create slippery slope that could lead to more legal change

Cause of Slippery Slope:

1. Lowers Cost: one action might lower costs of second action
Ex: Gun registration makes it easier to find guns confiscation
2. Attitude Changes: once first decision is made, it becomes a presumption and
affects attitudes brought by second decision
Ex: If legalize same-sex marriage, could change attitudes about polygamous
marriage
3. Equal Treatment Requirement: Two decisions, A and B, will appear to be the
same to the public and it will be difficult to distinguish the two (more likely to
approve both decisions)
Condescending idea: elite can see distinction but majority of public cannot
4. Empowers Interest Groups: affects powers of those wanting to change rules for
second decision
Ex: marijuana legalization can create lobby groups that can push for
advertising of marijuana
5. External Societal Factors: unforeseen factors might move society from decision A
to decision B being logical extension but unintended consequence
Katz: as technology advances and becomes more standard, it becomes easier
for government to encroach on publics privacy and no convos will be private
Adaptive preferences lead to slippery slope: can adjust and justify any bad behavior

Fourth Amendment Search Cases

Olmstead (SCOTUS 1928): wiretapping disclosed private convos not violation of 4th Am
o No search/seizure of any tangible, material effects and no physical invasion of
house; just a recorded convo (convos dont fall under category of tangible, material
effects)
Goldman (SCOTUS 1942): convo heard through detectaphone not illegal by trespass or
unlawful entry and use of detectaphone was not violation of 4th Am
o Use of detectaphone was not physical invasion of Ps space (have to actually cross
property line in order for it to be trespass)
Silverman (SCOTUS 1961): Physical invasion of Ps premises to secretly hear/record
convos was violation of 4th Am
o Didnt acknowledge whether it constituted trespass b/c not sure if spike mic
actually crossed the line into Ps property
o Court started to recognize that what is important is not trespass but privacy rights
Katz (SCOTUS 1967): Electronic device to hear persons convos in phone booth when P
expected privacy) is violation of 4th Am (even though didnt physically penetrate barrier)
o Phone booth qualifies as private space when it being used for personal convos
o Overruled prior cases (dramatic decision); this is a constitutional decision
o Protecting property is not a good way to protect privacy with advance in tech
Slippery slope: From 1928-1967 shift in interpretation of 4th Am
o Initially, it was necessary to trespass in order for it to be 4th Am violation
o Later, just invading someones privacy rights is enough for it to be 4th Am violation

II. Rules v. Standards

Overview

Rule: more binding to the facts, less discretion, captures background principle/policy
Standard: decreases error of over- and under- inclusiveness by giving more discretion,
includes all relevant factors, different decision produced from different cases
Rules are more constraining and determinate than standards

Cases

Papachristou (vagrancy case)

o Rule better than standard (lack of fair notice)
o Void because of vaguenessinefficient if law trying to induce certain behavior
o Rule of law must be evenly applied to all in order to hold society together
Mcaller (fraud case)
o Standard better than rule (certain types of fraud permissible)
o Rule gives clear definition of fraud and it tells crafty people how to avoid being
punished; better to surprise people with the law
Stanley (unwed father case)
o Standard better than rule (determine fitness of the father)
o Admin costs v. justice might be cheaper/more efficient to have categorical rules
but Due Process protects values of vulnerable citizens from efficiency concerns
Constitution recognizes higher values than efficiency
o Focus on purpose behind the rule (to protect best interest of children)
One way to resolve rules v. standards issue is to create a hierarchy of rightsif it is
important, use standard; if not important, use rule
o Categorical rules: fitness of parent (important), voting age (not as important)

Factors
1. Potential for Abuse
o Rules: more protection by making it clear and better at controlling parties
o Standards: rules are easy targets for evasion (edge of cliff argument)
2. Fair Notice v. Vagueness
o Rules: more precise so alert people about lawful/unlawful conduct
o Standards: sometimes element of surprise is good (edge of cliff)
3. Precision
o Rules: more predictable; clear in advance but crude in application
o Standards: less clear in advance; uncertainty has its own costs
4. Expertise
o Rules: requires more expertise b/c rules try to predict best outcome in as many
situations as possible
o Standards: if less expertise, err on side of standardresolving cases can provide
necessary info to create adequate rules
5. Blame and Accountability
o Rules: emboldening idea-gives judge a way to enforce law w/o worrying about
blame; more accountable
o Standards: requires users to explain rationale (appears more accountable)

6. Uncertainty and Conflict

o Sometimes not sure what right rule will be, so better to make decision case by case
7. Admin Costs
o Rules: cheaper, more efficient, but maybe doesnt lead to just results
o Standards: more expensive but lead to more just results
o NOTES: increase in use of standards = increase in wealth of society; need to think
about how often standard will be used (worth it if not used often); hidden costs of
rule-time and investigation required to make rules and that can be expensive
8. Rent-Seeking
o Rules: clear-written rule and less discretion reduces rent-seeking
o Standards: encourages rent-seeking; with more discretion, interest groups lobby

Rules v. Standards Debate

Standards Good
o Rules are over and under inclusive:
they are inaccurate
o Rules may drive discretion
underground
o Rules can be roadmap for evasion
o Judicial Activism: make broad
judgments

Rules Good
o Prevent unfair surprise
o Restrict arbitrary and discretionary
enforcement
o Saves on admin costs
o Appearance of equal treatment:
treating like cases the same
o Predictability
o Greater judicial restraint
o Greater judicial independence
o NOTE: Scalia adds that there should be caution in framing a standard of behavior:
when there is no background experience, it will lead to an artificially developed
standard of behavior

III. Interpreting Statutes

Textualism v. Purpose-Driven
Textualism: Judges do not have authority to pursue broader social purposes or to write
new law; text should be construed to contain all that it fairly means; formalist approach
b/c law is about form
o Scalias exception is scrivenors error: clear that mistake of expression was made
Purpose-Driven: Rather than take literal reading of text, need to look at the spirit of
the statute and what was the legislators purpose for writing it
Debate
Agreement: first look at text before interpretation; text receives significant weight; text
cannot control if it is ambiguous or open-ended
Textualism
1. Restraint on judges (similar to rules)
2. Discipline legislator: penalty default

Purpose Analysis
1. Speakers meaning: interpreting (not rewriting) statute to seek authors intent

idea-pressure on leg to think harder

when writing statute
3. Best evidence of intent: if majority of
time text reflects intent, purpose driven
approach might get statutes intent
wrong
4. Incoherence: difficult to determine
intent of group than intent of individual
5. Bargain: possible that there were different
compromises leg made in creating statute

2. Context: meaning to parties dependent on

context of communication
3. Faithful agent: leg wants courts to use
discretion and J to avoid absurd results
4. Cheaper: leg not always able to perceive
problems that can result from not including
each term
5. Legislative inertia: if problems are inevitable
and leg inertia is high (too busy to focus on
this statute), better to have agent fix problem

Scalias arguments:
o Judges must look for objectified intent (gathered from text of law)
o Prevents one from exercising his/her biases when interpreting statute
o It is not job of judges to create the law; must solely rely on text (unless clear mistake)
o Unexpressed leg intent is excuse for judges to change laws that serve their interests
Easterbrook Approach:
o First determine if statute is general or specific
If specific, then it is result of compromise and no identifiable purpose (not made
for public good)
If general, clear purpose judicial freedom
Cases
Church of Holy Trinity v. US (pastor case)
o Shouldnt interpret term literally if it leads to injustice or absurd result; look to spirit
of the statute
o When text is written broadly and is being interpreted incorrectly, duty of Court is to
determine whether text is within legs intent
o SCALIA: disagrees, Congress can enact foolish and wise statutes but courts cannot
decide which ones to change
Riggs v. Palmer (will case)
o Rational interpretation: writers of law dont always express their intentions perfectly
so it is job of courts to collect from it probably/rational conjectures
In this case, obvious the leg wouldnt allow murderer to collect inheritance
SCALIA: courts cannot determine intent of will; by sticking to text, this could be
leg punishment and force them to think strongly when creating law
o Judges construe statute to be close to principles of justice
US Steelworkers v. Weber (racial quota case)
o Majority: Congress intent in creating law was plight of Negroes; need to correct
racial imbalance
o Concurrence: arguable violation theory-reasonable response w/o fear of L in order
to correct possible violations of Title VII
o Dissent: looks at leg history and says that no racial discrimination is permitted
NOTE: Interesting point is that in several cases, both the majority and the dissent use leg
history/intent to interpret statute and they both reach different conclusionsshows

that problem with purpose approach is hard to analyze w/o adding bias and hard to
determine which interpretation is the right one

Voter Paradox and Public Choice

Response to idea of legislative intent: process controls outcome; cannot be certain that
statute accurately reflects desired outcome (esp if bargaining is involved)
Group preference can sometimes lead to cycling (leads to different outcome each time
based on agenda setting); groups preferences arent always transitive
o Paradox may make democracy an illusion
o Issue of agenda setting can lead to rent-seeking behavior
Arrows Impossibility Theorem
BASIC: if more than two choices, majority will always prefer a different outcome to the
one chosen (process controls outcome)
No method of combining individual preferences can satisfy 5 basic requirements:
o 1) Minimum rationality: If society prefers A to B and B to C, then prefers A to C
o 2) Pareto standard: If one prefers A to B and nobody cares, then society A to B
o 3) Non-dictatorship: Societys preferences are not dictated by one persons desires
o 4) Independence of Irrelevant Alternatives: If C is not on agenda, whether A is
preferred to B should not depend on how either compares to C
o 5) Universal Applicability: Method has to work for any possible combo of individual
preferences, not just one particular solution
Public Choice Theory
Public Choice Theory:
o 1) Compromise: statutes are products of deals between legislators and not
purposeful endeavors; product of relative $$ and power
Courts enforce deals b/w different groups with different agendas
Ex: Title VII was compromise among diverse groups
o 2) Interest group politics can systematically produce bad results (systemic
divergence from public interest)
Smaller groups can more effectively organize than larger groups
Possible Solution
Congress votes of spectrum scaleliberal to conservative, so theres clear preference,
not incoherent one
Two party system solution: parties identify what voters want and make policy choices
based on those preference in order to win election
Uni-peaked preferences: assumes bell curve of preferences, choose median (where there
is height of preferences)

IV. Autonomy, Coercion, Freedom of Contract

Overview
Autonomy: when and to what extent is it right for law to make people live with the
consequences of their choices and what they didnt choose?

Cases
Lochner v. NY (baker case)
o No reason to interfere in freedom of contract (having a job is better than starving)
Issue of whether or not these contracts are a form of coercion
Courts have to draw the line somewhere or else can lead to slippery slope (any job
can be dangerous)
o CAP issue: no baker wants to be the first one to ask for shorter hours (fear of fired)
Surrogate Parenting Associates v. KY (surrogate/parental rights case)
o Freedom of contract: recognize parental rights for both parties-equal bargaining
power b/c both have some parental rights (similar to divorce/custody battle)
o Statutory interpretation: both majority and dissent used leg history/intent to support
their rationale-problem of which interpretation is the correct one
Harris v. Forklift Systems (sexual harassment case)
o Example of case where there are many reasons to limit freedom of contract:
Unequal bargaining power: During 60s, women not prevalent in workforce and
had less of a say in terms of contract
Coercion: Fear of losing job if dont give into demands/hostile working
environment (if this environment was common in workplaces, likely that women
did not have employment alternatives of non-hostile work environment)
Externalities: Even if one woman isnt affected by hostile work environment,
perception it creates about women in general (they are easy, can be treated this
way) leads to other women being adversely affected by acceptance of behavior
Moralism externality: people affected by idea that others are involved in this
behavior (what does this say about society??)
Collective Action Problem: Since women dont have a strong position in workforce,
it is difficult for them to get together and collectively bargain for more fair terms
Fear of being the first one to press issue and nobody follows (you will lose job
while everyone else will possibly free ride)
Information Scarcity: Even if there were a provision to accept a hostile work
environment in contract, it is possible that women did not understand extent of
consequences or what hostile work environment even meant
o Prisoners Dilemma Issue: how to increase the payoff so eliminate collective action
problem (make it advantageous for women to collectively bargain terms); relative
standing poses problem (want to get more so will give up right to non-hostile work)
o Government Intervention as Solution to the problem: Once sexual harassment became
a legal claim, it was necessary to change employers and workers preferences so that
sexual harassment viewed negatively and that everyone had a right to a non-hostile
work environment
JS Mill: Similar to Stockholm syndrome-cannot adapt preferences to justify
hostile work environment; legal system must change employers preferences

Pros of Freedom of Contract

1. Autonomy Argument: Autonomy is fundamental to human beings and shouldnt
restrict humans autonomy

2. Consequentialist Argument: contracts have mutual advantage; would be wasteful to

interfere in contract (ex: having a job is better than no job)
o People know their own preferences best and have best incentive to provide for
themselvesfreedom of contract results in the best outcomes
o JS Mill Coercion Argument: Tyranny of majority is worse than tyranny of individual
o Hayek argument: govt might not always know why something in society is
successfulmust leave room for experiments and preserve individual liberty

Cons of Freedom of Contract (Reasons to Limit)

1. Externalities: Third Party effects-people affected by decisions they dont consent to
o Single owner idea is used to analyze externalitiesjustification for legal rules (L,
property) to limit contractual freedom
o Moralisms: utility harm to society from something it deems immoral
Might explain why consent isnt a defense for murder
o Calabreisi argument: contract oneself to slavery
o Commodification of humans: point is that we are no longer repulsed by this
2. Capacity: not everyone thought to have capacity to make contracts to look after their
own interests
o Optimism Bias: People tend to believe the things that make them better off
o Women & Education: Women unable to demand rights b/c they lacked education and
were trained by society to be submissive; voluntarily engage in contract
o Faulty Telescope: People devote too little concern to future consequences of their
actions; not able to adequately measure the risks of dangerous jobs
o Adaptive Preferences: we adapt preferences to reduce frustration in our lives
3. Information Scarcity: People dont get all of the info in the agreement (possible
justification for govt intervention)
o Self-serving bias: people dont process info rationally (optimism bias)
4. Coercion:
o Example: person would die from starvation w/o job
o Distinction b/w threats (taking something away from choice set) and offers (adding
something); threat is coercion, an offer is not
o Baseline problem: defining coercion (threat/offer) depends on where to draw the
line; problem is determining what people are legally entitled to
5. Exploitation/Unequal Bargaining Power: one party gets less than he should have
o Unequal bargaining power by itself isnt enough (all contracts due to unequal
bargaining power)must show that party doesnt have other alternative
o If one isnt made worse off, maybe they just arent getting more of contract surplus
o Compensation for Risk: when risk is known, employer must compensate labor
Assumes that labor understood risk and included it in his assessment; also
assumes the labor has non-risk employment alternative (higher income less
willing to compensated for risk)
This is example of information scarcity
6. Self-Control: some people are very impulsive b/c of high discount rates (little value for
money in the future)faulty telescope issue
o Troubling when peoples preferences are inconsistent
o Need to change payoffs so that larger, later option is more attractive

7. Collective Action Problem: class would be better off if they could cooperate rather than
individually defect (fears that others will not cooperate)
o Playing it safe puts you at disadvantage if everyone takes risk and benefits
o Tragedy of commons scenario

Game Theory
Strategic behavior: make move based on what other party makes which is dependent on
the move that you will make
Prisoners Dilemma
Deny
Confess

Deny
-1, -1
0, -10

Confess
-10, 0
-5, -5

In equilibrium, both parties confess (not sure whether other will deny)not collectively
optimal outcome (better if the both cooperatePareto efficient outcome)
Need for govt regulation or contract to ensure that both parties will cooperate
Relative standing in society drives prisoners dilemma
o Each baker is concerned about how many wages he makes in relation to other
o Absolute value of dollar + absolute value gained through going up social ranks =
incentive to work an hour longer
o Problem is that everyone thinks that way and engages in same behavior (both players
work 12 rather than 10 hours and wages dont increase)
One shot game v. repeated interactions: in repeated interactions, it is possible to sustaint
cooperation until the very last move (tit for tat strategy-similar to stag hunt); possibly
that there is no need for govt intervention
With more than 2 players, leads to same situation but looks like tragedy of the commons
Other Games
Chicken
Wait
Proceed

Wait
0,0
2,0

Proceed
0,2
-5, -5

o Prisoners dilemma can only be solved through legal rules but chicken can be solved
through private actionstructure of situation will induce correct behavior
Stag Hunt
Deny
Confess
0,0
-10, -1
Deny
-1, -10
-5, -5
Confess
o
o
o
o

No dominant strategy: each player imitates previous players move

No incentive to liebetter strategy to assure other player to cooperate
Example: bank run (stable, everyone cooperates and better off w/ money in bank)
Not as much need for legal rules as long as players can assure each other to cooperate

V. Market Failure, Regulation, Coase

CAP and Public Goods
Public Goods: goods that have external benefits, are non-rivalrous and non-excludable,
information on public goods is available to everyone
o Market will usually undersupply these goods (hard to give incentive to people to
supply goods if they have to pay and everyone benefits)
o Govt regulation (via taxes, subsidies), charities, norms can help solve this problem
o Environmental and IP laws are all public goods and are regulated through legal
precedent (if evolution of precedent leads to better law that is better adopted to the
current situation, this helps clarify that law is for everyone and cant exclude)
Prisoners Dilemma, Tragedy of the Commons, Public Goodsindividually rational
decisions that dont lead to collectively beneficial outcomes

Coase Theorem
Basic Idea
Where transaction costs are zero, rights should naturally flow to highest bidder b/c parties
will bargain for the most efficient outcome
Barriers to Bargaining
1. Multiple Parties: more parties equal higher TCs; holdout problem
2. CAP: fear of free-riding (contracts can solve this problem)
3. Externalities: external costs v. external benefits
Critiquing Coase
1. Incommensurability
o Sometimes we cannot assign dollar values to certain things
o Rohits point: usually not true b/c people substitute infinite value for something
when it is very valuable
2. Willingness to Pay (WTP) Willingness to Accept (WTA)
o Coase assumes one value for any good/right; default rule doesnt have any effect
o Farn: people assign higher value to thing they would sell than buy (WTA > WTP)
o Wealth Effects: if wealthier, have higher willingness to accept (thing they own
makes them feel even more wealthy-need something else to preserve wealth)
o Endowment Effects: sentimental connection to thing increases its value
o People treat opportunity costs as less real than out-of-pocket costs, BUT this
difference doesnt undermine Coases application in a situationin the end, it
depends on the actual difference between WTP and WTA
3. Stickiness
o Caused by gap b/w WTP and WTA
o Legal rights might be stickier than what Coase suggests and hard to tell if we
reached right outcome if there is stickiness in entitlement

Pebble Mine-Prisoners Dilemma + Coase

o In situation where there is one fishing company and one mining company, socially
optimal outcome is achieved with no L and damages rule even without bargaining; need
bargaining to reach socially optimal outcome for injunction
No Bargain
Bargain
Distribution
No PCE, F
No PCE, F
2000,300
No Remedy
No PCE, F
1900,400
Damages Remedy No PCE, F
PCE, No P
No PCE, F
NB: 1400,400
Injunction
B: 1401-1899, 401-899
Remedy
o In situation where there are 10 or 100 fishing companies and one mining company,
socially optimal outcome is achieved with damages rule and injunction without
bargaining; need bargaining to reach socially optimal outcome for no L
No Bargain
Bargain
Distribution
No PCE, F
PCE, No F
NB: 2000, 3000
No Remedy
B: 1401-2001,
PCE, No F
PCE, No F
1400, 4000
Damages Remedy
PCE, No F
PCE, No F
1400-4000
Injunction Remedy
o Implications:
1. TCs block bargaining solution and goal for law is to reduce TCs
2. Externalities dont justify intervention if TCs are low but do when TCs are high
3. Damages remedy works in both cases (always leads to socially optimal solution)
because it mimics bargain (supplies to the party the minimum to get its consent)
In contrast, No L and injunction are property rules (assign entitlements) and do
not mimic bargaining rule
Calabreisi: across domains of law, there is fundamental choice b/w property and L
rule; in practice, damages rule can be harder than injunction b/c courts have to
figure out the correct level of damages

VI. Egalitarianism
14th Amendment Equal Protection
Conditions for Determining Which Test
Potential state government equal protection violations evaluated under (1) strict
scrutiny or (2) rational basis testboth test how well means fit ends
o SS is triggered if (considered fatal in fact)Highest level
Govt classification invokes suspect class (ex: race, national origin)
Infringes on a fundamental right (sort of determined by Constitution)
o RBT for almost everything elselowest level
o Intermediate scrutiny is possible

Tests
1. Strict Scrutiny: must serve compelling state interest and means are narrowly tailored to
that interest (very few things survive SS)
2. Intermediate Scrutiny: Brennan requires substantial govt interest
o Focus on the legitimate ends of state (very demanding with appellant evidence)
3. Rational Basis Test: assesses whether govt classification is reasonably related to
achieving a legitimate govt interest (usually survives)
o Reasonably related: govt doesnt assess whether means will actually achieve end
Cases
Pyler v. Doe
o Intermediate scrutiny applied:
Not allowing education to illegal immigrant children doesnt actually achieve
interest of dis-incentivizing illegal entry
Court challenges whether basis was real basis by asking why other policies
associated with X rationale were not implemented (idea that they will leave state
and not contribute to the economy)
KEY ARGUMENT: deny education could lead to a sub-class of illiterates that could
lead to negative externalities (crime, welfare, unemployment)
Focus on consequences of classifications rather than what motivates class
San Antonio v. Rodriguez
o Rational Basis Test applied:
Court doesnt apply SS b/c no suspect class or fundamental right
Court considered that TX funding scheme is reasonably related to achieving states
interest of funding education (income disparities not a factor considered in test)

Rawls Theory of Justice

The Theory
1. Each person has equal claim to scheme of basic rights and political liberties are to be
guaranteed at fair value (must be consistent with liberties everyone believes in)
2. Social and economic inequalities are justified when:
o Attached to positions open to all under conditions of fair equality of opportunity
Possibly not consistent with Rodriguez b/c education viewed as nec for fair equality
of opportunity to position of office
o Difference principle: they are to be the greatest benefit to the least advantaged
members of society
Notes
Fair value required to prevent advantaged from banding together to exclude
disadvantaged from limited public space
Under Coase, possible to satisfy difference principle through bargaining and wealth redistribution (transfer wealth from middle and most advantaged to least advantaged)
Origin: People would agree on original position under veil of ignorance (they dont
know their position in society or strengths and weaknesses)

o Utilitarianism wouldnt be agreed upon b/c it justifies oppression of minorities if it is

outweighed by benefit to majority; if people dont know social position, they wont
risk being minority in utilitarianism (would rather choose principles of justice)
Difference Principle
One extreme: strict egalitarianismclearly satisfies DP
Can justify inequality under DP if there is baseline assumption that people will work
harder to earn more $$$
Doesnt speak to the middle class
Compared to Pareto efficiency:
o Can be consistent; however, if middle class made worse off, satisfies DP but not PE
o If least advantaged is left the same, then PE but doesnt satisfy DP

Nozick
Entitlement Theory
1. Original Acquisition of Holdings: justice in acquisition
2. Transfer of Holdings: justice in transfer
3. Rectification of Injustice in Holdings: try to restore what wouldve been the case if the
injustice hadnt occurred
An outcome as a result of just transfers is just; just transfer is voluntary (coercion not just)
Debate with Rawls
1. Rawls is concerned with starting and end points (DP) where as Nozick is concerned with
procedure (ET)
2. Distribution
o Rawls: natural endowments are arbitrary, so they get no moral weight
o Nozick: disagrees; one justly acquires wealth if born with it
Its your own body and its slavery to claim your natural attributes arent yours