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Legal Theory Study Guides

 

*(In Listing Section) What the Ancient Greeks & Romans Thought About a “Higher” Law (natural law):

 

Greeks:

Xenophon—doesn’t really mention natural law. He states that positive law ought to do what is good, not evil. Laws by persuasion, not force.

Plato—He states that positive law is a resolution by the city, and laws must conform to a [prior] standard of good and evil (perhaps by this he means a “higher law) and that law(s) must be good.

 

Aristotle—particular laws are by people in reference to themselves and are written, general laws are by nature and are unwritten (higher law). “There is a general idea of just and unjust in accordance with nature, as all men in a manner divine [discern] even if there is neither communication nor agreement between them.”

Sophocles—according to Aristotle, Sophocles means the same thing as Aristotle’s quote above. God did not publish law, so Antigone broke it. Law was not natural; it was declared by Creon, not God. Antigone, however, still feels she has to be punished and die (for going against Creon’s order and burying Polynices).

 

Demosthenes—governed by nature and the laws. Nature is irregular and incalculable and is peculiar to each individual. Laws are a general commandment, universal, definite, and same for all. Men of evil nature commit errors, but the laws desire what is honorable and salutary. Law is gift of gods, tenet of wise men, correction of wise men, and correction of errors. Laws are from God and are a general covenant of the state, in which all men ought to regulate their lives.

 

Romans:

From the Pandects: “Natural laws, which are observed alike among all nations, are due to a divine providence: they remain in full force and are immutable.” Natural laws are standards of proper conduct.

 

Cicero—natural law is inherent in us. God is the author of natural law, its promulgator, and its enforcing judge. True law is in agreement with nature; it is universal in application, unchanging and everlasting. Law summons duty by its commands and averts from wrongdoing by its prohibitions. People expound and interpret the law. Whoever denies his natural law and is disobedient, will suffer the worst penalties even if he escapes what is commonly considered to be punishment. To learned men: law is the highest reason, implanted in nature, and commands what is to be done and forbids the opposite. This reason, when developed in human mind, is law. Law is natural force, the mind and reason of the intelligent man, standard of justice and injustice. To the crowd: law is written law. **Natural law equals supreme law and existed before any written law or state.** Laws referred to as standard in nature, fixed by nature, and we use standard in nature to determine good and bad laws and what is honorable (virtue) and dishonorable (vice) —like good and evil. **God authors natural law, man interprets it and expounds it, and it then becomes positive law. **

 

Gaius—Civil Law is determined by people from the general law of mankind (natural law). All people are governed by their own particular law the general law of mankind, and then they use both (particularly the general law of mankind) to determine law itself and the particular law of the people and state (Civil Law and State Law). People use natural reason (perhaps by this he also means higher law) to establish the “Law of the Nations.” Roman people thus employ both their own particular law and the general law of mankind (higher law).

 

*(In Listing Section) What the Great Religions & Traditions Thought About a “Higher” Law:

 

Hindu (Sundaram): Natural law—eternal and unalterable. It is only discovered by man, not mandated by external agency (promulgated not by courts, but by teachers and prophets. If laws corrupt soul of man, man has duty to rebel against such laws and assert natural of maker. Positive law—amendable and alterable, created by man and obedience of law through coercion.

 

Chinese (Shih): Natural law is a higher law and authority, considered truth in man’s innate and intuitive moral conscience, and has been used as a “fighting weapon in mankind’s struggle against injustice and the tyranny of unlimited human authority. Natural law is a way of appealing unjust positive law.

 

Jewish (Freehof): Natural law is the will of God as understood by revered scholars. People obeyed it; it did not need central governing authority (or positive law). Communities were governed by natural law, individuals governed by their own religio-legal conscience. Apply natural law to legal system at all times. If men believe law is natural and law given, then even with a minimum of police power, order will reign.

 

Islam (Hakim): Natural law is fundamental principles rooted in nature; men of knowledge (non-egoistic) can discover them. In Muslim law Allah stands for public weal. Natural law is discovered by men. “The Prophets of God act as only pointers and guides; they impart no new knowledge from above which was not potentially present in human nature itself.” Science may put an end to natural law rejecting it for positivism.

 

*(In Listing Section) St. Thomas’ Definition of Law and All the Elements in It—an ordinance of reason for the common good, made by him who the has care of the community and promulgated.

Reason—1^st principle of one to act, it prescribes law.

Common good—law must stand for this. Stands on final ideal that end of life is happiness (sense of fulfillment and fit).

Ordinance—prescription calling for people to do things. Imperative element.

Him who has care of the community—the sovereign (I guess, not sure).

Promulgated—made known to people so they can do right thing.

 

(In Listing Section) St. Thomas’ (influenced by Aristotle and St. Thomas) 4-Fold Classification of Types of Law:

1) Eternal—divine wisdom, wisdom of God, divine reason, will of God that makes us go by which is natural. It is revealed by prophets. Even unjust law can be derived from it, since all power comes from God. Nature and ethical reason established by God. No one but got can understand everything.

2) Divine—certain aspects of eternal law are made known to man by revelation. Laid down in Bible in Old and New Testament. It is a special category in eternal law. Revelations.

3) Natural—origins not in Judeo-Christian thought. It is in Greeks and Rome—stoics. It is discovered through reason. Reason has important emphasis: can be understood by all people who have reason (some people’s reason is clouted however and they have bad disposition, concupiscence—lust, great desire for things of the world). It is non-codified. Means moral reason. Rational creatures participation in big picture—eternal law. It provides norms for human conduct, such as knowing murder is wrong even without positive law  telling us (“malom n se”—still exists). Some things are axiomatic. St. Thomas wants to subordinate to religion (divine law) and tie in with human law.

4) Human (positive)—suppose to contain elements of other(s). No human law can transgress the law of God (“rule and measure”—objective of everything for St. Thomas).

 

(In Listing Section) The Highest Principle of Natural Law: Do good and avoid evil.

Founded on the nature of good. All other precepts of natural law are based upon this principle.

Who Can Know It? :

Man with practical reason (practical reason defines man’s good).

 

Secondary Principles of Natural Law:

Higher

(more general, more certain)                   1) Do no harm to another—moral axiom.

2) Do not murder.

 

Middle(unreasonable reason, decide)     3) Do not rape, injure, etc.

4) Do not steal.

 

Lower                                                      5) Should a promise be always kept? Depends (more specific, less certain, there is a contingency practical reason) Example: Should you give a gun to a drunk?.

 

 

Role of Judgment & Practical Reason in Dealing with Contingencies:

Both play an important role. For example, returning a gun to a drunk. Use practical reason and judgment—it depends if a promise should always be kept. Practical Reason deals with contingencies and Speculative Reason is theoretical. Reason is a motive for action and is a declaration for justifying an action; it is a capacity for logic.

 

Two Methods for Applying the Natural Law to Human or Societal Needs (Human Law):

1) Conclusions from first principles. E.g. A human law against murder—it is derived from the higher principle of “do no harm to another.”

2) As implementations of general directives. E.g. A human law making a penalty for a crime. Penalty (sanction).

 

(In Listing Section) The 3 Corollaries to the Highest Principle of Natural Law:

1) Preservation of life—natural law in all its manifold aspects. (E.g. ban on abortion, premarital sex, masturbation, etc.)

2) An inclination to Procreation—raise and educate a family.

3) An inclination to do good: a) according to the nature of reason. b) to know truth about God.

c) to live in society (with others). d) to shun ignorance

--from this get Decalogue, or 10 Commandments—all aimed at keep social order in tact.

Who Fixes the Legal Sanction (ordinance of reason)? (see St. Thomas’s definition of law):

“Made by him who has care of the community.”

 

How Do We Know the Divine Law? :

We know Divine Law through revelation. It is laid down in Bible in Old and New Testament.

 

(In Listing Section) The 2 Great Traditions Synthesized by St. Thomas:

Synthesis of writing of Catholic Church with works of Aristotle (also the blending of Judeo-Christian law with Greek philosophy).

 

*Blackstone on Natural Law, Morality, and Our Duties:

Natural law is the will of the Maker (God). It being coeval [of the same age] with mankind, dictated by God himself, is of course superior in obligation to any other [law]. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.” Human laws are in subordination to Natural Law. God gave man the faculty of reason to discover Natural Law(s). If any law goes against natural law (such as allowing people commit murder), then it is our Duty to transgress that natural law, else you offend both the natural and divine. Where natural law does not command or forbid, such as laws on the importing of wool, the legislature can interpose law. Human laws do not annex the Moral guilt of a crime, it is naturally immorally.

 

*Edmund Burke on Arbitrary Power – It’s Source:

Only God can give Arbitrary Power (not Hastings, East India Co., King, House of Lords, House of Commons, or no other man).

 

Burke on Natural Law & God:

Everyone is born (governors and governed) in subjection to one great, immutable, pre-existing law—a law prior to all our devices and conspiracies, paramount to our feelings to which we feel connected in the eternal frame of the universe, and out of which we cannot stir. All good and perfect gift is from God, all power is from God, and the greatest gift of government is from God. Natural law is not from human compacts, but rather it gives human compacts all the sanction they can have. Natural law is from God.

 

*A.L. Goodhart – Relationship of Laws & Morals:

Morality affecting Law:

1) Morality influences the law.

2) Laws regarding morality

3) Laws to be based on moral standards.

Law affecting Morality:

1) Law can beneficially influence morality (point of his article “English Law and the Moral Law”).

2) Law in terms of Supreme Court decisions can allay discrimination.

3) Law against Dueling—perhaps this saved a life.

4) Laws for women (equality, etc.)

5) Effect on Morality

6) Commerce and industry

7) Race relations (not in article example from class)

8) Law has a function of education—goes back to Greeks.

 

*Judge Jerome Frank (Frank is a fact skeptic) on Scholastic (Catholic) Natural Law:

1)“Most intelligent Americans, if the “basic principles” of Scholastic law are described to them, will find them completely acceptable.”

2) “Such Americans differ from their intelligent Catholic friends only when confused by unfamiliar terminology.”

3) “The differences derive from the use of a misunderstood name.”

4) Take some words out, and St. Thomas not that dangerous.

 

*Wu’s Reference to Judge Turney in State v. Bell – The point:

1) In State v. Bell Judge Turney, who spoke for the court, was angered over a lower court ruling that the marriage of white man and a colored woman was legal in Mississippi (he is in Tennessee) and compared such a marriage to legal polygamy and incestuous unions. It is not a stable and sound contract of municipal and Natural Law.

2) Wu thought this was absurd, and to justify the position in the name of the court to be shocking.

3) Turney’s opinion is an abuse of the name “natural law” and misunderstandings thus arrive from such abuses.

 

*Letter from Birmingham Jail – Who? – For What Purpose? – Inspirations:

1) By Martin Luther King.

2) Addressed to fellow clergymen: aimed at politicians.

3) An appeal to white community (white clergymen).

4) King compared himself to the apostles.

5) What made a law just and unjust? (he referenced St. Augustine for just laws and St. Thomas for unjust laws). (he also referenced Socrates, Jillich-Protestant, and Buber-Jew). They also inspired him.

6) Good argument for natural law.

7) Refuse to obey statute perceived immoral.

8) Advocate others to disobey.

9) Advocate, disobey, and then run.

 

*Greg Ivers on the Uses of Natural Law To Justify Various Things:

Answer on test is All of the above.

 

The U.S. Constitution A Product of What:

1) Ivers: Constitution is clearly a product of Legal Positivism.

2) Constitution is Legal Positivism (perhaps some elements though traced back to Natural Law though references to it are absent fro the Constitution).

3) Constitution is Positive (posited) Enactment.

4) Form v. Content Distinction—allows wiggle room. (from-old bottles, content-new wine)

 

*Author of “Law Like Love”: W.H. Auden

*Cases (Relationship twixt Law and Morality, Was there contributory negligence? Who?):

 

Union Pacific v. Cappier – Who Won – Why:

1) Court makes distinction between law and morality.

2) Railroad Company won because negligence in other case (Northern Central Railway Co. v.

State of Maryland) was so great (guy got hit by train then they put him inside warehouse where he crawled around and died). In this case, Union Pacific actually helped guy who got hit by train (with ambulance, etc.) Thus, the court refused to adopt previous case as precedence and Union Pacific won.

 

DePue v. Flateau – Who Won – Why:

1) Plaintiff won—family had to pay damages.

2) Defendant knew plaintiff’s condition (he was ill), but sent him out in cold—this was wrongful.

3) Case discusses importance of good morals, humanity, and “social duties.”

 

Bird v. Holbrook – Who Won – Why:

1) Spring gun case. Plaintiff went in garden to get bird and touched wire attached to gun and got shot in knee.

2) Plaintiff won—it is inhuman to catch a man by means which may main him or endanger his life.

3) Spring gun against humanity, Christianity, and good conduct.

 

Moore v. Strickling – Who Won – Why:

1) Plaintiff won—prosecuting attorney Strickling’s grossly immoral behavior (getting drunk and going to whore-house) was unacceptable and he was removed. The writ of error he filed in this case was denied (judge thought people in public offices have to be upright and moral) and the judge affirmed the previous judgment (removing Strickling from office).

 

*Hobbes Definition of Law (civil laws): Command of the sovereign.

 

*Austin – What Does He (Austin) Mean By “Positive:”

1) Existing by position.

2) Epithet that disjoins (in case of positive morality) from the law of God.

 

Positive Morality v. Positive Law:

Positive Morality:

1) Set by opinion from men to men.

2) People to people.

3) Not by God.

4) Not by the sovereign.

Positive Law:

1) Posited by humans.

2) Law existing by position.

3) The aggregate of rules established by political superiors (can also not be established by political superiors—they exist by position if they be rules or laws).

Who Makes These – Differences? :

Described above.

 

Command – General, Particular, Express v. Tacit:

General Command: laws against murder, laws to pay taxes, laws to join military—aimed at subjects in general.

Particular Command: Legislature passes a law prohibiting a particular thing.

General Command and Particular Command: both can be expressed or tacit.

Express Command: words or speech.

Tacit Command: not words, signification by other means.

 

What Is International Law – Where Does Austin Place It:

1) International Law to Austin is merely positive morality.

2) Since International Law has no determinative sovereign (it is missing), it is not law.

3) It is improperly termed as law and is set and enforced by mere opinion, “that is by the opinions or sentiments held or felt by an indeterminate body of men in regard to human conduct.”

 

What is the Status of Custom for Austin – When Does It Become Law:

1) Custom has no sovereign.

2) Custom is not law and is merely a rule of positive morality until adopted or incorporated by the sovereign (judges). Then it becomes indirect command.

 

Indirect v. Direct Commands, Explain:

Indirect Commands: tacitly and implicitly established (“circuitous”).

Direct Commands: expressly established.

 

(In Listing Section) Where Does Austin Find the Sovereign In the U.S.? 3 things making them 1:

1) A majority in Congress.

2) A majority in state legislatures.

3) Constitutional Convention

--This is the Sovereign--

- Voters, perhaps tyranny of the majority.

 

Is Austin Confused On Sovereign Command In Some Particulars? : Yes.

If we accept Austin’s theory that laws are commands, how do we deal with constitutional provisions? Perhaps there can be other limits on sovereign other than legal?—yes, could be moral.

 

What is Austin’s Disagreement with Blackstone? :

Blackstone: Natural Law is the big one. Follow it all the time. Even if you have to disobey the sovereign.

Austin: law may be morally repugnant but it may be law nonetheless. “Existence of law is one thing, its merit is another.”

 

How Does Austin Treat the Relationship Between Law & Morals? :

1) He understands that there are moral influences in law. In definition of law, however, he was

concerned to omit morality.

2) People try to fuse law and morality. You will obey the sovereign because. . . a) the sovereign

commanded it and b) it is deemed moral. People can spin morality; if fuse law and morality,

people won’t be able to criticize law.

 

Does It Appear That There Are Elements of Natural Law in Austin’s Theory? : Yes.

1) Austin’s concept of law lays in what is necessary bottomed in the common nature of man.

2) If no evil, no need for law.

3) Law seen as corrective of evil (like what St. Thomas said).

4) Opposite of evil: good (like what St. Thomas said).

5) Some Natural Law assumptions in Austin’s theory.

 

Is Law An Imperative For Austin: Yes.

[Positive Law styled customary (and all positive law made judicially) is established by the state directly or circuitously, and therefore is imperative. e.g. laws made by statute]

(But there are laws which are not imperative and which belong to the subject-matter of jurisprudence, such as:

1. Declaratory laws, or laws explaining the import of existing positive law.

2. Laws abrogating or repealing the import of existing positive law.

3. Imperfect laws, or laws of imperfect obligation (with the sense wherein the expression is used by the Roman jurists).

~”But he does limit the term law to laws which are imperative, unless he extends it expressly to laws which are not.”

 

(In Listing Section) The 7 Major Elements in Austin’s Theory:

1) Independent Political Society

2) Sovereign

3) Subject

4) Command

5) Duty (obligation)

6) Sanctions (threat or likelihood of punishment)

7) Habit of obedience (subjects to sovereign)

 

*How Does Maine Critique Austin (Ancient Societies – Command v. Legislation):

1) Maine gave an example of an Indian chieftain as sovereign who raise armies, killed people, but never made a law (never would change customs of people either).

2)Maine: Austin’s general definition of law (law is a particular or general command by a sovereign to his subjects (in notes), law is a legal rule laid down for the guidance of an intelligent being by an intelligent being having power over him (in text)) does not account for ancient society—it did not have law as legislation.

 

*Rule Skeptics & Legal Realists:

Rule Skeptics—rules not as certain as we thought. Revolted against formalism, believe legal

rules are not as efficacious. They are called “disappointed absolutists” by some critical of the alleged excesses of legal realism.

Legal Realists: O.W. Homes, John Chipman Gray; they depict law as it really was, watch what judges do and decide. Law is constantly in flux. They are fact skeptics and rule skeptics.

*Holmes, Law & Morality, The “Life of the Law” – What? :

Law & Morality

1) Law as predictions of what judges will do.

2) Morals have led to confusion in law (viewing that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law).

3) Morals not always law.

4) “The law is the witness and external deposit of out moral life”

5) Morality is fine; it influences law, but we can make distinctions.

6) Law allows us to do things morality will not enable.

7) The law is full of phraseology drawn from morals.

The “Life of the Law”:

1) Law is a logical development, like everything else.

 

Role of Production or Prophesies:

1) The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies (predictions).

2) “A legal duty is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this of that way by judgment of the court—and so of a legal right.

3) Predictions present themselves as a finite body of dogma which may be mastered within a reasonable time.

4) The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.

 

The “Bad Man” – What? :

1) To predict law you must look at it as the Bad Man.

2) The Bad Man doesn’t care about moral standards; he is not concerned with morality just enough [of morality] he can get away with. He wants to know how much he can get away with before he is punished.

3) “If you want to know the law and nothing else, you must look at it as a Bad Man, who cares for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.”

 

External v. Internal Point of View (prediction):

Internal Point of View:

 

Duties                          Ought

 

External Point of View:

 

Will                             Is

 

To Understand Law We Must Wash Our Ideas about Law in What: Cynical Acid

What Did Holmes Say About the Eminent Judge On Legal Reasoning? :

 

How Does Holmes Define Law? :

1) Law is a logical development, like everything else, but is a fallacy to think that the only force at work in the development of law is logic.

2) The law is the witness and external deposit of our moral life.

 

For Holmes, Do Judges Make Law or Always “Discover” It:

Judges make law; they do not discover it.

 

*Is Gray A Legal Realist – Why Or Why Not: Yes.

1) He watches what judges do and decide.

2) He believes the courts are the real law makers.

3) He believes that you are not going to know legal right and duty until judge makes his decisions.

4) He endeavors to depict law as it really was.

5) He doesn’t buy law as sovereign’s command—kings, etc., will buy it if it refer to judges.

6) No existing law before judge applies.

7) He doesn’t buy Savigny’s theory that judges are the top common consciousness of people—it is law.

 

For Gray, What Are the Sources of Law? :

1) Judge is Law-Giver.

 

In the Damage Caused By Water Examples, What Does Gray Say About the Law In Nevada? :

1) There was no law on the matter before the incident occurred.

2) Even if there is an ideal theory of law or a “correct” precedent that Nevada did not follow it, it would not affect the Law as established in Nevada and it would be the law today, regardless how intellectually or morally wrong the law Nevada established may be.

 

Gray Quoted This English Writer 3 Times – Who Was He – What Did He Say – What’s the Point ? :

1) Bishop Hoadly—first Legal Realist.

2) Bishop Hoadly said “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.” (he who interprets the law is the true lawgiver.)

3) The point is to show that, as Gray says, “There seems to be nothing gained by seeking to discover the sources, purposes, and relations of a mysterious entity called ‘The Law,’ and then to say this Law is exactly expressed in the rules by which the courts decide cases.” “It is better to consider directly the sources, purposes, and relations of the rules themselves, and to call the rules ‘The Law’.” In other words, he is trying to show the judge is the real law-giver; discretion is involved, judicial discretion.

Was Holmes And Gray Involved In the Revolt Against Formalism – If So, How Or Not? :

Yes.

1) Holmes thought the tenet of Legal Formalism that “the justices are passionless vehicles for discovering and applying the law” is nonsense. He was part of a revolt against formalism.

2) Both were Legal Realists that thought judges were law-givers, not discoverers.

3) To Gray and other Legal Realists: a) no complete formal system is relatively open and not closed and b) no mechanical jurisprudence, no slot machine computer jurisprudence—not much interpretation and what is missing is the human creative element.

What Is Legal Formalism? :

1) Interested in forms.

2) Law can be understood through logic.

3) Judges can discover the law if no precedence.

4) The intention of the Framers (U.S. Constitution) can guide conventional decision making and decisions.

5) Decisions can be logically deduced from Constitution (Simich thinks this is a myth).

-if lose, decisions not deduced correctly by court.

-if win, decisions deduced correctly by court.

6) The justices are passionless vehicles for discovering and applying the law (Holmes thinks this is nonsense).

7) J. Black an advocate (conservatives did not like him regarding free speech and liberals did not like him regarding right to privacy).

8) Legal formalism has an apparent certainty about it.

9) Legal formalists believe law is fixed.

 

*(In Listing Section) Lon Fuller’s 8 Ways to Fail To Make Law:

1) A failure to achieve rules at all, so that every issue must be decided on an ad hoc basis.

2) A failure to publicize, or at least to make available to the affected party, the rules he is expected to observe.

3) The abuse of retroactive legislation [ex post facto laws], which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective change.

4) A failure to make rules understandable.

5) The enactment of contradictory rules or

6) Rules that require conduct beyond the powers of the affected party.

7) Introducing such frequent changes in the rules that the subject cannot orient his action by them.

8) A failure of congruence between the rules as announced and their actual administration.

 

• St. Thomas – Definition of Law – All Elements In It. His 4-Fold Classification of Types of Law:

- St. Thomas’ definition of law – “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”

- The 4-Fold Classification of St. Thomas:

1) eternal

2) divine

3) natural

4) human (positive)

 

• Emphasis on Reason in Natural Law:

- Human desire, we do what we want for survival and sex to feed our ego. This is the basis for moral/legal philosophy. – Law is an obligation prescribed by reason.

• The Highest Principle of Natural Law – Who Can Know It:

- Only God can know.

• Secondary Principle of Natural Law:

- Laws are enacted for no private profit but for the common benefit of citizens.

• Two Methods for Applying the Natural Law to Human or Societal Needs (Human Law):

1) As a conclusion from principles.

2) By way of determination of certain common notions.

• The 3 Corollaries to the Highest Principle of Natural Law:

1) Preservation of life

2) An inclination to procreation

3) An inclination to do good according to the nature of his reason.

• How Do We Know the Divine Law:

- God has given it to us.

· Blackstone On Natural Law, Morality, and Our Duties:

- The law of nature, being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them are valid derive all their force and all their authority, mediately or immediately, from this original.

· Edmund Burke On Arbitrary Power – It’s Source:

- Derives wholly from his ardent faith in the Natural Law as an emanation of God’s justice.

· A.L. Goodheart – Relationship Of Laws & Morals:

- Laws can influence morality. Law has the function of education and can beneficially affect morality.

· Judge Jerome Frank On Scholastic (Catholic) Natural Law:

- “Most intelligent Americans’ if the ‘basic principles’ of Scholastic natural law are described to them, will find then completely acceptable. Such Americans differ from their intelligent Catholic friends only when confused by the unfamiliar terminology. The differences derive from the use of a misunderstood name”

· Wu’s Reference to Judge Turney In State v. Bell – The point:

- If interracial marriage were to be allowed, then it will open the door for other such acts.

· Letter from Birmingham Jail – Who? – For What Purpose? – Inspirations:

– Addressed to fellow clergy and aimed at the politicians for the purpose of arguing natural law as a mean to disobey an immoral statute inspired by St. Thomas, St. Augustine, Tillich, Buber, and Socrates.

· Greg Ivers On the Uses of Natural Law To Justify Various Things:

- If natural law recognizes the existence of universal rights that can be derived from moral absolutes, why have legal scholars, philosophers, theologians, and constitutional scholars been unable to agree on what those universal rights are?

· The U.S. Constitution A Product of What:

- Legal Positivism

· Auth of “Law Like Love”:

- W. H. Auden

· Union Pacific v. Cappier – Who Won – Why:

- Union Pacific Railway Company won this case because they tried to help the injured party.

· DePue v. Flateau – Who Won – Why:

- The plaintiff (DePue) won because the defendant (Flateau) was aware of his sickly condition but sent the plaintiff out in the cold anyway.

· Bird v. Holbrook – Who Won – Why:

- The plaintiff (Bird) won because it is inhumane to catch a man by means which may maim him or endanger his life.

· Moore v. Strickling – Who Won – Why:

- The plaintiff (Moore) won because public service demands that public offices shall be filled by upright and moral men.

· Hobbes Definition of Law:

- Civil law, is to every subject, those rules, which the commonwealth hath commanded him, by word, writing, or other sufficient sign of the will, to make use of, for the distinction of right, and wrong; that is to say, of what is contrary, and what is not contrary to the rule.

· Positive Morality v. Positive Law:

- Positive law is posited by humans and positive morality is set by   opinion; people to people – not by God or the sovereign.

· Command – General, Particular, Express v. Tacit:

- General or broad command, Particular or specific command… express by words/speech v. tacit (by other means).

· What Is International Law – Where Does Austin Place It:

- International law is missing the element of the sovereign; therefore, Austin does not consider it law at all.

· What Is the Status of Custom For Austin – When Does It Become Law:

- Custom is not law until something happens. It becomes law when it is adopted by the sovereign à law as legislation (judges).

· Is Law An Imperative For Austin:

- Laws are not imperative because they are not commands.

· How Does Maine Critique Austin (Ancient Societies – Command v. Legislation):

- He stated that the general definition, according to Austin, does not work – law as legislation.

· Rule Skeptics & Legal Realists:

- Legal Realists depict law as it really is; watch what judges do and decide. Rule Skeptics believe rules are not as certain as we thought.                              Judicial discretion is present, legal rules are not efficacious.

· The “Bad Man” – What:

- To predict law you must look at it from the point of view of the “bad man.”

· External v. Internal Point of View:

- The external point of view is grounded in the concept of will/is while the internal point of view is grounded in the concepts of duties/ought.

· To Understand Law We Must Wash Our Ideas About Law In What:

- We must wash our ideas about law in cynical acid.

· For Holmes, Do Judges Make Law Or Always “Discover It:

- Judges make law… law did not exist until it was handed down and decided by a judge.

· What Is Legal Formalism:

- Interested in forms, law is something that can be understood through logic.

 

Listing Section:

· The Ancient Greeks & Romans:

- Xenophon, Plato, Aristotle, Sophocles, Demosthenes, Cicero, Gaius

· The Great Religions and/or Traditions:

-  Sundaram (Hindu), Shih (Chinese), Freehof (Jewish), Hakim (Islam)

· The 4-Fold Classification Of St. Thomas:

5) eternal

6) divine

7) natural

8) human (positive)

· St. Thomas’ Definition Of Law – All the Elements:

-  An ordinance of reason for the common good, made by him who has care of the community, and promulgated.

· St. Thomas On the Highest Principle of Natural Law:

- Do good and avoid evil.

· The 3 Corollaries To the Highest Principle:

1) Preservation of life

2) An inclination to procreation

3) An inclination to do good according to the nature of his reason.

· Lon Fuller’s 8 Ways To Fail To Make Law:

1) Failure to teach rules at all

2) Failure to publicize rules

3) The abuse of retroactive legislation

4) Failure to make rules clear & understandable

5) Enactment of contradictory rules

6) Rules that require powers beyond the affected party.

7) Introducing frequent rules that subject cannot orientate

8) Failure of congruence between the rules as announced

· The 7 Major Elements In Austin’s Theory:

1) Independent Political Society

2) Sovereign

3) Subjects

4) Command

5) Duty/Obligation

6) Sanction/Punishment

7) Habit of Obedience

 

Sources of error in legal questions. Know and provide examples:

1) In legal philosophy, think about concept: sovereign, authority, etc.

2) One source of error: urge to convert concept[ual] questions into questions of fact.

The urge to convert conceptual questions into straight forward questions of fact.

People confuse conceptual thinking with empirical thinking. (we must not do this).

Empiricism v. conceptual analysis

Empiricism- observe, classify categories (most people stop here), quantify, then explain.

Conceptual Method- by example.

ex. What does it mean to say there is a law?

1) Conceptual Approach.

ex. What does it mean to say there is an obligation? What is an obligation?

What is likely to happen if citizens do not act according to law?

1) Empirical Approach.

 

The urge to grind an axe; intruding value considerations into conceptual analysis.

Urge to grind axe- ex. Hobbes- “conceptually illegitimate to speak to a right to revolt.”

Indirect v. Direct Commandsà urge to grind axe.

Intruding value considerations into conceptual analysis-

The influence of misleading or irrelevant models

- The use of mathematical models in formal arguments—not proven successful. People want to make law more scientific.

The reductionist impulse (complex phenomena into few or 1; lump different categories together)

-Reducing complex phenomena into more manageable categories. –one factor analysis-

ex. -all politics as power

-all politics as economically determined.

Lumpers ßà Splitters.

Law as coercion.

 

Essentialism; Wittgenstein on family resemblances

Essentialism- the denial of essences of something or thing.

Ludwig Wittgenstein on family resemblances, Philosophical Investigations, à no essences of law.

Wittgenstein’s concept “family resemblances” is a series of criss-crossing overlapping similarities, however there is no one quality common to them all.

The misuse of definition per genus et differentiam (differences)

ex. cat/dog

differences in classifications.

not in law.

Sui Generisà not part of something, unique.

No necessary connection between legal positivism and imperative or command theories of law.

^à can be a positivist with being John Austin.

-no logical connection necessary between law and morality.

-mechanical jurisprudence “closed system”à cannot endorse to John Austin

-Positivistsà moral thinkers are better at explaining why people obey than positivists themselves. Those things efficacious in law due to morality – argues sanctions are not necessary.

-Most positivists don’t hold position that morality does not affect law.

-Misconceptionà Positivism always sees force or coercion as necessary function of law.

^à Kelsen’s idea, but not all positivism you construct with coercion, build from there.

-Hart: no necessary connection between law and morals.

Law as it is. Law as it should be.

 

HANS KELSEN

The “2 worlds”: Ought v. Is, normative approaches or subjects of study; the study

of physical regularities, e.g. law, morals, religion, etc. v. physics, chemistry,

biology, psychology, sociology, etc. If “A” then “B” ought to be v. If “A” then “B” is or will be.

TWO WORLDS

OUGHT                                                                                  IS

(normative)                                                                              (causal)

If “A” then “B” ought to be.                                                  If  “A” then “B” is or will be.

prescriptive                                                                              descriptive (physical world)

Morality (immoral to take advantage or people),                    ex. Physics, Chemistry, Biology,

ethics, (like a profession)                                                             Psychology, Sociology

Natural Law                                                                                 Geometry, Geology

Religion (ex. 10 commandments)                                                Political Science

-grammar                                                                                 ^ empirical approaches ^

-ettiquete

What is meant by the “pure theory of law”?

-doesn’t contain natural law, morality.

-we don’t need to bring morality into study of law.

-not concerned why people obey law (can be left to social scientists).

-has sever methodological restraints.

-variation of legal positivism

*-formal theory; in sense he is not concerned with any particular content of legal system—it’s a general account of law itself.

-a legal norm may have any content whatsoever (even if Nazis have law to kill Jews).

 

Scheme of interpretation: execution v. murder

Execution- legal or terrorist-killing a journalist.

Murder- physical causal world, legal world.

Monopoly of the use of force. Who or what?

?Officials

Validity v. Efficacy of Norms

Validity- based on legal norms (their existence, not a reference to moral validity, or natural law validity) *A norm does exist, the norm was made by a proper authority, even if it is not always

followed it remains valid.

Efficacy- based on people, it refers to behavior, (it is condition or validity, not the reason)

*A norm can be valid even if it is not efficacious because it was created by a power organization and belongs to an efficacious legal system (there must be an efficacious legal system).

Efficacy of the legal system itself

A norm is valid if it belongs to a legal system that on the whole is efficacious. (like what Austin said).

Desuetude. secondary norms/ primary norms- which stipulates the sanction? Reducing the secondary norm into the primary norm

Desuetude- disuse.

Law is located in the primary norm that stipulates the sanction. (it doesn’t matter if people know the law at all).

Primary norms stipulate the sanction.

Kelsen reduces two sets of norms into one and merges secondary norms into primary norms.

ex. Do not steal.

then à If one steals the official or organ has to apply the sanction.

 

Dependent norms

Secondary norms (ex. do not murder) dependent on the higher primary norm (ex. do not harm one another).

Delict- Both criminal and civil: mala in se v. mala prohibita- Kelsen's position?

Delict- a legal wrong (in criminal and civil law). It is merely a condition for application of the sanction.

mala in se- evils in and of themselves.

mala prohibita- wrong, evil by law; evil because it is prohibited by law.

*Kelsen adopts mala prohibita. (all legal wrongs are mala prohibita—only mala prohibita).

 

Delict as a condition of the sanction

If                 A then                 B ought to be.

(condition of the delict)               (application of the sanction)

A- delict (condition of the sanction) described in norm.

B- act of sanction.

 

X is a delict because the law attaches a sanction to it. Need X be immoral?

?No.

If A, then B ought to be, explain.

See Above.

 

Law as directives to officials. Why? Why not law as norms “directed” to the public: think of the exceptions- ignorance of the law, retroactive laws and persons who suffer coercion not for what they did, but for who they were.

Law as directives to officials

-Law as directives to officials to apply sanction when A is delict.

-Law as directives to officials to apply sanctions (use coercion) when certain conditions are met (or fulfilled).

Why not law as norms “directed” to the public

-Law is aimed at officials. *Officials are supposed to act when law is broken.

-Norms not directed to public because, for example, if ignorance of the law was allowed the legal system would falter. Typical legal fiction- we can all know all of the laws. Law not always addressed to people.

- Legals system can pass a law not for what people do, but for who they are (ex. Jews, Gypsies,etc.)

-Whole legal system is constructed around coercive acts.

-In terms of retroactive laws, the spheres of validity of norms apply to nation-states and are sometimes concerned with the past and not always the present.  (retrospective – retroactive).

ex post facto à applies to criminal law – is always retroactive, but retroactive is not always ex post facto.

Kelsen and the “ought” - Kelsen personally or legal system

-All oughts derived from higher [n]oughts.

-Basic norm is an “ought”

ex. “ought” to obey God. Part of the notion of God is to obey him. God is the cut-off point.

- Law as it is not as it ought to be

-no position with content of legal system

??-Kelsen sees law as normative (a system of oughts)

à in the pure throry of law

Sanctions and coercion- Difference? Which is the broader category?

All sanctions are coercive, but not all coercive acts are sanctions.

Coercion is the broader category. Sanctions within sphere of coercion.

 

Static systems, e.g. natural law. Deprivation?

Static system of law- Natural law like St. Thomas Acquinas.

Deprivation- does not give law creating power to certain officials.

^ ex. Do good and avoid evil. (can reduce to do no harm to others).

Dynamic systems, e.g. a legal system. Deprivation by content or law-creating

power conferred upon organs of government (officials)

Dynamic system of law- confers rule-making/law-making capacity to certain individuals or organs of government.

?-not restrained by content.

Can an “ought” be derived from an “is”? Vice versa? à ??

Kelsen’s pure theory: Cannot derive an ought from an is.

-All oughts derived from higher [n]oughts.

 

In Kelsen's theory, do judges make law? Do they have discretion? His “no gaps

in the law” idea

Kelsen no gaps in the law (dynamic system)

-Sometimes insufficient rules à judges make rules/law; they have discretion.

-Judges have law creating capacity.

-There are grey gaps in the law . . . judges fill the gaps. (John Chipman Gray type idea- fantasy to sit there and believe law is being discovered—legal realist view).

Kelsen' s basic norm. What is it? Assumed, not posited, not positive law in the

sense of a constitution, statute or judicial decision, '”juristic hypothesis”

“presupposition,” what is the “assumption”? Basic norm as a "cut-off' point

Basic Norm

-Assumed to be valid/validity is assumed. (assumption of validity).

-Exists in the judicious conscience.

-Gives unity.

-Some accused Kelsen of engaging in Natural Law theory with “basic norm.”

-Basic norm is an “ought”

ex. “ought” to obey God. Part of the notion of God is to obey him. God is the cut-off point.

-Basic norm à Wittgenstein (family resemblances) – chain of validity.

- The validity of the highest legal norm (Constitution) cannot be derived from another legal norm (cut-off point).

-Not posited, not positive law.

-Assumed, hypothetical.

-“Constitution ought to be obeyed.”

 

Law, state, and sovereignty. The latter 2 explained in terms of #1. Why?

-Concept of  “state” à the state is law.

à dualism between state and law. ex. State|- Law

-Sovereignty for Kelsen is not an issue . . . reduced to law.

 

The “Stufenbau,” “Steps and stairs” idea

 

Basic Norm

|Constitution

|Statutes

|Judicial Decisions

|Application of the Norm

|

 

No “Gaps” in the law (dynamic system)

-Sometimes insufficient rules à judges make rules/law; they have discretion.

-Judges have law creating capacity.

-There are grey gaps in the law . . . judges fill the gaps. (John Chipman Gray type idea- fantasy to sit there and believe law is being discovered—legal realist view).

H.L.A. HART

 

H.L.A Hart on “orders backed by threats” (OBT)

-First several chapters in Hart’s  Law as the Union of Primary and Secondary Rules are a critique of OBT.

-OBT has some deficiencies.

-Hart in his book tries to move away from sanctions, legal rules that differ from OBT and Kelsen’s theory.

-OBT lacks a concept of a rule.

-“not all laws are like criminal laws.” There are other varieties of law.

^ Those that commit power to judiciary, also legislation, and those that create legal relationships which cannot be construed by Orders Backed by Threats.

The “Gunman holdup” situation. Obligation? “Obliged” only? Difference?

-In gunman situation, we would not say that the clerk had an obligation if trivial consequences were to occur.

-But clerk had no obligation, since obligation has/presuppose rules (no rule stating that clerk must give over money).

-Gunman situation, for Hart, is not an example of being under or having an obligation.

*-Clerk is obliged, but not under an obligation.

-Hart: Austin went too far, gunman situation does not adequately explain law.

Normativity? Need for a rule. Serious social pressure behind the rule.

-Rules necessary to maintain social life.

-Rules need social pressure.

- Deviation from a rule often a good reason for hostile reaction and in the area of law the application of a sanction.

- Social pressure to conform to rule

^-behind rules, pressure must be great and bring it upon the people who deviate or

threaten to deviate. (not always easy to measure; we have expectations of people to do

this A and not do B). –We expect certain behavior of people and there will be consequences.

For Hart, must a person feel bound to have an obligation?

No. There can be an obligation, but we don’t have to feel bound.

^- ex. stalker has an obligation not to stalk, but he does it anyways.

-not necessary for feeling of compulsion (some have it, some do not).

Internal point of view. Explain

- “We” We do this, we use.

- Rules not mere regularities of behavior.

- Rules accepted and used by us.

^- as a guide for conduct (somewhat deviates—we criticize or in terms of law, we apply sanctions).

-In chess, players know rules.

External point of view. Explain

- “They” Dem Guys, outside, that's the way in that legal system.

-  observing the French, English (external observations).

-*confine analysis to observable regularities of behavior.

- predictive theory of law – external (prediction of what the judges will do).

-In chess, statistical plotting of moves, don’t know rules (try to infer).

 

When judges make decision- internal or external?

External, if predicting the decision they will make and what they will do.

Internal, in regards to judges making decisions themselves, because of the judge’s internal aspect, i.e., “because those rules provide a standard of behavior which judges recognize as proper and which they follow voluntarily—rather than because they fear that violation of the rules will lead to their being punished” (Kanowitz).

 

Hart's critique of the “predictive” theory of obligation. Internal or External point

of view

-Hart criticizes predictive theory of obligation (Austin’s “chance or likelihood to have a sanction on you”) for being too one-dimensional, people feeling bound to legal rules à don’t have to feel bound.

ex. X has right to Y. “Z” is deviation from the rule.

Is this a prediction? Hart: No. Not necessarily a chance or likelihood.

-Obligation cannot be reduced to punishment or predictions.

-Predictive theory of obligation is an example of the external point of view.

The Simple Social Structure (SSS) 3 defects, 3 remedies, says Hart

3 Defects

1) Uncertainty. – Not certain Primary Rule X applies. e.g., no procedures to deal with.

2) Static nature of the rules – (social change).

3) Inefficiency of the diverse social pressures – lacks an organization.

3 Remedies (appear in secondary rules)

1) Rule of Recognition ß à (remedies Uncertainty) – specify what are the primary rules.

[gives unity]                       ^ex. list of do’s and don’t (simplest)

2) Rules of Change (remedies Static nature of the rules).

3) Rules of Adjudication (remedies Inefficiency of the diverse social pressures).

- have/name judges – (and the procedures they are suppose to follow).

-ID individuals who will do the “judication.”

- Procedures they follow.

- will also be a rule of recognition (like jurisdiction).

 

Hart's primary rules of conduct (obligation)

- Set of standards.

- Basis of legal system.

-Rules of conduct, easily identifiable.

- Aimed at general public, not officials.

Ex. do not steal, do not murder, pay your taxes, etc.

- they impose duties . . . concern actions involving physical movement of change” and make human conduct “non-optional or obligatory.”

Hart's secondary rules

- Hart says these are about primary rules; they help us introduce primary rules; they allow us to improve or remove primary rules.

- Power conferring rules – both public (ex. Constitution) and private. (ex. private, getting married, passing inheritance on to children).

- Parasitic on primary rules, are “about” primary rules.

-** Can a secondary rule be about another secondary rule? Yes.

- While in and of themselves different, they are about primary rules.

^- but also can be about other secondary rules as well.

-Allows public officials to make changes.

^- ex. can make wills, etc.

-Need secondary rules to supplement primary rules.

Law as the union of primary and secondary rules

Hart's critique of Kelsen

-He agreed with Kelsen’s steps and stairs, but eliminated “basic norm”—he replaced it with the rule of recognition.

-Hart’s rule of recognition is based on fact rather than assumption [Kelsen’s basic norm (the validity of it)] and thus avoided problems of Kelsen.

-Hart criticizes Kelsen’s basic norm since it is not based on fact and rather it is based on assumption.

 

? Where does Hart place the sanction?

- Kanowitz: “for Hart, law without sanctions is perfectly conceivable.”

- Hart claims coercion is a lesser aspect of law, it is possible to imagine a society without courts or a legislature.

^- set of standards (primary rules)

- SSS Simple Social Structure (small, closely knit, common sentiments, beliefs homogenous, stable environment).

-Hart wants to restrict the notion of sanction.

Identify some rules Hart calls secondary

- Power conferring rules – both public (ex. Constitution) and private. (ex. private, getting married, passing inheritance on to children—wills).

Rules of Recognition v. Rule of Recognition

-Rule of Recognition is superior to Rules of Recognition.
- Rule of Recognition is ultimate. It is like Austin’s Sovereign.

- Rules of Recognition are penultimate. It is like Kelsen’s Basic Norm.

 

How does Hart's Rule of Recognition differ from Kelsen's Basic Norm?

-Hart’s rule of recognition is based on fact whereas Kelsen’s basic norm is based on assumption (the validity of it).

The Rule of Recognition from the Internal and External points of view

-To use/accept/follow Rule of Recognition is Internal point of view.

-The existence of Rule of Recognition is shown, not used or accepted.

ex. Look at Great Britain King’s law while in the US.

^- External point of view.

Criteria, found or identified by officials

- Criteria to be found or identified by officials.

^-partly existing, recognizable secondary rules—but something is in doubt.

- Concordant practice of officials- identifying and using laws.

- Actions by officials in making new rules/practices—“discovering the law”

What do officials do when there are no criteria?

- Officials look to/make references to past precedents, prior judicial decisions, constitutional provisions. Rules of Recognition is a practice of officials.

(A)Existing secondary rules?

(B) Partly existing secondary rules and partly the concordant practice of officials identifying certain secondary rules?

(C) Actions by officials in making new rules exclusively, owing to the complete absence of criteria-containing rules. Or all three? ANSWER IS ALL THREE.

What words best describe our behavior respecting primary rules of obligation? Obey? Disobey?

?- Obey. We face great social pressure if we deviate from the rule. Obligation involves some sort of sacrifice.

Role of sanctions regarding primary rules? Do these two words fit when we talk about the behavior of government officials in respect of secondary rules?

When officials fail to comply with secondary rules, do we use “disobeyed”? Why or why not? Name some words that better fit this context.

-No; when officials fail to comply with secondary rules, do we not use “disobeyed.”

- Using “disobeyed” would be out of context.

?- Other words that better fit this context are they may follow, use...

If the legislature passes a law that is in clear violation of the Constitution, is the legislature guilty of a crime? A tort? Is there a sanction attached to the legislature's behavior?

Recall, for Hart, nullity is not a sanction.

What is legal formalism and Legal realism?

Legal formalism

1) Interested in forms.

2) Law can be understood through logic.

3) Judges can discover the law if no precedence.

4) The intention of the Framers (U.S. Constitution) can guide conventional decision making and decisions.

5) Decisions can be logically deduced from Constitution (Simich thinks this is a myth).

-if lose, decisions not deduced correctly by court.

-if win, decisions deduced correctly by court.

6) The justices are passionless vehicles for discovering and applying the law (Holmes thinks this is nonsense).

7) J. Black an advocate (conservatives did not like him regarding free speech and liberals did not like him regarding right to privacy).

8) Legal formalism has an apparent certainty about it.

9) Legal formalists believe law is fixed.

10) Legal formalism has an apparent certainty about it.

Legal Realism

- Rule skeptics.

- Rules not as certain as we thought.

- Legal Realists depict law as it really was/is and watch what judges do and decide.

- Legal Realists that thought judges were law-givers, not discoverers.

- Law is constantly in flux.

- To Legal Realists: a) no complete formal system is relatively open and not closed and b) no mechanical jurisprudence, no slot machine computer jurisprudence—not much interpretation and what is missing is the human creative element.

- Part of a revolt against formalism.

Why does Hart criticize the two?

-In terms of legal realism, Hart wants to restrict the notion of sanction [both legal formalism (ex. Acquinas and Burke) and legal realism (ex. Austin and Holmes) relies heavily on sanction].

- In terms of legal formalism (there are always rules), Hart believes that in some instances there are rules whereas in other instances there are no rules.

In spite of his critique of these “vices” does he nevertheless incorporate elements of both in his work?

Yes. Hart incorporates ideas of legal realism when it helps us understand the law – on the fringe.

What does he mean by “open texture”?

-Use of social facts, legal realism, and legal formalism together.

-Liberal outlook and eclectic approach.

 

What is the “core-penumbra” concept?

-At core, no one will refute core meaning of rules. Hart- rules have fuzzy edges.

- Hart: rules often have a clear core penumbra; it is in the penumbra where disputes often arise.

Is the right to free association a core right or a penumbral right in the First Amendment? Explain.

-It is a penumbral right (right of association is located in the penumbra).

- Note: If penumbra, rule should be treated narrowly.

-Core penumbra- alleged right not specifically mentioned, derived from other rights.

^ ex. right of association and right of privacy.

Who are the “Disappointed Absolutists”? Why are they so?

-Disappointed Absolutist- when everything doesn’t go their way, or is not certain and absolute, an absolutist gets disappointed.

- Disappointed Absolutists are called “disappointed absolutists” by some critical of the alleged excesses of legal realism.

 

Hart on morality: Conventional morality and critical morality: Explain.

Conventional Morality

- Widely shared or accepted by social groups.

Critical Morality

- Shared by people in small numbers and not shared by the general population as a whole.

Can an immoral law still be valid law?

Yes.

What does he mean by a “wider” conception of law in relation to morality?

Are legal rules immune from deliberate change? Explain.

No; they can change quickly. even overnight.

Are moral rules immune from deliberate change? Explain.

Yes; doesn’t mean they don’t change . . . just over a long period of time.

 

LEO KANOWITZ ON THE PLACE OF SANCTIONS IN PROFESSOR  H.L.A. HART’s CONCEPT OF LAW

What is meant by nullity as a sanction? See the Kanowitz article Dequesne LR, p. 5.

- Nullity as a sanction (developed by Austin’s followers)- failure to abide by a legal rule in the area of contracts or wills, for example, though it does not ordinarily result in a judgment for damages or imprisonment, nevertheless leads to real punishment by the sovereign in the form of nullifying one’s attempted acts carried out in contravention of those rules.

What does Hart think of the nullity as sanction concept?

- Hart heartily condemns it.

Why is Hart critical of Kelsen's insistence that coercion is the essential element of law?

- Where power-conferring rules are operative, it is not the function of law to force people to conduct themselves in certain ways; rather, in those areas, law enables people to do things and to create relations which, but for the existence of those legal rules, they could not otherwise do or create.

- In Hart’s concession to the coercive character of primary rules of obligation in a developed legal system is his idea (based in part upon the theories of Scandinavian realists) that the element of force inherent in such rules represents only one of their sides, namely their “external” aspect. Hart stresses that due recognition must also be given to the function served by rules of law in providing a standard which people following voluntarily, without regard to coercion. This latter side of legal rules Hart characterizes as their “internal” aspect.

How doe Kanowitz distinguish individual power relationships from legal recognition? See the cavemen self-help situation- pg 7.

- He asks: Do so-called power-conferring rules really confer power, or is their function in fact to grant legal recognition to, or withhold from, pre-existing powers which reside in the populace independently of any legal system?  It is the latter (with/after legal system arising).

Kanowitz writes that Hart's theory of power conferring rules ignores the fact that some people do not benefit from these rules. Explain why they might not.

- Some people do not benefit from power conferring rules since some people can be injured by them, i.e., those who conform to those rules and are thereby entitled to invoke the assistance of the sovereign in their disputes with third persons, rather than those who fail to conform to those rules.

- Instead of viewing laws of this kind as creating powers in those who abide by them, it is equally plausible to regard them as creating duties on the part of all persons not to convey    property (like Statute of Frauds example), not to enter into marriage, not to contract in any way or form other than that prescribed by law.

What are Hart's power-conferring rules?

- Power conferring rules – both public (ex. Constitution) and private. (ex. contracts, getting married, passing inheritance on to children—wills).

- In the private sphere, such rules confer power upon people to make contractions, to marry, to bequeath property, to buy and sell goods, and the like.

- In the public sphere, they are found principally in legal formulations empowering legislators to legislate and courts to adjudicate (and, incidentally, also to engage in law-making).

 

According to Kanowitz they might not confer power in some cases but only grant legal recognition. Explain the difference.

- Conferring power would be conferring rights, power-conferring rules (and legal systems all of the time) do not confer these rights in some cases, but merely recognize some of the rights (and refuse to recognize other pre-existing rights or powers).

- Power conferring rules might not confer power in some cases, but rather only grant legal recognition to, or withhold from, pre-existing powers which reside in the populace independently of any legal system.

Regarding the Statute of Frauds; example: Kanowitz says Hart misdirects his focus in this regard. Which party is actually the subject of the statute? Minor or adult?

- Adult.

- Rules of this kind are never intended to influence a minor’s conduct. Rather, the social evil sought to be curbed by the rule is the practice of mature and knowledgeable adults taking advantage of their superior position by binding immature and inexperienced young persons to unwise contractual obligations.

- In terms of Statue of Frauds, it is not the non-signer (the one who fails to sign written memorandum/contract) who the rule addresses, but the person who purports to contract with him (and thus take advantage of him since there is no written contract).

^- both people (particularly the individual who is trying to take advantage of the non-signer) have a duty to see that both people sign contract (ex. renting a property), if not, there will be a sanction/nullification (refusal to recognize or enforce any rights claimed under such a contract).

Is Kanowitz saying that the concept of nullity as sanction makes sense? If so, explain.

 

Does Hart ignore this aspect of “power-conferring” rules by cheerleading for all the facilities and benefits these rules provide in marriages, wills, contract, etc? Can these legal requirements or obstacles to their desires? If you want to will property to someone, you must do it this way and not some other way.

In the final paragraph in the Kanowitz article, does he side with Kelsen or Hart regarding the role of coercion in civil (non-criminal) law?

- Kanowitz sides with Kelsen regarding the role of coercion in civil (non-criminal) law; Kanowitz states “the heart of the law is still coercion.”

Fill in section: List the 3 defects in Hart's SSS. List the 3 remedies for the defects.

3 Defects

1) Uncertainty. – Not certain Primary Rule X applies. e.g., no procedures to deal with.

2) Static nature of the rules – (social change).

3) Inefficiency of the diverse social pressures – lacks an organization.

3 Remedies (appear in secondary rules)

1) Rule of Recognition ß à (remedies Uncertainty) – specify what are the primary rules.

[gives unity]                       ^ex. list of do’s and don’t (simplest)

2) Rules of Change (remedies Static nature of the rules).

3) Rules of Adjudication (remedies Inefficiency of the diverse social pressures).

- have/name judges – (and the procedures they are suppose to follow).

-ID individuals who will do the “judication.”

- Procedures they follow.

- will also be a rule of recognition (like jurisdiction).

 

• Riggs v. Palmer: Who won? Why? Canon of constitution? Equitable constitution? The principle used by judge Earl? Why did judge Gray dissent?:

- Riggs won.

- Riggs won because: Judge Robert Earl (1868-1894) wrote the majority opinion for the court, which ruled in favor of the plaintiffs. The court reasoned that tenets of universal law and maxims would be violated by allowing Elmer to profit from his crime. The court held that the legislature could not be reasonably expected to address all contengencies in crafting laws and that, had they reason to suspect one might behave in the manner Elmer did, they certainly would have addressed that situation. Judge Earl, in an analogy to a similar case, wrote: "The principle which lies at the bottom of the maxim, volenti non fit injuria ['to a willing person, no injury is done'], should be applied to such a case, and a widow should not, for the purpose of acquiring, as such, property rights, be permitted to allege a widowhood which she has wickedly and intentionally created."

- Canon of the Constitution: 1st Amendment? Words such as reasonable negligence, etc.

- Equitable constitution:

- The principle used by judge Earl: “No man should profit from his own wrong.

- Why did judge Gray dissent: Judge John Clinton Gray (1888-1913) dissented. He argued that the criminal law established punishment for the murder of Francis Palmer. For the court to deny the estate to Elmer was to, in effect, add significant further punishment to what Elmer received under the criminal statute, something the court was not permitted to do without the express, written statute. The written statutes that existed did not sanction the action of the court and the court cannot simply create or imagine such statutes so as to obtain a morally pleasing result.

• Dworkin: Policies, principles, & rules: How do rules and principles differ? Give several examples – e.g. valid or not, continue existence weight or importance. Intersecting rules – what? Intersecting principles – what? Find examples. First amendment – rule or principle or both – explain.:

- How do rules and principles differ: Rules are “all-or-nothing”; either the facts of a given case fall under a given rule (the rule definitely applies) or they do not (the rule definitely does not apply); they are like the rules of, e.g., baseball: “three strikes and you’re out” allows for no exceptions. Principles are not all-or-nothing. Rather, they have “weight,” and weight comes in degress. I.e., principles come in varying degrees of importance. The moral element in many principles argued in a particular direction, but not conclusive. This makes it possible to compare one against the other and ask which is the more important when they come into conflict and one must supercede the other. The distinction between legal rules and principles is a logical one. The contrast of principles and rules is functional.  Principles are standards for deciding which rule applies.  If a rule applies, then one appeal to it rather than conflicting rules to settle this case.  For example, consider a case where one rule says "no vehicles in the park" and another says "public places must be handicap accessible." A handicapped person, Jones, with a motorized wheelchair rides in the park.  The principles would say which rule applies to the case.  If it is the first, then the person has no right in the park.  If the second then the person has a right to take his motorized wheelchair into the park. It is common to state that principles only come into play in the reasoning of judicial bodies when these last have to deal with hard cases, whereas the rules are necessary and sufficient elements to justify the decision in easy cases.

- Intersecting rules – what: If two rules conflict one must be made invalid… this does not apply to principles.

- Intersecting principles – what: When principles intersect (the policy of protecting automobile consumers intersecting with principles of freedom of contract, for example), one who must resolve the conflict has to take into account the relative weight of each. This cannot be, of course, an exact measurement, and the judgment that a particular principle or policy is more important than another will often be a controversial one. Nevertheless, it is an integral part of the concept of a principle that it has this dimension, that it makes sense to ask how important or how weighty it is. Judges are under an obligation to take them into account.

- First amendment – rule or principle or both – explain: It depends, but J. Black says that it is a legal rule.

• Hennisen v. Bloomfield Motors:

- 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.

• 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”

• Sherman Anti-trust Act – Unreasonable restraint of trade – principles and rules.

- 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.

• According to Dworkin, are principles legally binding? Explain:

- 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.

• Discretion. Judicial discretion & the positivists. Discretion as the whole in a Doughnut. Explain: Surrounding belt of restriction or authority – explain: Explain the two weak senses of discretion: Use of judgment – relative to the lieutenant’s orders to the sergeant – weak and strong – what’s the added element making it discretion in the weak sense? HINT: experience of soldiers.: Is strong discretion tantamount to license?: What kinds of standards apply (can we use to criticize a person’s actions?): According to Dworkin, How positivists classify judicial discretion? Strong sense? Why?:

- 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.

• Dworkin examines 3 arguments that positivists might use to show that principles do not control judges’ reasoning. Summarize them:

I. Positivists might argue that principles cannot be binding or obligatory. Dworkin – this is mistaking. What about the Henningsen opinion? Critics? Not just a case of moral obligation? Explain:

II. Positivists might argue that even though some principles are binding in the sense that the judge must take them into account they cannot determine a particular result. Difference between rules and principles with respect to “dictating” results? How, according to Dworkin, do principles work in this regard?:

III. Positivists might argue that principles are not law because their authority and weight are congenitally controversial. How do rules and principles differ here? According to Dworkin, do we make a case for principles?

• According to Dworkin can a rule of recognition, like Hart’s, account for principles? Why not? Explain:

- 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

• When is a judge permitted to change an existing rule of law? Again go to Riggs and Henningsen. Must judges consider the status quo? (legislation, precedent):
• Why have legal people thought of law as rules and not principles? – Dworkin gives 2 reasons:
• According to Dworkin, do positivists often refer to principles as extra-legal standards or “higher law” which judges use as part of their strong discretion? How does Dworkin argue against this view? Status quo or conservative – legislative supremacy. Precedent. Security of title.:

- 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 is 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.

 

Questions & Answers Given During Lectures

§ Dworkin: What do judges do – what is the best way to determine the “right” decision? No discretion… makes the best case, argument, justification of why ‘X’ should happen.

§ In which case does a sergeant have less discretion…? No.2 (B?) – The sergeant wants the best people for the job.

§ There should be no judgment without a strictly (or precisely) defined crime. – This is a legal principle.

§ Does a principle always lead to a concrete result? – No.

§ Does a principle lead in a certain direction? – Yes.

§ How did J. Black interpret the 1^st Amendment, a rule or principle? – A Rule.

§ The signing of a will requires 3 witnesses? – A Rule.

§ Buck v. Bell – “3 generations of imbeciles is enough”

§ Roe v. Wade:

- Built on precedents such as Griswold.

- Considered substantive due process under the 14^th amendment.

- Under the 14^th amendment is a fetus considered a person? – No.

- Who is most opposed to Roe? – Conservatives.

 

Constitutional Law Study Guides

 

Chapter 1:

• Articles of Confederation especially what Congress could not do:

1) Provide for effective treaty making power and control of foreign relations; it could not compel states to respect treaties.

2) Compel states to meet military quotas; it could not draft soldiers.

3) Regulate interstate and foreign commerce; it left each state free to set up its own tariff system.

4) Collect taxes directly from the people; it had to rely on states to collect and forward taxes.

5) Compel states to pay their share of government costs.

6) Provide and maintain a sound monetary system or issue paper money; this was left up to the states, and monies in circulation differed tremendously in value.

 

Virginia Plan, New Jersey Plan, and the Connecticut Compromise (Constitution):

 

Virginia Plan:

• Legislature—Two houses.
• Legislative representation—both houses based on population.
• Legislative power—Veto authority over state legislation.
• Executive—Single; elected by legislature for a single term.
• Courts—National judiciary elected by legislature

 

New Jersey Plan:

• Legislature—One house.
• Legislative representation—Equal for each state.
• Legislative power—Authority to levy taxes and regulate commerce.
• Executive—Plural; removable by majority of state legislatures.
• Courts—No provision.

 

Connecticut Compromise (Constitution):

• Legislature—Two houses.
• Legislative representation—One house based on population; one house with two votes from each state.
• Legislative power—Authority to levy taxes and regulate commerce; authority to compel state compliance with national policies.
• Executive—Single; chosen by electoral college; removal by national legislature
• Courts—Supreme Court appointed by executive, confirmed by Senate.

 

Separation of Powers

Checks & Balances

Federalism

Individual Rights & Liberties

Separation of Powers/Checks and Balances: governs relations among the branches of govt.

 

Federalism: governs relations between the states and national government.

 

Individual Rights and Liberties: govern relations between the government and people.

 

Chapter 2:

 

• Supreme Court Processing Cases:

- Over 8,000 petitions

- 84 Written Opinions

Processing cases: over 8,000 petitions, only 150 cases decided, and 84 with written opinions.

 

• Writ of Certiorari:

How cases get to the court:

Writ of Certiorari—An order of an appellate court to an inferior court to send up the records of a case that the appellate court has elected to review. The primary method by which the U.S. Supreme Court exercises its discretionary jurisdiction to accept appeals for a full hearing. People petition court for a writ of certiorari so the Court can become “informed” and the Court decides whether or not to grant the writ.

 

• Appeals:

Appeals: Procedure by which a case is taken to a superior court for a review of the lower court’s decision.

 

• Certification:

Certification: A procedure whereby a lower court requests that a superior court rule on specified legal questions so that the lower court may correctly apply the law.

 

• Mandatory Appeals:
• Court’s Discretion:

Mandatory Appeals: Supreme Court has almost total discretion, but must hear civil rights cases—Congress says so.

 

• The American Court System (p. 16):

 

• The Rule of 4:

The Rule of 4: the Supreme Court grants certiorari to those cases receiving the affirmative vote of at least four justices.

 

• Rule #10 – A Legal Consideration (p.19):

Rule #10—legal considerations that govern certiorari decision making process. pp. 19

1) Importance of Issue: people, actors in government, Court itself.

2) Have issues been clarified in petition?

3) Whether lower court has developed a clear and complete record of case.

4) Potential impact on Court’s credibility and prestige.

 

• U.S. Solicitor General’s Success as Petitioner:

U.S. Solicitor General’s (chief attorney, litigator) success as a petitioner: 70-80%

 

• The Amicus Curiae Brief:

Amicus Curiae brief: “friend of the court,” elaborate briefs filed by individuals and interest groups at the certiorari stage before the Court makes its selection decision (try to influence Court whether or not to hear case). When groups file briefs in opposition to granting certiorari—they increase—rather than decrease the probability that the Court will hear the case.

 

• Written & Oral Arguments:

Written argument: called briefs, document position, and are the major vehicles for parties to Supreme Court cases to document their positions.

Oral argument: Attorneys also have the opportunity to present their cases orally before the justices.

 

• The Conferences:

The Conference: after the Court hears oral arguments, it meets in a private conference to discuss the case and to take a preliminary vote. No one is in attendance but the judges and after the conference the assignment of opinion and open circulation period occur.

 

• Circulations of Opinions:

Assignment of Opinions: Chief Justice assigns opinions (he can write it himself) if he is on the winning side (majority). If not, the justice with the most seniority assigns the opinion.

 

Circulation of Opinions: the opinion writer is a critical player in the opinion circulation phase, which eventually leads to the final decision of the Court. The writer begins the process by circulation an opinion draft to others. Justices can bargain with the opinion writer over the content and disposition—even to reverse of affirm the lower court ruling. In this phase justices can tell whether or not they will dissent or concur with the opinion.

 

• Political Factor:
• Beyond Rule #10:

Political Factors (can affect whether or not cert is granted):

Ideologues of the Justices

Beyond Rule #10

 

• Original (Framers’ Intent):

1) No “Living Constitution”—does not change over time

2) No adaptation of the Constitution to changing circumstances

3) Amendment is the only way to change the Constitution.

4) If on court, use original intent for own purpose (Republicans like though).

Some people argue Supreme Court changes Constitution through interpretation.

 

• Textualism I – Literalism:

1) Only the words in the Constitution itself justices ought to consider—prevent the infusion of new meanings from sources outside the text of the Constitution and examine the intended meanings behind the words.

2) Need to stick to Constitution, no “Living Constitution.”

3) J. Hugo Black (both conservative and liberal at times) an advocate and a strict literalist/textualist. According to Black: no law means no law, the word “privacy” not in Constitution, No Congress statute equals no state laws—ex. 1^st Amendment cannot convict for speech period (like Communist speech)—Originalists would disagree, Framers did not intend. Black loathed going beyond the literal meaning of the words.

4) Textualists and Originalists both deny right to privacy, Literalists maintain their approach is superior to Original Intent.

5) Viewed as a value-free form of jurisprudence.

 

• Textualism II – Meaning of the Words:

1) goes beyond literalism (Textualism I)—justices interpret the words of the Constitution according to their meaning at the time they were written.

2) Roots in both Literalism and Originalism: it emphasizes the words of the Constitution at the time the Framers wrote them.

3) while Literalists stress the words themselves, this mode highlights their meaning; and while Originalism focuses on the intent behind the phrases, at least some variants of the meaning of the words approach emphasize “lexicographic skill”—asking judges to interpret the words of the Constitution according to their meaning at the time they were written.

4) Seeks to generate value-free and ideology-free jurisprudence.

5) Justice Scalia, one of the most conservative justices on the Court, is an advocate of Textualism II. and under his “meaning of the words” brand of textualism it is appropriate for justices to ask what the words would have ordinarily meant to the people at that time.

 

• Logical Reasoning:

1) Suggest judges should engage in reason analysis, like using syllogism— justices draw conclusion from major premise, minor premise, then conclusion.

e.g., Chief Justice Marshall (thought Constitution is broad, not a code) in Marbury v. Madison (1803).

A law repugnant to the Constitution is void.

This law is repugnant to the Constitution.

Conclusion—This law is unconstitutional.

 

• Stare Decisis:

1) Judges should decide cases on previously established precedent

2) Precedents (which can be overruled and in silence—sub silentio) are legal rules just as much

as statutes and following them makes law predictable/stable and makes judges stay closer to law

3) Taken from English Common Law. Judge Bench made law.

Balancing Approaches:

1) Balance right with need of the people

2) Balancing the interests of the people against those of the government.

3) Allowed judges to interpret on own discretion.

4) 2^nd J. Harlan and J. Felix Frankfurter are known balancers. (Frankfurter though gave a preference to the states and claimed to be a staunch advocate if judicial restraint but relevant data show otherwise—quite activist).

5) J. Black did not like balancing approaches, he felt it eroded the Constitution and gave the judges too much power (This view could make J. Black both liberal and conservative at times. and J. Frankfurter, even though a balancer, agrees that it can give judges too much power).

 

• Balancing Approaches:
• Individual Rights – Criticism of Balancing:

J. Black and J. Frankfurter believe it gives Court too much power. Almost like a ruling regime.

 

“Living Constitution:”

1) Adaptive approach.

2) Interpret words of Constitution by contemporary Americans.

3) Chief Justice Earl Warren an advocate—“evolving standards of decency.”

 

Prudentialism:

1) Way courts refuse to hear a case.

2) Refer to another branch of government.

3) Naked refusal to deal with power in order for political expediency.

4) Allows political realities to color a decision.

5) Courts can make judgments but not enforce decisions.

6) Moral judgment.

 

• Preference – Based Approaches – Judicial Attitudes, Table 1-2 (p.39):

Preference Based Approaches: Judicial Attitudes:

1) Supreme Court decisions influenced legally and politically.

2) Preference based, such as conservative or liberal.

3) C. J. Warren—Civil Liberties 78.6% liberal, Economics 81.9% liberal.

J. Burger—Civil Liberties 29.6% liberal, Economics 42.5% liberal.

C.J. Rehnquist—Civil Liberties 21.8 % liberal, Economics 43.1% liberal.

 

• Judicial Roles vs. Attitudes – Differences:

Judicial Role vs. Attitudes:

Judicial Role—beliefs of what a judge should do/proper role of a Court should be (activist or restraint). Also norms said to constrain or influence a justice’s behavior. It is self-imposed.

J. Black—only upheld what is in Constitution.

J. Warren—uphold human dignity, liberal.

Attitudes—the political ideology.

 

J. Scalia and J. Thomas are the most conservative on the Supreme Court.

 

• Strategic Approaches:

1) Justices engage in strategy.

2) Justices may be primarily seekers of legal policy (as attitudinal adherents claim) or they may

be motivated by jurisprudential principles (as approaches grounded in law suggest).

3) Justices are not unconstrained actors who make decision based solely on own ideology or jurisprudential desires, but rather strategic actors who realize their ability to achieve their goals.

4) Justices try to make deals, like log-rolling—one hand washes the other.

5) Intellectual persuasion (of other justices and members of political institutions).

6) Informal lobbying.

 

• External Factors – Public & Opinion, Partisan Politics, Interest Groups (Techniques Used By):

External Factors (political pressures that come from outside the Court):

Public Opinion: desires of people and whether or not they will comply with Court’s ruling.

Interest Group Activity: file Amicus Curiae briefs to try to influence judicial decision. Cannot directly lobby Supreme Court justices though—it’s illegal.

Partisan politics: political environment affects Court’s behavior. President in selecting Supreme Court justices and federal judges is one of the most successful ways to influence judicial behavior. Solicitor General (nominated by President and follows party line) is influential. Supreme Court justices are also politically motivated.

 

• Separation of Powers (p. 57-62):
• Define Judicial Review – In the Constitution?:
• Article III – Box 2-1 (p. 65):

Separation of Powers, pp. 57-62:

1) Judicial Review—not in Constitution, appeared initially in English law [C.J. Edward Coke and Dr. Bonham’s Case (1610)] but idea took hold in U.S.; it is the power of the courts to review acts of government to determine their compatibility with the Constitution. Very broad power—Supreme Court, federal courts, and state courts have it.

 

2) Jurisdiction of the Federal Courts as defined in Article III (Section 2): Box 2-1 pp.65:

 

a) Jurisdiction of the Lower Federal Courts:

Subjects Falling Under Their Authority: 1) cases involving the U.S. Constitution, federal laws and treaties. 2) cases affecting ambassadors, public ministers, and consuls. 3) Cases of admiralty and maritime jurisdiction.

Parties Falling Under Their Authority:

1) United States. 2) Controversies between two or more states. 3) Controversies between a state and citizens of another state. 4) Controversies between citizens of the same state claiming lands under grants of different states. 5) Controversies between a state, or the citizens thereof, and foreign states, citizens, or subjects.

 

b) Jurisdiction of the Supreme Court:

Original Jurisdiction of Supreme Court: 1) cases affecting ambassadors, public ministers, and consuls and 2) cases to which a state is a party.

Appellate Jurisdiction: cases falling under the jurisdiction of the lower federal courts, “with such Exceptions and under such Regulations as the Congress shall make.”

 

• Brutus – E-Reserve:

1) Judicial power will subvert the legislative, executive, and judicial power of the states—Constitution justifies the Court to act in such a mode and the tenacious power of people wanting to attain power will result in this as well.

2) Judicial power will lean strongly in favor of general government.

2) Judicial power will be too powerful and will enable them to “mould the government into

almost any shape they please . . .”

 

• Hamilton:
• Federalist #78 (p. 671):

1) Supreme Court is least dangerous branch:

a. No purse power—Congress has it.

b. No power of the sword—Executive has it.

c. Has judgment to protect rights of individuals against dangerous factions.

2) Hamilton thought Supreme Court should have Judicial Review—can hold most branches of government accountable to Constitution—but wouldn’t be that significant. Be concerned with other branches of government, Supreme Court more of a check on states.

3) Judges should have life tenure to get good people and to assure judicial independence and protection of individual rights (can better understand law). Judges though can be impeached and convicted.

 

• Judiciary Act of 1789 – Purposes?:
• Judiciary Act of 1789 Sections 13 & 25 – What?:

Judiciary Act of 1789:

Purposes—

1) establish a federal court structure, which it accomplished by providing for a Supreme Court, circuit courts, and district courts.

2) Specify the jurisdiction of Federal courts (and Supreme Court).

Section 13—

1) Wanted to expand original jurisdiction of Supreme Court by giving it authority to issue writs of mandamus, which command a public official to carry out a particular act or duty.

2) Proved unconstitutional (since it expanded original jurisdiction) in Marbury v. Madison (1803).

Section 25—

1) Expanded appellate authority of Supreme Court—could review certain cases coming out of the states (constitutional issues).

 

• Hylton v. U.S. (1796) – Judicial Review? Result?:

1) Hylton challenged the constitutionality of a 1793 federal tax on carriages, which according to him violated the constitutional mandate that direct taxes must be apportioned on the basis of population.

2) Court upheld act of Congress (tax on carriages)

3) First case with Judicial Review.

 

• Supreme Court’s Original & Appellate Jurisdiction:
• Marbury Sued Under the Courts Original or Appellate Jurisdiction:
• Section 13 of the 1789 Judiciary Act:
• What was the Writ that Marbury Sought:
• Marshall’s Opinion:
• What is it According to Marshall, that Congress Could Not Do – 2 Things:
• Did the Decision in Marbury v. Madison Deny Power to Both Congress & the Court:
• Big 3 - Federal Questions From the Constitution, Federal Laws, & Treaties:

Marbury v. Madison (1803):

1) 4-0 decision discharging rule (Court cannot issue a writ of mandamus for Marbury’s commission for D.C. federal judge).

2) Chief Justice John Marshall (Marshall, like Hamilton, wanted strong government) gave opinion (used Logical Reasoning in opinion).

3) Marbury sued under court’s original jurisdiction—a mistake, since Marbury was not a foreign ambassador nor was this an issue involved with a state.

4) Section 13 of the 1789 Judiciary Act deemed unconstitutional (since it purported to expanded Supreme Court’s original jurisdiction).

5) Marshall arguing: Art III restricts Court to certain cases, but Section 13 of Judiciary Act seeks to expand these original jurisdiction powers. Also, the Court cannot stand by when Congress does unconstitutional acts.

6) Marshall used decision to strike back at Jefferson and establish judicial review.

7) Marbury sought a writ of mandamus.

8) According to Marshall, Congress could not add or take away to Supreme Court original jurisdiction.

9) The decision in Marbury v. Madison denied power to both Congress and the Court.

10) Firmly established the power of the Court to exert judicial review over national actions.

 

Federal Questions (if does not involve these 3 things the case stays in the states):

1) Constitution

2) Laws of the U.S. (e.g., a Congressional Statute)

3) Treaties

 

Martin v. Hunter’s Lesee (1816) Treaties:

1) 6-0 ruling in favor of Martin; this ruling confirmed the U.S. Supreme Court’s appellate

jurisdiction in state tribunals, as well as ensured the return of confiscated land back to Martin.

2) Decision upheld the additions made to the Court’s appellate jurisdiction under Section 25 of the Judiciary Act. Since the Constitution did does not describe a limit on Supreme Court appellate jurisdiction, the Framers/ratifying people did not intend on one existing—Doctrine of Original/Framers Intent thus used in case.

2) J. Story gave opinion.

3) J. Johnson concurring opinion: neither Supreme Court nor Congress should have right to restrict state tribunals despite appellate jurisdiction of Supreme Court.

4) Chief Justice Marshall recused himself since he bought some of the contested land from Martin.

5) In Fairfax v. Hunter’s Devisee (1816), Court ruled 3-1 in favor of Fairfax (Martin) finding that the Virginia statute was unconstitutional since it conflicted with the 1789 Treaty of Paris (Congress promised to recommend to states to return confiscated property back to loyalists). Virginia failed to comply to this ruling and thus the case was taken to Supreme Court.

6) Issue in Martin is whether Congress could expand the Supreme Court’s appellate jurisdiction as it did in Section 25 of the Judiciary Act.

7) Virginia Supreme Court argued that the U.S. Supreme Court did not have appellate jurisdiction over the case in question.

7) According to J. Story, the Constitution was ordained and established not by the states but by the people (at the ratification of the Constitution). Significance is states cannot back out of

8) Federal Judicial power extends...

9) J. Story: “It is the case then, and not the court that gives the jurisdiction.

10) Casus Faederis means “the case of a treaty.”

11) J. Story says in his ruling that the federal judicial power extends to some cases in state courts.

12) Uniformity of state court decisions to J. Story is important. Supreme Court appellate review can make for uniformity. In the absence of Supreme Court appellate review of state decisions, the situation would look quite bad since the laws and treaties in the Constitution could be different in each state.

13) The court has made exceptions to the 11^th Amendment.

 

Cohens v. Virginia (1821):

Chisholm v. Georgia (1793):

Murdock v. City of Memphis (1875) – Box 2-5 (p. 86):

Adequate & Independent Grounds Test (p. 86):

1) Cohen brothers tried and convicted for selling D.C. lottery tickets in Virginia.

2) Cohens (who lost) alleged that since D.C. lottery tickets are authorized by federal law, they

supersede the Virginia statute.

3) Virginia argued that 11^th Amendment defeats Section 25 of Judiciary Act. “The Cohens cannot sue the state of Virginia.” The 11^th Amendment overturned

Chisholm v. Virginia (1803), which had upheld the right of citizens of one state to bring suit, in the Supreme Court, against another state.

4) Virginia state attorneys argued that the 11^th Amendment prohibited the Supreme Court from hearing appeals by citizens against their own states—regardless of what Section 25 said and even if the appeal involved a congressional act (as was the case here).

5) C. J. Marshall disagreed and reinforced the constitutionality of Section 25 of the Judiciary Act and held that the 11^th Amendment did not preclude the Supreme Court from exercising jurisdiction over a federal question raised on appeal by citizens against their own states (in accord with Section 25) and ended the immediate dispute with Virginia. C.J. Marshall: Supreme Court has appellate jurisdiction of decisions by Virginia Supreme Court.

Martin and Cohens:

1) Ever increasing federal control of state judiciaries (those involving federal issues (constitutional) only.

2) Gave Supreme Court appellate jurisdiction over state courts where a federal issue is involved.

3) Upheld Congress making additions to appellate jurisdiction of Supreme Court.

4) Firmly established the power of federal courts to exert judicial review over state actions.

 

Murdock v. City of Memphis (1875):

1) Beginning with this case, the Court has said that it will not review decisions interpreting state statues and constitutional provisions unless the state court implicates issues of federal law; in other words, the justices believe that the state courts should be the final arbiters of the meaning of their own laws and constitutions. This view is called:

*Adequate and Independent State Grounds Test: the Court will refrain from reviewing state court interpretations of state constitutions and law unless those decisions involve issues of federal law.

 

• Cooper v. Aaron (1958):

*Could not find in book*

 

• Judicial Review – Controversies “Countermajoritarian Difficulty” (p. 88-89):

1) “Countermajoritarian Difficulty:” against democracy, whether 9 unelected officials (judges) should override the policies of elected branches of government, like Congress, and subsequently the wishes of the people.

2) Framers’ Intent: whether or not the Framers intended the federal courts to exercise judicial review.

3) Judicial Restraint: should judges defer to elected institutions and avoid conflict with those branches.

4) Democratic Checks: checks on the Court. Perhaps a justification for judicial review (decisions can be overturned through amendment, change size of court, or remove appellate jurisdiction).

5) Role of the Court: what role the Court should play. Perhaps Court can be used as a way to protect minority rights from the tyrannizing power of the majority.

 

• Edward Coke and Dr. Bonham’s Case 1610 – Framer’s Intent (p. 89):

1) C.J Edward Coke’s writings has impact on American legal system.

2) English judge who struck down act of English parliament enabling physicians of the London College to authorize medical licenses and to punish those practicing without one. Dr. Bonham got punished, appealed to England’s high court, the King’s Bench.

3) Dr. Bonham’s Case is the case in which the concept of Judicial Review originated.

 

• Table 2-2 (p.96):

Table 2-2, pp. 96, “Congressional Proposals Aimed at Eliminating the Supreme Court’s Appellate Jurisdiction:” Answer on test is all of the above.

 

• Dimensions of Activism (Hand – Out):

Dimensions of Activism: See hand-out.

 

Eakin v. Raub (1835)

1) State is Pennsylvania.

2) J. Gibson dissenting, argues against judicial review—not in court’s power to overturn

legislation, “not job of court to overturn the lawgiver.” If legislative passes bad laws, go to the

polls or use the ballot. (one of the earliest and classic arguments against Judicial Review).

3) According to J. Gibson, the legislature can come into collision before the judiciary is a fallacy.

4) “It is the business of the judiciary to interpret the laws not to scan the authority of the lawgiver.

5) All government officials take oaths as a test of political principles of the man, rather than to bind the officer in the discharge of his duty. Judges so far as that may be involved in his duty, but if official duty does not comprehend an inquiry into the legislature, neither does his oath.

6) When judges “give effect to an unconstitutional law” it is the fault of the legislature.

 

• Jurisdiction:

Jurisdiction: the authority of a court to hear and decide legal disputes and to enforce its rulings.

 

• Justiciability:

Justiciability: an issue is justiciable if the courts are the appropriate place to hear or solve the case.

 

• Standing:

Standing (to sue, litigate): the right of parties to bring legal actions because they are directly affected by the legal issues raised. Must be actual, injury has to be fairly traceable to the action of the defendant, the suit cannot be in the action of a third party, no generalized grievances, must be justiciable, and must be likely of equitable relief.  Different judges have different standards (requirements) of standing, and standing is closely related to this political questions doctrine.

 

• Merits:

Merits: the central issues of a case.

 

• Remedy Advisory Opinions:

Remedy: what courts could do.

Advisory Opinions: federal courts do not give them, has to be a real court case or controversy, if not merely hypothetical and vague. Court has no time for this as well. Also if federal courts gave them, it they would violate the separation of powers principle embedded in the Constitution.

 

• Cases & Controversies:

“Cases and Controversies:” according to Article III, judicial power of the federal courts is restricted to “cases” and “controversies.” Must be a real conflict. “Cases and Controversy” requirement is rooted in Article III. Litigation must be justiciable—appropriate or suitable for a federal tribunal to hear or solve.

 

• Collusive Suits:

Collusive suits: A second corollary of justiciablity is collusion. The Court will not decide cases in which the litigants: 1) want the same outcome, 2) evince no real adversity between them, or 3) are merely testing the law.

Ripeness: if controversy is premature, case is unripe and nonjusticiable.

 

• Mootness:

Mootness: the Court will not decide cases in which the controversy is no longer live by the time it reaches the Court’s doorstep. Facts led up the dispute are no longer in play. Court not always looking to grab more power.

 

• Capable of Repetition but Evading Review:

Capable of Repetition yet Evading Review: exception to a moot case, will hear if Court believes case needs review since its issue is capable of returning.

Ex parte McCardle (1869):

1) 8-0 ruling; “the appeal of the petitioner in this case must be dismissed for want of jurisdiction.” (Congress took appellate jurisdiction away).

2) J. Chase gave opinion.

3) Issue in case is journalist William McCardle, from the South, published slanderous anti-Republican letters; the Radical Republican Congress put him in jail; McCardle felt illegally detained since he was just a citizen and not a member of any militia and thus filed a writ of habeas corpus.

4) Writ of Habeas Corpus—“You have the body.” A writ issued to determine if a person held in custody is being unlawfully detained or imprisoned.

5) The Congress granted the Court habeas corpus appellate jurisdiction in 1867, which it then repealed in 1868.

6) The response of the Court to the repealer was: we are not at liberty to inquire into the motives of the legislature, we have to accept, and thus we have no jurisdiction in this case, case closed. (Modifying appellate jurisdiction of Supreme Court is constitutional; the Exceptions Clause allows Congress to remove the appellate jurisdiction of the Supreme Court.

 

• Political Questions:

Political Questions:

1) Political issues that should not be involved in the Court.

2) Such cases should go to political branches (Congress, Executive-President)

3) Way for Court to refuse to hear cases they may not want to handle.

4) Political Questions doctrine is vague, changing, contradictory, and hard to understand.

 

• Luther v. Borden (1849) (p. 101):
• Article IV Section 4 – Guarantee Clause:

Luther v. Borden (1849):

1) Rhode Island citizens unhappy with local government and suffrage requirements, wanted written Constitution, local government did not budge, thus they wrote own Constitution and created own government. Local government put state under martial law and suppressed rebellion.

2) One rebel, named Martin Luther sued under Article IV Section 4, the Guarantee Clause (Guarantee of Republican form of government to the states).

3) Thus, which is the lawful government?

4) C.J. Taney wrote opinion; he held that the Court should avoid deciding any question arising out of the Guarantee Clause because such questions are inherently “political.” He believed the clause governed relations between the states and federal governments, not governments and courts. And since the clause omits mention of the Court, it is enforceable only by the president or

Congress.

5) Court decided to refuse itself from the case due to political questions—up to Congress to decide which government in the states—not the courts.

6)**First time Court dealt with Political Questions doctrine.**

 

• Equal Protection Clause of the 14^th Amendment (p. 104R):
  1. Textually Demonstrable Commitment:
  2. Lack of Judicially Discoverable Standards, etc.:
  3. Factors that are Politically Independent:

Baker v. Carr (1962):

1) 6-2 decision in favor of Baker/Tennessee urban voters.

2) J. Brennan (liberal democrat, on of the most liberal justices ever, appointed by Eisenhower—worst thing Ike said he every done) gave opinion. J. Frankfurter and J. Harlan dissented (one man one vote not in Constitution, don’t have to be equal, people have an entitlement attitude).

3) Baker’s Attorneys were convinced that they could not argue on Art IV, Section 4, so they thought that perhaps they could argue on 14^th Amendment Equal Protection Clause. They were right.

4) Issues in case were rural votes were worth about 4 times as much as urban votes due to dated

and malapportioned districting (population grew but no changes in districting). Urban voters

wanted it changed but state legislature kept voting it down (they did not have enough reps to do so). They went to a lower federal court but they dismissed their suit (political question), thus they went to the Supreme Court.

5) J. Brennan said Guarantee Clause not implicated.

6) According to J. Brennan, this case did not pose a political question.

7) “The nonjusticiability of a political question is primarily a function of the Separation of Powers”

8) According to J. Brennan, not all questions touching foreign relations are nonjusticiable political questions. For example, has a treaty been terminated? State laws, Re: Treaty.

9) J. Brennan rejected the argument that this was an Art IV Sec 4 Guarantee Clause issue because the petitioners brought suit under the 14^th Amendment Equal Protection Clause and there was a violation of that.

10) J. Brennan did find any of the six characteristics of a political question in this case.

11) J. Brenann found this to be a 14^th Amendment Equal Protection issue do to the debasement of votes which makes them unequal (violates voting rights).

12) J. Clark concurred in this decision since he believed there indeed was a violation of the Equal Protection Clause.

13) J. Frankfurter claimed that Baker should properly be understood as an Art IV Sec 4 case and not one falling under Equal Protection because essentially it is a case asking to choose among competing bases of representation—political philosophies and government. It fits under Art 4 Sec 4. There is also a lack of equitable relief—no judicial remedies.

14) J. Harlan also dissented; he thought the plaintiffs did not demonstrate to the court that they had the tools to do the job. He didn’t think it violated the 14^th Amendment. No racial segregation in the case and he used the federal analogy (apportionment of people in Congress was not exactly equal, thus apply this to the states).

15) J. Frankfurter said that federal courts lacked the competence to decide the issue, thought court was engaging in countermajoritarianism.

16)**Significance of Baker v. Carr is that 1) it launched the reapportionment revolution (one

person one vote) and 2) it established a clear doctrinal base for determining political questions.

 

Significance of Baker v. Carr (p. 107 BR):

Political Question Doctrine:

Goldwater v. Carter (1979) (p. 108 LT):

Case involves Political Question Doctrine if there is (according to J. Brennan in Baker v. Carr):

1) Textually demonstrable constitutional commitment of the issue to a coordinate political

department.

2) Lack of judicially discoverable and manageable standards for resolving it.

3) Factors that are politically inexpedient.

Goldwater v. Carter (1979):

1) Presented challenge to President Jimmy Carter’s unilateral termination of a U.S treaty with Taiwan.

2) J. Rehnquist held that the case was a political question since it involved a foreign policy in which the Constitution provided no definitive answer. It “should be left for resolution by the Executive and Legislative branches.

 

• What Approaches to Constitutional Interpretation at Work in Nixon v. U.S. (1993)? Coin Flip O.K?:

Nixon v. United States (1991):

1) 8-0 ruling holding that Nixon’s claim was nonjusticiable because it involved a political question that could not be resolved by the courts (decision relied on J. Brennan’s doctrinal base for determining political questions that was supplied in Baker v. Carr)

2) Chief Justice Rehnquist gave the opinion and found this issue to be a nonjusticiable.

3) Senate Rule XI is the presiding officer appoints a committee of senators to “receive evidence

and take testimony.”

4) Whether the Senate procedure of having a committee—rather than the full Senate—hear Nixon’s case violated Art I Sec 3 Clause 6 of the Constitution which states that the “Senate shall have the sole power to try all Impeachments.”

5) C.J. Rehnquist finds a link between a) textually demonstrable commitment to a coordinate branch of government (Senate has it in this case) and b) a lack of judicially manageable standards.

6) According to C.J. Rehnquist, the Senate has the sole authority to try impeachments.

According to C.J. Rehnquist the Framers did not intend to impose additional limitations on the form of proceedings by the use of the word “try.” Three very specific requirements that the Clause’s second and third sentences impose—that the Senate’s Members must be under oath or affirmation, that a two-thirds vote is required to convict, and that the Chief Justice presides when the President is tried—suggest that the Framers did not intend to impose additional limitations on the Senate proceedings.

7) C.J. Rehnquist reject Nixon’s interpretation of the word “sole” because it does not mean the whole Senate—this would be unnatural and inconsistent with the three express limitations that the clause sets out.

8) 4 reasons of C.J. Rehnquist why the courts and the Supreme Court in particular should not participate in impeachment proceedings: 1) whether the court would possess degree of credit and authority to carry out its judgment if it conflicted the legislature. 2) Court too small in number. 3) There are two sets of proceedings—Impeachment and Conviction—to reduce bias and ensure independent judgments. To review the Senate’s “trial” would introduce the same risk of bias as would participation in the trial itself. 4) Judicial Review would be inconsistent with the Framer’s insistence that out system be one of checks and balances—Impeachment is the only check on judicial branch by legislature.

9) According to C.J. Rehnquist, a “lack of finality” is the difficulty of establishing relief—lack of discernable judicial standards.

10) C.J. Rehnquist believes that this case involves a political question.

11) Concurring, J. Souter suggests that there might be occasions when the Court might review impeaching proceedings. These are: a coin flip, a summary determination that an officer of the U.S. is a “bad guy”—basically procedures that “threaten the integrity of the results.”

12) J. Stevens concurred: debate about “try” and sole” is less significant than the fact that the Framers decided to assign the impeachment power to the Legislative Branch, and respect for it forecloses any assumption that improbable hypotheticals mentioned by J. Souter will ever occur.

13) J. White concurred; J. Blackmum joins: White’s interpretations vary: Framers had ambivalence about very institution of impeachment which is not easily reconciled in system of checks and balances, also he concurs with judgment since he believes the Senate fulfilled its constitutional obligation to “try” petitioner.

14)**Approaches to constitutional interpretation at work: Framers’ Intent and Textualism II: Meaning of The Words (what “try” meant back in the time of the Framers)

 

• Frottingham v. Melon (1923) – Why No Standing? List At Least 3 Reasons:

Frothingham v. Melon (1923):

1) First addressed question—Does the mere fact that one pays taxes provide a sufficiently personal stake in litigation, sufficient for the requirements for standing?

2) Are paying taxes enough to have standing?

3) Issue of 1921 Maternity Act (federal act by Congress), Frothingham argued she lost money with due process and she was entitled to a trial. Also, the Act was a violation of the 10^th Amendment and states should be responsible for Maternity Act.

4) J. Sutherland (conservative) gave opinion; stated petitioner has no claim, standing denied. Believed Court must practice judicial self-restraint—Court must not monitor other branches of government (must not violate separation of powers).

5) **Reasons for no standing:

1) Did not show statue is invalid.

2) Could not show personal injury as a result of its enforcement (not just something generally common with people, like paying taxes).

3) If gave standing, every taxpayer would be bringing suit to any statute/act whose administration requires public money—this would be chaos.

6) Frothingham did not erect an Art III bar to taxpayer suits.

 

Flast v. Cohen (1968) – The Legislation? Two Significant Constitutional Provisions? (Article 1 Section 8 & 1^st Amendment):

Did Froth Erect an Article III Ban to Such Suits?:

Flast v. Cohen (1968)

1) Ruling 8-1 in favor of petitioner (Flast).

2) Chief Justice Earl Warren (rather liberal) with the opinion. J. Harlan (2^nd one, conservative) dissenting.

3) Legislation was Elementary and Secondary Education Act of 1965.

4) Issue was that that Act disbursed some funds to religious and sectarian schools and such expenditures were argued to be a violation of the First Amendment’s prohibition on religious establishment (Establishment Clause).

5) Three-judge district court dismissed this complaint since they believed the plaintiffs suffered no really injury, and due to the fact their only claim of standing rested on their status as taxpayers, the petitioners failed to meet the criteria established in Frothingham.

6) Two significant constitutional provisions: Art I Sec 8 (Taxing and Spending Clause) and First Amendment (Establishment Clause/prohibition on religious establishment).

7) C.J. Earl Warren: If federal taxpayers could indicate a logical link (nexus) between their status and the legislation, and one between their status and a specific constitutional infringement, then they might have standing. Also, taxpayers cannot sue any legislation—it has to deal with the Art I Sec 8 Taxing and Spending Clause.

8) J. Harlan dissenting: 1) cannot deal with taxpayer suits, 2) thinks Frothingham correctly decided, 3) taxpayer suits a danger to separation of powers—Court not a Council of Revision, 4) taxpayer suits can have standing but not when dealing with federal legislation.

 

• Explain the “Nexus” Box 2-7 (p. 118):

The “Nexus” Box (Standing to sue in Aftermath of Flast) 2-7 pp. 18:

Answer on test: All of the above.

 

• Brandeis Rules of Self-Restraint - Box 2-8 (p. 119):

Brandeis Rules of Self-Restraint Box 2-8 pp. 119:

Answer on test: All of the above.

 

Questions & Answers for Test Given During Lectures:

 

- Powers of Congress – figure 1-1 (p.4)

- Question about Articles of Confederation “congressional powers” – answer is “all of the above.”

- Is federalism included in separation of powers? No

- When groups file in opposition of a case it increases the likelihood of being heard. Why? It is very political.

- Definition of Stare Decisis – “let the decision stand” or follow the precedent; judge made law – we got this from English common law.

- Liberal Decisions (Civil Liberties) – Warren 80%, Burger 30%, Rehnquist 22%.

- Not including chief justice Roberts and justice Alito the most conservative pair is justices Scalia and justice Thomas.

- Can activist be conservative? Yes

- Question about justice Louis D. Brandeis – self-imposed restraint – Answer: All of the above.

- Most federal judges are nominated by the President, confirmed by the Senate… unless impeached and convicted… salaries can be frozen but not rescinded.

- Table 2-2 (p. 96) Congressional proposals for eliminating the Supreme Courts appellate jurisdiction – Answer: “all of the above”

- Luther v. Borden à court declined based on Art. 4 Sec. 4 (guarantee clause).

- Did Frotthingham decision impose a bar to taxpayer suits? No

- Justice Brandeis, concurring in Ashwander v. Tennessee Valley Authority (Box 2-8) – Answer: “all of the above”

 

Was Told to Memorize:

- 3 reasons for Fed. To decide: 1) Out of Constitution itself. 2) Laws of the U.S. (ex. A congressional statute). 3) Treaties.

 

Cases:

• U.S. Term Limits, Inc. v. Thornton (1995):

Amendment 73 to Arkansas's state constitution denied ballot access to any Congressional candidate having already served three terms in the U.S. House or two terms in the U.S. Senate. Soon after the amendment's adoption by referendum at the general election on November 3, 1992, Bobbie Hill, a member of the League of Women Voters, sued in state court to have it invalidated. She alleged that the new restrictions amounted to an unwarranted expansion of the specific qualifications for membership in Congress enumerated in the U.S. Constitution:

The Opinion: (J. Stevens – Thornton Won) The [Arkansas]-imposed restriction is contrary to the “fundamental principle of our representative democracy,” embodied in the Constitution, that “the people should chose whom they please to govern them.” Thus, the right to choose representatives belongs not to the states, but to the people. Allowing individual states to adopt their own qualifications would be inconsistent with the Framer’s vision of a uniform National Legislature. Contrary to the petitioners’ assertions, the power to add qualifications is not part of the original powers under the Tenth Amendment because “no state can say that it has reserved what it never possessed.”

Precise Issues: In 1992 Arkansas voters approved an amendment to the state constitution (Amendment 73) limiting terms of elected officials within the Arkansas state government and prohibiting anyone from the ballot seeking reelection who previously had served two terms in the U.S. Senate and three year terms in the House of Representatives. It permitted anyone to be elected as a write-in candidate, presumably as a way of allowing for the reelection of a popular incumbent.

Do Justices make reference to a particular constitutional approach?: When Framers left the Articles of Confederation and adopted an entirely new government, the Framers recognized that electing representatives to the National Legislature was a new right. (Framers’ Intent)

· Gravel v. United States (1972)

In 1971, Senator Mike Gravel received a copy of the Pentagon Papers: a set of classified documents concerning U.S. involvement in the Vietnam war. Gravel then introduced the study, in its entirety, into the record of a Senate Subcommittee meeting. Gravel also arranged for the private publication of the papers by the Beacon Press. A federal grand jury subpoenaed Leonard Rodberg, one of Gravel's aides, to testify about his role in the acquisition and publication of the papers.

The Opinion: (White- )

Precise Issues:Did the subpoena of Senator Gravel's aide violate the Speech and Debate Clause of Article I of the Constitution? Yes. The Court held that because the work of aides was critical to the performance of legislative tasks and duties, they were nothing less than legislators' "alter egos" and thus immune from subpoenas (exam question-who has immunity from Grand Jury questioning?) by the Speech and Debate Clause. Aides were exempted from grand jury questioning so long as Senators invoked the privilege on their behalf. Moreover, the Court held that the protections of the Speech and Debate Clause did not extend beyond the legislative sphere, ruling that Senator Gravel's arrangements with the Beacon Press were not constitutionally protected.

Do Justices make reference to a particular constitutional approach?: Framers Intent

3 McCulloch v. Maryland (1819) (6-0)In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax. he case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?

The Opinion:In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme . . . they control the constitution and laws of the respective states, and cannot be controlled by them."

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

4 McGrain v. Daugherty (1927) (8-0)Devanter-This case was a challenge to Daugherty's contempt conviction. He failed to appear before a Senate committee investigating the failure of Daugherty's brother (Harry Daugherty, the former Attorney General)to prosecute wrongdoers in the Teapot Dome scandal. Was the Senate committee out-of-bounds in issuing its contempt order since the purpose of the investigation had nothing to do with the committee's legislative purpose?

The Opinion:The Court upheld Daugherty's contempt conviction, establishing a presumption that congressional investigations have a legislative purpose. This presumption was not overcome by showing that the committee also had another purpose, such as exposure of wrongdoing. This presumption would later restrict the Court's hand in clear cases of congressional overreaching while investigating communists after World War II.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

5 Watkins v. United States (1957) In 1954, John Watkins, a labor organizer, was called upon to testify in hearings conducted by the House Committee on Un-American Activities. Watkins agreed to describe his alleged connections with the Communist Party and to identify current members of the Party. Watkins refused to give information concerning individuals who had left the Communist Party. Watkins argued that such questions were beyond the authority of the Committee. Did the activities of the Un-American Activities Committee constitute an unconstitutional exercise of congressional power?

The Opinion:In a 6-to-1 decision, the Court held that the activities of the House Committee were beyond the scope of congressional power. The Court held that both the authorizing resolution of the Committee and the specific statements made by the Committee to Watkins failed to limit the Committee's power. The Court found that because Watkins had not been given sufficient information describing the pertinency of the questions to the subjects under inquiry, he had not been accorded a fair opportunity to determine whether he was within his rights in refusing to answer. The Due Process Clause of the Fifth Amendment thus invalidated Watkins' conviction.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

• Barenblatt v. United States (1959):

The Opinion: (J. Harlan – United States won) Congress needs to force witnesses to testify in order to fulfill scope of its congressional power and exercise its legislative power. Conviction for contempt of a congressional committee under 2 USC 192 cannot stand unless questions are asked pertinent to subject matter of the investigation. Congress may only investigate into areas in which it may potentially legislate or appropriate and cannot inquire into matters which are within exclusive province of another branch of government.

Precise Issues: Lloyd Barenblatt was called as a witness before a congressional subcommittee investigating Communist infiltration into the field of education. Barenblatt refused to answer questions as to his membership in affiliation with the Communist Party. Hence, he was convicted in the United States District Court for the District of Columbia for violating 2 USC 192, dealing with contempt of Congress and congressional committees.

Do Justices make reference to a particular constitutional approach?: Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interest at stake in the particular circumstances shown.

7 Gibson v. Florida Legislative Investigating Commission (1963):In the wake of the Supreme Court's ruling in Brown v. Board of Education, the National Association for the Advancement of Colored People (NAACP) received much criticism from state legislators as it pushed ahead with litigation to combat segregation. The State of Florida, in 1959, established a Legislative Investigation Committee to study what were called "subversive organizations." Gibson, president of the Miami branch of the NAACP, was subpoenaed before the committee and asked to produce a membership list of his organization. He refused and was found in contempt. Did the Florida Committee, in attempting to inform itself about activities of subversive organizations, violate Gibson's right to free speech and association as protected by the First and Fourteenth Amendments?

The Opinion:In a close decision, the Court found that Gibson's rights had been violated. In his opinion, Justice Goldberg recognized the important right of states to inform themselves on "legitimate and vital interests." However, even though inquiring about the actions of a group such as the Communist Party may have been one of these legitimate interests, argued Goldberg, Florida did not prove that a "substantial connection" between the Miami NAACP and Communist Party activities existed. Thus, a "compelling and subordinating governmental interest" would not have been served by forcing Gibson to disclose his group's membership list.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

8 United States v. Curtiss-Wright Export Corp. (1936):Curtiss-Wright was charged with conspiring to sell fifteen machine guns to Bolivia, which was engaged in an armed conflict in the Chaco. This violated a Joint Resolution of Congress and a proclamation issued by President Roosevelt. Did Congress in its Joint Resolution unconstitutionally delegate legislative power to the President?

The Opinion:The Court agreed that the President was allowed much room to operate in executing the Joint Resolution; it found no constitutional violation. Making important distinctions between internal and foreign affairs, Justice Sutherland argued because "the President alone has the power to speak or listen as a representative of the nation," Congress may provide the President with a special degree of discretion in external matters which would not be afforded domestically.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

• Panama Refining Company v. Ryan (1935):

The Opinion:

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

10 South Carolina v. Katzenbach (1966)(8-1)The Voting Rights Act of 1965 prevented states from using a "test or device" (such as literacy tests) to deny citizens the right to vote. Federal examiners, under the Attorney General's jurisdiction, were empowered to intervene to investigate election irregularities. Did the Act violate the states' rights to implement and control elections?

The Opinion:The Court upheld the law. Noting that the enforcement clause of the Fifteenth Amendment gave Congress "full remedial powers" to prevent racial discrimination in voting, the Act was a "legitimate response" to the "insidious and pervasive evil" which had denied blacks the right to vote since the Fifteenth Amendment's adoption in 1870.

Precise Issues:States do not have the right to discriminate according to the 14 & 15th ammendment.  Original jurisdiction=act unconsitutional

Do Justices make reference to a particular constitutional approach?:

• Bush v. Gore (2000):

The Opinion: (Per Curiam) The standard for accepting or rejecting contested ballots might vary not only from county to county but within a single county from one recount team to another.

Precise Issues: The presidential election in question took place on Novenber 7, 2000. On November 8^th, the Flordia Division of Elections reported that George Bush had a margin of victory of 1,784 votes out of six million cast. Because the margin of error was less than 0.5% of the votes cast, a state-mandated automatic machine recount was issued. The recount resulted in a much smaller margin of victory for Bush – on November 10, with the machine recount finished in all but one county. Bush’s margin of victory had decreased to 327.

Do Justices make reference to a particular constitutional approach?: ???

12 In re Neagle (1890) Suspecting a plot against Justice Stephen J. Field's life, the U.S. Attorney General appointed Neagle, a U.S. Marshall, to protect him. Acting as Field's bodyguard, Neagle shot and killed a man who appeared about to attack the justice. After California officials arrested and jailed Neagle, the U.S. sought his release by a writ of habeas corpus. Was the state obligated to obey the writ even though no national statute empowered the Attorney General to provide judges with bodyguards?

The Opinion:Yes. The Court held that the Attorney General acted appropriately since assigning Neagle as Field's bodyguard assured that the nation's laws would be faithfully executed.

Precise Issues: Neagle's actions were consistent with a congressional statute which provided U.S. Marshalls with "the same powers, in executing the laws" as state sheriffs and deputies (who would have been allowed to deter an attack on Field's life).

Do Justices make reference to a particular constitutional approach?:

• Train v. City of New York (1975):

The Opinion:

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

• Clinton v. City of New York (1998):

The Opinion: (J. Stevens – City of New York won) There is no provision in the Constitution that authorizes the President to “enact, to amend, or to repeal statutes.” The Constitution clearly states the powers given to the President in Article I and II, but nowhere is this issue clearly spelled out in either article. The Presentment Clause details how the legislature and the executive must work together to pass an entire bill before it becomes law, whereas the Line Item Veto gives the executive sole discretion to cancel any pre-existing law or part of a law.

Precise Issues: On January 1, 1997 the Line Item Veto Act came into effect. This act allowed the President to “cancel in whole” budget matters signed into law pursuant to Article I, Section VII. It also had two other provisions; the first being, congress could consider “disapproval bills” or bills that would render the President’s initial cancellation void (but would in itself be subject to the presidential veto), secondly the provision stated any individual or member of Congress could challenge the constitutionality of this act in the United States District Court for the District of Columbia if the act adversely affected them.

Do Justices make reference to a particular constitutional approach?: There is no provision in the Constitution that authorizes the President to “enact, to amend, or to repeal statutes.” (Textualism I: Consider only the words of the Constitution itself)

15 Morrison v. Olson (1988):The Ethics in Government Act of 1978 created a special court and empowered the Attorney General to recommend to that court the appointment of an "independent counsel" to investigate, and, if necessary, prosecute government officials for certain violations of federal criminal laws. Did the Act violate the constitutional principal of separation of powers?

The Opinion:The Court addressed a number of constitutional issues in this case and upheld the law. The near-unanimous Court held that the means of selecting the independent counsel did not violate the Appointments Clause; the powers allocated to the special court did not violate Article III; and the Act was not offensive to the separation of powers doctrine since it did not impermissibly interfere with the functions of the Executive Branch.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

· Myers v. United States (1926):

The Opinion:(6-3) Taft-

Precise Issues: An 1876 law provided that postmasters of the first, second, and third classes shall be appointed and may be removed by the President with the advice and consent of the Senate. President Woodrow Wilson removed Myers, a postmaster first class, without seeking Senate approval.

Did the Act unconstitutionally restrict the President's power to remove appointed officials? Yes. After tracing legislative debate of the First Congress in 1789 which dealt with the interpretation of the President's appointment power, Chief Justice Taft concluded that the power to remove appointed officers is vested in the President alone. According to Taft, to deny the President that power would not allow him to "discharge his own constitutional duty of seeing that the laws be faithfully executed."

To deny the removal of postmasters by the president is in violation of the Constitution, and invalid.

Do Justices make reference to a particular constitutional approach?: Separation of Powers

• Humphrey’s Executor v. United States (1935):

The Opinion: (9-0)

Precise Issues: President Hoover appointed, and the Senate confirmed, Humphrey as a commissioner of the Federal Trade Commission (FTC). In 1933, President Roosevelt asked for Humphrey's resignation since the latter was a conservative and had jurisdiction over many of Roosevelt's New Deal policies. When Humphrey refused to resign, Roosevelt fired him because of his policy positions. Did section 1 of the Federal Trade Commission Act unconstitutionally interfere with the executive power of the President? The unanimous Court found that the FTC Act was constitutional and that Humphrey's dismissal on policy grounds was unjustified. The Court reasoned that the Constitution had never given "illimitable power of removal" to the president. Justice Sutherland dismissed the government's main line of defense in this case which relied heavily on the Court's decision in Meyers v. United States (1926). In that case the Court upheld the president's right to remove officers who were "units of the executive department." The FTC was different, argued Sutherland, because it was a body created by Congress to perform quasi-legislative and judicial functions. The Meyers precedent, therefore, did not apply in this situation.

Do Justices make reference to a particular constitutional approach?:

18 United States v. Nixon (1974) A grand jury returned indictments against seven of President Richard Nixon's closest aides in the Watergate affair. The special prosecutor appointed by Nixon and the defendants sought audio tapes of conversations recorded by Nixon in the Oval Office. Nixon asserted that he was immune from the subpoena claiming "executive privilege," which is the right to withhold information from other government branches to preserve confidential communications within the executive branch or to secure the national interest. Decided together with Nixon v. United States. Is the President's right to safeguard certain information, using his "executive privilege" confidentiality power, entirely immune from judicial review?

The Opinion: No. The Court held that neither the doctrine of separation of powers, nor the generalized need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified, presidential privilege.

Precise Issues:The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs, but gave preference to "the fundamental demands of due process of law in the fair administration of justice." Therefore, the president must obey the subpoena and produce the tapes and documents. Nixon resigned shortly after the release of the tapes. President Nixon stated that the investigation would violate confidentiality.

Do Justices make reference to a particular constitutional approach?:??

19 Mississippi v. Johnson (1867)In 1867, Congress passed the Reconstruction Acts. Although President Andrew Johnson vetoed the Acts, Congress overrode the veto. In an attempt to delay or prevent Reconstruction, the state of Mississippi appealed directly to the Supreme Court. Mississippi asked the Court for an injunction preventing the President from enforcing the Acts on the ground that they were unconstitutional. Could the Supreme Court constitutionally issue an injunction directed against the President?

The Opinion:In a unanimous decision, the Court held that it had "no jurisdiction of a bill to enjoin the President in the performance of his official duties...." The Court held that the duties of the President as required by the Reconstruction Acts were "in no sense ministerial," and that a judicial attempt to interfere with the performance of such duties would be "an absurd and excessive extravagance." The Court noted that if the President chose to ignore the injunction, the judiciary would be unable to enforce the order.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

20 Nixon v. Fitzgerald (1982)In 1968, Fitzgerald, then a civilian analyst with the United States Air Force, testified before a congressional committee about inefficiencies and cost overruns in the production of the C-5A transport plane. Roughly one year later he was fired, an action for which President Nixon took responsibility. Fitzgerald then sued Nixon for damages after the Civil Service Commission concluded that his dismissal was unjust. Was the President immune from prosecution in a civil suit?

The Opinion:Yes. The Court held that the President "is entitled to absolute immunity from damages liability predicated on his official acts." This sweeping immunity, argued Justice Powell, was a function of the "President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history".

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

21 Clinton v. Jones (1997):Paula Corbin Jones sued President Bill Clinton. She alleged that while she was an Arkansas state employee, she suffered several "abhorrent" sexual advances from then Arkansas Governor Clinton. Jones claimed that her continued rejection of Clinton's advances ultimately resulted in punishment by her state supervisors. Following a District Court's grant of Clinton's request that all matters relating to the suit be suspended, pending a ruling on his prior request to have the suit dismissed on grounds of presidential immunity, Clinton sought to invoke his immunity to completely dismiss the Jones suit against him. While the District Judge denied Clinton's immunity request, the judge ordered the stay of any trial in the matter until after Clinton's Presidency. On appeal, the Eighth Circuit affirmed the dismissal denial but reversed the trial deferment ruling since it would be a "functional equivalent" to an unlawful grant of temporary presidential immunity. Is a serving President, for separation of powers reasons, entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?

The Opinion:No. In a unanimous opinion, the Court held that the Constitution does not grant a sitting President immunity from civil litigation except under highly unusual circumstances. After noting the great respect and dignity owed to the Executive office, the Court held that neither separation of powers nor the need for confidentiality of high-level information can justify an unqualified Presidential immunity from judicial process. While the independence of our government's branches must be protected under the doctrine of separation of powers, the Constitution does not prohibit these branches from exercising any control over one another. This, the Court added, is true despite the procedural burdens which Article III jurisdiction may impose on the time, attention, and resources of the Chief Executive.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

22 Ex parte Grossman (1925):In 1920, legal action was taken against Philip Grossman for selling liquor at his place of business in violation of the National Prohibition Act. He violated a federal court injunction by continuing to sell alcoholic beverages. He was found guilty of criminal contempt of court and sentenced to one year in prison and a $1,000 fine. In 1923, President Calvin Coolidge issued a pardon that reduced Grossman's sentence to payment of the fine. Did the president have the constitutional authority to commute a sentence for criminal contempt of court?

The Opinion:In a unanimous decision, the Court found that a presidential pardon for a criminal contempt of court sentence was within the powers of the executive. There is nothing in the words "offenses against the United States" that excludes criminal contempts in the Constitution. Actions that violate the dignity or authority of the federal courts violate the law of the United States, making these contempts offenses against the United States. The president's pardon authority includes such offenses. Without destroying the deterrent effect of judicial punishment, the president's powers are to act as checks against undue prejudice or needless severity in such sentencing by the judicial branch.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

• Murphy v. Ford:

The Opinion: (case was dismissed) Precedent stemming from Ex Parte Garland (1867) the Supreme Court ruled the president’s pardoning power was unlimited, except in cases or impeachment. Thus the pardon can be given before, during, or after legal/formal proceedings are taken. The Court saw the only limitation to presidential pardoning existing in the restoration of forfeited offices or property interests vested in others in consequence of the conviction and judgment.

Precise Issues: Article 2 Section 2: “he shall have power to Grant Reprieves and Pardons for Offenses against the United States, except in cases of impeachment.” Murphy said that the president didn’t have the power to pardon the offenses of former President Nixon because he had not been formally charged or indicted.

Do Justices make reference to a particular constitutional approach?: District Court Judge, Noel P. Fox dismissed the case on the grounds of Framer’s Intent based off of Alexander Hamilton’s reasoning in Federalist No. 74. Hamilton argued that the president’s pardoning power should be used in times of insurrection or rebellion to restore public peace and tranquility.

24 United States v. Belmont (1937)In 1933, the United States established formal diplomatic relations with the Soviet Union. This case involved a Russian metal works company which had deposited money in an American bank prior to the Russian Revolution of 1917. The Soviet Union nationalized the company and attempted to reclaim its assets with the help of the United States. The bank refused to cooperate, citing protection of a New York law. Did the diplomatic agreements between the two countries compel the bank to release the assets?

The Opinion:Yes. Even though the diplomatic agreements had not been implemented as formal treaties with Senate approval, they did empower the United States to seek assets on the Soviet Union's behalf. Justice Sutherland argued for a unanimous Court that different kinds of treaties existed which did not require Senate approval, but nonetheless overrode state statutes. "Plainly, the external powers of the United States are to be exercised without regard to state laws or policies," he reasoned.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

25 Goldwater v. Carter (1979):President Jimmy Carter acted without congressional approval in ending a defense treaty with Taiwan. Did Congress have a constitutional role to play in the termination of the treaty?

The Opinion:Without oral argument ,the divided justices found that the case was not justiciable. Rehnquist led a group of four others who believed that the issue involved a political question, namely, how the President and Congress would conduct the nation's foreign affairs. Justice Powell did not find the case ripe for judicial review. He reasoned that since Congress had not formally challenged Carter's authority, technically there was no conflict for the Court to resolve. The dissenters were prepared to hear the case.

Precise Issues:

Do Justices make reference to a particular constitutional approach?:

• Haig v. Agee (1981):

In 1974, Philip Agee, a former employee of the Central Intelligence Agency, announced a campaign "to fight the United States CIA wherever it is operating." Over the next several years, Agee successfully exposed a number of CIA agents and sources working in other countries. When Secretary of State Alexander Haig revoked Agee's passport, Agee filed suit claiming that Haig did not have congressional authorization to do so. Agee also claimed that the action violated his right to travel, his First Amendment right to criticize the government, and his Fifth Amendment Due Process rights

The Opinion:(7-2 in favor of Haig)

Precise Issues: Agee's passport was revoked based on "Executive authority to withhold passports on the basis of substantial reasons of national security and foreign policy." The SC rejected Agee's objections.

Do Justices make reference to a particular constitutional approach?: Separation of Powers

· Powell v. McCormick (1969)

Adam Clayton Powell, Jr., a senior member of the U.S. House of Representatives, was embroiled in scandals (refusing to pay a judgment ordered by a court in New York, misappropriating Congressional travel funds, and illegally paying his wife a Congressional staff salary for work not done).When the 90th Congress convened, Speaker of the House John William McCormack asked Representative Powell to abstain from taking the oath of office. Then, the House passed H.Res.1, which excluded Powell from taking his seat and created a Select Committee to investigate Powell’s misdeeds. After the Select Committee conducted its investigation and hearings, the House passed H.Res.278, which again excluded Powell from Congress and also censured him, fined him $40,000, took away his seniority, and declared his seat vacant.

The Opinion: (7-1) (Warren-Powell won) Stewart dissented

Precise Issues: Can the House exclude a member based on criteria other than the constitutional requirements for office holders if that member has been elected and meets the constitutional requirements to hold office? No. Whether the House alone, under Article I, Sec. 5, has the power to determine who is qualified to be a member, under the "textual commitment," to "be the judge of the qualifications of is own members? Congressional power to develop qualifications other than those specified (Art. I, § 2, cl. 1-2)Congressional power to exclude rather than impeach or expel (Art. I, § 2, cl. 5; Art. I, § 5, cl. 2) Judicial review versus Congressional power to be the judge of its qualifications (Art. I, § 5, cl. 1) Supreme Court Jurisdiction and Justiciability (Art. III)Rights of the electorate to elect their Representative

Do Justices make reference to a particular constitutional approach?:??

• Hutchison v. Proxmire (1979) p. 149, Box 3.3:

- Legal Question: Does the Speech or Debate Clause protect a member of Congress from a civil suit in response to negative statements made to the press and in newspapers about a government grant awardees’ research?

- Court’s Response: The Speech or Debate Clause does not protect a member of Congress from a libel judgment when information is disseminated to the press and the public through newsletters.

• Box 3.4 p. 150 – Jefferson & Hamilton on “necessary” McCulloch: Which bank?:

- Hamilton arguments: 1) where the Constitution originates. Emanation theory – Constitution comes from the people. 2) People made Constitution supreme within sphere of powers – Article VI: Supremacy Clause. 3) Necessary & Proper Clause (Elastic Clause). Hamilton believed that to make a strong economic system was the only way to grow politically… his arguments prevailed over Jefferson… this was a broad interpretation (construction) view of the Necessary & Proper Clause.

- Jefferson: No express opinion (provision) for a national bank. A national bank is not necessary and is unconstitutional. The impact of McCulloch was widely criticized by Jefferson (and others)… the “little guys” didn’t like it. Jefferson had a narrower (strict construction) view of the Necessary & Proper Clause.

- McCulloch dealt with the 2^nd Bank of the United States. It was facilitated by the Necessary & Proper Clause – this was an example of “implied powers.”

- Do the terms of the Necessary & Proper Clause enlarge or constrict the powers of Congress? They enlarge Congressional power.

- Was the bank held to be Constitutional? Yes.

- Could the bank be taxed? No.

• Watkin’s, violation of which constitutional provision? (p. 167 Left):

- “His conviction is necessarily invalid under the Due Process Clause of the Fifth Amendment.”

• Court’s shift from Watkin’s to Barenblatt. Why, according to your authors? – p. 173R:

- The authors state that there are two possibilities for the shift: 1) Constraints on the Court imposed by the Separation of Powers system. The Court was under pressure by the public & Congress over “liberal” decisions. Some even sought to remove the Court’s jurisdiction on hearing cases dealing with subversive activity. The Justices felt the heat and acceded to Congressional pressure. 2) Personnel changes produced by a more conservative court. Simply a trend ushered in by President Eisenhower’s appointments.

- Either way, the explanations indicate the susceptibility of the court to political influences outside and inside its chamber.

• South Carolina v. Katzenbach… state needs “pre-clearance” from _____ or _____?:

- …state needs “pre-clearance” from the Attorney General or the President.

• P. 201 Box 4.2 Bush II, the 4^th person to be what?:

- Bush II was the fourth President to win office while losing the popular vote.

• General Grant Theory [of Presidential power]. What?:

- The General Grant Theory of Presidential Power is that the president has the constitutional power to take those actions necessary to enforce the laws of the nation, even if the Constitution did not provide an explicit authorization to do so.

- Was the General Grant Theory named after General Grant… then President Grant? No.

• In what capacity was J. Field acting in California ( In re Neagle)?:

- Justices were assigned to circuit court duties during those times. Therefore, J. Field was acting in the capacity of a circuit court judge in California.

• Why did J. Scalia dissent in Clinton v. City of New York?:

- J. Scalia dissented in Clinton v. City of New York, because; Insofar as the degree of political, “lawmaking” power conferred upon the Executive is concerned, there is “not a dime’s worth of difference” between Congress’ authorizing the President to cancel a spending item, and Congress’ authorizing money to be spent on a particular item at the President’s discretion. And the latter has been done since the Founding of the Nation.

• Buckley v. Valeo p. 216-17 Appointments Clause – exception to presidential appointments?:

- Occasionally, Congress has established government positions that were to be filled by an appointing authority other than the President.

- When the executive has objected legal disputes have arisen.

- In many cases the issue is whether the officer holds a major position as an officer of the U.S. or is an inferior official.

- Exception to the Appointments Clause: If it is an officer that holds a major position then, according to the Appointments Clause, the position must be filled by the President nomination and approved by Senate confirmation. If it is regarding an inferior official they can be chosen by some other means determined by Congress.

- Buckley v. Valeo (1976): This was a challenge to the Constitutionality of the 1974 amendments to the Federal Election Campaign Act. The appeal involved issues regarding the regulation of federal election campaigns, including who should enforce the law. The statute created the Federal Election Commission (FEC) to police the new regulations. Its powers included making available for “public inspection, preservation, and auditing and field investigations” campaign finance reports; serving as a “national clearinghouse for information in respect to the administration of elections”; making “rules and regulations to carry out” particular provisions of the act; formulating “general policy with respect to the administration of this Act”; and rendering “advisory opinions with respect to activities possibly violating the Act.” Congress did not want the eight members of the commission to be appointed exclusively by the President, so it devised a plan for choosing them. This plan involved appointments by the president pro tempore of the Senate, the Speaker of the House, and the President. The six voting members had to be confirmed by both houses of Congress. This arrangement was challenged as a violation of the Appointments Clause. The argument was that the commissioners were officers that should be appointed by the President only and confirmed by the Senate, with no House involvement. They also argued against the commission’s appointment procedure because, the body was being given the responsibility to enforce the campaign laws (an executive function), the members should not be appointed by the legislature. To construct the commission in this way was to violate the principle of the separation of powers. The Supreme Court found the FEC to be unconstitutionally structured (unanimously). The commissioners were not inferior officers; they were officers entrusted with major enforcement and administrative duties. As such, they belonged to the executive branch and should not be appointed by the legislature.

• Myers v. U.S. How different from Humphrey’s Executor v. United States (1935)?:

- The Meyers case was different b/c the postmaster’s position wasn't created by Congress to perform quasi-legislative and judicial functions as in Humphrey's Executor v. US- the position of FTC Commissioner involved much more policy-making power.

• Obiter dicta in Taft’s Myers v. U.S. opinion. What? Where?:

- In Humphrey's Executor, the court characterized Taft's reasoning in Myers as obiter dictum, something said in passing, and limited it’s holding to "purely executive officers."

• Subpoena in U.S. v. Nixon:

- This was a Subpoena duces Tecum, not a Subpoena ad Testificandum.

- A Subpoena duces Tecum is the right of the accused to all information in a trial.

• Ministerial v. executive (discretionary) authority in Mississippi v. Johnson:

- Ministerial duties are acts which require no personal discretion. They are strictly followed. Ex. In Marbury v. Madison the ministerial act would have been “just to deliver the commissions.”

- Executive duties are acts which go beyond ministerial, “you must do more,” and can involve a certain amount of discretion.

- In Mississippi v. Johnson executive (discretionary) authority was the focus.

- The Supreme Court - has allowed suits against the actions of lower-ranking executive officials. However, the President cannot be sued to prevent the carrying out of executive responsibilities.

• Nature of immunity in Nixon v. Fitzgerald?:

- Absolute immunity from liability based on his official actions.

 

• Functional immunity – explain:

- This is immunity attitudes to particular functions and not particular offices.

• Georgia v. Stanton (1868) p. 242R – So what?:

- An injunction was sought to stop the Secretary of War from enforcing the Reconstruction Acts.

- The suit was also unsuccessful (like Mississippi v. Johnson), but was decided on entirely different grounds – that it was a political question. The Court found no bar to suing an executive branch administrator, even at cabinet level. Only suits against the president are prohibited by the doctrine of executive immunity.

• Box 4.5 p. 253:

- Does the President have to stand trial for unofficial acts? Yes.

- Immunity from suit? No.

- Separation of Power? Doesn’t work, but nice try!

- Clinton basically settled out of court with Jones (no admission of guilt or apology)… Congress considered four articles of impeachment… two passed (perjury & obstruction of justice)… Clinton was acquitted on both counts… then the judge who presided over the Jones case found Clinton in contempt (he received a $90,000 fine)… In May 2000, disbarment proceedings began… Clinton reached an agreement (no admission of wrong doing, $25,000 fine, and 5 year suspension of his license to practice law)… the presidency was unaffected as approval ratings remained high in spite of Clinton’s legal troubles.

• Quotes from Hamilton in Powell, U.S. Term Limits, Inc., Murphy v. Ford, Goldwater v. Carter, U.S. v. Belmont, and Haig v. Agee, all p. 261:

- Powell v. McCormack: “…the people should choose whom they please to govern them.”

- U.S. Term Limits, Inc. v. Thornton: “when a man knows he must quit his station, let his merit be what it may, he will turn his attention chiefly to his own emolument.”

- Murphy v. Ford: “to calm public in seasons of insurrection and rebellion.”

• Executive Order v. Executive Agreement – See In re Neagle (p. 205) and U.S. v. Belmont (p. 261):

- Executive Order: is law, ability to get something done without consulting Congress.

- Executive Agreement: the foreign version of an Executive Order; applies to international relations. Agreement between the U.S. & foreign nations do not need Senate approval… Executive Agreements are made in lieu of treaties.

- In re Neagle: The central question was whether the President, without Congressional action, could issue an Executive Order through the U.S. Attorney General to authorize a bodyguard to protect Justice Field.

- United States v. Belmont: The Court not only endorsed the use of Executive Agreements but also blurred the distinction between such arrangements and fully ratified treaties.

 

Delegata potesta non potest delegari:

A power once delegated cannot be re-delegated

 

Wayman v. Southard:

The court’s first major ruling on the delegation of domestic powers.

 

Hampton v. US:

Gave prez power to increase or decrease tariffs on imported goods (by up to 50%).

 

NIRA:

National Industrial Recovery Act

 

“Delegation running riot”-Who? Where?:

Cardozo’s opinion in the Schechter case.

 

The voting in Mistretta:

9-1

 

Chadha- nature of the leg. veto?

Congress’ way to keep tabs on the executive branch

Powell’s reason for his opinion:

 

Bicameral and presentment req.:

Needed two house (bicameral) Art 1, (2) needs presentment, Art 1. Sec 7.

Status of leg veto today:

 

Dead or alive?:

Continues to operate (p277)

Why?

 

Chadha-formalism or not?

Formalism

 

Bowsher-comptroller legislative or executive?

Legislative.

Bowsher-Formalism or not?

“Distressingly Formalism”

Why?

Doesn’t want 1 branch performing the duties of another.

Habeas Corpus:

Produce a prisoner, justify the prisoner’s detention- a response to imprisonment by the CJ system.

Judiciary vis a vis:

 

Declaration of War-Who? How many times? The last time?

Congress, five times, WWII

The Prize Cases:

Issue:

Prez Lincoln imposed a naval blockade of southern ports.

Jure Belli:

Laws of War

Congressional response to Lincoln’s actions:

The prez has the right, jure belli, to institute a blockade.

Significance of Prize cases:

Good example of expanding presidential power. To take military action w/o waiting for congressional approval.

Milligan Case:

The vote:

9-0

Why did 4 justices concur?

Thought what the prez did was wrong, but if the prez didn’t have the power to do what he did, then Congress did.

Silence of the Constitution re: Emergency Powers:

Nowhere does the Constitution mention emergency powers. But courts sympathetic to exercises to EP by prez in wartime, especially when action is taken with the coop of Congress=If not specific Const provision, get congressional approval.

Silence of the Constitution re: Martial Law:

Const doesn’t provide for a power of ML, does mention the suspension of Habeas Corpus (Art 1)=Civilian gov replaced by military rule.

 

• Article I Sections 1 & 9:

 

- Art.1 Sec. 9 allows for the suspension of haebus corpus; essentiall to separation of powers, since it allows the judicial branch to intervene if executive branch oversteps its bounds.

 

• Intelligible Principle:

 

- In determining what Congress may do in seeking assistance from another branch, the extent and character of that assistance must be fixed according to common sense and the inherent necessities (intelligible principle) of that coordination.

- An intelligible principle (a.k.a. adequate standards) – is something in legislation providing guidance to the body of re-delegated powers.

 

• “Hot Oil Case” Panama Refining (1935):

 

- Congress delegated powers allowing the President to prohibit the shipment in interstate commerce of oil produced in excess of state quotas. This delegation was ruled unconstitutional.

- Delegation of powers question: Did challenged section of the NIRA constitute overly broad (and thus unconstitutional) congressional delegations of power to the president? – Yes.

 

• “Sick Chicken Case” Schechter (1935):

 

- Congress delegated powers to the president to approve fair competition codes and standards if representatives of a particular industry recommended he do so. This delegation was ruled unconstitutional.

- Delegation of powers question: Did challenged section of the NIRA constitute overly broad (and thus unconstitutional) congressional delegations of power to the president? – Yes.

- J. Cardozo’s opinion: Concurring; This is “delegation running riot.”

 

• Standards in the Sentencing Act:

 

- The Standards in the Sentencing Act provided standards for the sentencing of     persons convicted of federal crimes.

- The Constitution does not prevent Congress from appointing a body of experts within the judicial branch to develop guidelines for matters unique to their area of knowledge, making the Sentencing Reform Act valid.

 

• Mistretta – “formalism” or not? Why?:

 

- No (not formalism), it is functional approach to the constitution. Because it took into account the realities of the political system that Congress needed an expert committee to carry out the function of this congressional task.

 

• Reasons why we have federal agencies, boards, commissions, etc. Problems raised for constitutionality, separation of powers.:

 

- We have federal agencies … because Congress is incapable of carrying out all of its inherent duties and are not adequate experts in all areas, thus it is necessary to have these entities to accomplish necessary task and that it be done by experts in that field.

- Technically these agencies are in violation of Separation of Powers and therefore unconstitutional because the perform functions that are reserved for governmental branches. However, they remain in existence because they are necessary to fulfill all of the overwhelming requirements thrust onto the government.

 

• Powell’s reason for his opinion (Chada).

 

- Powell concurred because the violation of the Presentment Clause invalidates the legislative veto. The congressional finding determining the criteria required for Chada is a judicial function and in violation of separation of powers.

 

• State of legislative veto today? Dead or alive? Why?:

 

- It is alive… because it is relied upon by many pieces of existing legislation and the procedure is necessary in the controlling of delegation                  of power.

 

• Chada – formalism or no? Why? White’s dissent in Chada – Why?:

 

- Yes, it is formalism. It is because it relied on strict definition of the functions of branches of government, specifically the presentment of all legislation to the president (presentment clause) before becoming law…. Law making power is to be shared by both the congress and the president (bicameral requirement).

- White dissented because “today the court … sounds the death knell for nearly 200 other statutory provisions in which Congress has reserved a ‘legislative veto’. For this reason, the Court’s decision is of surpassing importance. The court would have been well advised to decide this case on the narrower grounds of Separation of Powers.” – necessary & proper clause? -

 

• Judiciary vis-à-vis ________?

 

- Legislative/executive

 

• Thomas Jefferson: (Article: Presidential Wartime Emergency Powers)

 

- “A strict observation of the written laws is doubtless one of the higher duties of a good officer, but it is not the highest. The law of necessity, of self-preservation, of saving our country by a scrupulous adherence to written law would be to lose the law itself, with life, liberty, property …thus sacrificing the end to the means.”

 

• Quirin – “good law” – meaning?:

 

- “Good Law” means that law is still on the books and valid. The court has not overruled the use of military tribunals.

 

• Korematsu – Black, Murphy, Jackson opinions?:

 

- J. Black (majority opinion) Korematsu was in violation of the law because the U.S. was at war with Japan … not because he was Japanese.

- J. Murphy (dissenting) “The judicial test of whether the government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so ‘immediate, imminent, and impending’.”

- J. Jackson (dissenting) “But once a judicial opinion rationalizes such an order [military order] to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need …”

 

• Jackson concurring in Youngstown – his 3 part categories. Result?:

 

- Jackson’s 3 part category:

1. explicit power or implied.

2. in absence of either congressional grant or denial of authority.

3. against implied will of congress.

- Result: The Court ruled against the executive branch steel seizure.

 

• Executive Agreements – Dames v. Moore. Implicitness.:

 

- Congress implicitly approved of the settlement of claims by executive order.

- Dames & Moore lost their $3.5 million.

 

• McCullouch one and the many states:

 

- One states; could not destroy what all other states created. Federal government is supreme within its sphere.

 

• Dredd Scott v. Sanford:

 

- U.S. Citizenship: Before the 14^th Amendment – no mention of national citizenship; Framers intended that Afro-Americans not be U.S. Citizens.

 

- 5^th Amendment – Due Process: 5^th Amendment Due Process forbade Congress to deny a person his private property. – Dredd Scott; slaves are property. -

 

- Dual Federalism: Missouri Compromise à stop the spread of slavery into other states à held unconstitutional à this case was an example of dual federalism (limits power of federal government).

 

- Cooperative Federalism – Emanation Theory: The Constitution emanates/originates from the people.

 

• Fair Labor Standards Act (FLSA): Commerce Clause:

 

- The Fair Labor Standards Act regulated wages ($0.25/hr.) and hours (no more than 44/hr. per week without 1 ½ pay). If this was not followed – restrict interstate commerce – Commerce Clause used as a means of promoting public welfare on a national scale. – This Act has been amended many times. – Overturned Hammer v. Dagenheart. -

 

• C.J. Marshall:
• C.J. Taney:
• Garcia – traditional government functions:

 

1) operation of a transit system is not a traditional government function.

2) Operation of a transit system is not a core government function that must be exempted from federal commerce power legislation to preserve the states independence.

 

• J. Blackmun:
• J. Powell and “overreach”:

 

- Garcia v. S.A.M.T.A. – J. Powell (dissent) States are not sufficiently protected from Congressional or Federal overreach.

 

• J. Holmes & “living constitution”:

 

- “We may add that we are dealing with words that also our constituent act, like the constitution of the U.S., we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.”

 

• Chisolm v Georgia: 11^th Amendment - Sovereign Immunity:

 

- Sovereign cannot be sued without its consent, but the government has allowed suits against themselves.

 

• Seminole Tribe of Florida v. Florida:; Kimmel v. Florida Board of Regents:; Board of Trustees of the University of Alabama v. Garrett. Article I:

 

- (In all of these cases) Held that Congress could not hold non-consenting states to even its own courts.

 

• Family & Medical Leave Act (FMLA) - Nevada Department of Human Resources v. Hibbs:

 

- The state of Nevada lost and Hibbs won because J. Reinquist went more towards the liberal bloc on this case.

 

• J. Scalia concurring in Crosby v. National Foreign Trade Council:

 

- J. Scalia – “no need to look for legislative intent as did J. Souter in his opinion.”

 

• Smith Act of 1940:

 

- (Pennslyvania v. Nelson) The Smith Act of 1940, which prohibited the willful advocacy of the overthrow of the U.S. by force and violence. Those found guilty could face a maximum penalty of a $10,000 fine and/or a ten-year prison sentence.

 

• Preemption:

 

-  (Pennsylvania v. Nelson) Although the Court clearly set out a preemption standard, many argue that it has led to an ad hoc balancing of state-federal interest, turning more or less on the particular facts or disputes. - TRUE