CONSTITUTIONS

1. Constitutions and judicial review

-Constitutions are like statutes: both are codified sources of law
-Its text contains a definite set of rules and principles
-Main difference between constitutions and statutes: Constitutions are higher-order
sources of law; legally superior to statutes
-Constitutions establish branches of government and lawmaking procedures; it also set
limits on the government
-Constitutions must be interpreted and applied, just as statues must
-Constitutional interpretation has so much in common with statutory interpretation:
understanding the latter is important in understanding the former
-Illustration: The US Constitution differs from ordinary legislation in 3 ways
• Content: It is much broader and vaguer than typical legislation; more
precise
• Difficulty/Resistance to change: Revising or repealing a law requires
merely a majority vote in both houses of Congress and the signature of the
President; Revising or repealing a constitutional provision requires an
affirmative vote by 2/3 of the members of both houses of Congress plus
the ratification by ¾ of the state legislatures
• Age of the provisions of the Constitution: the provisions of the
Constitution are much older than most legislations

2. The Judicial Review Controversy

-Whose prerogative is it to enforce the Constitution: All public officials share this
prerogative
-Who should have the supreme authority to enforce the Constitution: this is held by the
judiciary; Courts can and do engage in judicial review to evaluate state and federal
legislation to check its constitutionality
-However, this function of the judiciary is challenged: the text of the constitution does
not authorize the courts to engage in judicial review (is judicial review even
constitutional?)
• Is judicial review politically legitimate?
• Even if legitimate, is it a good policy to maintain?
-Justices of the Supreme Court have the greatest power of all in constitutional cases since
there is no higher court that reviews them
-When the Supreme Court invalidates a legislation, it prevents a majority of the state
from enforcing a favored policy; the least representative branch of the government, which
is the judiciary, overrides the most representative, which is the legislative
• Countermajoritarian difficulty:
o The Constitution is difficult to amend, so mistakes by the
Court are difficult to amend
o The document contains many vaguely worded provisions,
so citizens lack confidence that courts have interpreted it
correctly
o Many provisions are centuries old
 -Defense arguments of the defenders of judicial review are as follows:
• Judicial review is an essential part of the system of “checks and balances”
• Judicial review is justified as a means to achieve more justice
• It pre suppose fewer moral judgments and fewer predictions

3. Constitutional Interpretation
3.1 Framer’s intent
-Who are the framers: different individuals from different centuries
• Those who drafted the provision
• Those who ratified it
• A combination thereof
-Subjective account of intention: interpretation of the original Constitution could be
affected by evidence of (Hamilton’s) private thoughts
-Objective account of intention: Private thoughts are irrelevant; only public statements
are valid evidence of his intentions
-Ronald Dworkin: Semantic intention vs. Expectation intentions
• Semantic intention: what a speaker intends to say
• Expectation intention: the effect that she expects her words to have

3.2 Reader’s understanding

-Who is the reader: the reader should be a reasonable person
-Originalist: ask how the text would be understood by a reasonable reader at the time
of the drafting or ratification

3.3 Structure
-Main structural features: Federalism and Separation of powers

3.4 Values
-Some constitutional arguments proceed from value premises that have no obvious
source in intent, text, structure of any of the other considerations
-Argument from prudence: prevents a reading of the Constitution that would have bad
effects

3.5 Methods of constitutional interpretation

3.5.1 Originalism:
-framer’s intent is evident on how readers would have understood the
language
-Common objection: it is impossible to determine what readers from
another century would have thought about the modern world
-Reply to the aforementioned objection: “We must use our imagination”
• What if we have no confidence in our imagination: If a
court cannot determine with confidence what the original
understanding of a provision would have entailed, then the
court must simply uphold the challenged legislation
3.5.2 Living constitutionalism
-proponents of a “Living Constitution”
-the meaning of the Constitution can also change in between formal
amendments
-Living Constitutionalists advocate in interpreting the Constitution as a
reasonable reader today would interpret it (not as a reader would have when it was
ratified)
-Illustration: Living Constitutionalists who take positions are value-based
arguments, hence they believe that the Constitutions should be understood as
reflecting the values of the (American) people, even though that these values are
not explicitly written in the text. This is called the fundamental values approach.
• Objection: there is no reliable way to do this is absence of
consensus. Orginalists who make such assertions make
their own values for national values
-A more recent version of nonorginalism: the meaning of every provision
is fixed by text however, our understanding of its meaning changes and
gains accuracy over time

3.5.3 Reinforcing representation

-John Hart Ely:
• Rejects both the fundamental vales approach and
originalism
• Favors a “participation-oriented, representation-reinforcing
approach”
-Best defense against unjust laws: ability to vote against politicians who
support unjust laws
-2 basic problems that Ely thinks court should address:
• Elected officials often try to pass laws that make it difficult
for voters to remove them from office
• Certain minorities who are unjustly disadvantaged by
legislation find it to difficult to form majority coalitions
with others because they are “discrete and insular”
-Ely argues that the primary function of judicial review:
• to monitor the political processes for these defects
• to try to rectify them when possible

3.5.4 Multigenerational synthesis

-Bruce Ackerman and Ely share a common desire: to reconcile judicial
review with the basic features of democracy; to solve the
countermajoritarian difficulty
-Ackerman: the meaning of the Constitution can change without any
changes in the text; it changes after “constitutional moments”
• Constitutional moments: occasions of extraordinary public
engagement on matters of constitutional principle
• When a constitutional moment succeeds, its results are
institutionalized
FUNDAMENTAL LEGAL CONCEPTS
1. Dichotomies
-these drive legal analysis; allows lawyers and judges to focus their analyses and
arguments
1.1 Rules vs. Standards
-Rules: give the decision maker as little discretion as possible
-Standards: give the decision maker more discretion and less guidance
-Effective way to appreciate the difference between the two: compare their
advantages and disadvantages

RULES STANDARDS
Clear and unpredictable Sensitive and flexible
Overinclusive and Vague and uncertain
underinclusive

1.2 Categorization vs. Balancing

-Categorization tests=rules; Balancing tests=standards
-Categorization tests: tests are structured to allow very little discretion once
the court decides whether the distinction is, for example, based on race or age
-Balancing tests: direct a court to consider various factors to determine the
correct legal answer
: the judge places factors that favor one outcome on one side
of a figurative balancing scale and those that favor the opposite outcome on
the other side
: the judge’s decision is based on which side weighs more

1.3 Objective vs. Subjective

-Subjective standards: depend on internal conditions (a person’s specific
intentions and belief)
-Objective standards: depend on external conditions (factors external to a
person)
-Illustration:
• Subjective Standard focus on the individual: Good faith (whether
the person in question believed that what she did was appropriate
or that a representation she made was true)
• Objective Standard focus on the world: Reasonableness (what
should be considered appropriate given the circumstance,
regardless of what the particular person thought or intended)

2. Cross-Cutting Legal Doctrines

2.1 States of Mind
-Legal rules determine the legal consequences of a particular act. However, legal
consequences usually vary with an individual’s state of mind
-One might be liable for something he or she has done regardless of state of mind.
But we must know which state of mind must be proven in a certain context:
 Intentional or Purposeful actor intends the consequences of her actions
Knowing actor is aware that her actions will almost
certainly lead to a particular consequence
Reckless actor consciously disregards a substantial risk
that particular consequences will occur
Negligent actor does not take reasonable care to avoid
the consequences of her actions
Strict Liability the law does not care what the actor intends
or what care she takes, but the law makes her
liable for all of the consequences of her
actions

2.2 Precedent and Stare Decisis

-Courts must follow the decisions announced by courts above them in the judicial
hierarchy
-Superior courts’ decisions constitute binding precedent
-Decisions issued by courts at the same level, or below, in the hierarchy are not
controlling but may be persuasive
-How to determine whether an earlier case is binding: trace the hierarchy (where
does the current court stand in relation to the court that issued the earlier
decision?)
-The principle of stare decisis directs courts to also follow their own precedent
rather than overruling it; stare decisis requires a court to have a very good reason
for changing its position on a legal issue
-Lawyer’s task: Explain why one case should or should not govern the other

2.3 Burdens of Proof

-assigns responsibility to a particular party to prove a disputed fact or claim
• Burden of production: introduce enough evidence
• Burden of persuasion: convince the court to view the facts in the
manner supportive of the party’s position
-In a civil case: the burden is on the plaintiff; In a criminal case: the burden on the
prosecutor
-Level of certainty to which the party bearing the burden must establish a fact; the
three common standards of proof lie on a continuum of certainty:
• The jury must be persuaded of guilt beyond a reasonable doubt
• The plaintiff must persuade the fact finder only that a particular
conclusion is supported by a preponderance of the evidence
• The party must show a claim or fact by clear and convincing evidence

2.4 Standards of Review

-The reviewer’s first task: to decide how closely to scrutinize the original
decision; could undertake the entire decision-making process anew; could treat
parts of the decision-making as complete
 -One must recognize which standard of review the appellate court is using: de
novo, clearly erroneous, abuse of discretion

de novo (“from the The appellate court approaches the issue as a

beginning”) new question, completely independent of
whatever the trial court decided.
Clearly erroneous A decision subject to clearly erroneous review
is overturned only if the appellate court is
convinced that the decision cannot possibly be
correct.
Abuse of discretion The court made an underlying error of law or
considered illegitimate factors in exercising its
discretion.

3. Interdisciplinary Concepts in Law

3.1 Law and Economics
-Nine Basic Concepts:

Economic incentives -influence people’s behavior even when the law

does not
-reward provided by a market for a certain behavior
Collective action problems -one type of market failure
-this will block an economically efficient result in a
society
Economic efficiency -a well-functioning legal system tries to attain the
best results for the lowest costs
-goal: shape both structural and procedural
elements of a legal system, and the substantive
legal doctrines that influence behavior outside the
courtroom
-2 distinct types of efficiency:
1. Pareto efficiency -if there is no change
from that outcome that
can make someone better
off without making
someone else worse off
2. Kaldor-Hicks -focuses in general social
efficiency welfare
Cost-benefit analysis -the rule will be economically efficient if it causes
the people to take the optimum amount of care
given the likelihood of damage, the cost of that
damage, and the cost of taking care
-to evaluate whether a rule if economically
efficient, we must calculate the costs and benefits
of the rule
 Expected value -the amount you can expect to gain or lose by
taking the action, and it takes into account the
potential costs, potential benefits, and the
probability of each occuring
Transaction costs -those costs incurred to undertake an action as
distinguished from the direct cost of the action
itself
The Coase Theorem -Ronald Coase: in the absence if transaction costs,
any legal rule will produce a socially sufficient
outcome
-2 things noticeable in the Coase Theorem:
• It may appear to have little relevance in the
real world because there are always
transaction costs
• Neither principles of economic efficiency
nor the Coase Theorem tell us anything
about the appropriate allocation of costs
Ex ante/Ex post -Ex ante: an analysis based on the circumstances as
they existed before a dispute arose
-Ex post: an analysis that includes the
circumstances of the actual dispute
Principal-agent relationships -the principal assigns limited powers to the agent in
order to increase efficiency
-it allows the principal to obtain a desired benefit at
a lower cost- counting both time and money- than
doing the work herself

3.2 Behavioral Law and Economics

-Logical power of law and economics depends on the assumption that people will
act rationally
-Are people rational? They are not- not always or completely.
-People are subject to a number of well-documented cognitive biases that produce
systematic departures from rational judgment
• Many of these biases stem from heuristics (mental shortcuts that
allow people to make certain judgments more quickly or easily)

Anchoring -it can be rational when the initial number is

informative
-occurs when the anchor bears no relation to the
value of the item being estimated
-this irrationality can complicate our attempts to
structure economic incentives
Endowment effect -people value goods they own more than the
goods they do not own
-they endow what they have with a higher value
 -the status quo plays a large role in determining
how much people value various things
-the importance of the status quo brings to the
forefront the allocation problems that law and
economics ignores
Framing effect -people’s choice are influenced by how they
categorize or “frame” the options
-people are more likely to take a risk to avoid a
loss than to make a gain
Hindsight bias -people overestimate the predictability of past
events
-individuals assess whether an event should have
been foreseen.
-Illustration: Judges and juries evaluate the
foreseeability of events after they have occurred.
Self-serving or egocentric bias -people tend to demonstrate a self-serving or
egocentric bias by believing things that are
consistent with their own interests and
overestimating their own abilities
-Rationality goes out the window when people are
evaluating a decision in which they have a stake

3.3 Other useful concepts:

Baselines -if one is considering the benefits of a particular rule, one
must always ask: “compared to what?”
-this question is asking about the baseline against which
you are measuring the legal rules
-choice of baseline can have an influence on the
evaluation of any proposed rule
Default rules -these rules apply only when parties, in a contract for
example, failed to specify some other rules
-one must know both the mandatory and default rules in
order to understand how a court will interpret the
documents/contract
Slippery slopes -a particular legal ruling will lead to another legal
outcome
-valid only to the extent that there is a reason to think that
the first ruling actually does make the later outcome more
likely
Normative/Positive -Normative claim: claim about the way things “ought” to
be
-Positive claim: statement of the way things are
 PHILOSOPHY OF LAW
Outline: Parts 11 and 12 of the Syllabus
(Constitutions and Fundamental Legal Concepts)

Submitted to: Atty. Edmar Lerios

Submitted by:
Bea Vanessa S. Abella
LLB 1
EH 309

Date: November 24, 2018