A Real Awesome American Legal History Outline for Law School by JohnMValentine

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									American Legal History –

Theories of Government and Historical Context: Colonial Liberties and “English people living abroad” 1. Ancient Rights of Englishmen – Magna Charta a. Agreement btw K. John and Barons to stop tyranny; b. Radical idea that king is subject to the law i. When king acts as if he is above the law then the people have the right to rebel against the oppressive governmental power c. Myth: English people love liberty and throw off tyrants d. Rights: i. Property ii. Court System iii. Due Process 1. External check on the king. iv. Liberties are permanent v. Jury trial* vi. Qualified Judges 2. Mayflower Compact a. New society joining in covenant together b. John Locke: people are voluntarily joining a society and agreeing to give up their freedom for safety 3. MA Laws a. More detailed, harsh, many DP offenses b. Concern that labor is essential for success of colony c. Moral society: sexuality, labor, economics, trust, religion d. Church and State completely intertwines 4. VA and Dale’s Laws a. Marshal law – b. Concerns: i. Fear that people are leaving the colony ii. Supplies – economic restrictions iii. Disease iv. Religion c. People were upset, but the colony survived i. Next governor did away with the laws 5. RI and Roger Williams – opposite strain of colonial history a. Religious tolerance i. RW was devoutly religious, shows that there was more than one voice ii. Need to preserve both separately so that both can flourish b. Contemporary struggle over 1st A has ancient roots i. Idea that gov’t will corrupt religion is blasphemy in MA, but RW advocates it c. Remember to think about enforcement 6. John Locke: Second Treatise of Gov’t a. Justifies revolution in England: When gov’t is acting outside of its delegated authority and takes steps that do not protect people’s liberties, harming life, liberty and property,

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then people have the right to dissolve the government that is no longer acting in their self interest and form a new one. b. Theory of New Gov’t: Man exists in state of nature. When man comes out of a state of nature and voluntarily joins society, he gives up some autonomy to the central government in order to protect his property = mutual consent i. Legitimacy = government is acting at the consent of the governed = social contract c. Truth: they are not in a state of nature with no baggage. The Englishmen are voluntarily coming together and agreeing to governmental authority, but they remain English possessions and keep English law. i. Tension btw deciding whether Englishmen or something else Thomas Paine: ‚Common Sense‛ a. Raged against classes and English political system – rejects hereditary monarchy b. Radical Idea: ordinary people can participate in government, they do not need a king i. Authority given to people c. Radically popular, reprinted in newspapers, read after church Declaration of Independence a. Continental Congress i. Delegates to not take final step of becoming united government, then hear that British are planning on marching on NYC ii. Knew that they had to make declaration b. Thomas Jefferson: i. Unknown, VA legislature, well-educated, appalling views of slaves ii. Theory: necessity, compulsion, ‚we have no choice‛ 1. Political unification 2. Psychological component a. People don’t want to go to war, but must when forced 3. Philosophical component a. John Locke: government has become oppressive = duty of people to rise up and form a government that will secure their rights i. Begs Q: how to structure gov’t so that there is sufficient stability to govern and yet contains the philosophical of people’s right to rule. 4. Long list of grievances against the king: a. To British: We have tried our best and you leave us no choice b. To Americans: following Paine, wanted people to hate the king. c. Historical memory of standing up against king c. July 4, 1776 – Declaration Adopted i. ‚We hold these truths to be self-evident that all men are created equal, endowed with unalienable rights . . .‛ 1. Equality ii. Written for people to read, not just for lawyers; compare with Brown PA Constitution a. Purest application of revolutionary theory: maximum authority to legislature, government of the people, avoid aristocracy b. Democracy – maximize political participation: i. Universal male-taxpayer suffrage ii. Term limits

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iii. Rotation in office – fear that if people did not go back to the masses an aristocracy would develop iv. Men in house must be of highest virtue v. Uni-cameral legislature vi. Open door legislature vii. Free printing press viii. Strong legislature, weak executive ix. Elected judiciary x. Counsel of censors to determine of constitution is correctly applied (never happened) 10. Drafting the Constitution: a. 1787 – Philadelphia, supposed to be re-writing the articles of confederation. i. Debates come from Madison ii. All states but RI represented – 34 lawyers of 55 delegates b. Articles proved to be unworkable: i. Very different vision of gov’t ii. No centralized authority iii. No Commercial Authority – inability to deal with trade wars c. Perception of time of crisis i. Shay’s rebellion 1786: farmers tried to take over munitions in MA, no federal government to stop them ii. Economic turmoil d. 2 plans: i. Randolph/VA Plan (Madison): 1. Supreme Nat’l Gov’t: strong centralized power with extreme authority over the states 2. 3 branches a. bicameral legislature with broad powers b. executive with only 1 term c. judiciary ii. Patterson/Small States Plan: 1. Single legislature a. Equal state representation in legislature 2. State legislatures are primary e. Great Compromise: Allocating the legislature i. Proportional representation in house and senate with equal representation f. Not So Great Compromise: Slavery i. Fear was that if slavery was not sufficiently protected some states would not join ii. Provisions: 1. 3/5 Rule 2. Fugitive Slave Provision requiring states to cooperate in returning fugitive slaves 3. Importation clause 4. Militia to put down rebellion 5. Prohibition of taxes on imports and exports 6. Entire electoral college 7. Amendment process – need 3/4; but states are half free and half slave g. September 1787 – revealed to public

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i. People are shocked ii. Concern that D.C. would become Eden for people in gov’t iii. Looked suspiciously like English gov’t h. Federalists had to calm fears – Winter 1788 – all states call conventions to ratify i. First test in MA, debated provision by provision ii. Anti-Federalists were concerned about centralized gov’t being too big and too powerful 1. Federalists didn’t have an answer 2. Anti-Feds wanted a bill of rights Federalist #10: James Madison a. Heart of philosophy underlying the constitution – Checks and Balances i. Factions: any group of citizens that are joined by a common impulse ii. Created a government that no one faction can dominate 1. Constitution protects against faction b. Checks and Balances: constitution must work directly with human nature to prevent any one group from taking over i. The more factions there are the better – less likely it is that any one can take over. They’ll need to appeal to broad masses and not just a few Federalist #78: Alexander Hamilton a. Judiciary: ‚least dangerous branch because it has neither the sword nor the purse‛ i. Responding to concerns that one political party will dominate and that the party that has judicial review will change the constitution 1. It is the judiciary that will protect us against faction b. Giving the judiciary the power to strike laws as unconstitutional is consistent with democratic government because it protects the people i. Judiciary will protect the people against the legislature c. Lifetime tenure = not subject to the politics of the day i. Independent body can intercede and protect the constitution d. Shift: i. Before, people elect governing legislature ii. Hamilton argues that the legislature is not going to protect the people, they are going to try and oppress, people need an independent body like the judiciary to mediate 1. Consider court’s position wrt civil liberties in the future: a. Sedition Act e. Marshall takes Federalist #78 and enshrines it into law in Marbury v. Madison Federalist Era: a. One party system – Feds rule for 3 terms, GW, Adams then gone i. Highlights that during this time idea of 2 political parties with opposing ideologies is alien b. People are unsettled, concerned about the survival of gov’t, economy c. GW farewell address: i. Views on factions and parties – thinks that parties are going to overthrow the gov’t ii. Couldn’t understand the vicious political opposition that sprung up during his second term, offended that people questioned his motives VA (Madison) and KY (Jefferson) Resolutions: Contract Theory of Constitution a. Written contemporaneously with Sedition Act

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i. Written as a direct attack on the Sedition Act, thought that the gov’t was exceeding its authority b. Had very different views of the Constitution i. Idea was that the Constitution is a compact among the states, states retain great authority and delegate a small amount to the federal government ii. If any of the terms are breached, the states may declare the compact null and void Calder v. Bull: Substantive DP a. There are limits on what gov’ts can do that is not necessarily written down in a statute b. Social Compact Theory: people delegate rights to the government in exchange for protecting liberty and property i. Court: illogical that people would give the government the right to oppress them. If government acts in a way that is contrary to natural rights (i.e., property) then it has to be void. 1. If law violates fundamental rights then it is void. 2. Influenced by Locke. c. ‚An act of the legislature contrary to the great first principles of the social compact cannot be considered a rightful exercise‛ i. Punish innocent ii. Ex Post facto iii. Impair Contracts iv. Take property from A and give it to B Marbury v. Madison (1803) a. Marshall opinion b. Felt strongly about putting power of review and interpretation in the judiciary i. Justified judicial review even though it is not in the constitution ii. Court protects constitution, which is based on the consent of the people iii. Those who apply rules to particular cases must be able to expound and interpret those rules c. Asserts it and then never uses it again --- only used 2x before civil war, Marbury and Dred Scott Industrial Revolution: a. Broad Shifts: i. Population doubles ii. High birthrate iii. Long-range transportation 1. Steamship 2. RR iv. Changes in Commerce 1. Steam mills and industrialization 2. Leaving farms and going to factories 3. Women in workforce v. Politics 1. Universal male suffrage – white males over age 21 2. America was no longer an experiment – it was a success a. Still question of powers of gov’t, but people knew that it would be around South Carolina Ordinance of Nullification

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SC decided to nullify law imposing high import taxes Q of nature of the Union: i. Constitution is compact/contract – when the North does not hold up its side then the contract can be broken c. Jackson’s proclamation regarding nullification: i. Constitution was designed to make a more perfect union, more unified than under Articles of Confederation ii. When states ratified, they gave up a lot of sovereignty --- one thing that they gave up is the right to get out iii. In an absence of amendment to the constitution the states had no right to leave 19. Pre-Civil War: a. ‚The Civil War‛ Video i. Slaves were living in terrible conditions – slave sales ii. Eli Whitney – Cotton Gin 1. Production soared and so did need for slaves iii. Boston – 1. Abolitionist Newspaper ‚that which is not just is not law‛ iv. Southerners were worried about the economic power of the North and refused to acknowledge the possibility of changing their way of life b. Lincoln Election i. Lead-up: 1. 1852 – Harriet Beecher Stowe – Uncle Tom’s Cabin 2. 1854 – Dred Scott 3. 1854 – KS/NE fight over whether to have slavery 4. Fighting comes to the senate, Buchanan does nothing 5. Abolitionist John Brown and Harper’s Ferry ii. Platform was to stop slavery from spreading 1. Called for restriction, not abolition, of slavery iii. Won with only 40% of the vote iv. Spurred rioting in the south 1. Began serious talk of secession v. 1860 – 33 states in Union and KS about to join, by inauguration only 27 remained vi. Inaugural Address: 1. Union was formed before the constitution 2. Traces constitution to the people – states do not have the right to get out 3. Constitution is the founding document, it strengthened the bonds between the states 4. Cannot separate ourselves – will still be living next to each other and have the same problems 20. Confederacy: a. Jefferson Davis – senator from Miss, opposed secession i. Constitution – 1. gave president line-item veto 2. outlawed int’l slave trade a. increase value b. fear of being outnumbered c. no need for new slaves 3. 6 year term for president

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slavery – a. new territories will be slave territories 5. Sharp limitations on what gov’t can spend on 6. Weaker central gov’t 7. Reaction to prior events: a. Dred – slaves are property b. McCollough – constitution is for the states, not the people ii. Founded on premise that blacks and whites are not equal b. 1860 – Secession Document from South Carolina (plagiarizes from Declaration of Independence) i. SC said that Fugitive Slave Clause was an element of their contract. Because states are not upholding FSC, material breach and contract is null and void. ii. Details breaches of contract – refusal to return slaves, freeing of slaves iii. Election of Lincoln is last straw c. 1861 – Confederates opened fire on Ft. Sumter i. Edmund Ruffin called to fire the first shot ii. Ft Sumter surrendered, no deaths 21. Civil War a. Lincoln considered secession to be illegal and did not approach the South as if it were an independent nation i. Did not treat it as war with another country – rebellion b. Gettysburg Address i. Nation pre-dates constitution ii. ‚of the people . . .‛ = gov’t is perpetual, up to the people to dissolve or not dissolve c. Emancipation Proclamation i. Lincoln’s first commitment was to save the union, slavery was secondary ii. 1862 Lincoln begins to believe that freeing slaves is necessary 1. Waited until Union has a victory – Antitam iii. Proclamation frees states in the south, not the border states 1. Lincoln feared losing those states politically 2. Some saw as wartime measure, some saw it as property forfeiture as cost of going to war d. Lee surrendered to Grant at Appomattox on April 10, 1865 22. Reconstruction a. Missed opportunity to put racial tensions and hostilities behind us i. South believed that they were being abused and victims of injustice b. Church music allowed people to find expression c. New Orleans was considered most integrated city – public education, no segregation i. 1890s Jim Crow came to New Orleans 1. 1896 – Plessey v. Ferguson d. By 1900’s it became apparent that black position would be eroding from that point on i. Rising negrophobia – see savage and only the control and discipline of whites can keep it from coming out ii. AA were distorted in advertising e. Andrew Johnson was hostile to reconstruction – vetoes Civil Rights Act, pardoned many ex-confederates i. Very racist man, extremely hostile

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ii. He tried to fire the secretary of war without the approval of the senate – and the senate had passed the Tenure in Office act, which Johnson felt was unconstitutional iii. Articles of Impeachment – violating congressional action, obstacle to reconstruction 1. Focus was whether it was an impeachable offense 2. Thwarts impeachment by one vote iv. Impeachment is one of pieces that goes to the failure of reconstruction 23. Constitutional Interpretation – WWI era a. Constitutional Amendments as way to change law i. Cumbersome, but people wanted more direct say ii. Amended 6 times in 20 year period iii. Income tax 1. People were responsive, Congress made law – court said unconstitutional so the people amended the constitution iv. Direct election of senators v. Women get vote vi. Prohibition vii. Repealing prohibition b. Court Appointments i. Change the membership of the court by electing the president and the president appoints the judges ii. Problems: Supreme disappointments iii. No one dies while president is in office 24. New Deal a. Roosevelt cared about the people i. Electricity to rural America ii. Impoverished children iii. Elderly iv. Unemployed v. Social security vi. Welfare – crazy notion that government would take care of you b. People felt that he was a traitor to his class i. Shift of Power – Rich felt sting of taxes, laborers bargained collectively c. Eleanor Roosevelt – people hated her for civil rights and AA d. FDR created new democratic coalition – AA, immigrants, southern whites e. S.Ct began striking down one piece of New Deal legislation after another i. New Deal was slowing down f. Court Packing: i. Concern that constitution was not being read correctly wrt economic emergency that the country was having 1. FDR was concerned that the court would strike down his SSA plan and collective bargaining law ii. Schecter (unfair competition in poultry) really irritated FDR because it was unanimous 1. Court held that federal government could not regulate agriculture under the guise of general welfare iii. ‚Fireside Chat‛ – 3 horses pulling together

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Strong public sentiment against court packing scheme, concern about a naked power grab iv. FDR lost the battle and won the war – after the court packing scheme dies the court started upholding new deal legislation 1. FDR ends up appointing a lot of justices anyway g. New Deal Successes: i. West Coast Hotel v. Parrish 1. Upheld minimum wage regulation that was almost identical to one struck a year before 25. Cold War a. Communism was the target – it was supported by the nuclear power of the Soviet Union b. Hollywood film industry was the first target c. Time was right for McCarthy – Army-McCarthy Hearings i. 1953-54 McCarthy began to attack Eisenhower and members of his administration ii. McCarthy said that there were communists in the army, demanded hearings 1. That was the first time the public saw him in action 26. Vietnam a. Lyndon B. Johnson – Envisioned The Great Society – a full stomach and a full life b. Goldwater accused democrats of being soft on communism – LBJ was going to show that he was not i. 3 days later he announced to the country that Vietnamese fired on American boats. ii. Planes bombed inside Vietnam iii. Accused North Vietnam of unprovoked attack, but it was American who had been running covert raids in the country c. Vietnam retaliated – Gulf of Tonkin d. 2 days later – commander send messages to pentagon that they were under attack i. evidence proved inconclusive ,might have been overzealous sonar man and freak weather e. Johnson prepared to retaliate – ordered bombings i. The next day Johnson presented his version to the American public – ‚unequivocal attack, unprovoked‛ – these were lies f. Gulf of Tonkin Resolution – asked congress for resolution to expand war powers without further approval of congress g. LBJ was nominated at Democratic convention i. Frightened Americans with talk of nuclear weapons ii. Kept the American uninformed about the war – all the while was getting the United States in Deeper iii. Won election by an overwhelming margin h. Congress kept reauthorizing the war through appropriations i. LBJ expanded the war in secret – and then had to sell it to the American people j. Tet Offensive was the roof falling in on the administration i. Media turned against LBJ ii. Presidency became a burden – stuck – more men = more killing, less men = more killing iii. Advisors all changed their minds – LBJ felt betrayed k. Speech about peace in Vietnam

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7 more months in office – country drifted towards anarchy – protests, assassinations of MLK and Bobby Kennedy, Russian tanks were rolling into Czechoslovakia m. Court seemed to be shifting responsibility to protesters 27. Nixon Years a. Watergate: i. Watergate break-in in June 1972 1. Accusations were so serious that he had to fire aides ii. Senate hearings kept people spellbound 1. Testimony of listening devices in the White House 2. Congress subpoenaed the tapes a. President refused – said that they were private, confidential, belonged to president and not to congress iii. Nixon offered to turn over summaries of the tapes – Cox refused iv. Saturday Night Massacre: Atty General Richardson refused to fire Cox, resigned instead v. Bork tool his place and fired Cox vi. 21 Resolutions asking for his impeachment 1. Nixon appointed a new special prosecutor and agreed to turn over the tapes vii. Nixon thought that he was just as justified as Lincoln and the Civil War b. United States v. Nixon i. Court said that Nixon must turn over the tapes 1. Court acknowledges privilege and balances it with a need for evidence in a criminal trial a. Evidence is of the utmost importance during a criminal trial b. L: court was protecting its own branch. If it had been between congress and the president, things might have been different. 2. Part of court concern was that Nixon’s assertion of privilege was so sweeping that if the court did not respond to that claim future presidents would be insulated from the court process 3. Burger wrote the opinion, Nixon had put him on the court ii. Decided and 15 days later Nixon resigns 1. Part of court concern was c. Effects: i. Ethics in government ii. Legal ethics course in law school iii. Adherence to the law really fell apart during that time iv. Huge influx of democrats into D.C. d. Nixon Pardon – Gerald Ford i. Country had been consumed for long enough ii. Nixon paid the unprecedented penalty iii. Long national nightmare was over iv. Amnesty for draft dodgers in the same week v. Arguments against pardon – message that the president can flout the law 1. Framers were concerned about absolute power in the hands of the King

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Status Relationships: Gender, Race, Class

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Gender: a. Colonial: i. Single Women: 1. Property Rights 2. No Vote 3. Can travel ii. Married Women: 1. Ignored by law 2. Basically property of husband 3. Husband can give moderate chastisement 4. No vote 5. Feme-Sole Trader law – traders wanted their money b. Pre-Civil War i. Seneca Falls convention – 1848 ii. Elizabeth Cady Stanton – Declaration of Sentiments 1. Modeled after declaration of independence 2. Life, liberty, pursuit of happiness – Inalienable Rights 3. Men systematically deprived women of rights – a. Education b. divorce c. employment d. property e. vote iii. Voting Resolution – most hotly debated 1. Frederick Douglas spoke – said that without the vote women would be unable to change the laws that treated them unjustly iv. Susan B. Anthony 1. Tactician – broad based attack on societal weakness v. Orestes Brownson – The Woman Question 1. Vote will weaken and break up the family 2. Strife within the family, run against each other, vote differently 3. Takes pedestal approach vi. Concerns: 1. Men would get two votes to women would vote opposite and get nothing done 2. Women would start temperance movement a. There were groups that did not want to be reformed c. Post Civil-War i. Anthony and Stanton want women’s suffrage to be put into new amendments – Douglas tells them that it is the time for AA ii. Racial divide in suffrage: 1. ‘you let degraded black men vote and not white women’ iii. Split in movement – one wanted to go state by state, one wanted to go national iv. Susan B. Anthony – gets herself arrested 1. Trial – took her case in front of a jury 2. Anthony spoke in all towns 3. She was not allowed to testify on her own behalf 4. Judge directed jury to find her guilty

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Anthony exposed the government’s case for what it was and gained sympathy for women’s suffrage everywhere a. Jury Nullification – St. Louis – suffragist attempted to vote and was turned away, she sued the registrar Minor v. Happersett (1875) 1. Each state has the right to determine who could and could not vote within its borders a. As significant as Dred Scott – single-minded campaign to get an amendment Very difficult – hard to get legislators to listen if you do not control a voting block Social Context: 1. Real drop in birth rate a. Risk of death in childbirth was still high 2. Easier to enter marketplace a. Women entering workforce 3. Some people saw it as the decline of the family – race suicide 4. Territorial expansion 5. Increased Secularization 6. National panic about the state of the family – law can only do so much a. Big increase in divorce after civil war – law can’t keep people married

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Colonial: i. Free Blacks: 1. No vote 2. Can travel with permission 3. Only one piece of paper away from being treated as slave ii. Enslaved Blacks: 1. Lifetime of enslavement 2. Passed to next generation matrilineally 3. Nothing to alter status – possibility up to master 4. No education 5. No gathering Colonial: i. Indentured Servants: 1. Set number of years and then free 2. Right to education 3. Right to food, clothes, shelter 4. No travel without permission 5. High mortality rate ii. Poor Whites: 1. Better than being black 2. People can take children away 3. Can’t change classes 4. Poor Laws

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5. Rudimentary welfare iii. Children: 1. Education 2. Some protections, parents take on responsibility for actions of children 3. Subjected to humiliating laws 4. Can be taken from parents Slavery and Law as Social Control 1. Colonial: a. South Carolina Slave Code = Official state approval of social control method i. Response to slave revolt = focus on insurrection 1. Social control: ii. Prohibitions: 1. Reading 2. Traveling without a pass 3. Roaming around on weekends 4. Burn rice or other products 5. Poison 6. Hereditary Rules 7. Specific working hours requirements a. Purported protection b. No evidence of enforcement i. Day-to-day is system of physical violence iii. Many DP offenses: 1. striking white iv. Attempts at Due Process – helping their own conscience? b. Salem Witch Trials: DP after the fact i. Cotton Mather – 1. Evidence that is/is not acceptable 2. Presumptive evidence ii. Increase Mather – ‚better that 10 suspected witches escape than one innocent person should be condemned‛ 1. Powerful Idea: taking care not to convict the innocent 2. Reliance on religion to justify persecution – but Increase uses bible to show that devil can take shape of innocent people. He cited scripture to stop what was happening iii. Law as social control = compare with South Carolina Slave Codes 2. Revolution: a. Somerset v. Stewart: i. Slave is brought to England with his master. Question is whether slave is still a slave even though England does not recognize slavery. ii. Theory: Slavery must be positive law 1. Only if the laws of the country have affirmatively established the condition of slavery will England acknowledge it a. No slavery laws in England = not a slave 2. Note: judge does not go as far as to say that slavery is so odious that it cannot exist b. PA Gradual Abolition Act:

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i. First statute abolishing slavery ii. Forceful expression that slavery is immoral, but not sweeping end to slavery in PA iii. Terminates idea of hereditary slavery but does not free children, they are slaves until they are 28 1. Economic concern about abolishing slavery straight-out iv. Compares slavery to British rule c. MA Constitution of 1780 i. Abolished slavery quickly ii. Commw. v. Jennison 1. Judicial interpretation of constitution = slavery is abolished in MA d. VA Manumission Act 1782 i. Law allowing masters to voluntarily free their slaves ii. 1806, legislature said that freed slaves had to leave the state e. NC Statute on Slave Murder i. NC wasn’t ready to end slavery, but was willing to stop cold-blooded murder of slaves f. Thomas Jefferson on Slavery: Notes on the State of Virginia i. Attempts to justify slavery through wild overgeneralizations and stereotypes 1. Observation, science, antiquity (Greek and Roman slaves) ii. Acknowledges condition of slaves is unfortunate 1. = conflicted document a. slaves steal because everything has been taken away; there is a lot of misery but no poetry iii. Knew the country would pay a terrible price for slavery: wolf by the ears iv. He was thought to be anti-slavery v. Judging historical figures g. Constitutional Provisions: i. 3/5 Rule proportioning legislatures ii. Fugitive Slave Provision iii. Importation Clause iv. Militia to put down rebellion v. Prohibition of taxes on imports and exports vi. Entire electoral college vii. Amendment process designed to entrench slavery Civil War: a. Cobb’s Treatise on Slavery i. Reflects conventional wisdom of south 1. Physical attributes 2. Mental Capacity 3. No moral character 4. Slavery is positive good for slaves – development is promoted by slavery, it is designed by God to ensure that they are Christianized a. Slavery in American is more benign because in its purest form there are no restrictions ii. Compare with TJ on Slavery: 1. Both use physical and mental characteristic to justify subordination 2. Racist notions underlie both

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TJ seemed to be justifying slavery, Cobb said that slavery is better for the slave iii. Compare with South Carolina Slave Code: 1. Cobb says mentally inferior, Code does not allow education 2. Slavery is not harsh, but DP for many offenses 3. Slaves incapable of reason, liabilities for plotting escape 4. Slaves are property, slaves are humans wrt criminal liability State v. Mann (NC 1829) i. Judge Ruffin – must uphold law ii. Slave owner complained that another person mistreated her slave iii. Rationale: Ct finds that D is not liable, there must be total dominion by master over slave including violence to keep the institution 1. If not, the slave won’t obey 2. The law needs to keep its hand off the institution of slavery or it won’t work a. Fear of revolt, blacks outnumber whites 3. Non-Legal factors work to make slavery less harsh: a. Peer pressure b. Private interest of slaveholder c. Benign relationship between cook/nanny and master iv. Note: judges are very active in economic development, but claim that their hands are tied when it comes to slavery v. Compare with Cobb: Cobb says slavery good, Ruffin says against nature, acknowledges slaves are human. Souther v. Commw. (VA 1851) and State v. Hoover (1839) i. Two cases where slaveholders were punished for mistreating slaves ii. Hoover: if slave had been beaten for punishment and died, no punishment iii. Cruelty crosses the line, in extreme circumstances the law will act to protect slaves – juries were reluctant to convict Mitchell v. Wells (Miss. 1959) i. Slaveholder emancipated slave who was his daughter, returned to Miss. Left estate to daughter, executor wouldn’t turn it over because Miss. Did not allow emancipation of slaves ii. Held: Miss did not have to recognize free status of slave iii. Questions of comity – conflict over how to five respect to laws that reflect a different view of slavery Commonwealth v. Aves (MA 1836) i. Justice Shaw 1. didn’t like slavery, but thought that abolitionists were too radical ii. Achieves anti-slavery result 1. Slave was 6 year old child brought to MA by master 2. Anti-slavery society immediately went to court and said that she was free because master brought her to free state --- once slave breathes air of free state they are free iii. MA does not have obligation to give full faith and credit to slave holding states. Slavery, although contrary to natural law, is tolerated, but only if it is a positive law. 1. There must be a law that allows slavery – legislation, constitution, CL

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Says that slaves are not property, and thus the law of the land does not follow the property iv. Second argument is Fugitive Slave Provision of Constitution 1. Shaw says that only applies to fugitives who escape to free territory, she was brought here by her master v. Opinion was seen as outrage by South and was followed by many of the Northern states Prigg v. PA (1842) i. Justice Story ii. Fugitive Slave Act had very little evidentiary protection 1. Free blacks could be picked up and brought to magistrate with little procedural protection iii. States adopted personal liberty laws that gave more protections 1. Challenged as being preemptive of federal law iv. Fugitive Slave Clause was essential because without it the Southern states never would have agreed to the constitution. v. Fugitive Slave Act of 1793 is constitutional because it carries out the Fugitive Slave Clause in the constitution 1. Feds have exclusive jurisdiction over fugitive slaves because it is enforcing a federal provision in the constitution. If states got involved there would be conflict, and Southern states never would have agreed to that. vi. Both Pro and Anti Slavery: 1. Pro: strong constitutional basis for Fugitive Slave Act a. Federalizes slavery b. Limits ability of abolitionist states to get involved 2. Anti: Federal government does not have enforcement apparatus a. Because there was no federal infrastructure, state help was essential to enforcement. Gave states permission to say ‚ok, hands off‛ b. Federalizing it made enforcement more precarious vii. Effect: Enforcement was so difficult that it became an issue by 1850 – Southerners demanded a law with teeth --- the Fugitive Slave Law of 1850 Dred Scott v. Sanford (1857): i. Justice Taney 1. Second case in history to strike down federal law 2. Thought this would put things to rest once and for all ii. Dramatic consequences – one of most notorious cases decided by S.Ct iii. 1) Dred Scott is not a citizen based on the historical record 1. Declaration of Independence – they were subordinate people 2. Constitution – not citizens, not allowed to vote a. Counter: citizenship preceded cons, free blacks at time of declaration of independence b. Constitution would not have been entered into but for protection of slavery = no basis for concluding they citizenship would be conferred on any black, free or slave iv. 2) Missouri Compromise if Unconstitutional

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MO was free because of MO compromise, Q whether congress had this power 2. A: Congress does not have that much power over the territories. People in the territories are equal and should have the same rights under the constitution. People are granted rights over their property and slaves are property. Taking away property is violation of DP. v. Dangerous Principle: No one can touch slavery because it is a denial of DP . . . 1. If correct, when someone moves into free state that will be viewed as violation of DP right. 2. Extension is that states cannot say no slavery Reconstruction a. Jim Crow Laws i. Children were put into hard labor ii. Convict lease gangs – labor kept cheap, good system for economic growth iii. Sentences were far harsher than those for whites iv. Hundreds of lynchings b. Black Code of Mississippi i. Legislators wanted as much slavery as they could get away with ii. Many similarities to slave codes of Mid-19th Century iii. Idea was labor control – employment contracts, severe penalties if leave iv. Some provisions for limited property rights v. Ban on inter-marriage vi. Ratification of slave marriages c. Civil Right Act of 1866 i. Designed to federalize the rights of newly freed blacks ii. Reflects hostility of congress to Black Codes iii. Flatly overrules Dred Dcott iv. 13th, 14th and 15th Amendments were adopted to provide congress with enforcement powers d. The Slaughterhouse Cases (1873) i. Court opposition to the Civil Rights Act ii. Narrow reading of Privileges and Immunities Clause only to the P&I of national citizenship – Feds can’t protect people from state restrictions 1. Court felt that a broader reading would have such radical consequences that the court couldn’t have wanted it a. That is, this is the first time that the federal gov’t tried to have a part in civil liberties. This would have been a radical reordering – BUT – there was that small thing called the civil war. Argument that the war changed everything, but the court was not willing to go that far. iii. Effect: relegated protection of rights of blacks to the states that enslaved them e. Roberts v. City of Boston (MA 1850) i. Judge Shaw ii. Black father wants to enroll daughter in white school iii. Court says that it is permissible to have segregated schools 1. People are not equally situated 2. Prejudice is not created by law and cannot be changed by law

1.

17

5.

Court does not create attitudes and probably could not change them anyway iv. Importance: This case came from the North. Northern judge upholding segregated schools. South asks why they are wrong to segregate. Plessey picks up on Roberts – says that it shows what Congress meant with the amendments. f. Plessey v. Ferguson (1896) i. 30 years after civil war = many people had seen slavery in their lifetimes ii. Ct: Separate but equal is fine 1. If black people don’t like sitting on the back of the train it is because they view it as an insult 2. No matter what is done legally, can’t help how it is interpreted socially iii. Justice Harlan – dissenting – most prominent southerner, former slave holder 1. believed in close reading of constitution 2. he saw the implication of Plessey – knew what state legislatures would do with it 3. law is aimed at clearly imposing inferiority 4. Majority creates a caste system, constitution is colorblind iv. Effect: Segregation became codified, legalized 1. Court gives carte blanche to the states to institute segregation v. Attempt to dismantle Plessey does not get started until the 1930s vi. 1910s and 20s se resurgence of KKK, waves of lynchings, NAACP founded in 1909 Desegregation in the South a. NAACP – Charles Houston and Thrugood Marshall i. Strategy: Go after education. Segregation in schools was holding blacks back, they were being relegated to substandard schools. 1. Decided to go to graduate schools and then work down. 2. Rationale was that justices would be more willing to accept desegregation at the higher levels ii. Gaines (1938) (Univ. of MO Law School) left open the possibility that states could build separate and equal grad schools iii. Sweatt (1950)– closed that door. The court held that separation at grad and law schools was unconstitutional 1. Began showing that Separate was, in fact, not equal b. 1950s – Racial climate changed i. WWII had effect on racial attitudes – more difficult after fighting Nazi ideology to continue to pursue segregation ii. Cold War – communist propaganda focused on segregation as proof of decadence and hypocrisy iii. Jackie Robinson iv. NAACP is ready to make frontal attack on Plessey c. Brown v. Board of Education i. Cases from lower courts – DE is only case that ruled separate is inherently unequal ii. Justice Vincent was hostile – then he dies iii. State: 1. power lies in state to decide 2. schools are equal

3.

18

d.

e.

3. welfare of children is served by segregation iv. Thurgood Marshall 1. 14th Amendment is put into place so that people will disregard their feelings about race 2. Blacks are American citizens 3. Desegregated colleges 4. The only way court can decide against them is to decide that blacks are inferior 5. Keeping them as close to slavery as possible v. Warren – needed to get a unanimous decision 1. United court will send a signal to the nation 2. H: Separate is inherently unequal 3. Short opinion so that it could be published in every newspaper in the country 4. Social science research – wanted to give justices factual basis for holding a. If basis is unequal because of feelings of inferiority, then need to back that up b. Remember Plessey – if they feel inferior that is their problem 5. Weakness – said segregation was fine in Plessey 6. Strength – admitting wrong and changing it vi. Weschler Article – Neutral Judging – no policy considerations 1. Discrimination was equally against whites 2. Whites should be able to say that they only want to associate with certain people 3. Court was wrong to assume it was violating EP clause, both sides were equally harmed vii. Freedom of association argument was the argument after Brown Post-Brown i. ‚with all deliberate speed‛ = drag your feet ii. Declaration of Integration – signed by 103 members of congress, all but 3 southerners 1. Suggested tat Brown was illegitimate 2. Court was acting in unconstitutional manner, had been infiltrated by communists 3. Grassroots effort to stop Brown – new criteria to govern pupil assignment that were supposedly neutral 4. Used to maintain desegregation Little Rock – 1957 i. Eisenhower worried about moving too fast on such an emotional issues 1. thought that Brown was a bad idea, that it set race relations back 15 years ii. School board needed help – Governor Faubus wanted the segregationist vote 1. Governor called out nat’l guard to block the teens from entering the school iii. Parents and NAACP went back to court iv. Defiance of law was spreading – Eisenhower tried to reason with Faubus, it didn’t work

19

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v. Eisenhower sent paratroopers in ‚mob rule cannot be allowed to override the decisions of our courts‛ vi. Students were assigned a personal soldier – this couldn’t go on forever, there would never be integration vii. Faubus closed down the schools to halt integration – people reopened, deseg or no school, people chose desegregation f. Cooper v. Aaron i. Arkansas claimed it did not have to follow the law ii. S.Ct said that it did 1. S.Ct does not have its own troops to send down and enforce the law iii. Court put the process of changing hearts and minds in motion iv. Underestimated the value people put on following the law g. Politics – if you antagonize segregationists you are going to lose votes Desegregation in the North a. 17 years after Little Rock – Boston Busing b. Black parents filed suit, Federal Judge Garrity ruled that the district was guilty of maintaining two school systems i. Ordered immediate busing to begin the next school year c. Parents were outraged i. Whites gathered in front of south Boston HS; boycotted the school d. Mob violence, rioting e. Garrity: there is no choice but compliance with the principles set out by the S.Ct f. Professor Prior: i. Education is key variable in providing access to resources ii. Completely false that desegregation led to better education iii. President Ford said he disapproved of court ordered desegregation – came from the highest levels of gov’t iv. Garrity was once perceived as heroic – not so much now – people realize that allocation of resources does not have to be based on race v. Nation is still hyper segregated vi. Busing achieved cross-pollination, but did not work as means of societal desegregation vii. Class conflict was going on as well

Free Speech and the Constitution During Wartime 1. Colonial: a. Zenger Trial: i. Publication of something that would bring the gov’t into disrepute is seditious libel. Truth or falsity does not matter. 1. Worse if it were true: if the gov’t is corrupt and people know, it leads to more social unrest ii. Zenger criticizes local governor iii. Alexander Hamilton represents him 1. Argues that the jury must determine whether material was seditious and jury ought to acquit even if the jury finds it is true.

20

2.

3.

Rationale: only a tyrannical government would not allow truth as a defense i. Laws should be different in America – Star Chamber 2. Truth must be a defense iv. Jury Nullification 1. Transcript published as pamphlet – blow against tyranny 2. Using court to get legal change – compare to Civil Rights Federalist Era: a. Sedition Act Prosecutions i. Wartime Atmosphere – Idea that war with France was imminent 1. Federalists (inc. Adams) align with British; Republicans (inc. Jefferson) align with France ii. Sedition Act is passed by congress – supposed to be liberal 1. Theory: liberal because it made it a crime to write/print falsity against the government but that truth was a defense a. Jury could decide law and facts 2. Adopted just a few years after the first amendment 3. Federalists eventually pay a dear price for the Act b. Lyon’s Case – Matthew Lyon was one of first to be prosecuted for sedition i. called Adams pompous and foolish ii. wanted to prove truthfulness by calling the judge as witness 1. judge says that he has seen no such pomp and parade iii. Lyon is convicted, court said that he had no defense 1. Court said that jury had no right to decide if Act was unconstitutional c. United States v. Cooper i. Justice Chase – S.Ct ii. Charged with malicious libel against the president iii. Ct: attacks on the president can weaken the government 1. Goes though points on which he believes Adams was correct 2. Design was to influence public for next election d. United States v. Callender i. Justice Chase ii. Wrote vicious stuff about everyone iii. Callender wanted to Act in front of the jury because they wanted to argue that it violated the first amendment iv. Chase cuts them off at the pass – jury does not have power to say that laws are unconstitutional Civil War: a. Prize Cases i. Case regarding presidential power to declare war ii. Court decides that it was not a war and that no congressional approval is needed because it is not a war 1. insurrection = no congressional approval 2. president has obligation to suppress insurrection iii. Dissent: this is war and only congress has power to declare it b. Ex Parte Merryman (1861): i. Merryman was avid secessationist, was arrested and jailed in military fort ii. Lincoln suspends Habeas Corpus

a.

21

c.

d.

iii. Court held that power to suspend habeas corpus lies with the legislative branch 1. Power was used by King of England, history of abuses 2. No way people would have allowed it to rest with president 3. Taney issued writ of Habeas Corpus iv. Argument for Lincoln: 1. Even though it is in Article 1 – nowhere does it say ‘Congress does it’ 2. this is an emergency clause and ought to be in the hands of the president because it is the president who can act quickly, congress works slowly 3. Fear of King is not relevant when talking about elected president v. Lincoln refused to obey, but Merryman was released in 7 weeks and not tried, no one in MD would have convicted him Ex Parte Vallandigham (1864): i. Vallandigham is convicted for speaking out against the war after he gives a fiery speech --- he was hoping that he would get arrested ii. S.Ct refused to hear the claim that there was no jurisdiction for a military court to try civilians --- said that it was not a part of their appellate jurisdiction iii. S.Ct did not want to have confrontation with Lincoln 1. L: must I shoot the simple-minded soldier who deserts and not the wily agitator who induces him to desert 2. L commuted sentence to banishment and V went to Canada Ex Parte Milligan (1866): i. After-War Case 1. Conspiracy to seize munitions ii. Q: was martial law constitutional at the time? iii. Court says no – shift from Vallandigham wartime to peacetime – military can arrest Milligan but they cannot try him 1. Courts can be closed during civil war, foreign invasion – then military can be used as tribunal 2. Martial law cannot exist when courts are open and have unobstructed exercise of their jurisdiction iv. Framers knew what war was like – we have to jealously guard the constitution v. Note pattern of oppression of speech during the war and then apologies afterwards Shift from other wars – S.Ct got involved i. There were no 1st Amendment precedents at the time ii. Schneck v. United States and Abrams v. United States 1. D mailed anti-war leaflets to military age men 2. Abrams: D published 2 pro-Bolshevik leaflets 3. Clear and Present Danger Test: whether the words create a clear and present danger that they will bring around the substantive evils and Congress has the right to prevent iii. S.Ct wanted to get rid of dissent 1. substantially more prosecutions and substantially harsher sentences than ever before iv. Court interpreted constitutional role as deferring to the executive in wartime After this time – explosion in the ACLU Historical pattern – after war the court said that it was worry

4.

WWI a.

b. c.

22

5.

6.

d. Holmes ‚persecution is perfectly reasonable‛ WWII a. Korematsu i. Fear that the West Coast was going to be invaded ii. Because Japanese belonged to an enemy race they should be interred 1. Japanese might give information to the invaders iii. Congress never held any hearings on internment iv. Japanese did not want to push back v. Argument: military necessity, defer to military on issues of national security – compelling interest in preventing sabotage vi. Dissenters – this is a racial classification 1. Jackson – ‚lies around like a loaded weapon‛ Cold War a. Court takes a different approach to civil liberties i. Carolene Products (1938) – greater endorsement of civil liberties 1. Incorporated most of Bill of Rights into the 14th Amendment 2. Warned that court would not defer when there is prejudice against discrete and insular minorities ii. Early 50s – court is deferential to the rooting out of communism, but court begins to shift b. Youngstown v. Sawyer (1952) i. Court wants to strengthen the govt’s hand – Youngstown case is where the court draws the line ii. President tried to seize steel mills for Korean war iii. Court held that it was not in the president’s power to do so because president is limited to act of congress or the constitution 1. Worried that if it gives president too much power it will lead to totalitarianism iv. President tries to argue Lincoln v. Court says Ex Parte Milligan – we don’t know who is going to be in office next 1. Court is concerned that the cold war will go on for a long time. Enhancing the power of the president for a long time, allowing the president total control, might lead to totalitarianism. c. McCarthy Hearings i. Suppression of communism - good of the country, faced with enemy who wants to threaten our way of life 1. Compare to Civil War: South had a firm belief in slavery and North saw it as ideological threat to Northern life d. Dennis v. U.S. (1952) -- Smith Act – Membership Clause i. Head of the American Communist Party, convicted under the Smith Act of advocating the overthrow of the government ii. Court uses balancing test to balance repression and serious harm iii. Focus is on danger, not immanency --- and communism is a danger iv. Even advocacy can be punished if there is a danger that overthrow will result 1. Danger is so great that we have to balance free speech 2. If danger is annihilation of culture then free speech can be curbed v. Concern that expansive definition of communist chills people from joining controversial organizations

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1. 7.

1960s there was an explosion of organization and ideology coming from the left

Vietnam a. Gulf of Tonkin Resolution i. Congress gave LBJ a blank check in deciding whether we go to war or not 1. Virtually no check on the president 2. Times were different – trusting relationship between the president and congress, he had not yet lost credibility ii. Congress kept reauthorizing the war through appropriations 1. Johnson and Nixon said Resolution + Appropriations = Congressional ok for Vietnam iii. Majority supported the war for a long time b. Mora v. McNamara (1967) i. Douglas was adamant about getting the court to review the constitutionality of Vietnam, but could not get the rest of the court to agree with him ii. Court showed full deference to Congress and the President during wartime iii. Court seems to be shifting responsibilities to anti-war protesters c. Parker v. Levy (1974) i. Dr. advocates young black men not to fight ii. Idea that the military is special – no 1st Amendment right to tell others not to fight iii. Dissent is strong – military has changed, idea that soldiers have a military ethic is no more d. Bond v. Floyd (1966) i. GA house of representatives must let elected representative in even if spoke out against the war ii. Compare Ex Parte Vallandigham e. Tinker v. Des Moines School District (1969) i. 1st Amendment rights in school; allow children to wear black arm bands ii. Black has dissent – country is going to the dogs, children are running wild f. Cohen v. California (1971) i. F the Draft ii. 1st Amendment oppression doesn’t work – unintended consequence of unleashing more iii. If the court had come out the other way it would have had to shut down MLK and other civil rights leaders iv. Unintended consequences – court opened up airwaves to all kinds of bad language v. g. Change from past wars: i. More hospitable to free speech than earlier 1. Shuts the door on challenging the war or the drat, but allows protection for anti-war protest ii. Court had been pushed for 10 years during the civil rights movement iii. Real transition period for the court – court was changing substantially in 1972 – Nixon had 4 appointments in his first term, none in his second

Law and the Economy/Technological Developments

24

1.

2.

3.

4.

5.

Gibbons v. Ogden (1824): a. Q: whether state can grant monopoly over navigation rights b. Broad definition of commerce: navigation is commerce and since the federal court had PLENARY power to regulate interstate commerce, the states only have the power to regulate where congress has not yet acted i. Reiteration of supremacy of constitution c. Economic Significance: stimulates growth in economy, competition is most effective way to allocate goods i. Lays the groundwork for a national economy McCollough v. Maryland (1819): a. Q: whether states can tax federal banks b. Explicit rejection of compact theory i. Sovereignty comes from the people and not the states ii. Rejects idea that whatever is not given explicitly to the federal government is left to the states iii. Because the constitution is created by the people it can act on the states. The people wanted it to be their founding document and it must be preserved inviolate. c. Economic Significance: Wanted to give federal government more power to stimulate the economy i. Construction of Necessary and Proper clause – constitution should be expanded to adapt to new experiences Dartmouth College (1819):: a. I: whether corporate charter is private or public contract i. Argument was that if the state could grant charter then it could alter the charter b. Ramifications: if court had considered corporate charter to be changeable by the states then it would have undermined the corporate form c. Economic significance: i. Corporate form was new ii. Growth of enterprise is faster outside the hands of the state iii. Encourages incorporation 1. States cannot interfere once the charter is granted Charles Rive Bridge (1837): a. Q: can a state create a new corporation that might hurt the property rights of an existing corporation i. MA gives bridge co charter for 70 years, then gives another charter b. Taney was strongly committed to Jackson’s policy of economic growth c. Overt commentary about technology i. Ct discusses technological developments, need to promote development and competition 1. Railroads were significant – if can’t have competitor, substantial effect on the RR d. Very pragmatic approach to the economic issues of the day – applies the rule that effects economic growth Commonwealth v. Hunt (1842): a. Chief Justice Shaw of MA S.Ct b. Allowed workers to unionize i. Shift: criminal law of conspiracy used to prevent workers from joining together

25

c. Hunt removes threat of prosecution 6. Farwell v. Boston and Worcester RR Co. (1842) a. Fellow Servant Rule: If you are hurt on the job you have to sue the co-worker who was negligent and not your employer i. Traditional rule was respondeat superior – court says that rule would apply to a stranger, but not someone who is hurt by fellow worker b. Theory: accept risk when accept job, compensation reflects risk. You were in as good a position as employer to protect yourself from dangers of the worksite. c. Economic Impact: makes it more economical to build RR by removing liability i. Shaw feared that rule that would interfere with economic development would halt the RR d. Rule sweeps the nation, so influential that there was not another move for worker’s comp laws until early 1900s 7. Corporate Law: a. Shift since colonial period, shareholders are not liable 8. Van Ness v. Packard (1829): Landlord/Tenant a. Cl: tenant builds = becomes part of property b. Law Changes: Court allows tenant to keep what he built, can take it down and not let landlord keep the improvement c. More fluidity wrt property d. Economic Significance: Encouraged tenants to make improvements which was profitable use of land i. Modification of inapplicable rules – land is not as scarce as in England ii. More fluidity wrt property 9. Torts: a. Industrialization was leading to more accidents b. Brown v. Kendall i. Recognized negligence as cause of action and emergence of showing of fault – 1. Limitations: a. Contributory negligence b. No wrongful death c. Fellow Servant 10. Contracts: a. Shift to hold people to their contracts i. Before, contract had to be fair ii. Now, do not have to inquire about adequacy of consideration b. Caveat Emptor: buyer beware i. Need regularity, predictability to transactions 11. Water Rights: a. Water is source of energy that runs the pills, conflicts arise with mill owners over who gets to harness the power i. East: Must share in reasonable manner 1. Cary v. Daniels – Pro-development opinion by Shaw a. First in time, first in right b. Reasonable usage ii. West: Arid region doctrine – whoever gets their first 1. Irwin v. Phillips

26

Judges 1. Justice Chase: a. Very short fuse on bench b. Sat on Cooper and Callender Sedition Act Cases c. Almost impeached and removed from bench when republicans come into office i. Jefferson had a great desire for revenge when he got into office, Chase successfully avoided impeachment by 1 vote ii. Defense: did his best as judge, got carried away, nothing rose to level of high crime and misdemeanor iii. Never been another impeachment action against S.Ct justice d. Odd Happy Outcome: Failure of attempt to impeach Chase establishes judicial independence, insulated judges from this kind of pressure i. Strengthened S.Ct and judiciary e. Calder v. Bull: substantive DP 2. John Marshall a. Only 2 years of formal education b. Spent winter at valley Forge – changed man, could not believe states did not send supplies c. Believed in strong federal government and wanted to expand powers of federal government i. Closely allied with federalists, secretary of state under Adams d. Wrote 547 decisions, dissented in 6 e. Only sat for 6 weeks a year, all lived together f. Vision of constitution being interpreted flexibly 3. Chief Justice Taney a. Charles River Bridge b. Dred Scott – considered one of greatest S.Ct justices except for this opinion c. Slaveholder by inheritance, but freed his slaves, but thought that slavery was a positive good d. Ex Parte Merryman 4. Chief Justice Shaw – MA S.Ct a. 1830-1860 = 2,200 opinions\ b. Hunt – pro labor c. Farwell – anti-labor i. Reconcilable? Both are the idea that competition is the best policy. Shaw’s goal was industrialization. d. Commonwealth v. Aves i. Slave is not personal property e. Didn’t like slavery, thought that abolitionists were too radical f. Upholds fugitive slave law as constitutional g. Roberts v. City of Boston – ct says segregated schools are okay i. How do we assess his approach? 1. Let slave girl go free in Aves 2. Segregates schools in Roberts 3. Union 4. Fellow Servant ii. When his hands are not bound by statute or government action, he may feel that he has flexibility more than he did on issues of slavery [?]

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1. 5.

He talks about the strong sentiment of abolition in MA during Aves, why doesn’t he see that rules of segregation further feelings against AA?

6.

7. 8.

9.

Judge Ruffin a. Southern Slaveholder b. State v. Mann NC c. Harris – complete dominion over body of slave d. Hoover – upheld cvxn for slave murder Justice Story a. Youngest man to be on S.Ct – 32 years old; Harvard professor b. Anti-slavery c. Prolific writer d. Proponent of nat’l gov’t. Not too keen on state’s rights. e. Believed that the framers intended to protect slavery when they drafted the constitution f. Prigg – both pro and anti slavery i. Catalyst for South to ask for more protections Judge Harris a. Mitchell – no comity with courts of OH Judging Slavery: a. Danger in applying moral judgment and danger in setting morality aside b. Job description is to uphold the law c. Always have the option of resigning Supreme Disappointments: phenomenon of presidents trying to influence the court by judicial appointment a. Moved Left: i. Brennan (Eisenhower) ii. Souter (Bush I) 1. liberal on abortion iii. Blackmun (Nixon) 1. drafter of Roe iv. Warren (Eisenhower) 1. was once architect of Japanese internment, got on the bench and became much more liberal v. Stevens (Ford) b. Center: i. O’Conor (Reagan) ii. Kennedy 1. votes against Roe, ends up joining Casey c. Right: i. White (JFK) 1. opposes abortion, wrote Bowers ii. Frankfurter d. Thoughts: i. Always a great fantasy of presidents that you will put someone on the bench and they will do what you want ii. Justices try to apply the constitution in the right way, they just don’t all see it in the same way iii. Very aware of the dramatic consequences of their actions

28

e.

Grutter – hesitance to pull plug on affirmative action, court not sure about long-term consequences, same with Roe Rehnquist Court: i. Varied court ii. Bet ideological influence has been on federalism – commerce clause, 11th amendment, 10th amendment jurisprudence iii. Record is more fixed in civil liberties – Casey, Lawrence iv. Is it really the O’Connor court?

1.

Legal Scholars 1. Alexis DeToqueville: ‚On Lawyers and Judges‛ (1835) a. Not much oversight of legal profession; no real legal education i. Apprentices b. Sees lawyers playing important role in society: mediators between the rabble and the elite i. ‚related to the people by birth and the aristocracy by practice and temperament‛ c. Lawyers do not enhance democracy i. Lawyers want to conserve order as it is ii. Allow for change to come a little at a time iii. Real push to codify the law and tie the hands of the judges, cabin the authority of judges iv. Elected judiciary so that people maintain a check on the judges d. Idea that law-talk permeates society e. Concern that law is not being applied in a systematic way i. Systematic education and application 2. Christopher Columbus Langdell (1871) a. Appointed dean of Harvard in 1870 i. Entrance exams ii. Undergrad required iii. 2 and then 3 year curriculum iv. exams at end of year v. Harvard law review vi. First year curriculum vii. Socratic method viii. Never answered question or told them the law ix. No value placed on skills x. Students bailed xi. The Paper Chase b. Law should be seen as logic – there are immutable rules that can be uncovered with study c. Judges can take principle, apply it to facts and come up with a systematic result d. Mass of worthless cases that judges made who did not know what they were doing i. Need to systematically study the cases, order and classify them, study them logically e. Darwinian: most cases are wrong, the right ones will rise to the top f. Rigor and discipline facilitates larger firms, brought to other schools g. Professionalization of the study of law

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3.

4.

5.

i. Growth of large corporations ii. State and federal regulation iii. Growth in law schools that teach more than the particular law of that jurisdiciton Oliver Wendell Holmes (1897) a. Biography: i. born 1841, father was famous ii. Served in Union army iii. Lost faith in ideals --- deep skepticism in writings iv. 1882 – MA S.Ct v. 1901-32 – S.Ct b. Called Langdell the greatest living theologian c. Law corresponds to what is convenient at the time d. Law is not logic – it is experience e. People suppose that the law is what is familiar and they do not ask enough of history, do not spend enough thinking about how law has developed f. Morality in law doesn’t matter – Bad Man Theory i. Bad man does not want to get punished, not acting in morally correct way ii. Law is nothing but a prediction of what courts will do in any given situation g. Langdell thinks that there is order to the legal universe, Holmes says that law is experience, law evolves at different times because people prefer different policies h. But judges never talk about what is convenient for the community at the time i. Very little regard for human beings – sterilization cases Restatements and Brandeis Brief a. New Deal Era b. Reflect an idea about the law that social science and empirical evidence can show the court what needs to be done c. Restatements – thought to be very modern at the time i. Thought was that law should be codified so that judges do not have to pull the rules out of thin air ii. Experts are the best people to bring order out of chaos d. Late 1800s – goal is to record what law is, legislature to debate and draft the code e. Early 1900s – goal is to record what law should be, legislature not involved Jerome Frank and Legal Realism – Law and the Modern Mind a. Judges use thing other than law to decide cases i. Believe they are using cold logic and intellect, really decide based on unconscious impulses 1. Holmes says that they look to external forces b. Freud was still very current c. Holmes and Frank both say that there are human beings running the system – inherent to the system is that people are in charge d. Basic tenets: i. Law is uncertain ii. Always will have judicial discretion – and that is healthy iii. But judges should learn to exercise it in a systematic way iv. Skepticism about fact-finding and the value of law e. Holmes – can predict

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Frank – can’t predict anything, law does not predict conformity or not – red light example. Just because there is a red light law does not tell us anything about enforcement. g. Produced some reforms: i. Special verdict forms ii. Revised rules of evidence iii. Fact-finding process more scientific h. 1940s saw a shift away from legal realism – WWII = use of positive law to enforce immorality, stripped away moral conduct of law Substantive DP – Judicial Reaction to the Regulatory State 1. Magna Carta a. Fundamental rights and liberties 2. Calder v. Bull a. Under natural law people come into society and give up rights, but they do not give up rights to property. Cannot take property from A and give it to B. 3. Dred Scott a. Law that interferes with slavery in the territories violates substantive due process 4. Dartmouth College a. Basis of substantive decision was contract law 5. Lochner a. Participation in the war has enormous effect on the economy and the political system i. Wartime urges gov’t to provide certain things and regulate activities ii. Growth of Federal Economic Regulation 1. Growth of RR 2. Growth of economy 3. Emergence of large corporations/trusts b. Conflict: state police power to regulate for health, safety and morals AND protected rights including the right to property and right to contract c. State courts struggle with the question of under what circumstance can the state regulate and under what circumstances will regulations be struck down d. High-water mark for SDP – liberty to contract unless restriction is rationally related to the police power 6. Regulations Upheld: a. Munn i. People have fundamental right, but when they enter society they give up some of those rights for the common good ii. Rights can only be taken away in connection with valid exercise of police power 1. essential to public well-being = police power b. Holden i. Statute may limit number of hours worked because employee and employer do not have equal bargaining power ii. State was regulating hours of miners iii. Paternalistic – involved health and liberty to contract c. Slaughterhouse: d. Muller i. State may regulate relationship between women and employers because women need special care just like minors do – physically weak and disadvantaged

f.

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ii. Brandeis brief – seen as an advance because he was presenting social science facts to the court and the court was relying n those facts 1. Wrote LR article with Warren on privacy a. New machines prompted privacy concerns b. Right to Privacy iii. Also, protection for women was seen as positive thing Regulations Struck: a. Jacobs (NY 1885) i. State law banning production of tobacco products in tenements ii. SDP in state courts iii. Any law which destroys property or its value or takes away any of its essential attributes, deprives the owner of the property b. Allgeyer (1897) i. States cannot interfere with liberty of contract – including labor contracts ii. Struck statute regulating writing of insurance coverage by out of state firms c. Lochner i. Struck because it limited maximum hours of bakers – liberty to contract ii. Holmes in dissent argues that the court is responding to what it believes is good social policy and this is not the correct approach d. Slaughterhouse dissent i. There are fundamental rights that cannot be interfered with, laws that interfere with livelihood violate DP

Jury Nullification 1. Zanger – wanted judge to yell at him 2. Anthony – puts the cuffs on and yells in streetcar 3. Sedition Act – big argument in front of jury re: what jury can and cannot do Compare Court’s Response to IR and Court’s Response to Regulatory State (Gaudion 87) 1. IR a. Change in economy 2. Regulatory State a. Change in economy

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