Liberal Arts Political Science Public Law Public Law Notes
In the text below you will find notes from Public Law. The notes cover topics such as Supreme Court case studies, the Constitution, structure of Congress, Supreme Court, Justices of the Supreme Court, Bill of Rights, Legal Positivism, Judicial Discretion, Principle of Law, Customary Law, Natural Law, International Law, and much much more. The notes are consistent with what you might find in a Public Law college course.
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Constitutional Law Notes
Bowsher v. Synar (1986)
Comptroller (controller)
General: was removable by Congress
Problem: CG
Answered to Congress,
But he was performing
Executive functions
J. White dissenting
Calls the Court’s decision “distressingly formalistic”
Basically White thinks the Court’s decision is silly.
Formalistic- does not want one branch performing the functions of another branch.
Removed the CG from any enforcement activity which eliminated the Constitutional violation.
In terms of separation of powers, J. White was the least formalistic.
J. Scalia on the other end, wants a clear division of branches.
The Prize Cases (1863) p. 286
Should neutral ships be returned to their owner?
-No. Court said.
Emanation theory-
Could the President block ports and seize ships without consent of Congress?
-Yes.
The case a good example of expanding Presidential power…
US declared war 5 times. (Excluding Civil War)
Last time US (Congress) declared war- WWII
[I am compelled…] pg. 288
[The decision is…] pg. 288 Importance of this caseà Expanding the right to the president.
-Jefferson LT
-Emergency Powers LB
-Martial law, habeas corpus R 2nd Paragraph
-Chada-
-formalistic (justices wanted bright red lines on what to do and not to do.)
-legislative in nature, has to meet two requirements: 1) needs two house bicameral Art 1, (2) needs presentment Art I Sec. 7.
-J. Powell concurring, though act judicial in nature.
-J. White dissenting; blurring ok, more fluid, doesn’t really see the problem.
-J. Scalia not on court, but would have went with opinion overturning the act.
-Art I Sec. 9 allows for the suspension of the writ of haebus corpus; essentially to sep of powers, since it allows the judicial branch to intervene if executive overstepped bounds.
-First president to suspend haebeus corpus was Lincoln; provision to suspend it is found in legislative article.
-Other than WWI, Congress declared war 5 times, only Congress can declare war, sometimes Congress gives authorization, like Iraq.
-President, according to J. Grier, has the power, i.e., jure belli—laws of war. President has to be able to respond and thus needs the ability to act militarily without Congressional approval.
-Grier-
Price Cases, we read them since it allows the president to take military action without Congressional approval. Certain conditions are met and there is a need for war, President has to act.
Ex parte Milligan (1866)
-Decision handed down after war, ruled against President Lincoln.
-opinion by J. Davis
-central issue whether military commission. Did military commission have the authority/power to punish Milligan? No.
- 9-0 decision. 5-0 opinion and a 4 concurring opinion.
-Lincoln suspended the writ throughout many parts of country.
-Milligan given death penalty.
-Majority: as long as Art II civilian courts operating, Milligan and the others have the right to be tried in them.
-provision found in Art III and 5th (due process) and 6th (right to trial by jury) Amendments.
-4 Concurring opinions thought president did not have right to do what he did, everyone agreed it was wrong, but concurring justices felt if President didn’t have power to do what he did, Congress did.
-provision on pg. 663 war powers in Constitution Art. 1
- 2 opinions argued that gov. has the ability to suspend writ of habeas corpus and the try civilians by military commission.
-Congress can do it only in time of war.
-fairly broad powers
-Constitution silent on very importing things.
-if not specific constitution provision, get congressional approval.
-in absence of Constitutional provision, next best thing is congressional approval.
-war and emergencies present us with situations in which the law must be bent.
Hirabayashi v. U.S. (1943)
-Hirabayashi upheld curfew by FDR, even though it violated many personal rights.
Korematsu v.United States (1944)
- Want to exclude Japanese (intern them).
-Thousands of Japanese rounded up.
-Gen. Dewitt gave idea, FDR issued executive order, Congress later came along and by statute justified what FDR did by executive order.
- Exec. Order 34, followed by statute.
-Imprisoned because they were Japanese, many constitutional violations.
-Black gave opinion, torn over this, said we did not imprison them because they were Japanese, rather, imprisoned cause we at war with Japanese empire.
-anything with race “calls for strict rigid scrutiny.”
-Black ruled in favor of US govt. and against Japanese.
-Some people in Court most liberal in Court history.
-6-3 decision. Black, Frankfurter, Reed, Rutledge, Stone—appointed by FDR.
-J. Roberts, dissented, a republican.
-J. Black’s opinion lacks any constitutional justification.
-Murphy dissented; decision falls into ugly abyss of racism.
- pg. 304 [yet no reasonable relation to an immediate, imminent, and impending public danger.]
-Murphy thought we had fundamental violations of due process and equal protection. (But how could he bring up equal protection????)
-J. Jackson- pg. 305 –judicial decision worse than act itself.
-Criminal procedure- he tried to get around internment—he got plastic surgery.
-Know Murphy and Jackson opinions for test, match names on test.
-US government later repudiated decision.
-Majority opinion in Korematsu is strong support for US government.
-also Milligan concurring opinion.
Milligan concurring opinion and Korematsu majority make strongest case for govt. power during emergency and wartime.
Ex parte Quirin (1942)
-Individuals/spies not in uniform.
-case has extreme relevance in current times.
-people found to be belligerent combatants.
-Court held they cannot receive due process rights of 5th and 6th Ammendments.
-In Milligan case, people were US citizens. In Quirin, people not US citizens, they were Germans.
-FDR favored court-martial, but settled on military commission. See pg. 296
-Opinion, by Stone, people were spies, enemy combatants, and not entitled to rights of prisoners of wars. See 298 right, last paragraph.
-pg. 300 top right Authors ask to compare Milligan Court Decision with Quirin to see difference, Simich mentioned a couple.
Youngstown Sheet & Tube Company (1952)
-example where President looses.
-longtime strike between unions and owners.
-Truman usually in favor with labor unions.
-Taft-Hartley act, Truman don’t like it, he vetoed it, but legislative overturned veto.
-In provision, Congress argued whether or not steel mills could be seized if needed (like war). They decided against it.
-However there was an 80 day cooling off period.
-Truman ignored it, ordered secretary of Commerce Sawyer to seize steel mills and keep operating—war was going on, they needed the steel.
-Truman lost.
-this case called steel seizure case.
-Lawyers said who can we sue? Can we sue the President? So instead they sued Sawyer.
-Sawyer argued aggregate power of President
-Court said no. President was legislating. No Constitutional provision. No act of Congress that allowed President to sieze.
-Did not have 1) constitutional provision, 2) legislation to approve.
-J. Jackson (Rehnquist his clerk in 1952) concurring opinion, famous. Has three part scenario.
Pg. 309 1. 2. 3.
Ex Parte Quirin (1942)
-Germans not in uniform
-“enemy belligerents” or “combatants”
-tried by military commission, not by court martial or by Art. III civilian courts, i.e., no 5th and 6th Amendment protections
-not treated as POWs
-most got the death penalty
-Quirin is still “good” law- can be used precedent for presidential actions
-“good” since not yet overturned and is currently used today.
Youngstown Sheet & Tube v. Sawyer (1952)
-U.S. tried the aggregate of Art II Powers—Enforce the laws, Commander-in-Chief
-J. Black rejected the Court’s claims
-The President had violated S&P by making law
-President could not seize without 2 things-
1. Constitutional Provision
2. Act of Congress
-J. Jackson concurred- 3 Part Test p. 309.
1) Explicit or Implied
2) in absence of either congressional grant or denial of authority
3) Against implied will of Congress
-J. Jackson said President did number 3.
-J. Jackson Truman acted against implied powers of Congress
-Truman wanted to keep still mills opened
-Truman 80-day cooling off period (Taft/Hartley Act)
-Can President seize and control the mills during difficult times
-They won, president cannot do
-What was the gov. President’s argument?
- President can act the aggregate of Art II Powers—enforce the laws, Commander-in-Chief
- However it was seen that this was not the case and the President was making law.
-Is there a constitutional provision giving the president the power to seize?
-No.
-Court concluded that president cannot seizeà no constitutional provision or Act of Congress.
Dames & Moore v. Regan (1981)
- Donald Regan à Secretary of Treasury
^à Removed by Nancy Reagan (of course, President got credit).
-Dames & Moore à Construction company.
-Executive Order
-Executive Agreements (takes place of a treaty).
-Could president, by executive order. Do certain things and then by executive agreement do thing with foreign government?
-note IMPLICIT – on exam
-Dames and Moore said Iranian government owed them 3.5 million à did not get their money back.
- J. Jackson 3 part test!
- Congress had implicit approved of the settlements of claims by executive agreement.
-Dames and Moore mad because they loose this money because of an executive agreement à no senate approval.
-9-0 decision, seemed to present to the court no controversial issue.
-Dames and Moore did not agree
-C.J.: President has some authority to enter in Executive Agreements without Congressional consultation.
*Any Case not covered in class à Not on Final*
Federalism
- Federal government limited enumerated powers
-How to expand power?
-How to get southern states to agree to a Constitution
-How to expand power?
-Money
-How to get Southern states to agree to the Constitution?
- 3/5 Compromise
-Constitution à Reserved a great amount of power to the states!
-Confederalism- power resides in constituent states.
-federalism
-MuColluch v. Maryland (1819)
-Can governmet establish 2nd National Bank?
-Yes; implied power under Necessary & Proper Clause, said Hamilton
-Can states tax a federal instrument?
-No.
-Can Federal government tax the state government?
-Marshall things so
Structure of Congress:
Madison: Not unitary, not confederal mixture of both.
Alien & Sedition Act (President Adams)
Nullificationà States, if they didn’t like a federal law, they could decide not to obey (Back to Articles of Confederation).
Logic:
-States are responsible for laws made by Federal governmentà majority rules
à nullification not good.
-One state cannot destroy what all the other states have created.
-Federal government is supreme within this sphere!
p. 326 Table 6.1 memorize Table 6.2 Read it.
-Dual Federalism and Cooperative Federalism
-J. Marshall great nationalist of the time.
-McCulloch v. Maryland great victory for nationalism; gave great deal of power to Congress, thus a great deal of power to the national (federal) government.
-One state could not overpower what all states created—no tax on 2nd National Bank of U.S.
Dred Scott v. Sanford (1857)
-only second time the Court ruled an act of Congress unconstitutional.
-Before the 14th Amendment—no mention national citizenship.
-C.J. Taney:
1) Framers intended that Afro-Americans not be U.S. citizens.
2) Slaves were property.
3) Missouri compromise & all other political compromises unconstitutional - (territories).
4) 5th Amendment Due Process Forbade Congress to deny a person his private property.
-case considered to be worst ever handed down by Supreme Court.
-Taney thought decision would prevent civil war.
-mere fact that one had state citizenship does not mean that he/she has U.S. citizenship.
-Framers Intent – probably not all of one opinion.
-procedural (5th Amendment)
-substantive- puts meaning into Due Process clause, looks not at procedure, but the kinds of things that would be protected under Due Process—looks at the statute itself to read into certain protections—is it fair?
- Missouri Compromise – stop the spread of slavery into states à held unconstitutional
-this case is an example of Dual Federalism – limits power of federal government.
-Marshall à compact emanates from the people.
-Federal Child Labor Act of 1916 (near Hammer v. Dagenhart (1908))
-limit the hours that children could work
-prefer that they go to school
-What gives Congress Authority to pass such a law?
-Commerce Clause
-States – health, safety, ? & morals à Police Power –federal government cannot go into here, so, instead, they used Commerce Clause.
-Congress has the power to regulate commerce à can say product cannot leave a certain state.
- 1) great source of national power
-2) prohibits states from curbing free trade between the states
-3) tries to make playing field fair
-free trade between the states is Marshall’s genius
-federal police power
The Child Labor Act:
Two reasons held unconstitutional:
1) Transcends the Commerce Clause (not proper use of Commerce Clause)
2) Court said violation of the 10th Amendment
-Court found no harmful effects in part of the goods produced by children (not in the goods themselves or they are not a chair or a prostitute or piece of tainted meat).
-this case really an attempt by Congress to pass labor legislation (a power then solely reserved to state government) à the statute cannot stand!
-FAIR LABOR STANDARDS ACT - (CF) (Attempted to regulate hours, wages, and standards for industries, don’t abide by it, can’t sell goods)
(1938) and amended many times
(FLSA) under the Commerce Clause
U.S. v, DARBY (1942 (CF)
-9-0, republicans on Court went along with it.
-upheld the FLSA
-overturned Hammer v. Dagenhart (DF)
NATIONAL LEAGUE OF CITIES
-can Congress pass a law that would impose a minimum wage for state employees?
-States did not like it!
-No!
-reversed precedents
-Rehnquist: Congress cannot mess with state sovereignty
-these were fundamental state functions
-Commerce Clause does not give Congress the right to tell states what to do (10th Amendment).
-Usery (1976) pts back to D.F.
-Rehnquist FLSA Amendments
-rejected by the Court.
-Traditional State Functions
-10th Amendment. State Sovereignty
Garcia v. S.A.M.T.A. (1985) Back to (C.F.) [view in class case brief] (kind of deal with minimum wage)
-about overtime for Garcia from San Antonio Metropolitan Transit Authority
-reverses usery! Blackmun changes his mind!
-congressional or federal overreach!!!
-Garcia wins!
-Blackmun gives up on trying to distinguish between state vs. federal functions.
-Dissent- J. Powell (not to be confused with Congressional pr Federal overreach)
-states are not sufficiently protected fromà overreach!
N.Y. v. U.S. (1992)
-J. O’Connor cannot compel a state to administer an essentially federal program can’t commandeer the states.
-pg. 359 [Congress imposed…] Congress imposed 3 incentives to comply with the law dealing with the disposal of waste (radioactive waste).
-N.Y. won!
-Congress could not get involved.
-force/compel – cannot commandeer the states pg. 260 O’Connor opinion.
-J. White (dissent) – Federalism
-pg. 363 accused Court of practicing extreme formalism
Printz v. U.S. (1997)
-Brady Act à strict gun control
-Required local law enforcement to play a role in enforcement of the law (Federal law).
-Scalia gave opinion
- à Federal government could not force states to enforce a federal program.
-J. Stevens (dissent).
-Printz decision has had little impact on gun controlà but shows where Court stands.
Chisholm v. Georgia (1821)
-case of original jurisdiction.
-Why?
-because a state was a party.
-pg. 371
-sovereign cannot be sued without its consent
-the government often gives its consent (to allow suits against themselves)
Seminole Tribe of Florida v. Florida (1986)
Kimel v. Florida Board of Regents (2000)
University of Alabama v. Garrett (2001)
-Three cases above held that Congress could not hold non-consenting states to even in its own courts
-Art. I. do not abrogate
Alden v. Maine (1999)
-Alden sued Maine in federal state court
Sovereign immunity
Wooster v. Georgia 169_?
-11th Amendment
-Supreme Court allowed citizens of South Carolina to sue the state and they won
Missouri v. Holland (1920)
-J. Holmes
- “living constitution”
-Using the treaty power to reach results that government could not get thru normal legislation -this scares some people
CROSBY – Note
Scalia’s concurring opinion
^no need to ask for legislative intent as did J. Souter in his opinion
-decision was 9-0
-point was to show that states have no power in foreign policy decision
“More Liberal”
Stevens
Souter
Ginsberg
Breyer
“More Conservative”
C.J. Rehnquist à C.J. Roberts
O’Connor à Alito
Kennedy
Scalia
Thomas
Nevada Department of Human Resources v. Hibbs (2003) {pg. 379}
-Family Medical Leave Act (know this act for test)
-if father could take time off to care of kids
-Hibbs won à because C.J. Rehnquist moved towards liberal block
-Rehnquist thought this was importanc
-KNOW State of Nevada lost
-departure somewhat string of cases holding in favor of states
State of Missouri v. Holland (1920)
-case of protecting migratory birds under the Commerce Clause à Federal district court shot down
-matter reserved to the states
-U.S. treaty with Canada à then Congress passed a law regulating killing of birds à Supreme Court said fine – 10th amendment doesn’t apply because treaty power belongs to the federal government (it’s a federal matter)
-pg. 391 à J. Holmes opinion à example of a “living constitution” [we may add …]
-Holmes disputes that framers intent can resolve all issues
-Holmes believes that birds serve a strong purpose to the federal government—they eat bugs—and that birds do not belong to any state.
- of the decision in Holland believe that the treaty powers could be used to reach results that the U.S. government could not get through normal legislation.
Pennsylvania v. Nelson (1956)
-Congress had occupied the field of _______
-preemption is:
1. “Pervasive”
2. Dominant
3. Conflict? (it is between state and federal laws)
-J. Reed Dissented: he quotes the Smith Act itself. He states “although the court clearly set out a preemption standard, many argue that it has led to an ad hoc balancing of state-federal interents, turning more or less in the particular facts of disputes.”
Pacific Gas and Electric Company v State Energy Resources Conservation and Development Commission (1983)
- Did federal government use preemption doctrine to nuclear safety?
-Only federal government will set safety standards.
-deals with state whether or not being forced to make another nuclear reactor
-Pacific Gas lost due to economic reasons
-Court decided that California and refuse a permit for economic reasons
-Majority: Economic Reasons.
-Blackmun concurred: Both Economic and Safety.
Legal Theory Notes
Dworkin
-Criticized Positivists
-Focuses on judges
-theory called interpretivism
-controversial
-“master of misrepresenting views of other scholars”
Note: Singular Plural
Datum Data are
Criterion Criteria are
Medium Media are
Dworkin (wanted to establish himself so he attacked positivism and specifically Hart):
-pg. 25-28 Novel cases come up, lawyers.
-pg. 28 Part II Positivism
- own ideas begin pg. 34
- Contrast legal rules with legal principles.
- Riggs vs. Palmer
- Rules – re: Wills
-Principles
Ex. No person (women) shall profit from her legal wrong.
-Dworkin- many legal principles are also moral principles (not concerned with separating the law and morals)
-[I call a principle..] pg. 35 Not concerned at all with separating the law from morality.
-Rules and principles are both standards – what we should do and should not do.
-Rules function in an all or nothing faction. 0/Sum. Rules are valid or invalid.
- Rules do not set out legal consequences that follow automatically.
- Principles state a reason that argues in a particular direction. (does not scuttle).
-Moral element in many of these principles argued in a particular direction, but not conclusive.
-pg. 35 bottom Henningsen v. Bloomfield Motors Inc.
- Product liability
- All legal rules in favor of auto manufacturer, but Court went in different direction. They ruled in favor of Henningsen.
- Freedom of contract is not immutable and not absolute.
- Dworkin thinks the decision is correct; it is the “right” decision and the court really did not have discretion.
-The distinction between legal rules and principles is a logical one.
-Also intersecting and conflicting principles.
-judges under an obligation to take them into account.
- Principle of freedom of contract not been declared invalid. Still around.
- Some rules more important than other rules. Like rules against homicide.
-1st Amendment, freedom of speech, it is a principle, but Black says it is a rule—he is a literalist.
- Some balancing of it, like J. Harlan.
- Rule-
- Principle-
-Can a principle allow exceptions? Yes.
-Dworkin- Sherman Anti-Trust Act of 1890.
- Is restraint of trade provision a rule or principle?
- Court realized if that a rule a lot of people would be violating rule, so Court put in unreasonable as a principle. Unreasonable restraint of trade. Unreasonable allows the Court to treat it as a principle.
-Unreasonable, negligent, unjust, often function in this faction. Pg. 41.
-Principle helped to decide Riggs case. Out of the principle in case we got new rule: murder the testator and you do not get the inheritance.
-Ohio immigrant killed nephew in joint bank account Court said ok but Dworkin said not ok.
-Dworkin: Recap.
Standards
Rules
Principles
Policies
-List à Difference between rules and principles (principles have weight that rules lack)
Logical Distinction
Dimension of Weight
-Provide Examples
-Riggs v. Palmer.
-Hennigsen
1st Ammendment?
Words such as reasonable negligence, etc.
-Unlike legal realists, Dworkin looks at what judges do. Legal Realists—judges makes law. Dworkin—no, they are under an obligation.
-Judicial discretion—how Dworkin makes his mark in jurisprudential circles.
-Judge has to take into account legal principles.
-Legal positivists are big on judicial discretion.
-Dworkin enters into a discussion of how we use the word: discretion. Dworkin says wrong to say I have discretion to buy this home, rather, he says discretion is a certain way people should act in certain situations.
-Discretion is hole in the doughnut. See picture in notes.
-Authority under what standards? Perhaps military.
-Use standards of discretion in weak sense.
-Examples officials apply require use of judgment—not simply mechanical.
-we use weak sense when context does not make it clear.
-ex. Seargent picking people to go out on patrol. Picks people he like least. The Sarge is asked to pick 5 of his most experienced men. When lietanunt ordered sarge to pick 5 most experience it required judgement.
-Another weak sense: official having final say.
-2 weak senses can be distinguished from a strong sense.
-quarry legal positivists, not bound.
- Dworkin: Strong discretion not tantamount to license.
License No Discretion
-We can still criticize a person’s actions other than reference from point of view from surrounding point of authority or restriction (doughnut in hole)
-Positivists in Judicial Discretion-
-Dwrorkin says that some positivists say judges always have discretion even when rule exists since judges are final arbiters of the law. (second weak sense).
-But as Dworkin says, has no bearing on what we account for principles or rules
-Second weak sense not what positivist hold when since rule is in place, no discretion. Only when no rules.
-Dworkin talks about strong sense.
-Hennigsen and Palmer-
-Positivists say principles are not binding/obligatory.
-Dworkin says this flat out mistake.
-Dworkin: principles are binding, if not judges did not take into account, they would have ruled the other way.
-Answer for Dworkin is the BEST JUSTIFICATION POSSIBLE
-Dworkin: Judges obligated to take principles into account and morally obligated. Morally? Not only.
-Dworkin claimed to be flat out natural law, but Dworkin says there are moral principles in positive law, such as no man should positive from his own wrong.
-Arguments from judicial craft won’t work.
-Dworkin question still remains what procedure courts use.
-Some Positivists: justices have discretion to refer to extra legal standards. E.g., morals.
-Other Positivists: still keep moral principles while having the positive principles—just as much law.
-Dworkin: principles are not the same as rules.
1) Judges are obligated to take principles into account. Like Riggs v. Palmer, under obligation to take principle into account no man should benefit from his own wrong. If judge does not, we criticize judge for making a mistake. In terms of J. Gray, who dissented, Dworkin would say he was mistaken—there is no separation with law from morality.
2) Positivist response to Dworkin: might argue that even if some principles are binding that judge has to take into account, principles cannot determine a particular result.
-It is a principle of law that no punishment without strictly defined crime—principle of legality.
-principle seeks to pursue a policy.
-immoral principle to punish people without law.
-certain moral principles at work, now considered to be legal principles.
-Judge takes them into account, can admit they are binding but not to the point in which they influence the result. Dworkin says this positivist argument is more difficult to argue against. Pg. 49.
-Principles incline a decision one way…pg. 49.
-Dworkin: when judges make decision on some accounts they don’t have discretion
-absence makes the heart grow fonder
-out of sight, ought of mind.
Ex. He who hesitates is lost. But…look before your leap.
-We are not clear how taking principles into account has eliminated discretion in the strong sense.
-principles point decision in a particular direction but do not directly decide result.
3) Positivist might argue… pg. 50.
-we cannot demonstrate authority or weight of a particular principle, instead we make a
case for a particular principle.
-Dworkin takes a liberal view. In his argument. Simich: Dworkin argument lack finality.
-Dworkin talks about judges making a case—which is best justification possible.
^-not conservative or liberal, just the better argument—but who is to say this.
-Positivist view in hard cases * (*= no clear rules, conflict of rules)
-judicial decisions
-often understood to be ex post facto
-Positivists- judges exercise discretion and produce a new rule. Some sat this is ex post facto.
-judge appeals to extralegal standards (ex. No man should benefit from his wrong, according to positivists)
-But Dworkin says No!
-If we count principles as law, then we must reject judicial discretion (strong sense). Hence, there are obligations, no ex post facto (ex post facto means looking back).
-Dworkin & Law as Integrity-
-pg. 72 (bottom) and 73 [ ] [ ]
-Dworkin: Is Law a System of Rules-
-Can a master rule of recognition identify rules and policies?
-Dworkin: No.
-p. 54 – sense of appropriateness
-having been sustained
-not just judges/lawyers, but the public itself.
-principle: freedom to contract – Lochner v. New York (1905)
- Limiting work hours to 80 hours/week
à Court thought freedom to contract was more important.
-Defeated New York’s policy.
-principles/policies: Dworkin earlier distinguished, but now says can collapse into one, sometimes principles can contain policies.
-bottom p. 54 [If no longer…]
-In Hennigsen, Dworkin said no rule. Perhaps Bloomfield should have won since no law, but Hennigsen won and Bloomfied agrees with it.
-Nowadays Manufacturers have to taken into account consumer safety (not so 100 years ago).
-broad shifts in public policies not always initiated by the courts.
-Top p. 55
-some principle is a principle of law:
1) refer to prior cases in which principle was cited, or figured in the argument.
|
relevant statute:
2) statute that seemed to exemplify that principle (any relevant statute).
-For Dworkin the “right answer” will not be found in a single principle, comes down to best argument, best justification.
<The qualification of the argument>
-Austin – customary law (not passed by legislatures)
à Does not become law until it is recognized by the sovereign (courtsà indirect command).
-Hart – Rule of Recognition might stipulate that custom might become law (the community accepted it.
-Dworkin: (p. 57 paragraph 2) – Hart does not set out a master rule used for this purpose.
-Dworkin: why can’t principles be recognized in legal community the same way that custom is?
-If so: then bye-bye rule of recognition
-Why couldn’t principles be recognized like custom? à No more rule of recognition (this is a problem of Hart’s statement).
-principles do not function as rules.
- Dworkin reject:
1) Can make a sharp distinction between laws and morals
2) Ex post facto
3) Discretion
4) Extralegal legal standards
-Dworkin:
-principles and policies are legal standards in spite of the positivists, not mere extralegal.
-discretion understood to mean no obligation and no
-what do judges do?
-they make the best case, argument, justification of why “x” should happen.”
Positivists
Strong discretion
^Hard casesà
Extra legal standards
Ex post facto
Lacking obligation, rights, or duties
Dworkin
-No discretion
-standards are not extra-legal
-but include rules, principles, policies, moral and legal principles—which impose obligations or duties and protect rights.
-Judges decision not ex post facto
Judges:
Best- Case argument
-Justification
-legal positivist believes rules always tied to law
Riggs v. Palmer
-no man should profit from his own wrong
-To Positivists à not legal rules; no way to test validity à Dworkin says “extra legal standard”
Test questions:
-what is the best or right answer in a particular case:
Best case
Argument
Justification
-Example lieutenant choose soldier
Second example requires most judgment (which ones best for job—uses most judgments) (lieutenant has less discretion)
Judges used discretion in Hennigsen
-Dworkin said no, but Simich does not know why (Dworkin does not really answer – created controversy.
-There should be no punishment without a strictly or precisely defined crime.
-It is a legal principle.
-has origin in both legal and moral
-The statement that statutes should not lead to absurd results
-Dworkin: must consider everything and make best case argument justification
-Does a principle always dictate a concrete result?
No. but it leads in a certain direction.
-How did Black interpret the 1st Amendment? Rule or Principle?
-Rule
-Signing of will requires 3 witnesses? Rule or Principle?
-Rule
-Hennigsen v. Bloomfield
-only cases he talks about are on the test
-Buck v. Bell (on Final)
-deals with sterilization/eugenics
-Buck judged to be mentally deficient
-considered to be 3rd generation of imbecile
-Holmes: we draft best people for war and to make sacrifice so this is no big deal.
-Buck attorney’s arguing: equal protection, due process
-Buck lost the case and got sterilized
-Roe v. Wade
-built on precedence such as Griswold
-concerned of substantive due process right of privacy under the 14th amendment
-fetus, according to Constitution, is not a human.
-conservative most opposed
-Court held:
-provided guidelines for when women can obtain abortions
Griswold v, Connecticut
-deals with contraceptive, birth control case
-Griswold, the doctor, won
-substantive due process rights protected under the 14th amendment—due process clause
-some say Court should not deal with substantive due process, but Court decided it anyways
-Douglass originally wanted to based it on 1st amendment, but decided to use 14th amendment.
-Douglass: used amendments, such as 9th, to condone “a right to privacy.”
-Dissentà J. Black (constitution does not mention privacy).
-Buck v. Bell
-Substantive due process
-14th Amendment – not procedural
-the same for Griswold
-J. Goldberg concurring in Griswold 9th Amendment “Any rights not specifically listed...[Privacy] à not a procedural right.
-Procedural right- right of government to punish you for something.
-Substantive right – right to do “x.”
-States can indict, convict with less than 12 person jury (non-capital cases).
-Black- did not think the justices could create a right to privacy
-thought use of substantive arguments give too much power to judges (to make law) and Black thought was wrong.
-use of substantive à right to contraceptives
Bowers v. Hardwick
-case having to do with an alleged right to privacy
-majority
-Bowers – attorney general prosecuting Hardwick for homosexual behavior
-Georgia statute did not have anything against
-court rule against Mr. Hardwick: no right to homosexual behavior in the Constitution
-this not a right to homosexual behavior, but rather a right of privacy
-Black – right to be left alone by the statute when not their business
-J. White wrote opinion, he is a democrat appointed to Court by JFK, did not believe constitutional arguments can be raised to protect homosexual behavior
-No harm principle – as long as no harm to other people these acts should not be interfered with by the states
-Blackmun dissenting in Hardwick – issue not about homosexual behavior, issue about a right to privacy. These are areas in which the state should not go.
Lawrence v. Texas (2003)
-Deviant sexual conduct
-Appealed à Due Process Clause 14th Amendment.
-“liberty” – 14th Amendment Due Process (substantive)
Boy Scouts of America v. Dale
-opinion by C.J. Rehnquist
-expressive associational right
-1st Amendment protects right of association, it is a penumbral right (there but not specifically mentioned)
-Courtà B.S.A. had right to exclude Dale
-Are certain groups free from government requirements?
à If private, free to associate with who they want
-Rehnquist of opinion that they have some expressive associational right, so they have protection.
-Dissenters – J. Stevens à B.S.A. never took a stand on homosexuality in their guiding principles. (such as “morally straight and clean).
-“this astounding view of the law . . .”
People V. Hall (1854) California
-Testimony of Chinese witnesses ruled inadmissible trial court decision overturned, case remanded back to trial court
Perez v. Lippold (1949)
-seeking writ of mandamus
-SUBSTANTIVE case
-“all cases we are dealing with are substantive”
-argument that marriage is a fundamental right of free men
-J. Traynor tried to negate California statute
-deals with interracial marriages; don’t want interracial marriage
-pg. 45 right [Every race crossing . . .]
-fundamental right of free people
-J. Shank—classic example of framers intent, judicial self-restraint, and refusal to nullify a statute
-California statute prohibiting marriage
-plaintiff wins
U.S. v. Schooner La Jeune Eugenie (1822)
-J. Story mentions:
a. The Eternal Law of Nature
b. Moral Obligation
c. Moral Justice
d. Law of Nations or International Law
Loving v. Virginia (1967)
-14th Amendment Due Process (substantive) Equal Protection
Korematsu v. United States (1944)
-Roosevelt executive order à Japanese internment camps
-To court à Korematsu tried to disguise himself à didn’t work à he lost
-violations of Constitution, but in extreme situations forget the Consitution
-J. Black opinion à not because he is Japanese, but because he violated a law that was a result of us being at war with the Japanese
-Court – we cannot say Congress has the power
Know two dissenting opinions: J. Murphy—writing those of Japanese descent denied Equal Protection and Due Process, know IMMEDIATE, IMMINENT, and IMPENDING
-J. Jackson—pissed off, Court cannot stop what president and military can do, but don’t ask the Court to sugarcoat it. Doesn’t want to be put in position that what government did is constitutional when it clearly was not.
-this case has been repudiated
