American Legal History Outline

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					                                American Legal History Outline

I. The Reconstitution of Judging in America

Antebellum Period
-In practice the Federal government resisted availing itself of the implied powers
-State governments had the principal responsibility for ordering society
-Regulation under the common law, most disputes settled this way in state courts

Changing Theory of Judging at Common Law
-Horwitz argues that between 1780 and 1820 there is an emergence of an instrumental
conception of the common law, that American judges moved from a declaratory conception to an
instrumental conception
-Instrumental Conception:
        (1) Explicitly concerned with the social consequences of legal rules
        (2) Impulse to adapt and transform the common law, to the spirit of the age
        (3) Adjudication is conceptualized as lawmaking and not merely law discovery
-There were barriers to creative judging, theoretically and institutionally
1. Legal theory: common law seen as an eternal set of principals that were fixed and embedded
in precedent and were static rather than dynamic (common law as derived from natural law)
        -Idea that legislatures were the appropriate way to bring about social change
2. Institutional Barriers:
        -Legislatures interfered with the judicial process in ways we would find strange today
        -Juries had control of questions of both fact and law
        -Structure of the court system (Appellate courts had juries and witnesses)

Reception Statutes
-New state legislatures enacted statutes receiving the common law into their state jurisdiction
-Statutes are specific about what common law they adopt: only judicial decisions of English
Courts, and statutes declaratory of common law rules
-States refused to be bound by statutes that changed common law rules
-Theory was that legislation and common law were different
-Legislation is made, so it is the declaration of the will of the sovereign
-Common law is discovered from natural principles of justice
-Consequences of this differentiation between common law and statutory law on the judicial
function: they were just discovering and applying preexisting legal rules
        -This leads to a strict rule of stare decisis

Dissolution of this Conception of Law
-Horwitz tells us this conception began to dissolve early in the 19th Century
-Emerging positive conception of law, resulting from a realization that the common law was
itself insufficiently predictable and certain
-Institutional Features: no widely reported decisions, powerful role of the jury
-The fears of judicial discretion gave way to a perception of courts as lawmakers
-This all culminated in the common law of crimes

       -Coterminous Power Theory: Regulatory jurisdiction of Congress and judicial
       jurisdiction of the Courts is coterminous, meaning that any statute created by Congress
       can create a federal question
       -Major question was if there was a federal common law of crimes

U.S. v. Hudson and Goodwin
-Seditious libel was a crime; at common law in England this was a crime, saying something that
brought the government or a government official into disrepute
-Questions is whether there is a federal common law of seditious libel in this country
-Court holds that a federal court can’t convict a defendant of a crime not proscribed by an
applicable statute; SO, there is no federal common law of crime in this country

New Conception of the Common law
-St. George Tucker says that the common law is different everywhere because it reflects the
economy, culture, and society of each area of the country
-Since there is no national culture, the idea of a federal common law of crimes makes no sense
-In the Whorl case, Chase says that common law of one state is not the common law of another
-So common law is not discovered but is fixed and is a function of each state’s culture
-Perception that the common law was merely the product of the whim of judges, generating a
move for codification, and raising new questions about the legitimacy of the common law
-Question is what the foundation of the common law is going to be, if it is not fixed, natural law
-Consensual theory of the common law linked to the doctrine of popular sovereignty (the idea
that sovereignty resides in the people)
        -In order to be legitimate, it must be grounded in the consent of the governed
        -Because common law was based on custom and custom arises from voluntary adoption,
        the common law was based on consent
-The people had given implied consent to the common law; if you don’t try to change it through
the legislature then you are agreeing to it
-Judges as architects of the legal system--they make law; people consent to the laws judges make
by the failure of the legislature to make laws abrogating the rules given by common law courts
-Hierarchy of Law: Constitution, Statutes, Common law

Transformation of the Conception of Precedent
-Old idea was a strict rule of precedent, of suspicion of judicial innovation because then the
judge would be making rather than discovering law
-New instrumental theory is that the common law is not simply the will of the judge but it is the
will of the people, enacted by their judicial agents
-Justification for precedent had changed; not in order to avoid making law, but instead a
functional or instrumental justification

Institutional Change
-Concerns with uniformity and predictability causes judges and legislatures to employ new
techniques in judicial procedure
-One of the developments is the abolition of having juries on appeal
-Legal information became easier to come by with the emergence of a distinct American legal
literature; ready availability of reported cases better allowed judges to harmonize their decisions

Calder v. Bull
-Conn. legislature passed an act giving the defendant a new trial in a will contest (not unusual)
-New trial is challenged as being an ex post facto law
-Supreme court says this is not an ex post facto law because no criminal punishment
-Only retrospective laws making something a crime after the fact are ex post facto
-Merely effecting the rights of property is not within the ex post facto prohibition
-Given this holding, litigants began to turn to state constitutions to fix the problem

Merrill v. Sherburne
-Granting a new trial is an exercise of judicial power, it is retrospective in nature, adjudicating on
a case that has already happened; Case says that the legislature is not a branch of the judiciary
-Separation of powers argument, since the judiciary would not be a check on the legislature if the
legislature could alter the judgments of a court at will

New Mechanisms for Controlling Juries:
1. Compulsory Instructions: in the 19th Century, judges began to submit clear instructions, and
appellate courts began to require that instructions on every point of the law be submitted
2. New Trials: courts began to set aside jury verdicts as contrary to the law (JNOV)
-Courts also began to set aside verdicts as contrary to the weight of the evidence, which was an
incursion on the jury’s traditional fact finding role
3. Transforming issues of fact into issues of law

Summary of the Emergence of the Instrumental Conception of Law:
1. Popular sovereignty: common law as an expression of the will of the people
2. New separation of powers distinction: judicial and legislative authority, finality of judicial
decisions, judicial autonomy
3. New mechanisms for controlling juries
4. American legal literature and jurisprudence

Why did all this stuff happen as it happened when it happened?
-Horwitz offers two different possible answers
        1. The ideas in American law drove the development
        2. Economic and social change between 1780 and 1820
-Trade patterns were completely transformed: before independence the colonies traded solely
with Great Britain; after the war international ports within the empire were closed to the colonies
-New economic institutions in the U.S. like banks and especially insurance companies
-As insurance companies emerge, there are two different sides and antagonistic interests,
resulting in considerable increase in marine insurance litigation
-Previously accepted rules of insurance law came under attack by merchants because of the
reconfiguration of the insurance industry
-From 1793 to 1808, the U.S. shipping interests were the carriers to the world because we were
neutral and the world was at war; but, wartime required lots of marine insurance
-In 1808 the Embargo with European nations went into effect, so American financiers took
capital out of shipping and put it into an emerging manufacturing section
-American judges wanted to be creative about emerging industries and the notion of popular
sovereignty provides the theoretical justification for this

II. The Transformation of Contract Law
-Horwitz says that this transformation has a lot to do with the expansion of the American market;
more long distance transaction in which new forms of agreed upon exchange facilitate commerce

White v. Flora and Cherry
-Flora is the grantee under a grant from the state of NC to property in TN
-Flora’s problem is that he doesn’t know where the land is; he hires White to go find it for him
-Deal is that if White finds the property, he gets half and the option to buy the other half
-White performs within a day, but Flora goes ahead and deeds the property to Cherry
-Cherry has a bond of indemnity from Flora
-White sues Flora and Cherry for the value of performance
-Flora raises two defenses:
        1. Fraud: White knew where the land was but didn’t say so at the time of the contract
        2. Inadequacy of Consideration: White’s performance wasn’t worth what Flora
        promised in exchange for it so the promise shouldn’t be enforced
-Could says no proof that White knew where the land was, and quite difficult to prove it anyway
-Holding on fraud is that there is no duty to disclose knowledge of market conditions when
people have unequal knowledge
-Holding on inadequacy of consideration is that the function of contract law is to carry out the
will of the parties, not to undertake an equitable revision of the agreement after the fact
        -Courts will not set aside contracts on fairness grounds
-Seymore v. DeLancey (1824) involved a contract for the exchange of two country farms for an
interest in two city lots, basically a land speculation deal
        -NY Court of Errors said that mere inequality in value, which is not so gross as to strike
        the moral feeling of an indifferent man, is not sufficient to grant rescission of a contract

Goulding v. Skinner
-Machine cards weren’t good; Goulding sues Skinner to recover damages for breach of warranty
-Prevailing rule of the 18th Century was that a sound price warrants a good commodity
         -Implied warranty of merchantability
-Court says that if you want a warranty then ask for one
-Court refuses to remake contracts through equitable interpretation
-Caveat Emptor: let the buyer beware
-In McFarland v. Newman (1839), court rules that in the absence of an express warranty, the
rule is caveat emptor (this rule gives finality to bargains)

Changes in Contract Law
-These cases reflect a change in contract law, and the impulse of the 19th century common law
judges to control juries by transforming the questions of fact into questions of law
-Cases also reflect the rise of an individualistic ethic
-In 1780, Contract law was treated as a sub-category of property law rather than its own category
-With respect to contract in 1780, various writs were employed given different fact patterns:
        1. Indebitatus assumpsit (“He has undertaken to pay me money)
        -One party had to have completed performance before suing
        -Jury had complete discretion to determine who much the party would recover
        2. Special Assumpsit (closely associated with debt)

        -Had to do with the mercantile community in the transatlantic trade
        -Dramatic increase in trade in the 18th Century and colonial merchants engaged in long-
        distance, risky transactions
        3. Debt
-Two different systems of contract law in the earlier republic, one for merchants and one for
everyone else (they eventually collapsed into one)
-In Colonial America, most agreements were indebitatus assumpsit, between two people
-With special assumpsit you needed more preparation, it needed to be in writing and under seal
-Merchants took account of the possibility of breach in advance and negotiated a penal bond with
conditional defeasance (a bond is a promise to pay a specified amount on a set date unless the
conditions specified in the contract have been satisfied)
-So merchants made two contracts, one for the deal and another for the damage for breach
-When they would sue, the function of the jury was to determine whether there was a breach
        -Issue of damages was already settled, they had taken it away from the jury
-With a second document, they’re trying to keep juries from making equitable decisions
-Other ways to keep such cases and damage issues away from the jury: resort to arbitration or
practice before a struck jury (where you try the case to a jury of merchants)
-By 1820 the forms of action collapsed and took on common features we associate with contract
-Measure of damages became linked to a new standard: Market price at the time of the breach
        -All of contract law started to take on the characteristics of merchant contract law
        -No longer necessary to use the seal and penal bond
        -With damages taken away from the jury, less resort to arbitration

Horwitz’ Explanation for this Transformation
1. Deal between the bar and merchants that if they would stop turning to arbitration and start
coming to court, then they would give the merchants uniform damages
-Problem with this argument is that merchants didn’t need to come to common law courts in
order to get uniform rules because they were already getting them in arbitration and under
special assumpsit
-Democratization of contract law was the real effect; it didn’t transform the law that governed
the merchant’s contract, but rather the law that applied to everyone else

2. Emergence of a market economy
-From NY to GA had a very regulated market (licensing, fixed prices, etc.)
-New England had a more forward looking economy--prices had to be just but weren’t fixed
-Common law crimes of forestalling, engrossing and regarding (all restraints of trade)
        -Forestalling: purchasing commodities on their way to market in order to take them to
        market and sell at a higher price; holding goods off the market when price was low
        -Engrossing: purchasing a large segment of the supply of the commodity in order to raise
        its price when supply was low
        -Regrading: buying a good at market with the intent of reselling it at the same market or
        nearby market at a higher price
-By 1820 the key components of the NY to GA system had started to disappear and price fixing
is quite limited
-Goods that were still regulated had a unique place in the market or were unique public franchise

-Market price no longer fixed; abstraction of “what willing sellers demand of interested buyers”
-Transatlantic trade with Britain was over and naval blockades hurt trading with other countries
-Partially the regulation had resulted from a decline in supply
-Monetary explanation: independence allowed us to regulate our own currency and the wartime
governments put forth a massive infusion of paper money, resulting in inflation
-Combination of a smaller supply with inflation, so merchants and farmers tried to get windfall
profits selling food in local markets and to the army (regulation mean to stop this profit-taking)
-Opponents of regulation used the idea of civic liberty, laizes faire beliefs
-Just price replaced with the price of the market
-Madison’s Federalist 10: conventional wisdom was that a republic could only work over a
small area of land because only there would you have a sufficient homogeneity of interests
        -Madison says factions are the savior of republican theory; make it more stable
        -In a large republic you will have more factions and faction will check faction, vector will
        check vector
-Smith located the stability of economics in the diversity of interests, much like Madison locates
political stability in diverse interests (factions); rejection of an organic conception of community
        -Reconceptualization of our relationship to each other
-This change put juries and courts at a disadvantage when they’re assessing whether a contract
has been made for a just price, because there is no longer a fixed price
-Emergence of a subjective theory of value, both in price regulation and contract law, resulting in
the collapse of the forms of action

Government Securities
-One of the biggest problems in the new nation from 1786 to 1787 (the “Critical Period”) was the
stability of the money
-All of the states had issued securities and it was all depreciated; there was too much of it
-People were speculating in the currencies
-Hamilton came up with a financial plan for the United States, including a National Bank
-Plan was that the federal government was going to assume the state debt at par value
-Suddenly, the money was worth what it said, which created litigation on people’s past
agreements relating to the depreciated values, so people started to default on their obligations to
deliver depreciated state securities

Davis v. Richardson (1790, S.C.)
-Government bonds had increased dramatically in value and D had contracted to deliver
government securities before the report was issued
-In order to fulfill the bargain, he’d have to spend way more money
-Measure of damages is expectation, not restitution, so the value is the value of the bonds at the
agreed for delivery, not at the time the contract was negotiated

Sands v. Taylor (1810, N.Y.)
-Merchant contracted for a shipment of wheat; the price of wheat collapsed after Jefferson
declared an embargo on trading with Europe
-Merchant refuses to accept the shipment of wheat and pay the contract price
-Farmer sues for the difference between the contract price and the market price
-Court rules for the farmer, holding that:

1. Measure of damages is a question of law for the judge
2. Measure is the value at the time of breach
-So you should take potential market changes into account when negotiating a deal

Shepherd v. Hampton (U.S. 1818)
-Price of cotton goes up between the time of contract and delivery
-Farmer says the cotton is worth more than he contracted for so he sells for higher in the market
-Court holds the measure of the merchant’s damages is the difference between the contract price
and the market price at the time the cotton is due

Conclusions on Contract:
-Both contract and the market became abstractions
-Contract law became democratized, collapses the actions
-Notion of justice became commutative (what they bargained for) rather than distributive (what
is just and right)
-Merchants had set up a system to insulate themselves from those who might second-guess their
agreements and this was put in place for everyone

III. Property, Contract, and the Corporate Form

Fletcher v. Peck
-In 1795 major land grant made to four land speculation companies; grant was of about 2/3 of
Georgia’s western lands (the land companies had bribed everyone in Georgia’s state legislature)
-The speculators immediately turned around and sold the land at considerable profits
-In 1796 the corrupt legislature was voted out and the new legislature passed an act revoking the
land deal; it provided for rescission of the 1795 Act but no compensation for the 1795 purchasers
-Those now holding the land are mad because their title is insecure and they can’t sell the
property; Test case arranged in order to get a judicial declaration
-Peck sells 15,000 acres to Fletcher for $3,000 and Fletcher sues Peck for a refund of the
purchase money since Peck can’t deliver good title
-Fletcher alleges:
        1. 1795 grant is invalid because it occurred through corruption of the legislature
        2. As a result of the 1796 repeal act, Peck could not convey good title
-As to the first allegation, Marshall says courts won’t look to the motives of the legislatures
because they are difficult to assess; will only look to the statutes on their face
-Court of equity could set it aside as between the original parties, but as against those who have
purchased downstream, they are bona fide purchasers and we can’t set aside the transaction with
respect to them; Court holds that a bargain is a bargain
-To the second assertion, Peck answers that the legislature had no authority to repeal the act
-Court agrees on two grounds: (1) It impairs the obligation of contract, and (2) The legislature
was attempting to exercise judicial power
-By divesting a vested estate, rather than by proscribing a general rule for society, the legislature
was exercising a judicial power
-The repeal of the act is retrospective, so it was a legislative attempt to exercise judicial power
-Court is saying it is unconstitutional because it violates the separation of power

-Language in this case says what the legislature is doing is kind of like an ex post facto law, but
it can’t be since it is civil and not criminal
-Court is construing the separation of powers principles in the Georgia Constitution
-A legislative attempt to exercise retrospective powers is an attempt to exercise judicial powers
-Obligation of contract was the other argument, and this is what this case is mainly known for
-Marshall tries to make this into an executory contract even though it is fully executed; says there
is an implied contract not to reassert the right to the land; this supposedly renders it executory
-Rule is that the legislature binds the later generations

Background on the Corporation Before 1900
-The corporation was not the dominant means of organization
-Largely as a result of technology, corporations increased in the 19th Century, though most were
still transportation or insurance companies
-Functions of the corporate form:
1. Immortality: corporations can act as a single legal person
2. Could exercise special franchises and privileges not available to individuals
3. Mobilization of wealth for the public good
4. Limited Liability
-Legal status of corporations:
         -Could be established only by a grant from the government and the form was guarded
         -Every charter was tailor-made to a case at hand
         -Corporation was “an artificial being, invisible, intangible, existing only in contemplation
         of law” (language from Dartmouth College)

Government and the Corporation
-Complicated relationship because frequently the government took an equity position in the
company because it wants to establish things like transportation systems
-Charter is the corporate constitution and outlines the duties of the corporation under the grant
-If the corporation cannot prove their acts are valid, the charter is taken away

Classification of corporations
1. Aggregate and sold (number of shareholders)
2. Ecclesiastical and lay (church v. Non-church)
3. Eleemosynary and civil (charitable or not)
4. Public or private

Currie’s Administrators v. The Mutual Assurance Society
-Insurance company wanted to subdivide their risk groups by city and country, because risk of
fire is higher in the city
-Issue is whether the court can modify their charter:
1. Skepticism of the proliferation of corporations in general because they are inconsistent with
civic virtue, furthering only private ends
2. He rejects the notion of a distinction between public and private corporations; all are
chartered for the public good and can therefore be regulated by the legislature
3. One legislature can’t bind its successors; need to be able to alter or revoke corporation
charters that have been granted by a previous legislature

-All three of these are rejected by Dartmouth College
-This opinion rejects the distinction between public and private corporations which we see in
Kent’s commentaries

Dartmouth College v. Woodward
-Court in NH recognized the distinction between public and private, but in a different way
-If it is public then there is no problem, but if it is private then there are more problems
-Holding is that this is a private corporation and this intent of the founders governs
-This is a contract with the state, just like a land grant, that cannot be impaired by a unilateral
action of the state without the consent of the corporation
-Public is when the whole interest belongs to the government
-If the foundation is private, though under a charter of the government, the corporation is private
-Uses a bank created by the government and owned by the government as an example of public,
but says a bank with private foundation is private
-Focuses on initial investment of the money, time and labor, whether it is government or not
-If they had a principal that the government could take over whenever it wanted, then it would
extinguish all future eleemosynary endowments (people won’t invest if they have no security)
-General model of economic development; what induces this is security of property rights

Implications of Dartmouth College
-A corporate charter, once it has been issued, can’t be modified unilaterally by the legislatures
-So when corporations go into the legislative process to secure a charter, they try to get as many
things into it as possible since they can’t be taken away later
-Second thing corporations try to do is get the legislature not to include a provision that would
allow them to amend or repeal the charter

Constitutional Ironies
1. Irony in the public / private distinction
-McCulloch v. Maryland, same year, held the Bank of the U.S. as a public entity
-In Dartmouth College, a corporation private in ownership is treated as a private corporation
-In McCulloch, despite the fact that it was not entirely owned by the government (80% owned
privately), its public features are emphasized
-Perhaps what is driving these decisions is a result orientation necessary to generate economic
development in a new republic
2. Gibbons v. Ogden had to do with a steamboat monopoly between NJ and NY and the
steamboat monopoly sought to enjoin the competing steamboat company
-Court said the steamboat was operating under a federal grant, and that beat the state grant
-Whereas the contract clause doctrine suggested the steamboat monopoly could not be repealed,
the commerce clause doctrine held it could be effectively appealed through federal legislation

IV. The Transformation of Property Law
Blackstonian Conception of Property: Sole and Despotic dominion which one claims and
exercises over the things in the world in total exclusion of the right of any other individual in the

Prevailing Maxims at the Turn of the Century
1. Natural Use
2. Priority: First in time is first in right
3. Prescription: closely associated with adverse possession
4. “So use your property as not to harm that of another”
-If someone created a nuisance near your property you could either seek an injunction at equity
or seek damages at law

Tension in the Blackstonian Conception
-Notion of sole and absolute dominion constrained by the “don’t use your property so as to harm
that of another”
-Key word is “property”: it is a set of powers and rights and duties and privileges, etc.
-What constitutes your property is always defined in terms of the property rights of others
-Between 1800 and 1860 the courts work out this tension, redefining the scope of property rights
in such a way as to facilitate economic development

New Maxims Emerging in the 19th Century
1. Reasonable Use (replaces natural use)
2. Priority of right comes to be replaced by equality of right
-Newcomers aren’t necessarily excluded from competing with first comers
3. Sic utere is transformed (that you shouldn’t use your property to harm others)
-Injury resulting from economic development is increasingly held non-compensable
-Harm without legally cognizable injury; happens first in the context of the industrial revolution
in New England, with the development of water driven technology
-1760 doctrine is the “natural flow doctrine”; water in its natural channel is part of nature’s plan;
any diversion of its flow is impermissible

Palmer v. Mulligan
-Situation in each of these cases is that there is an upstream mill proprietor who builds after a
downstream mill proprietor has already occupied a site on the stream
-As a consequence of building the dam, he disrupts the flow of the stream to the downstream mill
and as a consequence affects the water power available to the plant
-Question is whether the first party has a claim, and Palmer v. Mulligan says NO
-Arriving first does not imply the power to exclude all others from reasonable uses
-Court here says “little inconveniences” so long as they are reasonable, have to be endured
-They have to be endured because competition is the key principle
-This ruling might be good because of competition (no monopoly) and technological
improvement over time
-Conflicting and even injurious uses of property were essential to economic development

Cary v. Daniels (Mass. 1844)
-Upstream proprietor is there first and a large cotton mill comes second and builds a big mill
pond and backs up the water, raising the water so that the paddle won’t turn
-Full of utilitarian analysis, can’t frustrate technology that economic development brings
-Need and wants of the community render the upstream mill owners injury non-compensable

-Two ways we see courts manipulate the doctrine of nuisance in order to facilitate economic dev.
1. Ask whether the technology itself falls under the category of nuisance (Ex. RR, ironworks)
-Most courts would not hold these as nuisances because of the public benefit
2. Industrial discharge (smoke mostly), ask whether people effected by the soot put out can seek
an injunction to try to shut down the company as a nuisance
-Courts handle these cases by addressing in a utilitarian fashion whether this is or is not nuisance
-The other way is to look at private nuisances versus public nuisances
        -Private nuisance is an activity that generates a damage that is peculiar to the plaintiff
        -Public nuisance adversely affects people in the community generally
-At common law a person harmed by a private nuisance could bring suit, but a public nuisance
could be stopped only by a public official bringing an indictment to enjoin the nuisance
-Court tended to expand the concept of public nuisances in order to insulate various forms of
economic development from attack from plaintiffs

Fish v. Dodge
-Fish operates a small steamboat factory, right next to Mrs. Dodge’s boarding house
-Court ordered abatement of the nuisance; it was a private nuisance peculiarly effecting her

Campbell v. Seaman
-Brick making harms the whole town
-Court says this is a public nuisance and only the state attorneys can bring an action to abate it
-Public nuisance doctrine shifted the authority to public officials to make decisions whether it
was in the public interest to pursue the action

Thurston v. Hancock (Mass. 1815)
-Hancock buys the other lot and digs a hole right next to the property line, 40 feet deep
-This undermines the lateral support for Thurston’s house, making it unfit for habitation
-Supreme Court denied Thurston damages, says that a man who builds a house adjoining his
neighbor’s land ought to foresee the use of his neighbor’s land and should secure himself against
future damages
-“He builds at his peril” for he couldn’t deprive the other property owner of the use that he
should deem most advantageous for his land

Parker v. Foote (NY 1838)
-Court rejected the doctrine of ancient lights, saying the defendant owed the plaintiff nothing
-Court says the portions of the common law of England hostile to the spirit of our institutions or
not adapted to the existing state of things in our country is not part of our law
-Doctrine of ancient lights would also create perverse incentives where a property owner has a
reason to obstruct the light within 20 years so that the other person will not get a prescriptive
easement over his land

Greenleaf v. Francis (Mass. 1836)
-Greenleaf has a well about two feet from Francis’ property line
-Well is fed by underground springs that have their source in Francis’ property

-Francis knew where Greenleaf’s well was located and he knew it was productive, so he built
one four feet from hers, but on his property
-Mass Supreme Court gives no compensation to Greenleaf

Radcliff v. Mayor of Brooklyn (NY 1850)
-City is involved in grading streets and in doing so they remove a bank that has been a lateral
support to Radcliff’s adjoining property; so a portion of the lot falls into the street
-Court holds it is not a taking; no invasion or occupation of his property, they never touched his
property, damages were consequential
-Reasoning that roads are for the benefit of everyone, and with no road his property is useless

Auburn & Cato Plant Road Company v. Douglas (NY 1854)
-Douglas builds a road that goes onto his property and around the toll booth
-Courts says this is a non-compensable consequential injury to the company
-They say while sic utere is a good moral precept, it is utterly useless as a legal maxim
-Douglas is making a legal use of his property with the road

Governmental Actors

Callendar v. Marsh (Mass. 1823)
-City undertakes a public works project involving a re-grading of a road
-Callendar’s house used to be on the road, but now it is on a cliff, 17 feet above the road
-Mass court says this is not a taking because the city stayed on public land
-Those who purchase house lots bordering upon streets should calculate the possibility that a
street might be re-graded; should indemnify themselves against it through the purchase price
-No monetary injury here because presumably the risk that the front door will end up 17 feet
above the street has already been figured into the purchase price

Hollister v. The Union Co. (Conn. 1833)
-Union Co. chartered by the State to remove obstructions on the Connecticut River
-Changed the course of the river in doing so and Hollister’s land was slowly washed away
-State was making reasonable use of a public way; injury is only remote and consequential
-Didn’t want to allow alleged property rights of individual landowners to stand in the way of
material progress, so the injury was non-compensable

Barron v. Baltimore (Md. 1831, U.S. 1833)
-Barron had an extensive and highly productive wharf, enjoying the deepest waters of the harbor
-City of Baltimore undertakes a public works project, changing the course of several streams and
now they converge in the area of the harbor where Barron is located, and over time the streams
deposit silt, sand, and gravel on the floor of the harbor
-Barron is left with a lovely wharf in a big patch of mud, half a mile from any water
-Md. says this is not a taking b/c the 5th Amendment doesn’t constrain the states; Court doesn’t
consider compensation because if the 5th amend. doesn’t apply then compensation is irrelevant

Henry v. Pittsburgh & Allegheny Bridge Co. (PA 1844)
-Company is chartered to build a bridge over the river, which has to be a ways above the river

-The road is built up to accommodate this; Henry now looks out her front door to a mound of dirt
-Court says no taking because none of her land was invaded and her property is unchanged
-Reduction in value is a consequential injury; apparently she should have anticipated it and paid
less for her house because a company might come along and built the road up 12 feet

Van Ness v. Packard
-Case was about whether something you erected on property then belonged to the land owner
-Tenant erected something on the property and removed it in this case
-Common law rule was that improvements belonged to the land owner
-Dartmouth College said that if you can modify or devalue the franchise unilaterally at any time,
no one is going to establish such an institution; same insight here that the doctrine of waste is
anti-developmental b/c it reduces the incentives for tenants to improve lots that they have leased
-Traditional Trade Fixtures Exception to the common law rule: Story rests the opinion on this
rather than embracing wholeheartedly a pro-developmentalist opinion

State Actors
-Doctrine of consequential injury opened up the world to infrastructure development by private
companies and municipal authorities acting in their own regard
-Situations in which state actors are not merely operating on public property with consequential
injury to private property, but are also required to take private property in order to make the
infrastructure improvements they want to make
-State legislatures included in their corporate charters the power to exercise the power of eminent
domain, which could be exercised by a private corporation that was a delegate of the state
        -A corporation exercising a public function
-How do we treat the delegation by a municipality or state of the power to exercise governmental
authority to a company that is private in foundation?

Bonaparte v. Camden & Amboy RR (CCDNJ 1830)
-RR given the power of eminent domain; exercises it to take a portion of Bonaparte’s land
-Bonaparte says it is a private company so it can’t exercise the power of eminent domain
          -Argument that private property can only be taken for public uses
-Court says the foundation is not determinative -- the fact that it is private in foundation does not
exclude eminent domain; Court says you should also look to the use of the property, so the
question is whether the land is being taken for a public use
-True criterion is whether the use is for public convenience or private benefit, and whether the
public can use the railway by right and not by permission
-If it is public in use, it can receive a governmental power like that of eminent domain

Eminent Domain
-By mid-century the dominant public view was that a corporation might be regarded as a public
instrumentality; Corporations eligible for eminent domain incurred the responsibility to do
business with the entirety of the public on equal and reasonable terms
-In the wake of the collapse of market regulation we see rising a new entity that is public in
nature that incurs public obligations

Taylor v. Porter (NY 1843)
-Colonial statute that permitted one property owner to exercise eminent domain over another
-NY App. Ct. said this was unconstitutional, a taking of private property for private purpose
-Can’t take property from one person and give it to another

Harding v. Goodlet (Tenn. 1832)
-Legislature had authorized eminent domain for purposes of acquiring land on which a sawmill
and paper mill were to be erected; Such mills were held to have no public character and erection
of them would be for a wholly private use, so they couldn’t do it
-Only corporations private in foundation but public in use could use eminent domain

Other Limitations on Consequential Injury Damages
-Another way to do this is to limit the amount of compensation required to be paid by the entity
when the eminent domain power is exercised
-State legislatures try to deal with this by eroding the power of the jury and delegating the power
to determine just compensation to state commissions
-Price was also held down by the Set-Off Doctrine
-First seen in mill acts, where a mill owner could erect a mill dam that would flood an adjoining
property as long as he paid just compensation (which would presumably be the land value)
-Set-Off Doctrine developed to say that the person who had his property flooded may derive
some benefit from having it flooded, such as irrigation; so the amount of damage is reduced by
the value of benefit conferred
-In the railroad context the same thing happened; your property became more value because it is
next to a railroad, so there is a reduction in the damage award because of this

No Damages for Consequential Injuries and Railroads

Richardson v. Vermont Central RR
-RR owns property adjoining Richardson’s lot, both on the south and north
-On the south they excavate a ditch so close to his lot line that a portion of his lot collapses into it
-On the north they build an embankment so it is difficult to get to the nearby highway
-No recovery for loss due to the excavation because a man has dominion over his own land and
over the space above and below unless it is contracted around
-No recovery for loss due to the embankment because the damages are only consequential

Bellinger v. NY Central RR (NY 1861)
-Land flooded by RR construction because of changes in the water drainage
-Washed away soil, manure and deposited garbage on his land
-Held: not a taking following Mayor of Brooklyn v. Radcliff because RR is acting under
authority conferred by statute and the injury is consequential and non-compensable

Judge Hurst: Says law in the 19th Century was about the release of creative energy of the
American people so as to foster economic growth
-Other famous formulation was that the courts and legislatures favored dynamic rather than static
property; property in motion and at risk rather than property at rest and secure
       -Entrepreneurial interests over rentier interests

Public/Private Entity Developed in Response to Incentives for Infrastructure Development
-Most state courts validated the legislative authorization of funds to the RR by important public
use doctrine into the area of public finance and taxation law
-You couldn’t use tax dollars to finance a purely private corporation (no public use)

Sharpless v. Philadelphia (PA 1853)
-Lehigh RR got the city to issue municipal bonds for the RR; taxpayer says the taxation required
to finance these bonds is a taking of his property b/c the taxation is taken for a private use
-Taypayer loses; majority opinion says that the RR is public in use and everyone can use it
-Because it is public in use it can receive the power of eminent domain and tax subsidies

Whiting v. Sheboygan & Fond du Lac RR (Wisc. 1870)
-Contrary to above case; holds that RR are private, so a grant of tax subsidies is a taking
-Conceded that railroads can exercise eminent domain, but this was an exceptional allowance
-But, Wisconsin still thought that RR could be regulated (reasoning that they are public…)

Olcott v. Fond du Lac RR (U.S. 1873)
-Supreme Court said that RR are sufficiently public to use eminent domain and get tax subsidies

Loan Association v. Topeka (U.S. 1874)
-Topeka had issued municipal bonds to attract and finance a private company that was going to
build a factory to make iron bridges
-Financial panic in 1873 is followed by a recession and they decide to repudiate the bonds
-Court held the bond holders couldn’t collect; taxation to pay off the bonds was a taking
-Public purpose limitation played a part in some public relief problems, and these precedents also
impeded welfare and social insurance
-Public/private distinction grew into a bulwark against redistributive policies

Jones v. Portland (U.S. 1917)
-Taxpayer challenged the establishment of a municipal fuel yard at which city authorities sold
wood and coal and other fuel on a non-profit basis
-Holding that the city could supply heat through a public energy utility, and so they could do it
through a public fuel yard

Green v. Frazier (U.S. 1920)
-Court upheld a state statute authorizing public finance of state-run enterprises
-Taxation to support these state run enterprises was for a public purpose
-Legis. represented the people, so it was the appropriate judge as to whether something is public
-Go from judicially imposed constitutional requirement to political requirement imposed by leg.
-Judiciary ought only to interfere where the legislature clearly exceeded its authority

Social Security Cases
-Court upheld a state act creating a system of compensation for unemployment
-Court stated it would interfere only in a plain case of departure from every public purpose which
could reasonably be conceived

Berman v. Parker (U.S. 1954)
-Public use limitation in eminent domain is a political question; court defers to legislature

Hawaii Housing Authority v. Midkiff (U.S. 1984)
-Court upholds the Hawaii legislature’s action in exercising the power of eminent domain to
break up vast feudal estates established prior to U.S. acquisition and redistributing it
-Case relies on Berman

Disappearance of Public Purpose Limitation
-Public purpose limitation disappeared in public finance and eminent domain
-We do still have a public purpose limitation though:
1. Federal tax policy: Under Federal income tax law, the interest income from municipal bonds
is exempt from taxation (federal subsidy of municipal development)
-Congress in some instances has restricted this exemption, effectively imposing a public use limit
2. State constitutional law: Even after the transformation in federal public law, we see the
persistence in public use and purpose limitations in some form enforced in state courts
-Eventually the states began to follow the federal rule, with two exceptions
        1. The South has generally been less enthusiastic about govt intervention in the economy
        2. Between 1950 and 1960, revival of the public purpose limitation on public finance
        -Height of the cold war, but this period was an anomaly

Price Regulation
-Price regulation emerges in railroads and grain elevators
-Problems were that the rates were too high and there was discrimination in the rates
-Merchants and farmers had paid pretty high taxes to subsidize the railroads, and now they
thought the railroads were gouging them and the money was being used to just liquidate the debt
of the railroad for the non-local investors
-Regulatory impulse emerges out of this context

Granger Cases (1877)
-Question is what constitutes a taking of private property; to what extent does regulating the rate
charged by an enterprise take its property?
-Problem with RR rates was not only that they were too high, discrimination also disadvantaged
some farmers and merchants; Rate regulation was enacted to deal with this problem
-Those with just one railway are paying more because there is no competition, and those with no
railway were against railway regulation because they wanted to attract one to their area
-Grain elevators were also an issue; the owner of the elevator had to get the RR’s permission to
build on their right of way; the RR would allow them to do so for a percentage of their profits
-In return, the RR agreed to not to grant the right of way to anyone else to compete with them
-Calls in the Midwest to regulate the rates on grain elevators
-They justified the regulation the grounds that the existence of a monopoly was a special case
-Elevators argued that they were private, and prices charged by private enterprises is not subject
to regulation; argued prescribed rate is lower than market rate, so the regulation took their private
property (margin between the prescribed rate and market rate was taken) w/o compensation
-Court said that railways and grain elevators are peculiarly subject to rate regulation because they
are businesses “affected with a public interest”

Burlington v. Beasley (1877)
-Court upheld a Kansas statute for a local bond issue to subsidize a steam powered grist mill
-Argument that grist-mills were quasi-public
-Public because you can use it by right; it holds a virtual monopoly in a community like a grain
elevator, so it is a proper recipient of the power of eminent domain and tax dollars
-Supreme Court agreed with this argument that gristmills qualified as internal improvements
serving a public purpose, and as such were eligible for public aid
-Dissent worried that the boundary put forth here between public and private would take in too
much private enterprise, allowing too much government promotion of private business
-These were exceptions to a general, Constitutional rule against price regulation

Nebia v. New York (1934)
-Scheme of price regulation for milk; court transformed price regulation into a political question

V. The Charles River Bridge Case

Charles River Bridge Case
-Conceptualize in a variety of different ways: (1) Contract Clause Case, (2) Caveat Emptor
Case, (3) Reasonable Use Property Case, (4) Takings Case, and (5) Case reflecting two
different models of economic development
-Story in Dissent says that the law in two precedents (Thurston and Callendar) is
incomprehensible and should be inapplicable here; he was caught between a world of stable
exceptions and monopolistic privilege and a new world of competition
-1786 charter for 40 years, could take tolls and after 40 years it would revert to the state
-Later the legislature granted the Warren Bridge Company a charter for a bridge very near to the
Charles River Bridge; deal is that the bridge can collect tolls until it has recouped its costs, can
take no more than 6 years to do so, and then it becomes a free bridge
-They couldn’t enact a statute saying the Charles River Bridge could henceforth be a free bridge
because of Dartmouth College; it would be the unilateral modification of a corporate charter,
which is a contract with the state
-As to eminent domain, this would have been a taking of private property for public use
-The problem is provision of just compensation; they would have to pay them the monopolistic
toll out to 1856; instead they chose the option of chartering a competing bridge

Procedural History
-Federal Question here is impairment of Contract, just like in Dartmouth College
-Charles River Bridge had lost 3-2 before the Mass. Supreme Court

Case Arguments
-Charles River Bridge Corp. relied on the notion of priority with respect to ferries
-Argument was that the 1786 bridge charter was a substitute for the Harvard Ferry, so the bridge
can claim the status of an ancient ferry
-They also argue that the charter of the Warren Bridge impairs the obligation of contract in
violation of Article 10, and that it is a taking of private property without just compensation
-Can’t be a 5th amendment takings claim because Barron v. Baltimore told us that the 5th
Amendment doesn’t constrain the state legislature

-Argument: Common law nuisance, takings under State constitution, Section 10 claim
-Only the contracts clause claim is up for decision as a federal question

Contract Claim:
-No one disputes that this is a contract, but the question is whether it is an impairment of contract
-Story’s position is that no one would enter into a contract like this if they thought the state could
just charter another bridge right next to it, so there was an implied term of exclusivity
-By this time, there are no implied warranties: caveat emptor
-Taney wanted strict construction of the corporate charters; he is telling the Charles River Bridge
that caveat emptor applies and they need to get the monopoly in their charter if they want it
-Taney is reasoning from a more modern regime of contract law, whereas story is reasoning from
the way people were reasoning earlier in time; Taney doesn’t really address the fact that the
Charles River Bridge company was relying on the way the law was when they formed the charter

Property Claim
-Question is whether the contract means that no other bridge can be built in the Boston area
-Story says the grant means that you only have this right within a reasonable distance (reasonable
use implication)
-Taney doesn’t reply because this is a contract case; property question is one of state law

Takings Issue:
-Story says it is a taking b/c CRB used to be worth $20K a year and now they’re worth nothing
-Taney doesn’t address this topic because there is no federal question

Models of Economic Development:
-Story has a different theory of economic development, which is why he makes this argument
-Story thinks the best way to get investment is to protect property rights
-Taney wants to foster development in new technology
-Story says that this problem can be solved by just compensation, where the companies can
themselves reinvest in the new technology
-Risk-Protection Model of Economic Development v. Low Cost Competitive Model (Taney)

Ideas Emerging from Charles River Bridge Case
1. End of the idea that a franchise from the state includes the right to exclude competition
2. In Mass opinion we see the affirmation of the emerging takings doctrine that a physical
trespass is required, reaffirmation of Callendar v. Marsh
3. Principle that the corporate charters must be strictly construed in the U.S. just like they were
under English law
4. Will theory of contract, caveat emptor: any immunity or right that a corporation wants must
be expressed in the charter, it will not be implied

Salem & Lowell RR (Mass 1854)
-B&L RR sought a corporate charter; it got a 30 year route monopoly and waiver of the
reservation clause (clause where the legislature reserves the right to modify the charter)
-Mass legislature subsequently authorized another RR to service the same route

-There was an injunction proceeding against the second RRR and the B&L RR was successful
because they had a 30 year route monopoly expressly in the corporate statute

West River Bridge v. Dix (U.S. 1848)
-Grant of corporate franchise to an outfit building a bridge
-Waiver of reservation clause and the state of VT took the bridge, paying just compensation
-The bridge claimed that this violated the contract clause
-Court said that even without a reservation clause, the state can still exercise the power of
eminent domain over a franchise as long as it pays just compensation

Dodge v. Woolsey (U.S. 1855)
-Ohio Bank and Trust Co. gets a perpetual immunity from taxation from the state legislature
-Constitutional convention includes a provision in the new OH constitution that both
prospectively and retroactively prohibited the granting of perpetual tax exemptions
-The next year, relying on this provision, the legislature taxed the bank
-Challenged and the Supreme Court held that the tax exemption could not be retroactively
withdrawn, relying on Dartmouth College and NJ v. Wilson

Generalized Corporation Laws and Dual Chartering Systems
-To deal with the problem that state legislatures were being compliant to corporation’s demands,
general corporation was devised; this is where our modern corporate laws come from
-General incorporation laws provide for no exclusive franchises or privileges, the form of the
corporation is open to all on equal terms
-Between 1845 to the beginning of the civil war, several southern and western states enacted
generalized corporation laws and forbade private incorporation and extension of exclusive
franchises to corporations; didn’t happen much on the East Coast though
-In the east they created dual chartering systems where you could incorporate under the general
incorporation laws or under a special act of incorporation
-In the states with dual chartering systems, it was almost 10 to 1 in favor of private incorporation
because you could get exclusive franchises and privileges from the legislature in that way

VI. The Transformation of Tort Law

-Between 1800 and 1860 we move from nuisance and strict liability to a regime of negligence
-By 1860 negligence is the dominant form of tort liability; it is tied to the notion of carelessness,
the ideas of fault, breach of a duty of care that one has toward others, and failure to take the care
that a reasonable and prudent man would take under the circumstances
-Lawrence Freedman claims that the revolution of tort law is due to the industrial revolution,
especially railroads, which killed and maimed thousands
-With tort in the old regime, there were two different causes of action used:
         1. Trespass: strict liability doctrine, used to redress a physical invasion of one’s person
         or property; no need to show that D was negligent
         -Fact of injury gives rise to liability, so the jury would just determine damages
         2. Trespass on the Case (“Case”): used for redress of indirect injuries
         -Must be some fault or illegality on defendant’s part; became what we call “negligence”

-We get from nuisance to negligence, from property to tort, to standard of care as a generalized
duty, starting with the reasonable use cases
-Movement from nuisance to reasonable use, from Blackstonian conception of sic utere to the
allowance of uses of property that impose some consequential injury on the neighbor
-Most actions in trespass and case were brought in nuisance, which is a strict liability regime
-How do we get from strict liability regime in nuisance to negligence regime dominant by 1860?
        -General subsuming of trespass and case into negligence

Patten v. Hastead (NJ 1975)
-Case against sheriff for negligently allowing the debtor to escape prison
-Not negligence as a general duty, but negligence of a duty imposed by virtue of his position
-Failure of a public officer to perform his duty is the usual case like this
-Case punished failure to perform a preexisting duty arising out of contract or fixed by law

From Nuisance to Negligence
-These claims seemed to often be property claims, but they are moved into tort
-Reasonable use doctrine and doctrine of consequential injury limited the liability of economic
actors in the same way that a negligence principle limits the liability of economic actors
-Reasonable use cases permit the injuries to be inflicted without liability, so long as the
defendant acted with reasonable skill

Hentz v. The Long Island RR
-Court says that a RR is not a nuisance per se
-Even if you are not per se a nuisance, you will be held to a standard of reasonable care
-Instrumental rationale curbing a regime of strict liability and instead using a standard of care
subjecting enterprises to liability for failure to act with due care
-For enterprises with statutory authority, plaintiff must show a lack of care to prevail
-Where the grantees have not exceeded the power conferred upon them, and where they are not
chargeable with wants of due care, no claim can be had against them

Bellinger v. NY Central RR (NY 861)
-Allowed the RR to build across a stream, which flooded the property of an adjoining landowner
-Ct held no recovery without negligence, b/c a road built under public authority can’t be nuisance

Ellis v. Portsmouth and Roanoke RR Co. (NC 1842)
-Sparks from the chimney on the RR burns Ellis’ fence
-Defendants can’t put on evidence to show they had used a “spark-catcher”
-Court says where A shows damage resulting from an act of B, which with the exertion of proper
care does not ordinarily result in damage, A can recover unless B shows he acted with due care

Burroughs v. Housatonic RR Co. (Conn. 1842)
-RR fire case, sparks from the chimney ignited Burroughs’ cider mill
-Court says the RR acted in compliance with the terms of its charter, and negligent performance
of a lawful activity will give rise to liability in an action on the case, but there is no liability for
injury unless it is shown that the act was not performed with due care
-Injury that arises from want of skill or negligence leads to liability

Effects of Moving from Strict Liability to Negligence:
1. Reduces defendant’s liability
2. Conflation or increasing irrelevance of the forms of action (negligence becomes the standard
for both trespass and case)
-Liability for direct injury in the absence of fault seen as a deterrent to enterprise and investment
-Law of tort and property assimilated: Property=consequential injury, Tort=movement to neglig.
-Horwitz finds some evidence of negligence as a requirement as early as 1820, though more
commonly in case than in trespass; he says Brown v. Kendall is merely the culmination of a
development that had already taken place, not the single event by which trespass and case are
collapsed and a standard of care is imposed upon all (as Gregory argues)
-Horwitz thinks we were subsidizing economic development of the railroads in the RR cases
        -Redistribution of wealth from injured people to economic institutions
-Brown v. Kendall pushes against their thesis because Kendall is just a guy trying to break up a
dog fight, and there is no relation to economic development in the Antebellum period

Brown v. Kendall
-Direct injury, the one guy his the other guy in the eye with a stick
-Shaw says no liability because no showing of negligence, even though it is plead in trespass
which requires no showing of negligence and provides for strict liability
-Collapses trespass and case into a single cause of action
-Negligence principle is said to apply to all human conduct lawfully embarked upon
-Lurking behind this opinion is another principle: contributory negligence

Negligence Standard and Burden of Proof
-Doctrine of re ipsa loquitur: in certain types of cases the burden of proof is shifted form the
plaintiff to the defendant
-In the 18th Century, one acted at his peril; in the 19th century one acted with virtual impunity
-In the mid 19th century this was because of the movement from strict liability to negligence
-Even if you proved negligence, there were a trio of defenses: (1) Contributory negligence, (2)
Assumption of risk, (3) Fellow servant rule

Bush v. Brainard (1823)
-Court holds that one cannot recover from an injury, even one resulting from gross negligence,
unless he is free from negligence on his own part
-This is the leading case for the rule that contributory negligence is a complete bar to recovery

Contributory Negligence
-Doctrine of contributory negligence as a complete bar changed questions of fact into questions
of law, taking questions away from the jury; limits their ability to evince sympathy for a plaintiff
-So not as much variability in the amount of damage payments the defendant will have to pay

Obligations of Common Carrier Enterprises
-At common law, common carriers were strictly liable for loss of baggage or freight
-Only two excuses were Acts of God and public enemies
-Carriers were not liable for passengers when they could not have done anything to prevent it
-Negligence sort of liability for passengers, unlike strict liability for goods

Gerry v. Boston and Providence RR (Mass 1836)
-Jury found against a passenger who negligently contributed to his own injury

Lucas v. New Bedford and Taunton RR (Mass 1856)
-Court holds that in carelessly and recklessly trying to jump off the train, she was contributorily
negligent and can’t recover

From Tort to Contract
-Using contract to evade or elude common law duties under tort; common carriers is classic case
-First attempted means to evade this was to post notice that they would not be liable for any
damage to baggage or freight; court would not uphold these
-Then carriers tried to contract out of liability; most courts would not uphold these because
shippers and passengers were under moral duress of sorts, unequal bargaining power
-Also, incentives this would create on the part of the railroad: it would have a tendency to
encourage guilty negligence, fraud, or crime

Gould v. Hill (NY 1842)
-Goods were destroyed by fire and the shipper sought recovery and the RR imposed contractual
abrogation of liability; court held the carrier was liable notwithstanding the contract

New Jersey Steam Navigation Co. v. Merchant’s Bank (1848)
-Supreme Court allowed carriers to limit liability by contract

Contracting out of Liability
-Beginning in the 1830s, every jurisdiction changed its rule and allowed common carriers to
contract out of strict liability for damage to goods and freight
-This is ascribed by Horwitz to the rise of the will theory of contract
-Victory of the will theory of contract succeeded in conquering other fields of law like tort
-Most states only allowed common carriers to contract out of strict liability
-Some, like NY, allowed carriers to limit liability due to its negligence (sometimes gross neg.)
-In 1873, Lockwood case, the Supreme Court says that in the Federal Courts, a RR cannot
contract out of liability due to its negligence

Farwell v. Boston and Worchester RR Corp. (Mass 1842)
-Fellow Servant Rule is an important nexus of tort and contract
-Engineer injured when the switch operator left the switch open and engineer ran off the track
-Engineer sued his employer for his injuries because the RR is the deep pocket
-Case of first impression because the RR locomotive wasn’t introduced until the 1830s, and the
workplace before this period of industrial revolution was a small affair
       -When an employee was injured, his employer would care for him and compensate him
-In Farwell, the switch man and engineer don’t even know each other, aren’t in a position to
supervise each other, because they’re not really engaged in a common employment
-Shaw says it is too difficult to distinguish whether two employees are engaged in a common
employment, and he decided that they were engaged in the same employment
-Shaw says the doctrine of respondeat superior does not apply because:

1. Tort Rationale: If someone working knows that he can’t recover against his employer for an
injury resulting from the negligence of a fellow employee, he will have an incentive to monitor
the behavior of his fellow employees
-But in this case the two guys weren’t in the position to monitor each other
-Also a greater incentive not to get injured, more than an incentive relating to tort recovery
2. Contract Rationale: When the employee and employer contracted for price, the risk of injury
was already figured in, and allowing recovery would be paying him twice for this risk
-“In legal presumption” the compensation is adjusted accordingly
-Doctrine of assumption of risk: by undertaking a certain activity, you assume the natural and
foreseeable risks
-Shaw is articulating the rule the parties would have bargained to in the absence of the rule

Powers v. Ware (Mass 1824)
-Doctrine of respondeat superior is the idea that a master is responsible for the acts of his
servants; this case holds the master has an obligation to provide care for a sick apprentice

From Respondeat Superior to Fellow Servant Rule
-Masters might also have believed they had a duty to provide for an employee injured by a
fellow employee under the doctrine of respondeat superior
-Why did this system of benevolence stop?
       1. Rise of impersonal relations between employers and employees with large scale
       enterprises and the model of relations is different
       2. Nature of the work contract has changed; rather than indentured apprenticeships,
       employers and employees enter into a termination at will arrangement
       3. Rise of new industries and technologies, and more accidents occurring

Commonwealth v. Hunt
-At common law, labor union was a criminal conspiracy
-Holding that employees can combine to negotiate for higher wages
-Shaw says unions can get together for legitimate reasons, such as improving their lives with
higher wages, better working conditions, lower hours, etc.
-Farwell and Hunt have in common that they are both freedom to contract or freedom to
associate cases; both fit in the model of contractarian ideology, freedom of individuality with no
impediment imposed by law

Explanations for These Changes
-In the 18th Century, one acted at his peril, now one acts with virtual impunity
-This change reduced the cost of the active, entrepreneurial party, pro-developmental effects
-Also reflected the pervasive string of individualism going on at that time
-One opinion is that judges recognized the anti-developmental effect of certain old rules, and that
the modification of those doctrines and the creation of certain defenses, was pro-developmental
-Classic instrumentalist view of the time period
-How do we reconcile the fact that the leading cases in the transformation of tort law don’t
appear to be in response to changing social needs in response to changing technology?
-Maybe judges didn’t want to appear to be caving to the pressure of economic development
-This is an era in which there is criticism of the bench, and it is manifested in various ways

        1. Movement for codification
        2. Move toward an elected judiciary
-Why else might the judge choose the dog fight case?
        -Trying to draw focus away from or maybe even towards the change in the law?
        -Might be picking a fact pattern that might appear more regularly
-Both the ideas of contract and laizes faire reject an organic view of the community
        -Diminution of implied social duties, no more implied warranties or implied terms of just
        price, or adequacy of consideration
-In slavery, is there a diminution of social duty? Not a contractual relationship
-What Farwell does is emphasize the contractual nature of the northern labor system in contrast
with the non-contractual and nonconsensual nature of labor in the south
-The core civil rights in 1866 had to do with participating in a market economy
-Diminution of social duty reflects the market, but also is in contrast with a competing labor
system in the south

Bush v. Brainard
-Comes in 1823, before the RR, so it is harder to explain in terms of economic development
-They were perhaps looking gat the world around them in the mercantile system, and translated
this into notions of social relations and social duty; intellectual history explanation

Liberalism (Locke, Madison, Smith)
-In classic liberalism, the focus is on the individual and autonomy, especially in economic sphere
-Attractive ideology because they see in the context of Smith the results it produces (wealth)
-Gramsci came up with the idea of a hegemonic ideology: ideology that justifies and rationalizes
an order in which some enjoy privileges that others do not
-Argument about hegemonic ideology with respect to liberalism would be that if you work hard
in a land of opportunity, you can be rich
-Liberalism justifies a scheme of social relations in which some enjoy privileges and others don’t
-People recognized that antislavery sentiment justified and legitimated the system that gave them
social station and wealth and denied it to their workers
-Evidence that the northern industrialist or the judge thought that if he endorses liberalism it
would rationalize a scheme where he was the winning party is missing
        -Some argue it was recognized by northerners unconsciously; others say coincidence that
        they embraced an ideology that rationalized a hegemonic scheme

VII. Business Enterprise and the Federal System in the Taney Era
-We’ve been focusing on questions of instrumentalism:
1. Inclination to change the law to suit the needs of society and the people’s emerging desires
2. Reluctance to be bound by long-standing precedent; emphasis on innovation
3. Instinct to treat law as an instrument of public policy (not discovered but made, and made to
implement public policy)

Swift v. Tyson
-Throughout the 19th Century, there was no satisfactory form of currency in American economy
-Parties engaging in transactions relied primarily upon notes issued by private banks backed by
their gold reserves and redeemable in specie, and various negotiable instruments

-Negotiable instruments were checks, promissory notes, and bills of exchange
-Ex. A executes a promissory note payable to B, and B owed C money but doesn’t have enough
to pay it, so B “negotiates the instrument” by endorsing it over to C
-All states agree that the endorsee (c) is not a holder in due course unless he has provided some
consideration for the endorsement
-One critical issue is whether a preexisting debt could constitute valuable consideration,
rendering the holder of the instrument the holder in due course: this is the issue in this case
-Case involves three parties:
1. Norton: shady Maine land speculator; found a good deal on land but needed the money to
finance the purchase
2. Tyson: lender of money
3. Swift: the guy who Tyson gave the instrument to
-Norton negotiates the instrument over to Swift, to whom he owed money
-Swift wants Tyson to pay on the instrument, but he doesn’t want to pay because he didn’t get
any land and got nothing of value (this is his defense)
-Defense is cut off if Swift is a holder in due course, so Swift wants to be characterized as such
-Consideration Swift paid Norton is a preexisting debt, so the question is whether this counts
-NY law says a preexisting debt is not valuable consideration, rendering the endorsee a holder in
due course, so Swift would lose
-On appeal, focus is what “the law of the states” means under Article 34; Story says that “laws”
means statutes, not common law decisions, because they are merely evidence of what the law is
-If there is no statute on point, then the rule comes from the federal common law of commercial
transactions, which is decided by the federal courts and ultimately the Supreme Court
-Judicial elaboration of conflict of law is related not to fixed principles, but instead to various
motives of public policy; instrumentalist idea that law and legal change ought to be harnessed
not to fixed principles, but instead to public policy
-Horwitz says they needed a uniform law of negotiability and a circulating medium of exchange
-So why did the court go along with this? They wanted to deal with the impulse to accommodate
the law of negotiability to the emerging needs of a commercial republic
-What about the strain of state’s rights in democratic thought?
        -This leaves it open for the states to pass these laws (which didn’t exist here), in the event
        the state wants to proscribe the rule that will apply under diversity legislation
-This decision was overruled by Erie in 1938, but for a century the federal courts made law
deriving from this interpretation

Bank of Augusta v. Earl
-Decided in 1839, 3 years before Swift v. Tyson
-Are corporations citizens of the several states within the meaning of Article 4 “Privileges and
Immunities” Clause which says that citizens of state A can’t be denied the privileges and
immunities of state B when traveling in state B (this mostly has to do with business)
-Does a Georgia corporation have a constitutional right to do business in Alabama on terms of
equality with Alabama corporations?
-Lower court opinion said that a Georgia corporation is artificial, intangible, existing only in
contemplation of the law of Georgia, the state that created it
        -So Georgia can’t give its own corporation the right to do business in other states

-On appeal, Webster argued the case and says a corporation is like a citizen, because it is
compsed of citizens, and should be able to do anything a citizen could do
-Taney says this has not been state practice; states don’t understand corporations to be citizens
-Taney chooses a middle course, saying that corporations are not citizens and each state must be
permitted to determine whether they will allow out-of-state corporations to do business there
-But Taney says in order to exclude out-of-state corporation, a state must do so by statute, and
the default rule will be that an out-of-state corporation can do business in other states

Louisville v. Letson (1844)
-Letson had laid several miles of track but hadn’t been paid
-First case in which the Supreme Court expressly overruled a prior Supreme Court decision
        -Overruled Strawbridge v. Curtis and Bank of U.S. v. Deveaux which said that the
        corporation was not a citizen of the U.S. under Article 3
-Holding here is that corporations are citizen within the meaning of Article 3, which means they
can sue and be sued in federal court under the diversity of citizenship clause

-These three cases all fit nicely with the constitutional theory of Andrew Jackson, who appointed
most of the members of this court
-They all show deference to the rights of state legislatures, but at the same time they enhance
federal judicial power

Tatum v. Wright (NJ 1852)
-Counsel argued that a state government couldn’t levy taxes on out-of-state corporations that it
did not levy on its own corporations
-They could do this because corporations were not citizens within the meaning of Article 4

Articles 3 and 4 Asymmetry
-Citizens for purposes of Article 3 but not Article 4
-Court held in Letson that corporations were not citizens in Article 4 but were citizens in Art. 3
-So they didn’t have the right to do business anywhere on equal terms, but they did have a right
to sue in federal courts
-In Dred Scott, Taney held that free blacks were not citizens within the meaning of Article 3’s
diversity of citizen’s clause; Taney conflated the article 3 and article 4 question
-1790 Naturalization Act provided that free white persons would be eligible to be citizens after
five years in the United States, but said nothing about free blacks born here
-1792 Militia Act provided that free white citizens were in the militia; this term might have been
taken to imply the existence of a free black citizen
-1841 Preemption Act provided that any head of household who was a free white citizen could
stake out 160 acres of land on the public domain and sell it after five years; again, might imply
the existence of a free black citizen
-Unclear whether deprivation of rights under these Acts implied a lack of citizenship
-Other congressional acts did suggest lack of citizenship (excluded from military, postal service)
-Passports frequently denied to free blacks on the ground that they were not citizens

States’ Treatment of the Issue
-Many northern states forbad slavery, but still imposed disabilities on their free black populations
-Constitution made certain national rights contingent on state citizenship
-Article 4 privileges and immunities clause provides that the citizens of each state shall be
entitled to the privileges and immunities of the several States
-Was a free black traveling from Mass entitled to be treated the same in SC as a white man
would be treated in SC? Answer given to this usually was no
-Black Seamen statutes: forbad free black sailors visiting the Port of Charleston, SC were
impounded in jail while the ship was in port
         -In 1823, Justice Johnson, Supreme Court Justice, riding Circuit in SC, held that this
         practice constituted an unconstitutional burden on interstate commerce
         -First doctrinal expression of the idea of negative implications from the commerce clause
-1832 Atty General opinion: such legislation did not violate the privileges and immunities clause
         -Taney, as Attorney General, said free blacks were neither citizens of the United states
         nor of the states in which they reside
-2nd context in which this arose was the Exclusion Laws: in 1783 the VA legislature enacted a
statute that provided that no free black can enter the state, and by 1820 every slave state had this

Dred Scott
-Issue is not whether Scott is a citizen of any state for purposes of the Article 4 Privileges and
Immunities Cause; Issue is whether Scott, if he is free, a citizen within the meaning of Article 3
Diversity of Citizenship Clause, giving him standing to sue in a federal court
-Court holds that free blacks are not citizens and cannot claim the rights or privileges of citizens
of the United States
-Taney rules on both Article 3 and 4 issues, even though this is only an article 3 question
-Taney is concerned about blacks not being citizens under article 3, because he conflates the
article 3 question with article 4; concerned that if they’re citizens under article 3, they might also
be citizens under article 4; This would jeopardize the Seamen’s Acts, the Exclusion laws, etc.
-Other option would be the one the court had taken with respect to corporations, that free blacks
were not citizens within the meaning of art. 4, but were citizens within the meaning of art. 3

The Propseller Genesse Chief Fizhugh
-Steamboat Thomas Jefferson would have said they couldn’t sue in admiralty because the
admiralty jurisdiction only extends to those waterways effected by the ebb and flow of the seas
-Genessee extended the federal jurisdiction beyond the flow of the tides, to inland waterways
-Taney said the Steamboat Thomas Jefferson should be overruled because:
1. Too hard to determine where the tidewater begins and ends
2. Citizens of the various states ought to have equal rights under the judicial system
3. In England, the tidewater was coextensive with public navigable waterways, so the tidewater
was just a way of describing public waterways in distinction from private waterways
        -In the U.S. there are public navigable waterways unaffected by the tides
4. Circumstances of inland waterway transportation have changed since 1787 b/c of expansion
-This is the Swift v. Tyson of admiralty, expanding the jurisdiction of the federal courts
-Tension between this opinion and that in Dred Scot in that he has dropped his originalist
position, focusing on changed circumstances

-Dissent said the Steamboat Jefferson should not be overruled b/c of original interpretation, and
that the court was bound to this interpretation until a Constitutional amendment on the subject

VIII. The “Golden Age” of American Law Assessed

-What is at stake here is the characterization of the Golden Age of American Law
-Pound was the founder of “sociological jurisprudence,” which was a reaction to legal formalism
-Idea that judges ought to adapt the law to changing social needs and aspiration, rather than
mechanically applying formal legal rules; he was a critic of legal formalism
-In 1930s, he liked the idea of the common law adapting to meet the needs of industrial society,
just as antebellum judges had adapted the common law the changing needs of society at that time
-Hurst is the proponent of the consensus view of the Golden Age
-Hurst put forth the idea that the American people were generally of one mind about what they
wanted and needed in order to accomplish it; focuses on the desires of ordinary Americans
-Wanted law that would release the creative energies of the people in productive entrepreneurial
activity; law in the 19th century created the circumstances under which this could occur
-Hurst makes four main points:
1. Idea of legal instrumentalism, but not in the same way as Horwitz (his was theory of judging)
-Talks more about instrumentalism as a cultural attitude, that Americans saw law as a tool they
could employ as they confronted the task of settling and organizing the continent
2. Americans preferred dynamic uses of property to static uses of property, and the greatest
barrier to growth was the scarcity of capital
-Facilitate economic growth in the absence of capital by creating a legal regime encouraging it
3. Rules of the common law, reduced liability, emphasized social desirability of individual
autonomy by diminishing implied social duty
4. Hurst, unlike Pound, is critical of the Golden Age in some respects (because he is an advocate
of administrative government) because the long term effects of economic growth were blinked
away rather than dealt with
-Said the diminution of social responsibility creates a system in which the market is structured by
individual decision, and uncoordinated individual action creates a collective action problem
-Hurst says the government needs to engage in long term planning and take into account long
term costs, which is the justification for administrative government and scientific planning
        -Problem along the horizontal time dimension is the collective action problem
        -Along the vertical time dimension the problem is that the current generation discounts
        costs to future generations, they don’t’ fully internalize the costs of their decisions
-Horwitz says the rise of legal instrumentalism is traceable to an alliance between legal and
mercantile groups, and they together overthrew a regime of anti-commercial and anti-
developmental rules
        -Wealth and property and power were distributed from the least active members of the
        society to capitalists; upward redistribution of wealth
-Horwitz says these distributive consequences were disguised, done through judge-made changes
in legal rules rather than through the legislature, so they weren’t subject to political debate
-At the same time they were pushing for redistribution in the common law and private law, they
were promulgating anti-redistributive public legislation, primarily through the contracts clause
        -Got the best of both worlds; common law developments distributed wealth to them but
        constitutional developments prevented their own wealth from being redistributive

-In the 1850s, this was all displaced by legal formalism, because by 1850 the transformation in
legal rules was complete, so the strategy was to secure a static rather than a dynamic legal order
-Consensus school represented by Hurst and conflict school represented by Horwitz
-Hurst sees the law representing the aspirations of ordinary people, while Horwitz sees it
reflecting the aspirations of the commercial elite
-Hurst sees the legal order as having improved since the 19th Century, but Horwitz is himself a
critic of liberalism from the left -- he wants to emphasize that law always has and continues to
mask persistent inequalities of power and wealth in American society

1. One principle criticism has been against the distributional analysis
-Consensus school is ready to concede that legal changes redistributed wealth
-Consensus school would argue that Horwitz posits a conflict between developmental and anti-
developmental interests, but Hurst maintains that no such conflict existed and everyone wanted
economic growth and development

2. Hurst also asks if the cases can really be understood as reflecting a conflict between
developmental and anti-developmental interests
       -Ex. Arguments between two mill owners, two capitalists, etc.

3. Also, was the redistribution really disguised?
-Horwitz says this could have been done through the tax system instead, where there could be a
full and robust debate, but instead you did it through changes in common law rules
-Consensus school says there was subsidiary through the tax system, and plenty of it, but
Horwitz is looking in the wrong place; need to look to municipal and country levels
-Also, judge made law was not disguised, and the American people were not unaware of the
changes in judge-made rules; Consensus approach says the American people simply approved
-So the consensus proponents say that the legislature obviously knew what was going on, and
that the controversial issues all became the subject of political attack

IX. The Formative Era of Antitrust

-Two phenomena developed in the business world after the civil war:
        1. Vertical integration
        2. Horizontal combination
-Constitution prohibits state tariffs and endowed the Congress with the power to regulate
commerce among the several states, but before the 19th century these powers were rarely invoked
-State legislatures abandoned their tariff laws, but still put up barriers to interstate commerce
-Between 1837 and 1851, the Taney Court had a divisive internal debate over whether regulation
of interstate commerce belonged exclusively to Congress or was also held by the states
        -Concurrent power theory held that until Congress acted, the states held the power

Cooley v. Board of Wardens (1851)
-Opinion says that some matters are inherently national and only Congress can regulate them,
while others are local and the states can regulate until Congress has acted
-Important part of the decision was that when Congress remains silent, Court can supply its voice
       -Court can decide if something is inherently national

-Court had room to resolve disputes on the basis of instrumentalist criteria after this decision

Vertical integration
-Manufacturers take over the domain previously occupied by the independent merchants (vertical
integration forward into distribution)
-Also, the manufacturers would frequently backward integrate into raw materials
-Legal barriers to vertical integration
-State governments prodded by local merchants to step up trade barriers
-So vertically integrated companies began to challenge these in federal courts

Welton v. Missouri (1875)
-Welton was an agent of the Singer company
-Missouri created a revenue measure requiring peddlers selling goods not made or grown in
Missouri to pay a special license fee (tax) to sell it
-Singer argued the license was just a tax disguised as a revenue measure, and the law was simply
a burden on the out of state goods
-Supreme Court agreed that the law was against the commerce clause, invoking the dormant
commerce clause

Inspection Laws
-Local butchers went to the state legislatures and lobbied for state inspection laws, which were
enacted in MN, IN, CO
-Laws typically required that the meat be inspected, and that any meat sold in the state had to be
inspected on the hoof (live) by a state inspector within 24 hours of slaughter
-Laws were ostensibly within the state’s police power, but it effectively meant that all out of
state competition would be excluded; this froze out the big four meat packers

Minnesota v. Barber (1890)
-Supreme Court invalidated such a law on the grounds that it discriminated against interstate
commerce; court said protecting people would need to be done in another way
-1891 Federal Meat Inspection Service came out of this case

Robbins v. Shelby County Taxing District (1887)
-State of Tennessee passed a statute authorizing Shelby County to collect a tax from drummers,
-Court held that statute unconstitutional; court said the employment of drummers by an out of
state corporation was the only way to tell if there was a market for its goods
-Tennessee could place the burden on in state producers but not on out of state producers
-Court held that people negotiating business contract for the subsequent shipment of goods in
interstate commerce could be taxed and regulated only by Congress, not by the several states
-Symbiotic relationship between the market and big business; big business gave rise to the
market, just as the market gave rise to big business
-Big business broke down the barriers, increasing the market

Horizontal Combination
1. Pools: Agreement between two or more companies in the same line of business, interested in
supporting the price, so they work together to fix prices and control output

-Either by agreeing to fix prices and control output in order to meet market demand and share the
profits by a certain %, or they could allocate territory and not compete in each others’ markets
-Pooling agreements are illegal at common law, though government doesn’t prosecute them until
the passage of the Sherman Act in 1890
-Common law prohibition was enforced because pooling agreements were unenforceable in court

2. Trusts
-Pioneered by Standard Oil Company
-All of the oil refineries that are going to combine become corporations, then the stockholders
exchange their stock in the refining corporation for trust certificates in the standard oil trust
-Then the trustees have all the power and can fix prices because they have managerial control
through ownership of the stock; can control output and pool receipts
-Can’t cheat because the trust has control of all the power, so this fixes the problem of pools
-Illegality here is that trust are illegal not because they’re unlawful restraints of trade, but
because they violated the corporation laws of the various states
-No state authorized corporation to have capital exceeding $1 million, and all corporations laws
restricted corporations from buying the assets of another corporation as well as mergers
-Remedy here was proactive; state attorney general would bring an action in the state courts
under a writ of quo warranto, meaning “by what right”
-Corporation would be dissolved if it lost the suit, and this was repeatedly successful

3. Holding Company
-NJ legislature allowed holding companies, did this for the money, for the franchise tax revenue
-Between 1889 and 1911, NJ residents paid no taxes
-Revenue consequences were enormous, in that they paid no taxes, because the franchise tax
revenue was big enough to run the entire state’s budget

Sherman Act Background
-NJ was the traitor state because they defected from the regime of corporate law that kept
manufacturing enterprises in check
-NJ could only legalize this form of corporate transaction in NJ, so the attorney generals in other
states could still bring writs of quo warranto against their own corporations that had become a
component part of NJ corporations
-Response was that the acquired company could just abandon its other statute of incorporation,
and they can just come incorporate in NJ
-Cases made it clear that corps did not have the right to own property in states other than their
state of incorporation; operating mines, manufacturing plants, maintaining offices or warehouses
        -These were activities of production rather than interstate commerce
-States had complete authority to regulate local activity of production, including the structure,
organization, and combining capacities
-State could license an out of state corporation to do these activities and they could do so on a
discriminatory basis and could tax and regulate them however they wanted
-By 1889, there is a structure of jurisprudence drawing a distinction between production and
commerce, making it clear that the states had weapons to use against a holding company

Sherman Antitrust Act
-Sherman’s vision for antitrust law: A Bill to Declare Unlawful Trusts and Combinations in
Restraint of Trade and Production
-Sherman’s theory was that intrastate trusts were a matter falling under state jurisdiction, but an
interstate trust was a matter for federal jurisdiction
-Most of those who spoke to the issue didn’t find it necessary to give the federal government the
power to break up corporate mergers, because the states could and would continue to do so by
exercising the writ of quo warranto
-Also thought it would be unconstitutional to regulate the internal structure of firm organized in
interstate commerce
-In the end, the bill was substantially revised: A Bill to Protect Trade and Commerce Against
Unlawful Restraints and Monopolies
-Allocation of authority was interstate contractual relations are within the federal realm, while
corporate combination is within the state realm

United States v. E.C. Knight (1895)
-Sugar company was a simply NJ holding company combination, and its contracts with
independent sugar companies were wholly legitimate
-The Court rejected this attempt to bust up the Sugar Trust
-Held that Congress could regulate all contracts to buy, sell, or exchange goods to be transported
across state lines, but commerce succeeds to manufacturing (is after it) and is not a part of it
-Regulating manufacturing entity is left to the states

Income Tax Decision
-Supreme Court declared that the first peacetime income tax was unconstitutional, because it was
a direct tax not apportioned to the population

Successful Antitrust Prosecutions
-Antitrust decisions between 1895 and 1920 shows the federal government on an uninterrupted
winning streak in breaking up trusts:
1. U.S. v. Trans-Missouri Freight (1897) and U.S. v. Joint Traffic Association (1898): Court
sustained the Sherman Act prosecution of RR companies who entered into a price fixing
agreement, b/c they’re engaged in interstate commerce; fixing prices into interstate commerce
2. Addison Pipe and Steel Co. (1899): Pooling arrangement in which the court sustained a
Sherman Act violation
3. Northern Securities (1904): Court upheld a Sherman Act prosecution of a holding company
in which three interstate RR companies had been consolidated (combination in restraint of trade)
4. Swift v. United States (1905): Court used the stream of commerce theory to say that these
transactions were in interstate commerce (prosecution of big four meat packers)
5. Standard Oil of NJ and American Tobacco (1911): Court upheld federal efforts to bust up
these two companies; entities had engaged in certain discriminatory methods in the market

U.S. Steel (1920)
-Govt. sought to bust up U.S. Steel on the grounds that it controlled 60% of the steel market
-Theory is big is bad, and this theory failed, just as it had in Knight

-Mere existence of market power is not unlawful in and of itself; must have overt activity
designed to drive competitors out of the market

-Antitrust really was a coherent body of law
-Agreements between firms not to compete against one another is a violation
-Merger of railway companies engaged in interstate transportation was a violation
-Simple merger of two companies engaged in the same line of manufacturing was a matter left to
the states to regulate

Great Merger Movement
-State authorities recognized their powers, but the short term costs of mounting a campaign
against NJ corporations weighed against the long term benefits (corps could just leave the state)
-States after state liberalized its corporate laws and became like NJ; result of this paralysis for
the structure of the American economy was the Great Merger Movement
-Emergence of large scale corporations had a great effect on legal thought
-Economy once guided by the invisible hand was increasingly guided by large corporations
-Contracts between parties were not bargained; standardized forms offered take it or leave it

X. Native American Removal

-Problem different from African Americans, b/c Native Americans were not perceived as linked
to the country’s economic development; perceived as obstacles to development and expansion
-In contrast to the confusion and uncertainty towards slaves, a clear consensus existed with the
presence of Native Americans: they either needed to be civilized or dispossessed
-Official willingness of the tribes to sell their lands had long masked the conflict between theory
and practice in Native American relations
-In theory the government treated the tribes as independent sovereign nations, purchasing only
the lands they chose to sell and guaranteeing by treaty their claim to lands they chose to keep
-Treaties ceding Indian lands were typically prompted by bribery, force, or threats, but the
government still claimed these were voluntary cessions of land
-IN 1802, as a result of complex negotiations, Georgia ceded her western land claims to the U.S.
in exchange for the federal government’s promise to extinguish Indian titles to land within the
state’s boundaries as soon as it could be done peaceably and on reasonable terms
-Cherokee strategy was to resist the pressure of removal, and assimilation, in order to impeach
the stereotypes that under-girded the move for their removal and to keep their homeland
-Treaty of Holsten guaranteed Cherokee land holdings, but despite this, a certain provision in the
Cherokee Constitution declared the tribe an independent nation with absolute right to the land
within its boundaries
-In 1820s several southern states passed “Indian laws” purporting to bring Indians within their
boarders under the jurisdiction of state authorities, to deny their right to sovereignty as nations
-Georgia enacted its Indian law in 1828, which declared that after June 1, 1830, the Cherokee
lands would be distributed among the various counties and would become subject to Georgia law
-Choice of removing or staying was to remain with the Cherokee, but those who remained had to
submit to state law, and could retain only such property as they had improved by their industry
-Congress in 1830 at the President’s request provided for the creations of new Cherokee lands in
Oklahoma, which were to be exchanged for Cherokee lands in the northeast

-Georgia’s action in particular raised a difficult problem for federalism, because the state’s
position conflicted with the Treaty of Holsten which guaranteed title to that land

Georgia v. Tassles (1829)
-Tassles was a Cherokee accused of murdering another Cherokee on Cherokee territory, which
was a matter that would have ordinarily been tried before Cherokee authorities
-Tassles was tried and convicted in the Georgia courts pursuant to Georgia’s Indian Laws
-Appealed to the Supreme Court, arguing that this conviction violated the Treaty of Holsten
-Doctrine of Discovery: European power that discovers the land divests the aboriginal
inhabitants of their fee simple title to the land and it vests in the discovering nation
       -The aboriginal inhabitants have a right of occupation that can’t be extinguished, but they
       can transfer that right only to the fee simple holder of the title (Marshall’s idea)
-GA says this principle means that they don’t have absolute rights to soil and sovereignty, they
only have rights to occupancy; GA argues that the underlying fee, and the rights of sovereignty
over the land, rest with the state of GA, which is the successor in interest to Great Britain
-Georgia says because they have the right to sovereignty, they have criminal jurisdiction
-Tassles says this is inconsistent with the 1791 Treaty which guaranteed them to right to the land
and exercise jurisdiction within that territory
-Before the Supreme Court could decide the case, GA executed Tassles, so its rendered moot and
they don’t have a chance to rule on the Indian Laws or specific Provision of the GA Indian laws

Cherokee Nation v. Georgia (1831)
-Provision of Article 3, giving the Supreme Court original jurisdiction, where there is litigation
between a state and a foreign nation
-Theory was that the Cherokee nation was a foreign nation within the meaning of Article 3, so
the court could give the tribe injunctive relief against the state of Georgia
-Court dismissed the action for lack of jurisdiction; held the Cherokee nation not a foreign nation
-Marshall said the Cherokee were a “domestic dependent nation,” in a state of pupilage and their
relation to the U.S. resembled that of a ward to his guardian
-But, in dicta Marshall remarked that the Cherokee Nation was a distinct political society,
capable of managing its own affairs, uniformly treated as a state, with an unquestionable right to
lands they occupy until the right is extinguished by a voluntary cession to the federal government
-So Native Americans have a right to occupy their land, they do not have a fee, but the
underlying fee is held by the FEDERAL GOVERNMENT, not the state of Georgia
-These remarks suggested:
1. Only the federal government could succeed to title to Indian land
2. Any such succession must be the product of voluntary action on the party of the Cherokee,
not of coercion

Worchester v. Georgia (1832)
-Georgia had imprisoned two white missionaries for living in Cherokee territory without a
license from the state as required by the Georgia Indian law
-Missionaries challenged the authority of the state law within Cherokee territory
-Justices felt duty bound to hold that Georgia’s assertion of jurisdiction over Cherokee lands
violated the Treaty of Holsten of 1791

-Court confirmed that the Cherokee were a domestic dependent nation, but were dependent on
the federal government only; jurisdiction over the Cherokee was exclusive
-Holding guaranteed the Cherokee sovereignty over the territory they occupied

History following Worchester
-Court send out a writ of mandate to the Georgia Supreme Court, ordering it to reverse its
decision and release the missionaries, but the Georgia authorities refused to comply
-Jackson conceded that the Supremacy Clause made treaties superior to state law, but he claimed
that the 1791 treaty with the Cherokee was unconstitutional, beyond Congressional authority,
because there was a provision in Article 4, section 3 that prohibits the creation of a state within
another state, unless the state in which it is being created consents
-The time for Jackson to enforce the court’s decision never arrived; the decree simply told the
Georgia Supreme Court to reverse its position and release the missionaries
-Only after the court refused the comply with the decree could the federal marshal be dispatched
to enforce it, and only then if the marshal is unable to do so b/c of combinations too powerful to
be dealt with through judicial proceedings, is the president authorized to call out the militia
-A messenger had been dispatched to get Georgia’s refusal, issued in the requisite document
-He rushed back to DC to get a second decree from the court to dispatch the federal marshal, but
he didn’t arrive until after the court had adjourned for the term (on purpose)
-Even if he had arrived on time, it is uncertain whether the court could have done anything
-Judiciary Act of 1789 permitted the court to proceed only upon written receipt of the Court’s
refusal to obey the writ of mandate, and the Georgia court had not supplied the requisite doc.
-Federal courts only had power to issue a writ of habeus in cases of federal detention

Tariff Issues
-Northern milliners wanted protection against European textiles, and in order to protect the
domestic textile industry, Congress had enacted steep textile tariffs
-John Calhoun’s Compact Theory of the Union (1831) proposed that:
1. The federal government emanated from the people of the several states, forming distinct
political communities and acting in their separate and sovereign capacity, and not from all of the
people forming one aggregate community
-So the locus of sovereignty is in the people of each state, not in the United States
-Federal government is an agent of the people of the several states, not a sovereign
-So the federal Constitution is a compact, an agreement to which each state is a party, and each
party to the compact had a right to determine whether the terms of the compact had been violated
-So the people of each state could: (1) Leave the union, (2) Nullify any law of Congress that
was not within the power the people had conferred upon that body in the first place
2. Because the federal govt. is merely the agent of the people of the several states, it doesn’t
have the power to coerce any state that nullified federal legislation or seceded from the union
-The principals, or the people of the states, had never granted their agents the power to do so

Nullification Crisis
-In 1832 the Compact Theory is operationalized by South Carolina; they called a convention and
nullified the Tariff Acts, saying they were not law in S.C.; this was to be implemented by:
1. Ordinance barred appeals to the Supreme Court
-Also no record keeping, and courts were directed to enforce the decision despite any appeal

2. Any officials or jurors in such a case had to take an oath to obey, enforce, and execute the
ordinance and any laws enacted in pursuance of the ordinance
3. Any attempt on the part of the federal government to enforce the tariff on South Carolina
would result in South Carolina’s secession from the union
-Jackson feared that Georgia might declare the federal treaty null and void, just as S.C. was
nullifying the tariff acts, and other southern states within the Indian law controversy will join
S.C. and the result will be a domino effect with regional secession and a civil war
-President Jackson responded to the S.C. Ordinance with his Nullification Message
        -He denounced nullification and secession as unconstitutional, but he hesitated to do
        anything more than talk without the Georgia crisis resolved
-Officials in Georgia also saw this problem, and they worked out a deal that the missionaries
would accept a pardon from the governor and as a result the issue would become moot

Compromise of 1833
1. Agreement to systematically lower the tariff over time
2. 1833 Force Act: authorized the federal military power and enhanced federal judicial power
        -Expanded federal circuit court removal jurisdiction to include all cases in which a suit
        brought in courts against a federal official for enforcing a federal law
        -Also enlarged the Federal Court’s habeas corpus jurisdiction, providing that any federal
        official in a state jail could get a write of habeas corpus from the state courts
-After the Force Act, S.C. Convention met again and rescinded their earlier Nullification
Ordinance; just to demonstrate that they had not conceded the Constitutional argument to
Jackson, it then adopted an Ordinance Nullifying the Force Act of 1833
-Need for a united front against secession meant that the Cherokee cause had to be dropped
-Federal Government forced the Indian tribes to give their land to the federal government in
exchange for land west of the Mississippi

XI. The Southern Law of Slavery
**    How can the law simultaneously and coherently conceptualize human beings both as
      people and as things?

Civil Law
-Civil incapacity and nonexistence as a civil person of the slave was a consequence of the
conceptualization of slaves as personal property; owner had a right to slave’s time, services, etc.
-Slave codes elaborated by southern legislatures were devoted to the maintenance of the system

Cresswells Executor v. Walker (AL 1861)
-Case involved a will that freed the slaves of the testator upon his death
-Provision held unenforceable because the will gave the freed slaves the choice of staying the
United States or immigrating to Liberia
-Court held slaves were incapable of making choices because they were things and not people
-Absolute civil incapacity: slave has no legal mind, no will which the law can recognize

Criminal Law
-Notwithstanding the fact that in civil law slaves had no existence, slave codes nevertheless
provided for criminal liability for slaves

-Odd because you need some sort of means rea and if there is no legal mind, there can’t be intent
-Question is whether the state owes anything to the master of the slave for executing a slave
-Southern legislatures said the state owed the master compensation; typical payout was 50% of
the slave’s value, b/c the owner was receiving some benefit from getting rid of a bad slave
-Wanted to give the master an incentive to not conceal crimes of his sale
-Evidence that slaves received a surprising degree of procedural protection, due process
-Master had economic interests in seeing that his slave got a fair trial
-Procedural protections were in accord with and buttressing their own ideological positions that
slavery was a positive good and it manifested the paternal concern of the white master
-Law of confessions for slaves:
        1. If confession made to the master, it was generally admissible
        -Coercive nature of their relationship was ignored
        -Reasoning was that the master would have no incentive to coerce a confession
        2. If the confession was made to someone other than the master, it was more frequently
        ruled coercive and inadmissible
        -This type of confession would result in the master losing his property without consent
-Distinction in the law between assaults by owners and those by non-owners; third party who
assaulted or killed a slave was liable for battery or homicide

State v. Hall (NC 1823)
-One thing for a master to assault a slave, but another for a third party to assert dominion over
the slave; the slave is more likely to fight back and this results in the breach of the public peace
-So, the third party attacker is held liable for battery or homicide
-Third party attacker was also likely to be a man of “dissolute habits,” and the court wanted
disincentives for such a person to harm a slave (they wouldn’t be deterred by civil penalty)

State v. Mann (NC 1829)
-Master cannot be charged with the battery of his own slave; Slavery is complete submission
and the master’s ability to use force to get submission must be unrestrained by law
-Court said two things would prevent the master from beating his slaves too frequently or harshly
        1. Property interest in the slave
        2. Force of public opinion
-There were limits even to the amount of force a master could use: no castration or murder
-In some cases, the slave had the right to resist an assault that threatened his life, even to the
point of killing his attacker
-Courts felt the need to express the relationship as one that was paternalistic, not exploitative
-Wherever the African population substantially outnumbered the Western population, fear of
insurrection tempered any claims for human treatment

Property in Persons and the Law of Tort

Boyce v. Anderson (US 1829)
-Distinction in these cases focuses on whether the slave’s transportation was authorized or
unauthorized by the master
-If slaves characterized as things, then the carrier is strictly liable for injuries during transport

-If slaves are characterized as persons, the carrier is liable only for negligence and can offer up
the contributory negligence of the slave as a defense
-Court held that slaves must be treated as persons because they had volition, and the carrier could
not control them in the same way it could control inanimate goods

Macon & Western RR v. Holt (GA 1850)
-Slave purchased a ticket on a train without his master’s authorization
-Train only slowed down to let him off and he fractured his leg when he jumped
-So strict liability when transportation is unauthorized
-They want the RR to be more careful when allowing blacks onto their trains, because they are
concerned about runaway slaves

Mangham & Cox v. Waring (AL 1856)
-Court upholds a judgment against a steamboat carrier for unauthorized transportation of a slave
-Common carriers were in the best position to avoid assisting fugitive slaves (least cost avoiders)

Development of Slave Law
-Fellow-servant question is also a question raised in the southern law of slavery
-If, while hired out, a slave was injured by his supervisor or by the owner, the owner was liable
to the slave-holder in damages for the injury to the slave

Scudder v. Woodbridge (GA 1846)
-Holding: fellow servant rule did not apply to slaves b/c it is anchored in two considerations:
1. If employees couldn’t recover against the employer for injuries inflicted by the negligence of
their co-workers, then they would have an incentive to supervise each other more closely
-Slaves were, by virtue of their status, incapable of supervising free workers
-Not entirely persuasive b/c northern RR workers couldn’t supervise each other really either
2. Contractual rationale: the worker can negotiate up front with his employer to either waive the
defense under the fellow servant rule or get higher wages to reflect the risk borne by the
employee, and if he were compensated too lowly, he could quit
-Slave wasn’t able to quit, but in the north, servants couldn’t really either, if they wanted to eat

Ponton v. Wilmington RR Co. (NC 1858)
-Court says the contractual rationale in Scudder is not persuasive, because the slave holder is
actually the party contracting, and he could contract around the risk of injury when negotiating
the terms of the hiring-out enterprise; this is the only jurisdiction that didn’t follow Scudder
-Didn’t think the mutual supervision rationale was persuasive at all, even in the north
-Judge says slave property was valuable in the south in a way that free labor was not; view that
the courts ought to protect the slave holders economic interest in the slave
-Just as slavery was a negative reference point for northern free labor advocated, free labor is a
negative reference point for southern apologists
        -They thought free labor was a bad thing, showed how they didn’t care for their people

Contradiction in Slave Law
Southern law treated slaves sometimes as human and other times as property
-Three impulses underlying this contradictory scheme of regulation

1. Instrumental conception of law; impulse to meet the needs of slave society through
adaptations in the common law (to slave society instead of commercial society)
2. Impulse to protect the master’s investment in the slave
3. Impulse to avoid legal rules that recognized the slave’s civil capacity, because they would
undermine the idea that slaves were entirely dependent on their masters

Two Different Views on How This World View Became Plausible
-Elkins takes as his point of departure the challenge to explain the persistence in the southern
minds of the type of slave: Sambo, relationship of utter dependence, child incapable of maturing
-Southerners thought these characteristics were racially inherited; Elkins is arguing against this
-Elkins says instead that it is a product of certain conditions: (1) Brutalization of capture, (2)
Appalling conditions of the sea passage, (3) Degradation of sale to a master
-He’s drawing on the sociological research of German prisoners in concentration camps
        -Outside world becomes an abstraction, real life becomes camp life
-Elkins says the closed system of the antebellum south did to slaves what concentration camps
did to prisoners; the environmental conditions infanticized them
-Genevaizi rejects the concentration camp analogy, drawing distinctions:
        -Unlike Gestapo, slave holders had an economic interest in maintaining their slaves
        -Slaves knew that they were doing productive work
        -Slaves enjoyed a rich social life that was encouraged by the masters
        -Gestapo demanded only obedience, while masters wanted loyalty also
-Genevaizi’s book is entitled “Roll Jordan Roll: The World the Slaves Made”
        -He thought that slaves had some agency, were able to construct their own world
-Genevaize said the image of Sambo came from the bottom up; masters conceptualized
themselves as fathers and their slaves as children, this was the justification
        -Slaves understood this world view and they acted in accordance with it not because they
        had been infantilized, but because they were rewarded for such behavior

Tennett v. Dendy (SC 1837)
-Case involving the beating of a slave by members of a slave patrol
-Court held the master could recover against the patrolmen who administered the beating

-A master could do with his slave pretty much what he wanted to do, and in this sense the
plantation was its own state, and this is the great contradiction in the idea of a “law of slavery”
        -Master was totally sovereign
-In the slave holding community, the law legitimated the relationship between master and slave,
but was not a force that limited the master’s ability to do as he wished
-So the law of slavery was really only between the slave and third parties

XII. Family Law

Marriage Contract
-Exception to indebitatus assumpsit: marriage contract and a breach of promise to marry
-Purposes for this action: (1) Policing Courtship, (2) Compensatory (for nuptial victims)
-“Protection for virtuous women and imposed restraint on duplicitous men”
-Mixed elements of contract and tort: punitive damages and damages for pain and suffering

Wightman v. Coates (Mass 1818)
-After a long engagement, frustrated Wightman charged Coates with refusal to consummate his
marriage promise; he denied it and she countered with his love letters
-Opinion stressed the personal, rather than the contractual, element of the arrangement
-The claims of solitude and wounded pride were enough for the judge
-Opinion says that when the woman is the victim, she will have more of a claim and will receive
more attention from a jury than a man

-Cases were often proved on the basis of circumstantial evidence, usually no written agreement
nor eye witnesses, and no explicit exchange of promises
-Differences from proof of ordinary contracts: promise can be inferred and direct proof unneeded
-From customers and manners, courts are ready to infer an implied duty
-Loose evidentiary rules protected the privacy of courtship, and ensured that the men could not
conceal their promises with the intimacy of romance
-Defenses that could be raised: Minority (lack of contractual capacity), unfitness of a woman for
matrimony or motherhood
-Rule of caveat suitor, of no implied warranty of fitness: men had an obligation to investigate the
character of their brides before proposing; if they had not done so, then they waived the defense
-Gluttonness, alcoholism, irreconcilable difference, black ancestry, lying, etc. were not good
enough unless the man proved his own due diligence or deception
-Sexual immorality was grounds for rescission, or at least a significant reduction in damages,
even in the absence of due diligence
-Typically the award was in the form of damages and the measure of damages was injury to
feelings, prospects, reputation, and social position:
        -What would the woman’s standing have been had the defendant married her, compared
        to her standing now that he refuses (expectancy measure of damages)
-Two prominent factors considered were the groom’s wealth and the bride’s reputation

-Surprisingly reluctant to enlarge damage awards in cases where the woman claimed she had
been seduced on reliance of a marriage promise; assumption they were both willing parties
-Court said that to allow damages would permit a woman to take advantage of her frailty
-By mid-century (Victorian era) this was a minority view though, and courts were allowing
evidence of seduction to augment damage awards
-During this era, the conception of wife and mother are being reconceptualized
-View of women as culturally, spiritually, and morally different
-Women conceptualized not as equally eager and libidinous, but instead as weaker, passionless,
and sexually passive; victims of the uncontrollable passions of men and men’s seductive ways
-Sexual relations as inherently exploitive and women as weak and submissive
-Female submission after a marriage promise was seen as understandable

Critiques of Marriage Suits
-Charge that the action fostered a mercantile conception of courtship, resulted in conjugal
instability and domestic distress, commercialized intimate relations, encouraged the formation of
dangerous and unstable families, ignored the rights of society, and permeated gender bias
-Fear that it was being used to coerce innocent men into marriage or a monetary settlement

-Greater economic opportunity for women decreased the dependence of women on men and on
marriage, which undermined the legitimacy of “special” legal protections based on an earlier role
-Critics also charged juries with measuring damages by the woman’s beauty and the man’s worth
-Courtship seen as more as an experimental phase in a relationship

Judges’ Responses
-Judges began to insist on stronger proof of marital intent, distinguishing mere courtship from an
agreement to marry
-Efforts to limit damages
-Greater latitude for men in scrutinizing the plaintiff’s character
-Some legislatures banned the action with “Anti-Heart Balm Acts”
-By the turn of the century, the public and private consensus supporting the suit had evaporated
-Such a suit was more commonly seen as legally sanctioned blackmail and a threat to marriage
and the family, so the social costs ceased to justify its potential value for most plaintiffs

Adkins v. Children’s Hospital
-Struck down a minimum wage law for women in DC on the ground that it violated liberty of
contract; no longer appropriate to characterize women as being in a separate and distinct space

Four Physical Qualifications for Marriage as Common Law
1. Age
-Post revolutionary marriage law assumed that children could neither physically consummate a
marriage nor intellectually understand its significance
-Common law ages of consent were 12 for women and 14 for a man
-Most waited until their early 20s to get married (like over 95%); earlier marriage prevented by
parental suasion (fear of disinheritance) and self-policing (internalization of family responsibility

2. Sexual Incapacity
-Law required that each be complete in their sexual organization and capacities
-Courts hesitant to void marriage without statutory grounds, and states did enact such legislation
-Grounds for such relief: impotence, inability to physically constitute the marriage
-Barrenness was not grounds for voiding the marriage
-Most actions were brought by men

3. Kin Restrictions
-Two systems:
        1. Biblical system: permitted marriages between first cousins, but prohibited marriages
        between a man and his deceased wife’s sister
        2. Western American System: Prohibited first cousin marriages, but you could marry
        your deceased wife’s sister
-In the east, permitting inter familiar marriage kept the money in the family
-In the west, requiring people to marry out of the family promoted expanding society
-Eventually the eastern states dropped their bands on affinial unions and later there is a
tightening of restrictions on consanguineous unions

4. Mental Incompetence
-Recognized as an extreme form of lack of consent, so grounds would be mental incompetence
when forming the marriage contract
-Voiding these marriages prompted the mentally ill from victimization, restricted their ability to
procreate, frustrated those who would prey on incompetents to get at their property
-Court’s used contractual definitions of insanity, not medical definitions
-Question was whether the spouse could understand the meaning of matrimony and undertake
the affairs of life
-Fraud as grounds for rescission had limited success, caveat suitor was the general rule
-Because marriage is also a public institution, there were fear of consequences for children
-Concealment of prior promiscuity was not enough, but concealment of pregnancy by another
man was, because it was current and imposed economic burdens on the man and dishonored him

-This is a crime and grounds for voiding a marriage
-Grounded on concerns about patriarchy and degradation of marriage, and inconsistency of
polygamy with democratic arrangements
-Difficult to get a divorce in the 19th century, so people would simply relocate and remarry
-Mormons practiced bigamy because of a revelation that Joseph Smith had from God about the
adoption of the Egyptian practice of taking more than one wife
-Also the idea that this prevents spinsterhood, widowhood, prostitution
-A man could take more than one wife only with the consent of the first wife, and with the
consent of the church elders who determined that the man was financially capable and worthy
-Federal government was slow to act because the Democratic party strongly opposed the exercise
of federal power in the territories because of the slavery issue
-Republican party thought the federal government should act to get rid of slavery and Mormon
polygamy in the territories
-Morrill Act outlawed polygamy in the territories though no prosecution happened for some time
-Difficult to get a conviction because all marriages but the first were not recorded in the public
records and were not celebrated by public officials; simply temple marriages
-In U.S. v. Reynolds, Reynolds says that under the Free Exercise Clause, he had the right and
even the obligation under his church laws to practice polygamy
-Supreme Court says unanimously that the Free Exercise Clause protects your right to believe in
plural marriage, but does not protect your right to practice it
-1882 Edmunds Act and 1887 Edmunds/Tucker Act disqualify all practitioners or believers in
polygamy from sitting on juries
-By 1890 it is clear that the Mormons can’t hold off the anti-polygamy issue, and Utah at this
point has been denied statehood 6 times
-President of the Mormon Church issued the Woodruff manifesto, revealing that he had had a
revelation and he no longer advises members of church to enter into marriages contrary to law

Slaves and Marriage
-North permitted slave unions with the master’s consent, which often was withheld
-In the south, a slave couldn’t marry; justification was that:
        1. Slaves were things and did not have the requisite civil capacity for marital contract

        2. The duties of a married person to his or her family were incompatible with the duties
        owed to the master
-One exception in the south was Louisiana because they had the French system and the idea of
marriage as a civil contract came from Puritanism, and Louisiana is a Catholic state
-When slaves were emancipated, Congress passed statutes upholding marriages from slavery
-Southern states readily permitted marriage between free blacks because they are more subject to
social control since they’re concerned about others than themselves

Racial Restrictions
-Purpose of the laws was based on the science of the day, or scientific opinion of the day
        -Unanimity among scientists and social scientists in the middle and late 19th century that
        racial intermarriage was biologically bad
-Statutes to this effect began to appear in the United States colonies in the 1660s

Burns v. States (AL 1872)
-Prosecution of an official for celebrating an interracial marriage
-Court says that marriage is a civil contract and this is an abridgement of this contract, so anti-
miscegination laws are unlawful

Green v. State (AL, after Burns)
-Supreme Court of AL says that marriage is a contract but not just that, it is also a social and
domestic institution


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