Agenda for 3rd Class
• Misc.
– Name plates
– Lunch sign-up
• This Friday 12:30-1:30
• Meet between Rooms 433 and 434
• Warden Grim
• Weber
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Assignment for Next Class
• Review any questions from today’s reading that we
don’t finish
• ## 11 -12 (National Society)
• Questions to think about and Writing Assignment for
Group 4
– Notes and Questions pp. 56ff. ##1, 3, 4
– Exercise 16. In re Akers Baker Transfer (pp. 544 ff)
• Please answer only Question 1 on p. 546
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Review of Last Class I
• Interpretation of ambiguous statute can be thought of as form of
legislation
– “interstitial legislation”
– Tools of statutory interpretation often don’t produce single, definitive
answer
• Judges must choose interpretation
• Some say inevitable to judges influenced policy preferences (Realism)
• 4 principal methods of statutory interpretation
• Textualism, intentionalism, purposivism, pragmatism
• 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
– Need not label methods
3
United Steelworkers v. Weber
• Historically, African-Americans were excluded from
Steelworkers union
• Union and Kaiser Aluminum entered into agreement with quota
– 50% of craft trainees must be black, even if whites had more
seniority
• White passed over sued, alleging violation of Title VII of Civil
Rights Act
• Issue: Does voluntary quota in favor of group that had been
subject to prior discrimination violate Title VII?
• Holding: No. Voluntary quota in favor of group that had been
subject to prior discrimination does not violate Title VII.
• Brennan for majority
• Blackmun concurrence
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• Rehnquist dissent
Questions on p. 46
• 1. Would a textualist interpretation of Title VII support the majority or dissent
in this case? Can you think of textualist arguments to support both sides?
Which is stronger?
• 2. Would a purposivist interpretation of Title VII support the majority or
dissent in this case? Do you think that the majority and dissent would agree
on the purpose of Title VII? If not, what purpose would each ascribe to the
statute? Which is more plausible?
• 3. A central issue in this case is what did Congress intend when it enacted
Title VII. Both the majority and dissent quote extensively from the legislative
history of Title VII. Which is more persuasive? Which quotes, if any, address
directly the issue in this case – voluntary affirmative action to redress prior
discrimination? For each quotation in the Rehnquist opinion, consider how
the dissenters would interpret it. Similarly, for each quotation in the
dissenting opinion, consider how Justice Brennan would interpret it.
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Legislative History Excerpts
• P. 38 (Brennan opinion)
– “What good does it do a Negro to be able to eat in a fine restaurant if he cannot
afford to pay the bill? What good does it do him to be accepted in a hotel that is
too expensive for his modest income? How can a Negro child be motivated to
take full advantage of integrated educational facilities if he has no hope of getting
a job where he can use that education?”
• P. 38 (Brennan opinion)
– “No bill can or should lay claim to eliminating all of the causes and consequences
of racial and other types of discrimination against minorities. There is reason to
believe, however, that national leadership provided by the enactment of Federal
legislation dealing with the most troublesome problems will create an atmosphere
conducive to voluntary or local resolution of other forms of discrimination.”
6
Legislative History Excerpts (cont.)
• P. 43 (Rehnquist opinion)
• “[T]he charge has been made that … a ‘Federal inspector’ could then order
the hiring and promotion only of employees of certain races or religious
groups. This description of the bill is entirely wrong…. .
• “Even [a] court could not order that any preference be given to any particular
race, religion or other group, but would be limited to ordering an end of
discrimination. The statement that a Federal inspector could order the
employment and promotion only of members of a specific racial or religious
group is therefore patently erroneous.
• “…The Bill would do no more than prevent . . . employers from discriminating
against or in favor of workers because of their race, religion, or national
origin.
• “It is likewise not true that the Equal Employment Opportunity Commission
would have power to rectify existing ‘racial or religious imbalance’ in
employment by requiring the hiring of certain people without regard to their
qualifications simply because they are of a given race or religion. Only actual
discrimination could be stopped.”
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Legislative History Excerpts (cont.)
• P. 45 (Rehnquist opinion)
– “Title VII would have no effect on established seniority rights.
Its effect is prospective and not retrospective. Thus, for
example, if a business has been discriminating in the past
and as a result has an all-white working force, when the title
comes into effect the employer's obligation would be simply
to fill future vacancies on a nondiscriminatory basis. He
would not be obliged-- or indeed permitted--to fire whites in
order to hire Negroes, or to prefer Negroes for future
vacancies, or, once Negroes are hired, to give them special
seniority rights at the expense of the white workers hired
earlier.” Ibid., at 7213 (emphasis added).
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Questions on p. 45ff. (cont.)
• 4. How would you classify Justice Blackmun’s concurrence? Is it textualist?
Intentionalist? Purposivist? Something else entirely? Did you find it
persuasive?
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Questions on p. 45ff. (cont.)
• 5. The Garrett excerpt on statutory interpretation (reading #7) refers to a
theory of statutory interpretation which states that the relevant intentions are
those of “pivotal lawmakers whose support is necessary for enactment.”
Consider the following drastic simplification of the debate over Title VII.
Congress was composed of three groups. 40% were racists who opposed
equal treatment for African Americans. They would vote against any civil
rights bill. 40% 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. 20%
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. In this situation, the pivotal
lawmakers are the moderates. 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
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way, even though two-thirds of those who supported the statute would have
favored a contrary outcome?
Questions on p. 45ff. (cont.)
• 6. Title VII also forbids discrimination on the basis of sex. This
provision was inserted by opponents of racial equality who
thought that gender equality would be so unpopular among
legislators that even those who favored racial equality would
vote against the bill. There was no debate on banning gender
discrimination, and Title VII eventually passed. How would an
intentionalist interepret Title VII’s provisions relating to gender
discrimination? Would an intentionalist refuse to enforce Title
VII’s ban on gender discrimination even in blatant cases, such
as a case where an employer announced it would not hire any
women?
• 7. Do you agree with Dworkin’s analysis?
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