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Foundations of the U.S.
Legal System
Prof. William Ewald

Wim De Vlieger
Suvitcha Nativivat
Alasdair Henderson
Ana Carolina Kliemann
Alexey Kruglyakov
Rafael A. Rosillo
Pasquale Siciliani
Paul Lanois
Gloria M. Gasso
Kamel Ait El Hadj
Yuanyuan Zheng
Ana L. Marquez
Pumthan Chaichantipyuth
Wenzhen Dai

Penn Law
Summer 2006

I. Introduction and Historical Background A. What the course will cover?

This is not an introductory course. You are all lawyers; I shall assume a good deal of professional expertise, and that many of you already have a body of knowledge about American law. The task: prepare you for the coming year, give you the basic grounding that you will need for the courses you are going to start taking in September. For this, you need two things: ♥ A great deal of basic factual information about how the courts and the legal system function, and about basic legal concepts (and legal vocabulary); ♥ But more importantly: background information about some of the critical ways in which the American legal system is unique, and differs from legal systems elsewhere in the world. This is hard: often you will find that your professors or fellow‐students will make assumptions or presuppose certain ways of doing things that aren’t explained in class. A large goal of this course is to explain those assumptions, and make them explicit.

>> UNIQUENESS OF AMERICAN LEGAL SYSTEMS Briefly, there are four aspects of the American legal system that set it apart: 1) Inherited common law, existing out of three components: (a) judicial power; (b) civil jury trial; (c) law‐equity ;
2) Written Constitution and Bill of Rights; judicial review (Marbury); judicial activism; any court can strike down act of legislature as unconstitutional;
3) Federalism:
a) Very developed and complex distinction between federal courts and 50 state court systems.
Apply different body of law to different range of cases, unlike e.g. German Lander where less distinction esp. in private law. So no national body of American tort, contract, property or even criminal law (even if often few differences). Federal law largely constitutional in scope. b) No simple divide – state courts can apply some aspects of federal law and vice versa.
4) Tendency to litigate, i.e. to take all problems to court. (less so now with growth of ADR)

These factors have interacted. In contrast to much of the world, we have a common law system; but in contrast to much of the common‐law world, our basic system even of private‐law adjudication has been deeply modified by the constitutional and political style of the courts.


Result: a highly ‘political’ system of law, with a great deal of fundamental disagreement. The debates have influenced judicial opinions, legislation, the composition of the bar, and legal scholarship. 
US system is well on way to full politicisation of law and the judiciary. Judges far more powerful than in most systems.

Federal system – 50 different bodies of law – means there are far more tensions and competition between laws. [Free market – capitalist approach to law???]
 Often plaintiffs will ‘shop around’ to get justices they think will be sympathetic or law that is most conducive to their case. But various procedures to discourage this (Erie).
 E.g. although hierarchy of courts exists, it can be difficult for higher courts to enforce will on lower ones., e.g. death penalty cases.

Federal justices appointed by President and Congress (below Supreme Court this not usually controversial) with tenure for life.

State justices directly elected by state electorate. On the one hand, large reliance on and trust of the courts to decide political issues. On the other, a skepticism about the courts and about law. “Legal Realism,” as described by Oliver
Wendell Holmes (Oliver Wendell Holmes Jr. (1841‐1935) pleaded to make the courts democratically accountable.

Holmes: with the nick name “The Great Dissenter,” justice of the United States
Supreme Court, U.S. legal historian and philosopher who advocated judicial restraint. He stated the concept of “clear and present danger” as the only basis for limiting free speech)

These arguments have affected legal scholarship. For example, the debates over Law &
Economics, the Coase theorem (in law and economics, the Coase theorem, attributed to Ronald
Coase, relates to the economic efficiency of a government's allocation of property rights; in essence, the theorem states that in the absence of transaction costs, all government allocations of property are equally efficient, because interested parties will bargain privately to correct any externality. This theorem, along with his 1937 paper on the nature of the firm which also emphasises the role of transaction costs, earned Coase the 1991 Nobel Prize in Economics. The
Coase theorem is an important basis for most modern economic analyses of government regulation, especially in the case of externalities. George Stigler summarized the resolution of the externality problem in the absence of transaction costs in a 1966 economics textbook in terms of private and social cost, and for the first time called it a "theorem". Since the 1960s, a voluminous literature on the Coase theorem and its various interpretations, proofs, and criticism has developed and continues to grow), grounding legal decisions in economic theory.


TOPICS TO BE COVERED IN FOUNDATIONS. Learn analytical, broad principles, skills‐equipping approach to law in US legal education – cannot possibly learn detailed rules of all 50 state legal systems – aim is to be able to find out and deal with them as needed to. To approach these issues and prepare you for the year ahead, we are going to proceed as follows: I.
GENERAL HISTORICAL BACKGROUND: principal stages of American legal history; principal aspects of the common law; law schools, the bar, and the legal profession. II.
THE FEDERAL SYSTEM: legislatures and courts; relationship of the state governments to the Federal government. (You need to know both these things – the history and the basic structure – before we can talk about the modern debates; such as: (a) common law adjudication
(i.e. the legal process of resolving a dispute‐ the process of judicially deciding a case); precedents and stare decisis; constitutional adjudication – (b) theories of adjudication, law and economics, process‐based and rights‐based theories of the judiciary). III.
CIVIL PROCEDURE: rules for taking a civil case through the American state and federal courts. Focus on rules for jury trials. IV.
CRIMINAL PROCEDURE AND CRIMINAL LAW: system for safeguarding the rights of criminal defendants ‐‐ also an introduction to Constitutional law. V.
CONSTITUTIONAL LAW: abortion, due process, and privacy; equal protection and the protection of racial minorities; freedom of speech and of religion; corporations (time permitting).

B. Common Law and Civil Law American law, particularly with regard to private law, forms a part of the common law. The principal difference between common law and civil law is often ‘said’ (but not accurate) to be the legislation vs. the precedents, i.e. the legislature vs. courts. But this distinction only dates from the
18th century, and doesn't get to the heart of the difference between the modern systems (e.g.
California has a Civil Code). The heart of the difference between the modern systems lies between ‘systematizing (the law) and originating (the law)’; two different functions of the legislature. In addition, other important factors are the influence of Roman law, the style of the legal analysis, the roles of the judge and of the legal scholar, the influence of the jury system, etc.


Common Law uses precedent as the leading guide when Civil Law is based on codes. But even in
Europe, lower courts tend to follow higher courts because they don’t like to be overruled.
Therefore, we can’t divide the common law and the civil law into two separate law systems.
C. The 14th –15th Centuries and the Emergence of Equity and Juries Up until 1272, common law system organized around writs. At end of 1200s, under political pressure from the nobility, the courts of law gradually froze the types of claims they would hear, and the procedure that governed the hearing of those claims. So as range of legal claims at that time quite narrow, legal procedures painfully technical, jurors often bribed, result was that many meritorious plaintiffs denied relief. However, remedies could also be obtained through filing petition with the King, who held residual judicial power; these filings were usually phrased in terms of throwing oneself upon the king's mercy or conscience. Eventually, the King began to regularly delegate the function of resolving such petitions to the Chancellor, an important member of the King's Council. At the time, the Chancellor was usually a clergyman and the King's confessor, so he was literally the keeper of the King's conscience. Soon the Chancery, the Crown's secretarial department, began to resemble a judicial body and became known as the "Court of Chancery". The law courts retained juries and continued to function. By the 15th century, the judicial power of the Chancery was recognized. Equity, as a body of rules, varied from Chancellor to Chancellor, until the end of the 16th century. The Jury System emerged slowly, as means of King’s justices to get information from local populace that helped them deal with case. Result of jury system is…

Concentration of trial procedure into tight schedule, so that jury does not have to take too much time out.

Complicated and highly developed rules of evidence, esp. for civil trials.

Appellate courts only review questions of law, except in exceptional cases. So very complex rules as to how to decide whether something factual or legal issue.



Seven Stages of American Legal History

(This is only the briefest sketch. But it is important that you understand the basic concepts and the general development.) O. EUROPEAN BACKGROUND How did the differences arise, even though Western Europe was for so many years (during the time of the Roman Empire and after) culturally unified? Two events; one in England, the other on the Continent: (a) England: The conquest of England by the Normans in 1066. (b) Continental Europe: The re‐discovery in Florence just before 1100 of the Corpus Juris Civilis
(C.J.C)1 of Emperor Justinian (the written codification of the law of Rome at the end of the

(a1) 1066 – Norman Conquest of England.
This created the circumstances for a unified, centralized administration of the laws of England.
This occurred under the reign of the English kings from Henry I to Henry III ‐‐ 1100 to 1272. During this time, the King's courts declared a law that was common for all of England. This law was judge­made law: an important fact, which sets it apart from the developments on the Continent. (b)
1100 (roughly) – rediscovery of Justinian’s Corpus Juris Civilis (text of Roman law) This Corpus Juris was studied in the great universities of the Continent, and was gradually, from 1100 to 1500, received into Italy, France, and the Holy Roman Empire. The law of the
Continental European countries was not as unified as the law of England; indeed, the
Continental countries did not begin to achieve the same degree of legal unification until the end of the eighteenth century, after the French Revolution. And because the Civil Law was based on the study of Roman law, its chief characteristics differed from those of the
Common Law. (a2) 1100­1272 – initial development of common law forms of action. This historical divergence had three important consequences for the development of law in
1 Corpus Juris Civilis. The body of the civil law, compiled and codified under the direction of the Roman

emperor Justinian in A.D. 528‐556. • The collection includes four works ‐‐ the Institutes, the Digest (or
Pandects), the Code, and the Novels. The title Corpus Juris Civilis was not original, or even early, but was modeled on the Corpus Juris Canonici and given in the 16th century and later to editions of the texts of the four component parts of the Roman law. See ROMAN LAW. Cf. JUSTINIAN CODE.



The common law was ad hoc, especially concerned with the particular case at hand ‐‐ it was law in action rather than law in theory; (ii) The growth of the law was judge­made and organic; it grew by accretion, rather than being imposed by the sovereign or derived from the Corpus Juris; (iii) Legal education ‐‐ this was by apprenticeship and was thus in the hands of the judges and lawyers ‐‐ of the legal practitioners ‐‐ rather than in the hands of the scholars in the universities. (a3) 1300s and 1400s – development of equity (see discussion in Hazard‐Taruffo) I. THE COLONIAL PERIOD (CIRCA 1606­1775) In the 1500s and 1600s, the North American seaboard was taken over by Dutch, English, Spanish and French settlers. Each brought with it its own legal institutions. Most of the original American colonies were originally settled by the English. New York, however, was originally settled by the
Dutch, Florida by the Spanish; these colonies contained legal institutions that derived from the Civil
Law rather than from the Common Law. What legal institutions did the colonials bring along? They brought just what they remembered; so not very developed. But via more sophisticated people that came to the America, American students that went to the U.K., the legal system developed slowly and was more or less okay by the time of the American Revolution. The single and the biggest legal “innovation” that was brought along was the law of slavery. Also, criminal law tended to be much more gentle in the colonies, compared to Great Britain. What is the relationship between Am. law and U.K. law during this colonial period? Traditional view is that all colonies took over a sophisticated UK legal system; others say that they took over a very simplified “rural” version of the UK legal system. Geographic, religious, and political divisions in Colonial period. During The Colonial Period, You Can More Or Less Divide the Us Territory in Three Zones

New England (Connecticut, Rhode Island, Massachusetts) Puritan settlements; town meetings; direct democracy. Religion: Mainly dissident Protestants, referred to as puritans. They did not favor bishops/the church; but stood for direct form of democracy;


Politically: everything was organized around the town house, with regular town meetings where majority decisions were taken; local industry was mainly small farms South – Church of England; Plantations, farms, land aristocracy; Slavery from Africa;
County‐wide meetings with the big landlords controlling most of the votes. Religion: Anglicans; more accepting a sort of social hierarchy. Politically: larger farms; most slavery was also concentrated on these big plantations; instead of the town meetings, “general courts” were organized; where the landlords took the decisions – very different style compared to New England Middle States (New York, Delaware, Maryland, Pennsylvania) – Somewhat in the middle between the former two stypes. Religion: Roman Catholics, English Quakers > mixed. Religious pluralism. Political: somewhere in the middle (btw. New England and South) > middle style organization – also plantations where more mixed between smaller and larger farms

There is no common “relationship” between Great Britain and the colonies (some were under direct control of the English crown, some were more independent, some were “given” to specific persons), except that they tried to push through their colonial powers more and more throughout the time. >>> Questions legal historians of this period must answer: 1. How did US law develop from initial fairly primitive system to highly sophisticated and complex system? 2. What is the relationship between this development and the American War of
3. What is the exact relationship between the U.S. law that developed and the English common law? Some people say English colonies simply absorbed English law, others that it was the law of local English courts rather than the more sophisticated law of the courts of the King that were taken on. 18th century. As the 1700s went on, the British colonies (which had a range of different specific relationships with the British Crown) found the British Government asserting more and more authority over them, mainly to acquire taxes to pay for the expensive wars in Europe from the increasingly rich colonies. The British colonies, subject to the British crown, applied the Common Law. But there was already in the colonial period more diversity than in England:



Religious and national: the colonies contained large groups of Anglicans, Baptists,
Presbyterians, Roman Catholics, Quakers, Puritans; as well as Dutch, Germans, Irish, Scots,
Scandinavians. So, there was a great need for religious tolerance, which would later be developed into Constitutional guarantees, i.e. Amendments. Political: the colonies were a mix of royal provinces, corporate colonies under royal charter, or proprietary provinces. So public law was complicated. (c)
Private Law: the Common Law was largely taken over from the English model.
However, the Common Law was never entirely carried over into the American system. For example, the English rule of primogeniture2 was considered inappropriate in the North
Three principal inheritances from English Law: However, there are the three principal things inherited from English law. (1)
The general style of adjudication and of legal thought was retained; (2)
The jury trial continued to play a central role in both civil and criminal trials; (3)
The American colonists retained the distinction between actions at law and actions at equity.

1756­63 – Seven Years’ War /“French­Indian War” 1765 – Stamp Act (‘first internal tax’ on the colonies) 
Context? In 1756‐63 French fought Great Britain throughout world. GB eventually won, but which almost bankrupted it. British Parliament thought that it was only fair to tax the colonies in North America since they had been defended by the British soldiers in that continent.
The colonies thought differently – up until then the only taxes imposed had been at the ports of entry to the US colonies. The Stamp Act was the first time the British Government was imposing a tax in the internal workings of the colonies themselves.

The stamp tax was not particularly onerous but was seen as an assertion of an entirely new type of power which the colonists did not at all like. REMARK: The BRITISH CONSTITUTION represented a model of PARLIAMENTARY SOVEREIGNITY,
i.e. the British subjects (the people) are represented at the Parliament by (1) the King; (2) House of lords, and

2 Primogeniture. 1. The state of being the firstborn child among siblings. 2. The common‐law right of the

firstborn son to inherit his ancestor's estate, usu. to the exclusion of younger siblings. ‐‐ Also termed (in sense
2) primogenitureship. See BOROUGH ENGLISH.


[The British Constitution at the time and its effect on American colonists’ thought:
Parliamentary Sovereignty is key principle – Parliament = King, House of Lords, House of
Commons. Idea is that “the balanced constitution” (a) represents all three social estates, (b) balances all three Aristotelian forms of government (monarchy, aristocracy, democracy). Also theory of shared interests of social classes, and thus ‘virtual representation’ – no need to give everyone a vote since there were enough people of their social class in Parliament to represent them. Problem for colonists was that didn’t really accept this theory and saw themselves as not represented (didn’t fit into any of these classes) yet being taxed regardless. US Constitution created after the Revolution turned the theory on its head.]

(3) House of commons (balanced constitution).
Such parliament is representing (a) the three social estates and (b) balancing the different forms of government (i.e. monarchy; aristocracy and democracy). Shared interest – was known as theory of “virtual representation” – idea was that ‘as long as you had a couple of people in the parliament, everybody was represented.’ Consequently, the fact that the Americans did not have any direct representation in the UK
House of Commons, is normal according to the British – “there are several UK cities too that are not represented as such”. That’s therefore definitely not a reason not to complain about the fact they needed to pay taxes etc. Virtual representation should be ok in the eyes of the British, but not

According to the colonies, they had considerably different interests and therefore needed to be represented. Britain is violating its own principles and is overstepping the line. They do not have the power to impose on us a direct tax. This CLASH OF IDEAS finally resulted to become the BOSTON TEA

1775 – Lexington: War of Independence/American Revolution starts. July 4, 1776 – DECLARATION OF INDEPENDENCE II. THE AMERICAN REVOLUTION (AND AFTERMATH) 1776‐1780 – drafting of state constitutions 1787 – Constitutional Convention (Madison, Wilson, Washington, Franklin, Hamilton) 1787­88 – Ratification Debate The Federalist Papers (Hamilton, Madison) – speak, topic by topic, about how the complicated system works, supporting the adoption of the Constitution.

LATE 1770s – Two waves of constitution making (Gordon Wood; “Creation of the American republic”). ♥ FIRST WAVE of constitution making: First, the States each went and made their own constitutions (after 15th May 1776, when the Congress told them to do so – John Adams considered this, not July 4th, the crucial point of creation of the USA) e.g. Pennsylvania developed very democratic, unicameral system. But/ these powerful legislatures started passing laws that interfered with individual rights, esp. property rights.
♥ SECOND WAVE of constitution making: system of checks and balances was introduced – the power of the legislature needed to be restricted 1787 – Federalist Papers (Hamilton, Madison)
Delegates from all States (except Rhode Island) go to Philadelphia to write Constitution. Madison
(main architect) and Hamilton wrote the Federalist Papers to persuade voters to vote for the

1788 – Ratification debates in the states; 1789‐1796 – Washington presidency; disputes between Jefferson and Hamilton; emergence of political parties (Republicans and Federalists) During that time, there was a dispute between Jefferson (Secretary of State) and Hamilton
(Secretary of Treasure). Jefferson was strongly in favor of the simple farmers as opposed to people living in cities.
He thought that more political power should be given to the farmers. However, he was in favor of democracy, limited, weak government and grant extensive rights to the states. For
Jefferson, the USA is an alliance of independently existing States. They stay supreme because they created the Federal government. So if one State doesn’t agree with how US is going, that state could leave the union. Jefferson was from Republicans Party. This party lasted for about 25 years. The Republican Party of nowadays is not the same party. He was considered a French supporter; Hamilton, in contrast, was very much in favor of building up the economic structure of the
US, mainly banking and industry. He was in favor of aristocracy, powerful government, national government. Hamilton promotes the power to the Federal government. Federalism
Party. This party lasted also for several years. He was considered an English supporter
(kingship). Jefferson thought that Hamilton wanted to reverse the American Revolution.
Hamilton and Adams were both more or less on the same side. For example: When the idea to set up a bank was raised, Jefferson said that the Constitution did not allow setting up a bank. He said that there are no implied powers under the Constitution, and since what was not specifically allowed to the federal government, it was not allowed to do, then it cannot

establish a bank. Hamilton said that there are implied powers of federal government, and such powers are basically those that are “necessary and proper” (See necessary and proper clause below) in order to fulfill the powers granted under the Constitution. Washington was the first President, who had to control the divisions between the two above groups. Washington served 2 terms and then stepped aside (this was extreme in view of the historical background; Washington had been elected for two terms and didn’t want more, if not he was going to become “King of the USA”. It was a very courageous act). Washington left finally a very tense administration. 1797 – Presidency of John Adams (Federalist) 1801 – Presidency of Jefferson (Republican) The election leading to this presidency was a very difficult one. Jefferson was considered as a dangerous man in the eyes of the Federalists. He was considered a French revolutionary. Once
Jefferson was elected as president, after Adams, Hamilton wants to call up the army and suspend momentarily the Constitution. The great problem of Marbury comes from this 1800 election.
Jefferson, however, finally turned out to be rather moderate. Before Jefferson left, a lot of judges were appointed though, under which chief Marshall – who was extremely imported to determine how US constitutional law would evolve. 1802 ­­ Louisiana Purchase Highly significant: In 1802 Jefferson purchased Louisiana territory from Napoleon. Once he has become the President, Jefferson found the “implied powers” concept more appealing.
Clearly, the power to purchase Louisiana was not set out in the Constitution. Remember: Napoleon, who needed money to finance his wars, decided to sell Louisiana to
Jefferson. Great deal because very cheap. But question remains whether a president can do so under the U.S. constitution. 1803 – Marbury v. Madison (opinion by Chief Justice John Marshall) Marshall establishes the Marshall Court which is essential in Constitutional Law: numerous important Constitutional decisions by the Marshall Supreme Court followed over the next thirty years, setting the basic contours of the federal government. III. The Antebellum3 Period (roughly 1820­1860) 3 (adj.) Belonging to the period before a war, especially the American Civil War.


The previous revolutionary founders were replaced by a new generation of statesmen. They were confronted with two main issues: ♥ (1) West frontier: west frontier’s security level is very low – education very bad; and ♥ (2) Slavery. + underneath are also economic tensions, next to political and moral issues.

In (1), Two things happened: a) Expansion of the frontier; early Indian Wars b) 1828‐36 ‐‐ Presidency of Andrew Jackson (spoils system; elected judges)

The expansion of the Western frontier: this was realized by people who could not read.
This “populist democracy” culminates during the elections of Andrew Jackson (1828), who was an uneducated Indian hunter. Moreover, in that period, several new judges were elected. The other problem the expansion of the Western frontier brought along was about how to organize the economy: nationally and/or locally? The federal government says that it will build roads and canals, cheap ways to carry goods. The system of the banks was also extended. At the local level, there was a development of corporations. It’s also the birth of


limited liability: responsible up to the amount of capital that you invest. It is at the same period that contract law begins. INDUSTRIAL AMERICA WAS BEING BUILT UP >> Growth of corporate law:
1819: Dartmouth College;
1836: Charles River Bridge (opinion by Chief Justice Roger Taney) ;
1842: Swift v. Tyson (establishing federal common law in diversity suits: opinion by Justice
Joseph Story) ; (2) Slavery: is recognized after the Revolution as not compatible with the Constitution. In the North it is quickly abolished. But the South needs slaves for the plantations. The machines were invented to help with the cotton and slavery becomes way more profitable and is still possible to import slaves in great numbers and the South becomes even more pro slavery. The political system during this time, was dominated by the west. Even though the persons involved were not particularly educated (ex. Jackson; big shift away from what were the original founders). The political system established itself and was used to climb up ranks. The South is against the abolition and controls half of the States (3/6). So no amendment to the constitution possible so far. But the abolitionists want the new states to be Free States, where slavery would not exist so that one day it will be possible to amend the Constitution.
The South says however that it is very profitable and should be expanded (=> conflict of
Madison­Dixon line). Until the civil war, there are two visions of the States and the Federal Government.  NB: Hamilton promotes the power of the Federal government. In 1820 get Missouri
Compromise. Expansion of western frontier meant free states argued on moral/political grounds, and economic point that couldn’t compete with slave states on wages, that all new territories should be free. Slave states argued they should be able to expand. Deal made that line drawn into western frontier roughly equivalent to original States – for each free state would have slave state. 1857: Dred Scott v. Sandford (opinion by Taney) In 1857, the Supreme Court comes up with a terrible decision in Dred Scott. Supreme Court Decision – Dred Scott V. Sanford (THE WORST OPINION IN US LEGAL

Dred Scott is a slave in the south‐west territory of MISSOURI, who was taken by his master to north‐west territory of MINESOTA, and then brought back to the south. Scott brings suit


against his master, claiming that he was released from slavery when he was in the north. The court rejected his claim, saying that a slave is a piece of property, and just like a piano cannot seize to be someone’s property if it is taken to the north, the same applies also to a slave. Moreover, and even more importantly, the court held that once a slave is brought to the north‐west, it can continue being a slave there. This made the balance switch in favour of the slave states and against the free states and the “undecided” states. After this decision the rhetoric on both North and South sides got increasingly heated. In
1861 the Confederate States in the South seceded from the Union and the Civil War began. Conclusion as to the Post­Revolutionary development (1787­1860) a) Public law. Here the American Revolution was a watershed4 ‐‐ in contrast to private law; radical break from English law. In the Constitutional Convention of 1787, the United States introduced a new system of public law ‐‐ a new structure for the judiciary, for the national legislature, and for the executive. b) Private law. Here, the changes were not as great ‐‐ more subtle. During the period from the Constitutional Convention to the Civil War, the American courts adapted private law rules to fit the new political, social, and economic circumstances of the new American republic. In particular, the American courts took a much looser view of stare decisis than the courts in England had done: much more open to judicial innovation. (Explain stare decisis: horizontal and vertical.) American courts could even overrule a previous decision ‐‐ which was not allowed in the English system. During this time, a new system of administrative law grew up; in addition, the great national law schools were formed and began to dominate legal education. (This was important because the students were trained to practice in any state of the United States ‐‐ not just locally.) Reception statutes (or reception by judicial opinion). IV. THE CIVIL WAR AND RECONSTRUCTION 1860 – Election of Lincoln; secession of the Confederate states Lincoln became president. Wanted to limit the expansion of slavery but didn’t manage that because the situation got out of control. Civil war was fought. North won. South lost. Lincoln freed slavery by imposing that undecided states were to be in the camp of the free states. 4 (n.) (Law) something added to something else, for example, a fund or account, from an external source.


During the first three years of the civil war (1861‐1863), Lincoln didn’t aim to change the situation in south‐east territories, but only made sure that the slavery didn’t expand to the west and north. He held that changing the situation in the south requires a Constitutional amendment, and that the power for that he didn’t have. In 1863, Lincoln says that he will release the slaves in the south only in the territories which are not controlled by the north’s army. He gave to that change a military excuse, saying that it is a military measure. 1863 – Emancipation Proclamation 1865 – end of Civil War; assassination of Lincoln 1865‐77 – Reconstruction; South under military rule Very complicated period of RECONSTRUCTION. The original Constitution had been plagued by two problems: (i)
Imprecise delimitation of the respective powers of the state and national governments.
Many states took the view that the states were primary, and could secede from the union; others believed that after the states had ratified the Constitution of the United States, they were now bound and could not secede ("US" as singular and as plural). (ii) Slavery. In addition, the states were unable to agree on how to treat the issue of slavery.
Slavery was established in the American southern states, who depended on it for their economies. The central issue: as the US expanded westward, would slavery be allowed to expand as well? If not, then the South would be outvoted; if yes, then the North would disapprove. Civil War 1861‐1865. Consequence: the Reconstruction Amendments => amendments to the US Constitution: (ex. 13th abolishes slavery, 14th is the most important (Due Process and Equal Protection), 15th). Many of the Southern States after 1865 abolished slavery but denied them the right to vote, to sit in the jury, to hold certain positions, etc (= “The black coats”). This is why the Congress Imposed the
Reconstruction (1865‐1877) that provoked three amendments to the Constitution that the
Southern States had to adopt if they wanted to be accepted back into the Union: ♥
13th amendment: abolishes slavery 1868 – Fourteenth Amendment ratified (equal protection and due process clauses); ♥
14th amendment (most important amendment): “Section 1 – (A) No state shall deprive any citizen of life, liberty or property without due process of law; (B) No state shall deprive any citizen of the equal protection of the law.”

Those are the cores of modern constitutional law. Note that these provisions applied only to the states government (14th Amend.). Clause (A), however, was included in the Bill of Rights, which applied only against the federal government. In Dred Scott individuals do not have rights in the United States at first. The primary rights come from first being an individual of one
State and so has the rights of that State. This situation changed in this amendment. No State can deprive any individual of life, liberty or property without going through of the “due process of law” and guaranties “equal protection of law”. So very broad terms that have to be defined by the Courts. But now it is a Constitutional right in all the US. In sum, the Bill of
Rights originally until the civil war was only against the US government and not against the

For example, in the 1840s, Missouri enacted a law providing that any Mormon found within such state within 48 hours after this law becomes effective, will be hung. Brigham Young
(the President of the Church) went to the President of the US that could not do anything because the Bill of Rights applied only against the US government, here for the freedom of religion. Bill of Rights——US, States (after 14th) The bill of rights only applies to federal government, therefore all concepts therein cannot apply to citizens of an us state . Such was the thinking in the beginning. 14TH AMENDMENT HAS TWO PARTS: (A) due process: applicable to the US and the different States
(B) equal protection: only applicable to the States 14th amendment = constitutional restrictions to what state governments may do to their citizens (is not in accordance with the original thinking of jefferson & co): us citizenship becomes a primary citizenship, state membership becomes a secondary citizenship. 15th amendment: voting rights

♥ Impeachment and trial of President Johnson. 1870s and 1880s – Supreme Court interprets Fourteenth Amendment narrowly In the beginning, this amendment was interpreted extremely narrowly. Consequence was
SEGRAGATION that lasted to long into the 20th century (Civil Rights Cases: 1883) Incorporation Doctrine


Over the 20th century, under the “incorporation doctrine” principles incorporated in the Bill of
Rights (freedom of speech, religious freedom, no arbitrary search + seizure, warrants) were applied to state governments; one by one the supreme court would judge that one of the principles of the
Bill of Rights are comprehended under equal protection and due process. But not all principles of the bill of rights, ex. Rights to access to a civil jury. Equal protection and due process are somewhat broader than the different principles incorporated in the bill of rights, e.g. Racial segregation being anti‐constitutional. How? Today, substantially all of the Bill of Rights and the Fourteenth Amendment apply to both the
Federal and state governments. There is no equal protection clause in the Bill of Rights, but the
Supreme Court has held it was implicit in the Fifth Amendment in the clause on due process. Before that period e.g. freedom of speech that was contained in the Bill of Rights was only good against the Federal government. After the 14th amendment, that applied against the States and the Bill of Rights (amendments 1‐10) that applied only to the Federal government. what happened?
The Supreme Court is going to apply the Bill of Right through the 14th amendment to the States. But how much of the Bill of Rights was to be incorporates in the 14th amendment? Those that speak about a total incorporation said that equal protection was to include everything. But the solution that was used was the “selective incorporation”. They went thus through and used a few: the 7th,
2nd, 3rd amendments have not been incorporated, but all the important provisions have been included in the 14th amendment (equal protection and equal process). The 5th amendment (pg 272 of the book): what happens about if there is racial segregation (we cannot discriminate)? The Bill of Right contains the clause of due process but not the equal protection. So the Supreme Court incorporated it into the 5th amendment from the 14th. These 2 phrases are what make Constitution Law in every case speaking about the Constitution.
The incorporation doctrine originated roughly between 1970‐1973 (20th century). The Supreme Court when they initially “reconstructed” used it for the slaves. BILL OF RIGHTS AND 14TH AMENDEMENT APPLY NOW BOTH TO A STATE LEVEL AND A
FEDERAL GOVERNMENT LEVEL V. The Gilded5 Age and the Progressive Era (1880­1914) A) Public Law. Expansion of the United States to California. Massive growth of the central government in Washington. Growth of administrative law, of the bureaucracy. A period of consolidation. 5 (adj.) wealthy and privileged


B) Private law. A period of “laissez faire”. Strong emphasis on individual economic rights.
Lochner6. Opposition to economic regulation (Great legal thinkers: Holmes, Brandeis, Pound,
Cardozo; Legal Realism vs. “formalism”. The years between 1877 and 1900 are divided between the Gilded Age and the Progressive era: Urbanization; immigration; railroads Christopher Columbus Langdell (Harvard Law School) ♥ The Gilded Age: i.e. looked prosperous and successful, but massive problems underneath.
Massive growth of population, mass immigration, huge corruption and social problems/ghettoisation because lots of the immigrants couldn’t speak good English.
There was also a massacre of the Native American Indians, and extremely fast westward expansion, mainly due to the railroad. Congress was largely in the pocket of the railroad companies and the railroads got two miles of land left and right of the line (or if the land in a certain area was unproductive, get it somewhere else) and had the right of mining also
=> lots of bribery. Land almost the size of Texas was given away. Big business also developed exponentially, mainly due to lack of any income taxes, and through fairly ruthless means – the age of the Robber Barons: Rockefeller, Carnegie, DuPonts etc. ♥ In legal terms there was thus little interference by the Government in the economy and contracts. Doctrine of laissez‐faire capitalism held sway (as in Great Britain around the same time). Via the 14th amendment the Supreme Court did two things: 1896 – Plessy v. Ferguson Case (“separate but equal” held constitutional) o The first has to do with race: Plessy v. Ferguson (1896) the State of Louisiana had segregated railroads = Jim Crow laws. But this violates equal protection principle.
But the Court said that this is “separate but equal” is okay and so this is no segregation
=> goes against the purpose of the 14th amendment. “freedom of contract” Then the Supreme Court said that corporations were persons and that the clause of “liberty” includes economic freedom of contract. The Court says that the legislator cannot interfere with
6 Cf. Lochnerize. vb. To examine and strike down economic legislation under the guise of enforcing the Due

Process Clause, esp. in the manner of the U.S. Supreme Court during the early 20th century. • The term takes its name from the decision in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539 (1905), in which the Court invalidated New York's maximum‐hours law for bakers. ‐‐ Lochnerization, n.


that liberty. Lochner v. New York (1905): lots of people came extremely poor to NY and had to work for extremely limited wages in terrible conditions for excessive hours (on facts, bakery). “Substantive Due Process”; Lochner (1905) Lochner v. New York (1905) SUBSTANTIVE DUE PROCESS: lots of people come extremely poor to NY and had to work for extremely limited wages during 60 hours a week. The Court said you can’t limit the freedom of conduct and the employees are free to decide for themselves about what they wanted to do. IT IS
120H. A WEEK AND MAKE YOURSELF SICK, THAT IS OK … ? Robber Barons; railroads and growth of corporate power Rem: Railroad Company – a lot of advantages given by the government to the railroad companies – a lot of corruption – REM: NO INCOME TAXES WHATSOEVER 1890 – Sherman Antitrust Act 1900 – Theodore Roosevelt presidency begins ♥ The Progressive Era (1890‐1914)
♥ No clear beginning but steady pressure from people and politicians to tackle excesses of
Gilded Age (1870s creation of American Bar Association to professionalized legal practice is one of first progressive steps, though immigration played ulterior motive).
CAPITALISM MORE THAN BEFORE. one of first things is the Sherman Antitrust Act that outlaws certain violations of free trade to diminish to power of certain companies. Came also the child labor laws stating that children couldn’t work in factories. Came also regulations of the railroads, women’s suffrage, prohibition of alcohol, immigration reform and income tax. Also limitation to the selling of alcoholic beverages. Trying to limit immigration (which was part of the same progressive mood, contrary than now)
♥ Supreme Court still very conservative and economically libertarian, suspicious about many of these reforms – see Lochner above. Oliver Wendell Holmes, Jr.; Louis Brandeis; Roscoe Pound On the legal side, Oliver Wendell Holmes (friend to Theodore Roosevelt, legal writer that later went to the us supreme court) was the most American legal thinker. He was born in
1840 from a rich father. Fought in the civil war and was shot twice. He met Lincoln in the
Civil war and lived long enough to see President Roosevelt. He stays in the Supreme Court


until his death almost. He was very much in favor to let the legislator decide especially in economical matters. (case mentioned in class: sterilization of a handicapped mother is ok; quoted: “three generations of handicaps is enough”) Other great progressive legal thinkers of that time: o Louis Brandeis starts out as a lawyer and then joined Holmes in the Supreme Court.
He introduced the Brandeis brief = gathering a great number of sociological data’s to help the judges to make a decision so that they may know when to condemn and when not considering the sociological consequences; o See too Cardozo, who along with Holmes and Brandeis was one of the most impressive American legal minds of the 20th Century. o Roscoe Pound was Dean of Harvard Law School. After Theodore Roosevelt (President most associated with Progressive Era) there is a push to change the Constitution. 1913 – income tax ♥ 16th amendment: in 1913, the 16th amendment introduced the income tax (progressive income tax, which also ended the uncontrolled building up of massive individual fortunes);); ♥ 17TH AMENDMENT: TECHNICAL 1919 – Prohibition ♥ 18TH AMENDMENT: 1919, prohibition of importation and sale of alcohol (18th amendment – theory was progressive but application was a complete disaster) 1920 – women’s suffrage ♥ AMENDMENT: 1920, vote for women (constitutional amendment but number was not mentioned): 1878 – American Bar Association The American Bar Association is created at the end of the 19th century to regulate the profession. Protects on the one hand the clients against untrained lawyers and also limit the immigrants coming into the legal profession. 1924 – National Origins Act 21

PROGRESSIVE ERA COMES TO A CLOSE AROUND THE 1920. 1924: RACIST IMMIGRATION LAWS (NATIONAL ORIGINS ACT), KUKLUX‐KLAN NB – bizarrely the Progressive movement also contained people like Holmes who called for immigration control, Anglo‐Saxon dominance and even eugenics. Also saw the Ku Klux Klan having significant influence and the National Origins Act.

Progressive era had two sides: (1) “let’s clean up the cities” ideas (Al Capone criminals); (2) racist ideas (Kuklux Klan friends)

1931 – Beginnings of incorporation doctrine‐‐see 14th amendment ! VI. New Deal and after 1932 – Franklin Roosevelt elected president 1933‐34 – “first New Deal” New Deal (1930s and 40s): Massive expansion of Federal bureaucracy; expansion of economic regulation; intervention by the Courts (and the Federal government generally) in areas that had previously been considered the affairs of the states. In 1933, First “New Deal” (FIRST 2 YEARS): Roosevelt announces that he is going to reorganize the economy during the great depression. The administration produces a huge amount of regulations in the banking industry, Tennessee Valley Authority, National Recovery Act, etc.; In the 100 days
(first 3 months of his Presidency) FDR completely reorganised the federal government – building up the infrastructure, creating dozens of new agencies. 1935 – Supreme Court strikes down New Deal legislation Federal government exists out of an executive, a legislative and a judicial power. Within the executive, lots of administrative agencies were put into place. The delegation of certain rights of the legislative powers to the “executive” branch of power to such administrative agencies is judged unconstitutional by the Supreme Court, because infringing the separation of powers. In 1935, Second “New Deal”: more careful regulation in social security, administrative agencies: unemployment, old age insurance, etc. The Supreme Court strikes down the 1st New Deal as unconstitutional: the separation of powers between executive/legislature had not been respected in the creation of many of the agencies. 1937 – Court Packing Plan 22

In 1936, Roosevelt runs for the reelections against the Supreme Court that stands according to him in the way of the economic growth (he was mad, because they had declared the first New Deal unconstitutional). He then proposes the “Court­Packing plan” which provides that any judge in the age of 70 or older may either resign, or Roosevelt will have the right to replace such judges.
Congress rejected his proposal; however, a few judges passed away, so Roosevelt appointed new judges. The Supreme Court changed its decision, accepting the delegation of right suggested by the new deal. Some judges die and the Supreme Court changes its mind saying that those delegations are all right. (i)
They abandon the idea of the “economic substantive due process” ; (ii) They also permit delegation of legislative power to executive agencies (but now extremely careful on that aspect) ; (iii) They adopt an expansive interpretation of Commerce Clause, so that any regulation passed by the Congress in that period (1930‐1997) in that field, was never struck down until
1997 with a regulation saying that there could not be a fire weapon within a hundred yards from a school cause it was not considered as pertaining to the economic field. 1940s A LOT OF SUPREME COURT DECISIONS WITH RESPECT TO PRESIDENTIAL POWERS NAACP = National Association for the Advancement of Coloured People litigated on behalf of the black children of Kansas against segregation. Came out a unanimous decision against segregation (thanks to the lobbying of Warren, that even convinced a former Kuklux Klan member) 1938 – Erie R.R. v. Tomkins 1944 – Korematsu 1953 – Earl Warren named Chief Justice of Supreme Court 1954 – Brown v. Board of Education Warren Court decisions: Baker v. Carr (1962); New York Times v. Sullivan (1964); Griswold v.
Connecticut (1965); Miranda (1966); Roe v. Wade (1973); Bakke (1976) 1950s and 60s, 70s: intervention by the Warren Court in the 50s and 60s into the realms of civil rights law and individual rights under the Bill of Rights ‐‐ privacy, search and seizure, free speech, capital punishment, abortion, etc. (Election of Reagan in 1980; conservative reaction.) Debate over role of the courts; political controversy; rights‐based, activist scholarship; law and economics; critical race theory; “law and” – decline of the autonomy of law. 23

In the Warren Court, in Brown v. Board of Education (1954) – this was his first big case of this court– the SC struck down Plessy. The case concerned segregation in school. Under the Plessy decision, this was constitutionally ok – that is, segregated but equal is ok. Brown was a direct overruling of Plessy. Using the equal protection law (rather than due process clause), the court has outlawed the segregation. There was a huge degree of politics in the case. In the South, southern democrats held the territory but President Roosevelt (democrat, but from the north) didn’t want to come and intervene against or in favor of the decision, being afraid of the response of the South. 
During 1960s get further moves against racial discrimination (Martin Luther King Jr, Malcolm
X and the civil rights movement) and affirmative action. Leading eventually to Civil Rights Act

1960s racial discrimination; affirmative action:
♥ In criminal procedure, after the Miranda decision (1964) the police, when arresting someone, had to let the person know his or her constitutional rights, namely to right to keep quiet, to consult to an attorney, and to be appointed one. The court used the due process clause. ♥ In the late 50s, the Courts rewrote the criminal procedure at a national level.
♥ They further got involved in Electoral Redistricting to give equal vote to each citizen within a certain state. The Congress was not happy with what the SC was doing. In Roe v. Wade (1972), the SC recognized the right of a woman to get an abortion. This is the most controversial decision taken by the Supreme Court. In the Berger Court – more conservative – there are fewer developments. In the Rehnquist Court – also rather conservative – there are division between the democrats and the republicans so that the court is not going in a certain direction. (RHENQUIST IS NOW
REPLACED BY ROBERTS) 1968 – Election of Richard Nixon 1973‐74 – Watergate 1980 – Election of Ronald Reagan.

Present composition of S. Ct. justices.
Now, we have the Roberts Court – Roberts expected to be very conservative (appointed by Bush Jr, taken over after Rehnquist’s death). Other justices:
Scalia – Reagan nominee, very conservative
Clarence Thomas – Bush Sr nominee, very conservative


Stevens – Ford nominee, quite liberal, in 80s and likely to cop it soon – worries about his replacement Ginsburg – Clinton nominee, liberal
Breyer – Clinton nominee, liberal
Kennedy – Reagan nominee, actually moderate
Souter – Bush Sr nominee, actually moderate
Alito – Bush Jr nominee, conservative
[NB – Robert Bork, rabidly right‐wing judge, who Reagan tried to appoint in 80s but Senate rejected] III – KEY ELEMENTS A. Theories of Precedent There are basically four primary sources of law in modern American law in the following hierarchy): 1.

The Constitution;
Enactments of the legislature;
Decisions of the courts;
Administrative actions.

Legislation (a) Subject to the limitations imposed upon them by the Federal and State Constitutions, the legislatures have the ultimate authority to make and to change the laws. There has been a gradual change: in the early days of the United States, the legislature was less important; but with the increase in the complexity of modern law, the legislature has become more important relative to the courts. If a statute is constitutional, it prevails over the decisions of the courts. This is particularly true of Federal legislation. (b) We shall consider the details more closely later. But the Federal Congress is divided into two chambers; the House and the Senate. Its statutes are controlling over executive orders and administrative actions; but subordinate in the hierarchy to the Constitution and to Treaties. (c) How are statutes viewed by the courts? Statutes in the nineteenth century were not regarded as a complete and coherent body of rules – in contrast to the codifications of the Civil Law. So the courts did not regard statutes as an appropriate source for reasoning by analogy – but rather to be strictly construed. In the twentieth century, courts have become more relaxed about the interpretation of statutes and more willing to reason by analogy and to fill in gaps. But the difference from a Civil Law
Code can be seen in the different ways the courts approach a codification of the private law. For example, since the nineteenth century there have been many attempts to codify the common law ‐‐ the law of contracts or torts or property. However, the courts have viewed these


codifications as a systematization and restatement of the common law, with some legislative improvements – but not as a complete statement of the law, nor as the ultimate source of the law. Hence, when the Code conflicts with the common law, unless the conflict was intentional, the common law prevails. Judicial Decisions (a) The treatment of judicial decisions as precedents is the distinguishing feature of the
Common Law. And there are three other important features of American judicial opinions that set them apart from the decisions of courts in the Civil Law tradition:
(i) The judicial decision is accompanied by a full explanation of the court's reasoning in the case – known as the judicial opinion
(ii) The opinion is written by one judge and bears his name – rather than being the anonymous product of the court as a whole
(iii) Other judges are free to concur or to dissent, and to give their reasons for their decisions (cf. Supreme Court opinions: weaker if there are lots of concurrences.)
(b) These decisions, as precedents, make valid law ‐‐ that is, they satisfy the principle of stare decisis. Stare decisis entails two propositions:
(i) That lower courts in the judicial hierarchy are legally required to abide by the statement of the law set forth by the higher courts = vertical
(ii) That a court is bound by its own previous judicial decisions, if it changes its mind then it has to explain precisely why and how = horizontal [E.g. of how this can happen – Pennsylvania’s legislature passes a law on abortion which provides that a woman under the age of 18 wanting to abort has to notify her intention to abort to her parents and, if married woman, her husband. The case went before the SC where opinion is very divided: ♥ Stevens and [Blackmun – now gone] said that it is purely an issue between the woman and her doctor  reaffirm Roe v. Wade fully.
♥ Rehnquist, Scalia, Thomas and [White] are more conservative and overrule Roe.
♥ O’Conner, Souter and Kennedy re‐affirmed Roe, said no to the notification to the husband, but held that the State can require a notification to the parents.
So 5‐4 votes saying that the State can’t require the notification to the husband and 2‐7 votes saying that the State can require the notification to the parents.] (c) As a general matter, however, the doctrine of stare decisis is less strict in America than it is in
England ‐‐ that is, the courts are more willing to be flexible and to change their minds than the
English courts are. This is because the decisions of the courts as a general matter have more weight, and are less likely to be altered by the legislature if they are mistaken, leaving the job up to the courts. (In addition there are a greater number of jurisdictions, so that the courts have more need to change their minds, to take in outside influences.) In other words, U.S. courts have more power to create and change the law than virtually any other judiciary in the world.


In England, if common law is problematic, Parliament can relatively easily change it. In the
US it is easier for the judge to change it by himself. There are too many courts in the US for a system like that in England to work. [Retrospective changes to law? By Constitution, legislature is prohibited from making ex post facto laws, but courts can develop common law and by doing so make retroactive decisions. Are bound by XIV Amendment due process clause – does this include ex post facto prohibition? Case came before Supreme Court involving overruling of old Tennessee rule by state court that for murder to be committed victim must die within a year and a day. Very close decision with disagreement between O’Connor and Scalia as to whether ex post facto prohibition included.] (d) In order to achieve this greater flexibility, the American courts distinguish between the holding (= ratio decidendi) and the dictum in the case‐‐ that is, between what is essential to the court's reasoning, and what is incidental. Only the holding ‐‐ what the court relied upon in reaching its decision ‐‐ is subject to stare decisis; the dicta can be ignored. There are two reasons for drawing this distinction:
(i) To increase the flexibility of the courts, and to allow them to change and to develop the law; (ii) Because it is felt that judges should decide cases on as narrow basis as possible.
Hence the general aversion to advisory opinions.
The holding is who won and lost and what the monetary damages are. This goes with the ratio decidendi, which is why this decision was reached = old precedent plus new elements of law. Often the court adds no new element, but sometimes the rule is altered or extended. Finding the law: Because the judicial decisions make valid law, it is important to be able: (i) to find all decisions on a particular matter;
(ii) to be able to find later cases that overrule earlier ones. This cannot be accomplished, as in other systems, by classifying decisions by code provisions ‐‐ for in general there are no such Code provisions. Instead we have the American Digest System, which dates from the end of the nineteenth century. Cases are classified by subject‐matter, and are brought together with other, similar cases; in addition, Shepard's citations allow a lawyer to check quickly on a case's status, and to see whether it has been overruled by a later decision. Thanks to this, it increases the flexibility of the courts. Moreover it reflects the general Common
Law attitude: the actual decision decides only on the very situation at stake (as narrow as possible, the courts try to bind themselves as narrowly as possible to protect itself from being bound too much in the future). Some Specific Cases 1. Marbury


Although this is not a common‐law case, but a case of constitutional interpretation, it shows the method common law courts use when confronted by a ‘case of first impression’ – i.e. a case of a sort that has never before arisen. Here the central issue was the issue of the constitutionality of a statute – and Marshall uses no cases, but a combination of logic, reasoning by analogy, hypothetical
[e.g. what would happen if he reached the opposite conclusion], English history, and common understanding of the point of the Constitution to reach his result. Cases of first impression are rare; the judge will always try to ground the result in some sort of precedent, broadly conceived. In Marbury:
♥ This is not a Common Law case because it is under the Constitution. It is a case of first impression, meaning that there is no precedent for that case. So he relies on logic and hypothetical (e.g. suppose if we didn’t have the power of judicial review what would happen then and then he takes the opposite possibility). He relies also on the History and on the general understanding.
♥ Holding = Marbury loses.
♥ Ratio decidendi = because (i) the SC has the power of judicial review and interprets the
Constitution then (ii) Congress can’t increase original jurisdiction, and so can’t give the SC the power to issue writs of mandamus.
♥ Dictum = history, logic, structure of the Constitution, etc. 2. Dougherty The facts: Aunt gives a promise of $3,000 to her nephew, Charley; she then dies. Holding: no consideration, therefore not an enforceable contract – because of the absence of consideration.
Cardozo here does two things that are quite important:
a. Distinguishes an earlier case (to show that there is no jury question – for the evidence here comes from the plaintiff’s witness);
b. Cites, in a single paragraph, 10 cases, which stand for various aspects of the rule that, where there is no consideration, there is no enforceable contract.
This is a very straightforward case – one has a long list of precedents, all standing for a well‐ understood rule. So this case lies at an opposite extreme from Marbury. 3. Ploof v. Putnam and Vincent v. Lake Erie. These cases show how the common law principles develop from case to case – how a rule is refined. Ploof – defendant sailing boat on lake and storm arises, so tie boat to plaintiff’s private dock. Is he allowed to out of necessity? Holding not explicitly stated in the case. See the seven possible interpretations on pp. 18‐19 of Byrd. The problem: common law courts must steer between a holding that is too broad (and therefore (i) reduces to dictum, (ii) looks like legislation and (iii) might make a mistake when applied to later cases) and one that is too narrow (and therefore “limits


the case to its facts” – making it a case just about sailboats in storms). Cautious statement of principle.  Ratio Decidendi = the court doesn’t state it here clearly. He leaves it to later courts. Vincent – if I tie my boat to your dock and damage it, do I owe you damages? (assuming these two cases occur in the same jurisdiction.)
Note that the court is not overruling the Ploof decision, nor distinguishing it. I have the right to tie my boat to your dock; but I must pay for any damage that results.
Note that, in explaining the principle of the decision, the judge, in dictum, gives hypothetical cases – if my boat is blown against your dock by an Act of God, then I don’t owe you damages (lines

Four possibilities exist when a court deals with a precedent:



Reverse [if higher court on appeal of same case] In the cases of Vincent and Ploof, the court doesn’t do any of these things. The court says in Ploof: I can tie my boat to your dock. In Vincent, the court says: yes, however, I must pay for any damage I cause. Theories of Precedent
Whenever you look at a precedent, a court has certain degree of choice:

On one theory of adjudication, when you decide a case, you have the actual outcome of the case and why it reached that decision.

Another court when applying a precedent deciding why the court reached this decision will either interpret the reasoning of the court broadly just being bound by the holding, and some others will interpret the reasoning strictly.

Theory A: precedent = holding (second court can produce a new reason for the earlier outcome) 
Theory B: precedent = announced rule

E.g. – Brown (holding = school segregation is illegal, ratio = (apparently) that Constitution is colour blind). In 1976 University of California affirmative action case, Supreme Court allowed
AA by saying outcome in Brown correct, but new interpretation of ratio. Brown actually was about colour blindness. However, if you hold in Theory A, you can say that Brown was about eliminating oppression of a minority group, therefore allowing for the court to answer “yes” to
There is no resolution as to the right theory. Judges often do not even think about the distinction provided above. Moreover, they occasionally employ the two theories together. Circuit split


Where two circuit courts adopt different interpretations for the same legal question. In many cases, there is a circuit split which is not resolved by the Supreme Court for many years. The Supreme
Court will resolve the split when it relates to an important issue or when it reflects an easy error to correct. D. Juries and Equity.

As we have already seen, the historical source for the American private law is the English
Common Law. Two [three] characteristics of the Common Law are especially important, and we’ll be going into much more detail later. 1. [Judicial power] 2. The jury trial

This has always been widely used in Common Law systems, both in civil and in criminal trials. Basically, the division of labor in a jury trial is as follows: (a) the judge is responsible for determining the law, and (b) the jury ‐‐ a group of a dozen or less laymen ‐‐ is responsible for determining disputed matters of fact. (c) in “bench trials”, where there is no jury, the judge determines in questions of both law and fact.

Of course it is often difficult to determine how these things are to be distinguished. Important consequences of Juries This system has four important consequences: (a) the trial is concentrated: it takes place in a single sitting, rather than being spread over a long period of time; (b) the existence of the lay jury means that the courts must possess a complicated system of rules of evidence in order to keep the jurors from being unduly influenced by sensational evidence. The lawyers should gather the facts before the trial begins. There should be a system of rules governing the gathering of facts procedure – disclosure rules. There should also be a system of rules instructing the jury how to establish their verdict – rules of evidence; (c) the trial gives a greater weight to the ‘feelings of the community’ and its values than does a trial in which only a judge presides ‐‐ more of a drama;


(d) the entire system of appeals is affected. The trial cannot be re­held at the appellate level; so in the Common Law systems, the appeals are limited to appeals on matters of law, not of fact.

3. The distinction between LAW AND EQUITY

In England, the Common Law Courts had grown extremely rigid in the 1200s. The courts would recognize only certain causes of action ‐‐ writs ‐‐ and if there was no formal cause of action, no writ, there was no remedy.

To correct this rigidity, the law courts were supplemented by a separate hierarchy of courts in the 14th and 15th centuries. The King allowed his Chancellor, as "keeper of the conscience of the King," to grant equitable remedies ‐‐ that is, remedies that would be based on a concept of fundamental fairness. The Courts of Chancery (or Courts of Equity) evolved a separate body of rules and procedures that existed alongside the rules and procedures of the law courts. The
Americans took over this double system, which was eventually merged in the late nineteenth century.
But even today the distinction remains of importance: claims at law (right to a jury trial) and claims in equity (do not have a right to a jury). The rules of Equity supplement the rules of the common law, and are only available when the common‐law remedies are inadequate. Thus, it is important to understand the difference between law and equity claims.
♥ Money damages – a matter of law.
♥ Other damages – a matter of equity (e.g. injunction to eliminate the noise a neighbor is doing). This distinction applies to 95% of the cases.

State courts may not grant a jury trial when the damages claimed are small.


IV. The Federal System A. The U.S. Constitution 1. Historical Background. Constitution of 1789: question whether or not citizens were citizens of the states or of the federal government? According to Jefferson & co, the states were primary governments and the federal government is just an agreement between states.

Debate on the existence of the federal government. Difference between conservatives and liberals. Republicans i.e. states’ rights conservatives tend to believe that the federal government is a creation of the 13 colonies that became independent and has to be kept as small as possible.
Liberals on the other hand tend to believe that the federal government existed first. Jefferson was pro states’ rights; Hamilton was a strong believer of the federal thinking.

Both together have to write “cooperation agreement”: Articles of Confederation. Only institution is a very weak congress, which couldn’t compel the states to do anything whatsoever. In the articles of confederation, the 13 members were very powerful and you only had a very weak central government.

In the mid 1780s: various social problems – Shay’s Rebellion in Massachusetts (poor people revolting over being saddled with debts); worries about foreign affairs etc. Thereupon, in the summer of ’77, delegates arrived in Philadelphia to fix up the Articles of Confederation. Their first impression: it’s hopeless; we are going to write something completely new. Central questions while writing the US constitution: (1) how to set up a central government where the central power is not going to be abused. (2) how to protect the individual rights? (3) what to do with the states?

Difference between the states’ right school and the federal right school. Next to this difference, there were also several other debates that needed to be solved: (1) Small states’ priorities versus bigger states’ priorities (see EU); (2) Weak versus strong central government; (3) Slave states versus Free states.

Before the War of Independence the original 13 colonies did not form a federal system; each was independent of the others, and had its own direct relationship to the British crown.


The Declaration of Independence of 1776 did not fundamentally change the relationship among the colonies. They were now independent of Britain, but also independent of each other. Tricky conceptual issue here: what came first?
(1) The states then the federal government; OR
(2) the national union then the states, existing within it. Two groups tied up with this debate:
(1) states’ rights conservatives, e.g. Reagan (proposed first thesis in 1984), Grover Norquist (George
W Bush’s tax adviser, who declared “I want to reduce the federal government to such a size that I can drag it back home and drown it in my bathtub!”);
(2) Union primacy supporters e.g. Alexander Hamilton, FDR. Articles of Confederation: the Revolutionaries were extremely suspicious of any centralized governmental power; so they went to great lengths to place restrictions on the national government. No national executive, no national judiciary, weak national legislature: unable to tax, to regulate commerce, to compel states to adhere by the terms of treaties. Individual states could keep their own armies. The Confederation was an alliance of independent nations.
There was a tension:
(a) between small states and large states.
(b) between people who wanted a strong government and a weak one.
(c) And between slavery states and states who wanted to abolish slavery. Thus, Confederation was so weak ‐‐ and there were so many internal problems with the states ‐‐ that a new national government was called for. >>> Result: Constitutional Convention of 1787. [The mandated task of the delegates was to rewrite the Articles of Confederation, but realised this process was hopeless since central government was so weak under them, and so in fact wrote a new Constitution.] 1778‐early 1780s: States create their own constitutions; national government was Confederation under Articles since main aim of Revolution was to be free from centralised, unlimited power.


There were three fundamental problems to be solved: (i)
Higher law: find some effective way to limit governmental power. (This had been a central concern of the American Revolutionaries.)
Individual rights. In particular, reconcile popular sovereignty with individual rights
(and in particular the right to property) ‐‐ the experiences after the revolution with legislative expropriations.
Federalism. This meant to solve the problem of the states, explain how they were related to the central government. Should they disappear altogether? Should the national government continue to be a union of independent nations? Or was some intermediate form of sovereignty possible? (This was a critical question, for in 18th century it was thought that there could be only one supreme sovereign in the state, after Hobbes.) Arguments between small states and large states as to how to apportion votes in Congress and how much to favour states’ rights. Arguments between strong and weak central government proponents.
Arguments between slave states and Free states.

Popular sovereignty. In the U.S. scheme, who is the sovereign? Answer: The people retain the ultimate sovereignty; neither Congress nor President nor courts have full authority. In particular, the Constitution as written law is superior to them all. [Contrast sovereignty of Parliament and popular sovereignty [See chart below]. Situation to be compared with the situation in the U.K., where the model is a parliamentary sovereignty; parliament where the king, the lord and the commons are represented. In the US this model wasn’t going to be functioning because then the conflict between federalist power and states’ power would need to be resolved: within a parliamentary sovereignty, where there are two state structures, one would need to be on top of the other. Hence by turning the model around, several of the issues with which the delegates were confronted, including the higher law problem, were solved. ]



Vs. US MODEL (POPULAR SOVEREINGITY): People (sovereign) > [ratify] > Constitution >
[establishes] > Government

The People (sovereign) Ratify



 This theory leads to an elegant means of solving problems (i) and (ii). Though the practical impact of popular sovereignty is more difficult – how easy should it be to amend the Constitution? Would a full‐scale revolution in the USA be legal under this system? (ii)

This solved the problem of the existence of a higher law to control the institutions of government. Distinguish between a convention and legislation ‐‐ in the past, constitutions had simply been legislative documents, and could be amended like an ordinary statute. One also says that the powers of the Federal government are delegated powers ‐‐ this means that the government has the powers that are explicitly given to it by the
American people, and no more. See Amendment X. Separation of powers. But this solution is very theoretical; and the problem remains of how to enforce it. The central new idea was, that the functions of government should be divided among as many actors as possible ­ this being a major reformation of the traditional
British constitution. Estates of the realm (monarchy, aristocracy, democracy) turned into governmental functions (legislative, judicial, executive). This idea was in turn gradually expanded in to the doctrine of checks and balances. The idea was that the people, who remain sovereign, create a number of distinct governmental institutions; those institutions are given a limited number of defined, delegated powers; and they are also encouraged to watch each other, and keep the others in line. So one has the division into executive, legislative, and judicial; and also into state and federal.


Rem: Senate: every state has two senators / House of Representatives: per size of each of the states Rem: See debate on the powers of the agencies and the extent to which they should be exercising judicial powers a.
Delegation of Powers: the legislature and the President and the state governments and the courts are all alike created and given their powers by the people. ♥
Federal power is limited ♥
Federal power supreme where it exists b.
Separation of Powers (between the executive, legislative and judiciary branches – both in the federal and states levels). Legislative branch in the federal level – Congress – divided into the Senate and the House of Representatives. Executive branch – President and the executive agencies. Judiciary – led by the Supreme Court. Federalism:


1) Congress

2) Executive
3) Federal Courts

(President + Agencies) Senate
House of Representatives (iii) Bills of rights. The Bill of Rights was added to impose additional constraints on the powers of the federal government; specific guarantees of individual liberties. In addition, there were other restraints on the exercise of political power: difficulty of amending the
Constitution; specific restrictions on the various actors; necessity of combined action.

US Constitution ­ the Institutional Structure a) States

Constitution of 1789 contemplated that the federal government would have only the powers explicitly delegated to it by the Constitution; all other powers were reserved to the states or to the people (Amendment 10). Therefore, each state possessed the powers not delegated to the national government; so each state required its own executive, legislature, and


judiciary. This means that there are two distinct layers of government, each with its own constitution, courts, executive, and legislature. How are they related?

Two aspects: (i) The federal government has only those powers that the Constitution gives it ‐‐ everything else belongs to the states, and the federal government may not interfere. (This includes most of private law ‐‐ contracts, torts, criminal law, state taxation, police force, education.) (ii) In the areas where the federal government does have power, its power is supreme, and prevails over the states. So constitutional law, national defense, national monetary policy prevail over the policies of the states. CASE: DURING THE WASHINGTON ADMINISTRATION Thomas
Pro French
Jefferson (Sec.

Hamilton (Sec INDUSTRY of + FEDERAL


Pro British

> Discussion on the ‘necessary + proper’ clause. (1) Hamilton: Congress may do everything that is necessary and proper to carry out one of its powers, i.e. economy [X] and [X]. (2) Jefferson said much more limited than this, but Washington agreed with Hamilton and Supreme Court ruled him correct 15 years later in McCullough v. Maryland. [NB – Washington favoured Hamilton’s ideology for another reason too – he saw it as the better way to eventually be rid of slavery].


The Electoral College

When vote in US Presidential Election vote in fact for electors – each state has 2 + number of
Representatives in House. They go to Washington DC and vote in Electoral College for whoever they want to be President – intended initially to be filtering mechanism, people not directly electing President but for persons they trusted to make good decision. Very quickly this became politically unworkable – people wanted direct election and electors chosen to do what state voted for.

Problem – some states are far more important in Presidential elections than others. Also leads to massive problems if e.g. elector voted wrong way and changed result or where (as in 2000) very close in one state but clear winner overall. Actually would be better to have direct proportional election, but need ¾ of states to agree to Amendment to Constitution and big states get too much out of present system to ratify any such change until hit full‐scale constitutional crisis

The Checks and Balances System
 Within the federal government Congress has power to impeach President, President can veto majority Bill from Congress (though not one with a 2/3 majority of both houses), Supreme Court Justices and all other federal judges nominated by President
(but Congress has to ratify nomination), Congress has power to impeach federal judges
(but very rarely exercised – have to do something criminal or close to criminal). But/ prior to Marbury no power of courts to control Congress or President as not explicit in

b) Congress

Legislative powers vested in the U.S. Congress, divided into Senate and House of
Representatives. Strictly limited powers: to tax; borrow and spend; provide for the common welfare and defense; regulate commerce with foreign nations and among the states; coin money
(and treaty approval).

(This leaves to the states the powers to legislate on the criminal law and on private law.
Not clear in the original document how far the commerce clause and the necessary and proper clause granted power to the national government: in practice, the power of the Congress has grown over the years.) Powers of Congress under Commerce clause:

Post-1937 and New Deal: very expansive interpretation e.g. wheat case, Civil Rights Act 1964

Post‐1995, hints at more conservative interpretation (less power for Congress):
 1995 – Lopez: Congress passed law saying could not have handgun within 100m of a school. Struck down by SC as unconstitutional as had no link to interstate commerce.
 2000 – Morrison: Violence Against Women Act, Congress trying to crack down on domestic violence nationwide. Again struck down by SC as not having link to interstate commerce.


Not clear what direction Court will now go in.

Relations between Congress and state governments:

Taxation –

Federal government absolutely cannot be taxed by states

States have a partial immunity against federal taxes – only immune if federal government directly trying to tax state government activities (so e.g. state employees have to pay income tax like everyone else)
 Difference is due to fact that states have representation in Congress, but federal government does not have representation in state legislatures.

Limits on power of states under Commerce clause (example of concurrent power):
Privileges and immunities clause – does not say states can never (so the states can) charge higher duties on out‐of‐state citizens, but have to have a very good reason for it, and SC impose very strict scrutiny on such attempts to discriminate between states.
 Dormant commerce clause –

If Congress legislates, its Act is supreme over state law. In particular Congress can authorise state regulation, and Congress can pre­empt an area of commercial law.

If Congress does not legislate, as with any area where Congress has power to act but has not acted, the states can regulate or tax state commerce in ways that affect interstate commerce, although only if the legislation is non discriminatory.

Doctrine of “implied powers” (the ‘necessary and proper’ clause). Debate about standard of review of this; rational basis v. strict scrutiny theories. Usually Supreme Court fairly generous to Congress as to implied powers.

Delegation of legislative powers to executive agencies (since New Deal especially).

Restrictions on Congress:
a. Separation of powers
b. Federalism
c. Delegated and enumerated powers
d. Bill of Rights  The enumerated powers of Congress (see Art I s 8):

 Bankruptcy
Relatively unproblematic
 Coining money powers – very little litigation
 Postal service ever on these matters.
 Patents and copyrights
 Naturalisation and citizenship (exclusively federal matter)
 Native American law
 Investigatory powers (implied – e.g. committee hearings etc)
 Taxing and Spending
By far the most contentious powers and the most litigated
 Commerce regulation
…plus some other minor powers.


The Supreme Court takes the tax‐spend and commerce powers very broadly, though there has to be some connection between a spending/taxing policy and other legislation asked of the states to be constitutional e.g. 21 yr drinking age and highways repair money. Commerce power is the key of Congress’ power: both grants power to Congress and limits power of states (“dormant commerce clause”). Again the broad interpretation of it (since
New Deal) means Congress can expand its powers massively e.g. Civil Rights Act 1964 banned restaurants, cinemas, transport etc. from having segregation between blacks and whites – under commerce power as made more difficult for African­American businessmen to travel between states. From 1937‐1995 Supreme Court didn’t strike down any Acts of Congress under the commerce clause.

c) Presidency

Executive power vested in the president; section II provides for the appointment of various federal officers. These appointments are by the President, with the 'advice and consent' of the Senate. President also has the power to make treaties, subject to ratification by 2/3 of the Senate.
We shall see later the chief powers of the President; but for the moment the important point is that the federal executive is concerned to administer only federal law: so each state must have its separate executive to administer its own legislation. d) Federal Courts (and Marbury) [see figure below]


The Constitution established only a single court: the Supreme Court. It did not require the creation of the other federal courts, and indeed the framers debated whether a full federal judiciary would not take too much power from the individual states. But in the Judiciary Act of 1789, Congress established a full­blown federal judiciary. So today there is a complete and parallel system of federal and of state courts. But the two systems are not independent: the federal courts are not responsible for federal law alone, nor are the state courts responsible only for state law. (We'll see the details shortly.)
The People ratify the Constitution. (Amendment process: 2/3 of each house, and 3/4 of the states. This system is deliberately made difficult.) And, Constitution creates Congress,
Presidency, and Supreme Court. The people elect the Congress and President; the SC is removed from the political process, and justices sit during good behavior. Electoral College has a check on democracy, increase power of the states.
Congress can impeach President; President can veto legislation, which Congress can override.
P appoints SC; Congress creates lower federal courts.

In addition, there is the entire state system.

What is missing from the chart? A powerful means of enforcing the higher Constitutional law. This brings us to Marbury.

Marbury: the general issue of judicial review was settled in the famous case of Marbury v.
Madison (1803). The issue:


Jefferson (Federalist)
Secretary of State
John Marshall James
Madison 1789 – Judiciary Act
Chief Justice


Adams agrees to step down after losing an election crucial to U.S. history (very close election). However, just before leaving office, Adams decides to appoint a number of new judges
(and John Marshall as chief justice). There had also been congress elections; where the congress used to be predominantly federalist, after the elections the congress would be especially republican.
Before leaving office, the lame­duck congress decides to agree with the president and to appoint the new judges (and John Marshall as chief justice). The way they make the appointments is called to be “the midnight appointments”. On Monday x/x they spread around all necessary documents to make all these appointments, on Tuesday the appointments are then made, however some were forgotten then not further taken care of (“leave them in the office”). One of the judges did not get appointed is Mr. William Marbury, who sues Mr. James Madison. Background is 1801 but the case


only appeared on 1803. Marbury now sues Madison for his commission, asking for a writ of mandamus, which the Congress gave the Supreme Court the power to grant in the Judiciary Act of
1789. Marshall is now on the Supreme Court. The whole process was very controversial and although it did not happen, there was talk of impeaching Marshall and numerous other judges.
Indeed, Jefferson and the Republicans were so angry they shut down the Supreme Court for the whole of 1802. Actually, Marshall was himself part of the midnight appointments, but still wrote the opinion on the Marbury case. This would now not happen anymore. On top of that, everybody was related etc. John Marshall is in an extremely difficult situation. On the one hand, Marshall’s concern was that if they were to issue the order, Jefferson would not obey the order. On the other, refusing to issue the order would imply that those midnight appointments were not lawful, thereby acknowledging that his appointment to the Supreme Court was also unlawful, and having to recues himself. The Court reached a unanimous verdict (4‐0) and Marshall, writing the opinion, presents the case as raising three distinct questions:
Did Marbury have a right to the petition?
Do the laws of the country give Marbury a legal remedy?
Is asking the Supreme Court for a writ of mandamus the correct legal remedy?
Marshall’s opinion is in three parts: (i) Marbury has a right to the commission ‐‐ a vested natural right with which government cannot tamper, and which it is the responsibility of the courts to enforce. (ii)
Marshall states "The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." One of the key legal principles established by Marbury is the notion that for every violation of a vested legal right, there must be a legal remedy. Marshall next describes two distinct types of Executive actions: political actions where the official can exercise discretion, and purely ministerial functions where the official is legally required to do something. Marshall finds that delivering the appointment to Marbury was a purely ministerial function required by law, and therefore the law provides him a remedy. (iii) However, the Court has no power to issue a writ of mandamus (command from the court).
For the portion of the Judiciary Act purporting to give the Supreme Court the power to issue writs of mandamus is unconstitutional. In accordance with the Marbury opinion, the supreme court has the power to declare any act of congress unconstitutional, and therefore to be withdrawn, even though this is not stated anywhere as such in the constitution. The rationale was that the Court's entire [original] jurisdiction is described in the Constitution; and it cannot be increased by the Congress [f.ex. Cases involving diplomats, etc.]. All the other cases have to come to the supreme court on appeal (appellate


jurisdiction) (In this way, Marshall hoped to keep the Court out of the political dispute.) So basically, Marshall is stating that congress cannot give the supreme court the power to issue writs of mandamus + that it has the power to state that it gave the Supreme Court too much power. Ultimate power of the judiciary to watch after the US constitution. So he simultaneously defused the political controversy, deciding in favor of the Republicans while asserting the power of judicial review of the (Federalist) Supreme Court. (Only two cases before Civil War striking down federal legislation: the other was Dred Scott.) Comments and Criticisms: 1.
No citation of cases – use of logical reasoning about the nature of the judicial authority and the nature of a written constitution;

There is no clear doctrine whatsoever and no clear wording in the Constitution; the Court is on its own and must figure out on its own what the solution is. This was the “Case of the first impression.” It uses a mix of logic, history, hypotheticals, etc. 2.
The core argument is often said to contain a non sequitur7 (illogical): why should Congress or the President not decide on the constitutionality of their actions – why not entrust the ultimate power to the legislature (as in England)? Assumption made that should be by judiciary. But, Marshall gives an answer. [110‐125]. The opposite theory would give “to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits” [‐‐ as with the British Parliament; so Marshall was aware of Byrd’s objection]. But he continues: “[This construction] reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution.” Distinguish: sovereignty of King‐in‐Parliament (over his subjects; sovereignty of the Constitution/Popular sovereignty).

7 non sequitur [Latin "it does not follow"] 1. An inference or conclusion that does not logically follow from the

premises. 2. A remark or response that does not logically follow from what was previously said. Cf. NON


>> Conclusion of Marbury

Judicial review means Power of the SC to strike down acts of the:

1) Congress (Marbury) and of the Executive branch (controversy exists because not written in the Constitution – same reasoning as in case of the congress – there are also cases on this subject matter); and

2) State courts, legislatures and executives (written in the Constitution so no controversy). The same power exists in State Courts (but in some limits). ♥ Holding : Marbury loses his case ♥ Ratio: 1) Congress can’t expand the jurisdiction of the Supreme Court. Also,
Marshall deals with remedy and rights issue in depth before tackling the issue of jurisdiction
(question 3), which is the crux of the case. This is not the order the Court would now deal with the case in.

2) Supreme Court has the power of judicial review

Remarks (i)
Doctrine of “implied powers” (necessary + proper clause) (118 Fletcher) Interpretation of Hamilton versus interpretation of Jefferson. Congress can do whatever is needed, i.e. necessary and proper, to do and to exercise its power under the constitution. Standard of review. There are several standards. The most general and loose standard is the
“rational” standard. Another standard is the “strict scrutiny” standard. (ii)
Delegation of legislative powers to Executive Agencies This delegation is acceptable under the Constitution as long as the delegation of power is sufficiently precise. If the delegation is too vague and too broad, the delegation would be unconstitutional. The powers that Congress can delegate only concern the powers that it already has and nothing else. (iii)
Remember the restrictions on Congress


1) Separation of powers constraint
2) Federalism constraint
3) The Doctrine of enumerative powers constraint (117 to 119 Fletcher) [ENUMERATIVE POWERS:
1. Bankruptcy
2. Coin money
3. Postal service
4.Patents + Copyrights / > relatively unproblematic powers;
5. Naturalization and citizenship (exclusively federal power) (also with respect to Aliens)
6. The law related to Indian tribes
7. Investigatory Power (implied) (But limited to the collection of information for passing
“better” legislation) / > relatively unimportant;
8. Taxing + Spending (Article 1, [XXX]): is interpreted in a very broad way; the only limitation is a “minimum rationale”: has to be spent in the interest of the general welfare
(ex. tax on gambling, discourage the traffic in illegal drugs, etc.
9. Commerce ([]): fundamental federal power, on which most congressional power rests – two aspects: (i) grants power to the federal government and (ii) limits the power of the state (“DORMANT COMMERCE CLAUSE”) – classic conservative versus liberal thinkers debate – at first, the commerce clause would be used to restrict the powers of Congress ; after the New Deal, the commerce clause would be used to extend the powers of Congress: anything that has in any sort a substantial economic impact on interstate commerce – ex.
Civil Rights Act, Farmers growing weed for themselves – 4) Bill of Rights constraint Whatever federal power you are talking about, these constraints will ALWAYS apply. Governmental power Three categories of governmental power:
1. Powers that are exclusively federal (= because stated as such in the constitution, as
2. Powers that are shared (=concurred) ;
3. Powers that are exclusively state (= when a power is not delegated to the federal government) 45

B. The Structure of the Federal and State Judicial Systems

Courts are divided into federal and state.
I. Scope of the state courts' judicial power

The Constitution does not limit in any way, either directly or by implication the scope of the judicial power of the individual states; so the states are free to entrust to their courts the administration of justice, whether the legal issue arises under state, federal, or even foreign law.
Hierarchy of state courts is a matter for state constitution and legislature, though usually have three layers: (i) trial courts (judge plus jury),
(ii) appeals courts (usually bench of 3 judges),
(iii) state supreme court (though can have different names). And usually have some sort of specialization of courts.

II. Interaction Between Federal and State Legal Systems

There are essentially two problems here: how to prevent the state courts from interfering with interpretation and application of federal law, and vice versa, i.e. how to prevent the federal courts from interfering with interpretation and application of state law. 1. Insuring the integrity of federal law.

Here there are two primary techniques: (i)
Supreme Court review of issues of federal law that arise in state courts; (ii)
Removal of cases involving important federal issues from state courts to federal, at discretion of defendant. (Federal courts can also inquire of state courts about the proper interpretation of a particular point of state law; but this is a rare event.) 2. Insuring the integrity of state law.

Here the techniques are different: (i)
Limited jurisdiction: the state courts alone are responsible for general criminal law, tort, contract, family law, etc. (unless a federal statute is involved); the federal courts have exclusive jurisdiction for federal crimes, anti‐trust violations, admiralty law, patent infringements. 46


Erie R.R.: when a federal court is deciding a question of state law, it must apply not only the state statutes, but the case law as well, esp. that of the state supreme court (this is to discourage forum‐shopping, and also gives the states the primary responsibility for the private law.
III. The Supreme Court

Preliminary Question: Case study A law on abortion in Pennsylvania said that a woman under the age of 18 wanting to abort, that abortion has to be notified to the parents. And in the case of a married woman wanting to abort the husband will have to be notified. The case went before the SC whose opinion is really divided:
♥ Stevens and [Blackmen] said that it’s the person that decides and no one has to be notified
=> reaffirm Roe v. Wade.
♥ Rehnquist, Scalia, Thomas and [White] are more conservative and overrule Roe.
♥ O’Conner, Souter and Kennedy said no to the notification to the husband but the State can require a notification to the Parents.
♥ So 5‐4 votes saying that the State can’t require the notification to the husband and 2‐7 votes saying that the State can require the notification to the parents. JURISDICTION OF THE FEDERAL COURTS: (A) Federal questions (= constitution, statutues of us, treaties of us)
(B) “diversity” cases (see later)

Six points to consider: 1. Structure

9 Justices ‐‐ one Chief, eight Associate ‐‐ appointed by the President, with advice and consent of the Senate. Sits as a single body. Voting procedures.  Chief Justice has several statutory functions e.g. administration role in other federal courts. Main function, however, is that if CJ is in the majority, chooses who will write the opinion for the Court (if CJ in minority, most senior justice write majority opinion).
Actually a fairly important power since Justices have big egos and can use it to put pressure on the associates, though limited since any Justice can write a concurring or dissenting opinion whenever they want.
 Ideally, want a unanimous decision with opinion written by Chief justice (as in Brown) but often very difficult.


2. The Court's threefold role (i)

Maintain the supremacy of the Constitution ‐‐ in particular, of the Bill of Rights;
Assure the uniform interpretation of federal law among the federal courts;
Resolve controversies between states or between a state and the United States. 3. The understanding of the Founding Fathers of the Role of the
Supreme Court

In the beginning, there was a general distrust of everything related to federalism. Only after the civil war, federal question cases could be heard by the federal courts. Except for appeals from state courts, it was also very difficult to arrive up to the Supreme Court. The Framers did not foresee the full importance of the role the Court would eventually play. The basic idea was that a Supreme Court was necessary to resolve disputes over federalism (which they could set up but didn’t the first 100 years)‐‐ a task that could not be left to the political process. So the Court was supposed to concentrate on (ii) (uniformity) and (iii) (controversies). But this says nothing definite about the general power of judicial review.

The Court (of course) would, under the supremacy clause (Article VI), have the power to strike down state legislation that conflicted with the Constitution or with Federal legislation. But this does not imply any power to strike down federal legislation as conflicting with the
Constitution: one could interpret the Constitution as leaving the Congress supreme in interpreting the Constitution, or all three branches co‐equal. Rehnquist court: f.ex. Some federal laws are breached by a state; 11th amendment states, according to the supreme court, that you cannot sue states before federal courts; so for certain federal claims, you are obliged to go to state courts_ which do not necessarily want to enforce federal laws … 4. The Court as Guardian of Individual Rights

In this area, the Court does not allocate governmental power between various branches of the federal system; instead, it determines whether the government has the authority to act in certain ways at all. (i)
The Bill of Rights.

The original Constitution contained only a few provisions protecting individual rights. But three years later, in 1791, the first ten amendments ‐‐ the Bill of Rights ‐‐ were ratified by the states.
Of these, the most important are I, IV, V. (Read.) These amendments originally applied only against the federal government: in particular, they did not apply against the states. And since most criminal law was in the hands of the states, this meant that the protection afforded by the
Constitution was limited. But “incorporation doctrine” from 1929 onwards changed this.


The Civil War Amendments.

After the Civil War, the Congress passed the 13th, 14th, and 15th amendments ‐‐ amendments which extended the Constitutional protection of individual rights to the states. 13: abolishes slavery. 15: right to vote. 14: due process; equal protection. Initially, the Court used these clauses in the economic sphere, rather than in the law of race relations or individual liberties.
Incorporation doctrine. 5. Supreme Court jurisdiction: original and appellate

Two kinds of jurisdiction: original and appellate. (i)
Original: "cases affecting ambassadors, public ministers, and cases in which a state is a party." The most common use of original jurisdiction today: controversies between two or more states e.g. New York v. New Jersey over Ellis Island. (ii)
Appellate: Congress can regulate the appellate jurisdiction of the SC; but can give the SC appellate jurisdiction over any case that can come into the federal courts, both for law and fact. 6. Appeal and certiorari Two forms of invoking SC appellate jurisdiction: (i) appeal; (ii) certiorari. The difference: appeal is mandatory and certiorari is discretionary. (i)
Appeal: exists only if a three‐judge federal district court panel grants or denies injunctive relief. (i)
Certiorari: all other petitions are by certiorari. These can come from either the highest state courts or federal courts. State: if the constitutionality of a US statute or treaty is in question; or if a state statute is in conflict with federal law (constitution, statute, treaty).
Any case, civil or criminal, from a federal appeals court can go to the SC on certiorari. Cert is absolutely discretionary (power granted in 1920s by Congress); no reason need be given (a lot of the grants or denials are done by law clerks!), denial is not a decision on the merits, and has no effect as precedent.
This is a very important power – give SC huge influence over the context of their decisions, and politicizes it even more. b.
Judicial review: can review acts of Congress and Executive; state statutes; judgments of state courts. IV. Lower Federal Courts. District federal courts and 12 circuit courts of appeal, then Supreme Court at top.


Scope of federal judicial power

Surprisingly, the Constitution does not limit state courts to state matters and federal courts to federal matters. But in 1787, it was unthinkable to limit the powers of the state courts in this way. And also there was a general distrust of the power of the federal courts. So the federal courts are limited in ways that the state courts are not. In particular, limited to controversies between:
Citizens of different states;
A state and foreign states, citizens, or subjects;
Cases arising under the Constitution, laws, and treaties of the United States. So either diversity jurisdiction or federal question jurisdiction. 
Congress did not adopt federal question jurisdiction until 1875. But diversity was adopted in
1789 ‐‐ worries about the partiality of the state courts were at the forefront; the U.S. was still not a nation, but a collection of states.

So only after Civil War when trying to strengthen the Union and ensure enforcement of federal anti‐slavery laws in South, that Congress granted federal law jurisdiction to federal courts.
Now two procedures for bringing case before federal court – (a) federal question, (b) diversity case.  This addition to the powers of the federal courts was important – even for the Supreme
Court. Before 1875 could only get Supreme Court hearing through state court appeal or if fundamental constitutional issue. Limits to jurisdiction of the federal courts: a) Case or controversy There must be a definite, concrete dispute between the parties. No advisory opinions. (But there can be a declaratory judgement.) The dispute must be ripe; and it must not be moot.
(Recurring conduct; abortion.) No collusive suits. The Court should not be allowed to treat anything but genuine disputes. Some actual harm has to have been caused. Direct stake in the outcome of the litigation is a prerequisite. Idea is that people that are not directly involved will not necessarily prepare the case as thoroughly. In addition, this clause is interpreted as meaning that there cannot be any “advisory opinions”. No state organ or private person can ask the Supreme Court whether or not to say if a particular issue or act is constitutional or not. This can only be done when there’s an actual case.


NB: some state supreme courts may be allowed to do this
NB: Supreme Court is allowed to make “declaratory judgements”; somebody just wants to know whether to be right or wrong – no damages; just the facts – in advance – to be sure. However, this has to be differentiated from collusive suits (“you have to demonstrate that you have suffered an injury”). As for the case must also be ripe for decision and not moot. Ex. somebody wants to strike down a criminal law because he is afraid to be arrested under this law in the future. “No”, the federal courts would say, “this matter is moot.” The guy, before attempting to strike down the law, do need actually to be already arrested. b) Standing There must be a direct injury to the plaintiff. Must have been caused by the defendant, and be remediable by the courts. No general citizen standing; taxpayer standing only in rare instances. No third‐party standing (usually – are cases where e.g. ACLU, NAACP have been allowed to bring cases on behalf of individuals). No general taxpayer or citizen standing. No generalized citizenship standing in the USA. As a general matter, no “third party” standing. But it’s a bit of a mess; sometimes it being allowed. c) Exhaustion of state procedures Supreme Court will only review federal questions; only review the decisions of the highest state tribunal; and only if the state's decision does not rest on an adequate, independent state ground. This is not a constitutional issue, but just an issue of basic organizational sense. d) Narrow construction of congressional statutes More a general mindset than a strict legal requirement: always trying to interpret on an as narrow basis as possible. If the Courts can decide upon the basis of a statute, rather than a
Constitution, the Court will decide the case using the statute. (Avoidance generally of constitutional decisions if at all possible.) 
Sovereign immunity – the XI Amendment. In series of decisions the Rehnquist court said that if Congress grants individual rights to citizens in federal law, and these go against a state’s interests, the state can assert sovereign immunity under XI
Amendment and deny the lawsuit in either state or federal courts.


e) Political question doctrine: If (i) committed by constitution to the political branches; (ii) no adequate standards for judicial resolution; (iii) need for political finality; (iv) difficult to devise a judicial remedy ‐‐ then the courts will not intervene. (Examples: foreign policy; military organization; inter‐ party disputes; organization of Congress.)
Chapter summaries (A) STATE COURTS: ♥ The Constitution does not limit whatsoever the powers of the State Courts. The federal courts are limited indeed; State Courts never heard this: ex. State Court of Pennsylvania can judge on trials involving federal law or the Iowa of another state if they think that this law is applicable.
♥ The manner state courts are organised is a state manner. In general it is quite obvious (trial
(judge + jury) > appeal > supreme) but there is no obligations to do matters such or so: no obligation to have a jury, no obligation not to have separate probate (= wills + inheritances), juvenile or family courts. (B) INTERACTION BETWEEN STATE AND FEDERAL COURTS (i) Protection of federal law

(a) Supreme Court review of state decisions involving federal law

(b) Removal of federal cases to federal courts (ii) Protection of state law
1. Limit jurisdiction of federal courts: federal courts cannot judge upon the application of state law
2. Erie Doctrine: if there is a question of state law that must be decided by a federal court, then it has to decide/follow the state law exactly as it is interpreted by the courts of that state, even if it doesn’t agree (C) FEDERAL COURTS (i) Supreme Court: must be there in accordance with the Constitution (all the other federal courts may be organized but don’t have to under the Constitution) (ii) Lower federal Courts Question: if congress can restrict the power of the lower federal courts, is that constitutional or not? Likely yes, if it is a general restriction on a broad subject. Likely no, if it is a specific restriction on one or more matters. District Courts > Circuit Courts of Appeal > U.S. Supreme Court
District Court ‐ never goes over State lines
Circuit Courts of Appeal ‐ 12 geographical circuits covering each time different states


1 Supreme Court NB WRIT OF CERTIORARI: difference with an appeal (rare); short: CERT ; this important power was given to the SC in the 1920s, which massively increased the power of the supreme court. Comes about when litigators in a lower state or federal court and asks the supreme court to review the court. It is in the choice of the supreme court to grant the writ yes or no, without needing to justify their decision. They can pick the “politically” most convenient cases. They vote on the cases that they want to take (4 justices has to vote yes).

C. The Executive Power From a domestic point of view, the President is rather weak. His powers are mainly concentrated around the power to appoint and to remove. In addition he has domestically also a pardon power and some legislative power, via the different agencies that may have been installed. Last but not least, the president also has a veto power – a key way for a president to influence the work of congress. The Constitution confers the entire executive authority in the President. The President is elected by the Electoral College. 1. Methodology of presidential elections State Constitution (says how the state chooses its Electors – democratic election with the principle of “the winner‐takes‐it‐all”) Electoral College (7 Electors) President Those seven people elected go then to the Electoral College who would decide who would be the president. But by custom, the Electoral College has no discretion: the electors must vote for the candidate they promised to vote for. E.g., when people vote for George Bush they actually vote for a College of seven men who will represent and give their votes in favor of the Republican Party.
Nevertheless, in the last elections Gore got more votes but because of the solution of the winner takes it all Bush won. Now the Congress wants to change the system at the level of the Electoral College, because by custom the seven electoral votes for Pennsylvania or other States do not have any discretion: the
Electors MUST vote for the candidate they promised to vote for.


The only way to change the Constitution is by way of Amendments passed by 2/3 of the
Congress and then ratified by ¾ of States legislation. This process DOES NOT include the President of the USA only the Governors can. NY, California and Florida are very likely to refuse to change the system because of its population. In Florida, they will more likely vote Republican. So the Democrats come down and try to change the mind of the people. But if we abolish the actual system the minorities (Cubans and etc.) will not be represented anymore because the candidates won’t come down anymore and try to gain their votes because they will not represent much anymore. So, the candidates will no more pay attention to the minorities when the votes are tight because anyway the principle of the winner takes it all would disappear. 2. The chief powers are these: a) Appointment power b) Removal power c) Pardon power d) "Legislative" power

The Congress, if it makes sufficiently detailed guidelines, can delegate some of its legislative power to the Executive branch ‐‐ to the administrative agencies. (New Deal cases; basic administrative law.) The President also has the power to veto legislation; and even Congressional changes to the legislative acts of an administrative agency must be submitted to the President for his approval or veto.
 The veto: Two different theories or proposals – the ‘line­item veto’ whereby President can veto specific parts of a bill, or the ‘legislative veto’ whereby President can control regulations made and used by federal agencies without actually passing legislation or regulations. Both have been dismissed by Supreme Court. Presidential veto thus remains a ‘nuclear strike’ option on legislation.
 “Signing Statements”: Technique used by other Presidents in past, but George W Bush taken it to new level. President signs law given to him by Congress, but when signs it gives a statement which issues his interpretation of what the law means. His lawyers then argue that this is what the law really means in practice too. Not yet tested by Supreme

e) Power over Foreign Affairs

This power is exclusive to the Federal Government ‐‐ the states are wholly excluded, and any interference is unconstitutional. It is shared between the President and Congress:



Commander­in­chief of the Armed Forces – NB good deal of sloppiness about media’s use of this phrase in the USA, often sounds like President CiC of whole of America. Not true – just armed forces.

Power to make treaties (subject to ratification by 2/3 vote in the Senate)

Power to receive and appoint ambassadors (absolutely, so George W Bush could if he wanted de‐recognise the French government and Senate could do nothing about it) – quite significant Congress:

Power to declare war – in Constitution seems very clear that only Congress has power to declare war, but once this done President is in charge of the conduct of the war. Until 1945 this was in practice how it worked too, with two exceptions: (i) self‐defence, (ii) “police actions”
e.g. Barbary pirates during Jefferson’s Presidency.
But, Korean War – UNSC declaration to send troops to protect South Korea. Truman made argument that since there was a separate treaty authorisation (via the UN) to go to war, didn’t need to ask Congress to declare war.
But, Vietnam War – unclear skirmish in waters off Vietnam between US and North
Vietnamese boats? Congress gets angry, and Johnson sends in 500,000 troops, embroiling
US in 10 year long “police action” – no actual declaration of war.
But, 1973 – War Powers Resolution said President can deploy troops for up to 60 days without Congressional authority, then once fighting starts must report to Congress within
48 hours. After that have another 60 days then must withdraw, unless declaration of war made.  aim was to prevent another Vietnam, since Congress’ main power if don’t like a war is to cut off military funding, but this politically impossible. Since 1973, however, many
Presidents have suggested that this Resolution is unconstitutional.
Iraq War – Congressional authority for war passed October 2002, weeks before
Congressional election, where Presidential administration said “don’t think there will be a war, but might need to do something about Saddam Hussein in the near future, through UN, and need power to use force as bargaining chip”. Many senators just passed this without thinking much, esp. as Bush administration not very open about its real intent, and because
Washington sniper going on at same time. Now very embarrassing episode, and hurting some senators/congressmen in the upcoming elections. [What did Congress do in immediate run‐up to war with Iraq and during it?]
Not clear which direction this issue will go in now…

Power to regulate foreign commerce – absolute congressional power, President cannot make trade agreements on his own.

Power to raise (and pay) armed forces
Three important cases:
1. Curtiss­Wright – arms embargo on Bolivia. SC laid down principle that President is first and primary face of the USA in terms of foreign policy.
2. Youngtown – during Korean War, President Truman (contrary to wishes of Congress) decided to seize steel mills during strike and run them via military so as to keep the army in Korea



supplied, and avoid crushing unions (who represented a large Democratic constituency) to do so. SC used functional analysis and said three situations: (i) where President acts in agreement with Congress – here Presidential power is at its maximum, (ii) where President acts and
Congress has not expressed opinion either way – here courts have to be careful, but possibly constitutional, (iii) where Congress has disagreed – here the courts and Constitution impose the strictest scrutiny on Presidential powers.
Dames and Moore v. Regan – in last few months of his Presidency, Jimmy Carter made several deals with Iran to get the US hostages back, including saying that no private US companies would sue Iran for damage. D&M sued new SecState, Regan, saying this was an unconstitutional removal of their rights to sue. SC said that since Congress had implicitly said
Carter was okay (hadn’t said anything against it), was constitutional. Treaties: 2 interesting points:

Treaties are the supreme law of the land; they prevail over any contrary state statute
(though not over an expressly conflicting subsequent statute passed by Congress). If congress wants to violate a treaty, congress can decide to do so!

E.g. PLO issue – Congress banned PLO from setting up missions in USA, but PLO had observer mission at UN, and UN Charter/UN‐US treaty said up to UN to decide which diplomats allowed at
New York building. Federal judge said that since no express banning of PLO mission in New York, and that if was banned Congress would be in violation of public international law, assumed that to be interpreted so as to comply with PIL and make exception for New York office. (ii)
The treaty power is a delegated power; it exists alongside the commerce clause and the taxing and spending clause. So it is an independent source of Congressional power.

Some other separation of powers issues: (i)
Impoundment. The President has no power not to spend money that Congress has said is to be spent. (ii)
Executive Privilege. The President's documents cannot be rummaged through by the
Congress; they are privileged communications (but subject to some complicated rules about legitimate Congressional access).

Remarks 1. 1973 – war power resolution = attempt to bring some presidential powers again under the control of congress – after 60 days, the president must ask for the approval of congress to continue the war (any other alternative for congress to stop a war it doesn’t want, is to stop the flow of money).


2. This discussion is still ongoing and is not likely to ever be resolved by the Supreme
Court. Iraq War is a notable example of that. Congress voted a bill which stated that the
President can use armed forces in Iraq if he wanted/needed, however this was passed very unnoticeable with the President and his cabinet claiming that a war was very improbable... Embarrassing for the US Senate! 3. Treaty Power – The Constitution sets up a federal government that has only certain enumerated powers. One of those powers is the treaty power. Question: is the treaty power limited to the list of competences enumerated in the Constitution or can the federal government also conclude treaties with respect to powers not specifically given to the federal government ; i.e. is the treaty power independent of the other powers?

Missouri v. Holland (Holmes) – Migratory Bird Act: State of Missouri states that the Constitution does not give the federal government the power to negotiate something on birds. Holmes stated that the power to conclude treaties is an independent power and can therefore cover anything.
Matter is never fully worked out ; remains under discussion. It seems reasonable to conclude that to the extent treaties touch upon individual lives, it would not be valid anymore.

Problem – what if President enters treaty to ban violence against women etc.? SC has looked at issue, but never fully or satisfactorily. One apparent principle is that Congress cannot ratify any treaty that conflicts with any constitutional rights. [Is this tricky constitutional issue the reason why
USA not signatory to many major international treaties?] (i)
Question: are treaties self‐executing agreements? Imagine that under a certain treaty, approved and ratified, requires the transfer of certain flows of money > this treaty will also need to be approved by the house of representatives, if not the money will not flow (ii)
Executive agreements: agreements that have never been ratified by the Senate – what to do with such agreements? Nobody knows what to do with such issue. Some treaties are “self­executing agreements” or “executive agreements” and so don’t need ratification by Senate. Which treaties are which is a conceptual mess, though works relatively well in practice since both Congress and President know what boundaries are, and SC due to “political question” doctrine won’t interfere.


D. Legislative Power.
1. Preliminaries

The powers of Congress (in contrast to those of the President) are enumerated by the
Constitution. We'll come to the chief enumerated powers in a moment. But there are three important points to notice first: (i)
The doctrine of implied powers:

This is from McCulloch (1819) ‐‐ "necessary and proper" clause. Congress can use any appropriate means to exercise any of its explicitly delegated powers. (See the discussion in Tribe.)
What is the standard of judicial review?

Digression: rational basis test (for most legislation); strict scrutiny (preferred rights; equal protection). (ii)
Delegation of legislative powers

If the Congress lays down adequate guidelines to an administrative agency, it can delegate some of its legislative power to that agency.

Three chief restraints on Congressional power:

Separation of powers; Federalism; the Bill of Rights. 2. The delegated powers Let's start with the least important powers: (i)
Bankruptcy; patents; coinage.

Naturalization and citizenship.

Congress can make the rules for admission and deportation of aliens ‐‐ this is a federal power, and may not be interfered with by the states. Aliens can be excluded from the US even without a hearing ‐‐ the protections of the Constitution stop at the national borders. But resident aliens have 5th amendment (rights to a hearing) and other due process rights.

Naturalization. This is exclusively in the hands of Congress. Once an alien has been naturalized, he has the same rights as any other American citizen; cannot constitutionally be treated differently. Citizenship cannot be taken away for any reason unless the citizen intends to relinquish citizenship.



Property power.
Congress has the power to dispose of property of the United States.


Investigatory power: inferred from other powers.

They can be used only for the purposes of writing legislation and may even punish for contempt. More substantial powers: (i)
War power.

Congress can declare war, raise armies; can also pass legislation to promote the war effort
(housing controls, rationing, etc.) Also: power over external affairs. This is exclusive to the federal government. (ii)
Taxing and spending.

We now come to the two principal congressional powers: taxing and spending, and the commerce clause. These are by far the most important.

These are two independent powers; both very broad. Necessary only that they satisfy two constraints: that they be for the general welfare, and that they do not violate individual rights.

Congress can tax and spend even if its principal intent is to regulate: e.g. tax on dealers in narcotics, or on firearms, or on gamblers. If the tax raises revenue, or if the spending program is for the general welfare, then it will probably be upheld; even if Congress uses conditional appropriations in order to regulate the activity in question. REMARK: RELATION BETWEEN CONGRESS AND STATE GOVERNMENTS AS TO TAXATION: federal government cannot be taxed by states/ states have a partial immunity against federal tax 3. The Regulation of Commerce a) By the states.

Here the rules are somewhat complicated. The states may not regulate foreign commerce at all. Regulation or taxation by states of interstate commerce. If the Congress has acted, then the federal law is controlling. The Congress can authorize state regulation that would otherwise be invalid (because it interferes with interstate commerce); or it can prohibit state regulation. Even if


Congress does not explicitly authorize or prohibit regulation, any conflicting state law will be held invalid; and no state law is valid if Congress has pre‐empted the field.

If Congress has not acted, then the states can regulate or tax state commerce in ways that affect interstate commerce ‐‐ but (essentially) only if the legislation is not discriminatory. (Courts will engage in a balancing test.) Limits on power of states under the commerce clause (under commerce clause) a. Privileges + Immunities Clause STATES CAN REGULATE ON EXTRA‐STATE CITIZENS BUT IF THEY DO THEY HAVE TO
BE PARTICULARLY CAREFUL b. “Dormant commerce clause” Constitution says: “Congress has the power to regulate commerce” > Congress has the supreme power
>States only have limited powers to regulate on commerce If Congress legislates, its act is supreme (over States). In particular, Congress can authorize the state to regulate ; can also pre‐empt an area of commercial law. If Congress does not legislate [REM: THE COMMERCE POWER IS A
CONCURRENT/SHARED POWER], the Federal Courts are going to look to State Law and strike it down if it is discriminatory against out‐of‐state businesses. b) By the federal government.

The Commerce Clause. This is the most important clause for federal legislative power; it has been given an expansive interpretation. (See the good discussion in Tribe.) If an activity has a substantial economic effect on interstate commerce, it can be regulated by Congress. Three ways of expanding this already broad power:

(1) Broad construal of “commerce” – Mann Act. (2) Cumulative effect. If the activity belongs to a class of activities that affect interstate commerce, then it can be regulated. Segregated restaurants; wheat farmers. (3) Protective principle. Congress can impose requirements to protect interstate commerce or people who engage in or sit astride such commerce. (Lottery tickets prohibited in interstate commerce; civil rights statutes; Fair Labor Standards; Mann Act.)



i. Expansive post‐1937 interpretation: ex.: farmer that grows weed for his own use (above federal quotas) is prohibited to do so because “if every farmer would do so, this would influence the interstate commerce”; ex. civil rights act – under the commerce clause and not under the 14th amendment – discrimination is not legal because of inter‐state commerce. >Also environmental rights etc. have been passed under this very broad interpretation of the commerce clause – hugely important! ii. 1995 – Lopez / 2000 – Morrison Lopez: Congress passed a law that stated that it was illegal to have a gun within x from the school; Supreme Court argued that this has nothing to do with interstate commerce anymore Morrison: Violence against women Act – Again this was judged by the Supreme Court to have nothing to do with interstate commerce. But Congress replied: isn’t this exactly like the Civil
Rights Act?? The answer is yes but the Supreme Court – with Reagan and Bush appointees – became much more conservative



1. Federalism (federal‐state)
2. separation of powers (within federal government).
3. Individual rights.
4. Due process and equal protection;
5. preferred rights (speech, religion, privacy). It is divided into 2 parts: ♥ Institutional part of the Constitution
♥ Individual Rights part (14th amendment) 1) The institutions: NB: The contents in purple texts below have already been mentioned above (written by different people). As these topics are very crucial and lie at the heart of Ewald’s lecture, you might want read them again for different perspectives, and I will not delete them. You can skip them, if you wish. a) Courts Scope of powers: ♥ State: no limitation
♥ Federal: limitations Interaction between federal and state courts: how can we avoid interferences? ♥ Prevent state from interfering with federal law: o S.C. review: “State court, you misunderstood, it is federal law” o Removal to federal courts ♥ Prevent federal from interfering with state law: o Limit federal jurisdiction o Erie (diversity case) The S.C. has its original and appellate jurisdiction v
The lower federal courts (creation by legislation) Chief Justice and Associate Justices: the S.C. always sits as a body. When the Chief Justice is sick and there is a tie vote then the judgment of the lower court stands. If a Justice has a personal interest in


the outcome of the case he can recuse himself. If the Chief Justice is voting with the majority then he decides who is going to write the opinion for the court. If he is voting with the minority then the senior Justice of the majority decides who writes it. The founders of the constitution did not foresee the powers of the S.C. They had only seen it as a way to apply a unified law among the different circuits and not the 14th amendment. The Supreme Court has 3 main responsibilities: ♥ Controversies between States (and ambassadors);
♥ Uniform application of Federal law; and resolve circuit splits among federal courts and makes state courts follow federal law;
♥ Enforcement of individual rights (Incorporation Doctrine + 14th Amendment where the
Bill of Rights gets incorporated + power to issue writs of certiorari); this competence didn’t exist when the constitution was written but now it is the 3rd competence that is the most important of the 3.

The S.C. has 2 types of jurisdiction: ♥ Original jurisdiction: the S.C. will sit with 9 judges as usual. It exists only for very exceptional cases (when NY and NJ were suing one another for the statue of liberty 10 years ago). ♥ Appellate jurisdiction: o On appeal: the S.C. MUST hear the case. But Congress said that you can appeal before the S.C. only for if an injunction has been denied by three federal judges. o Writ of certiorari: the S.C. CAN decide whether or not to hear the case
(usually on the most important issues). But in most cases the court will deny the petition and it leaves the decision of the lower court intact =
“denial of cert”. If the same type of issue comes up later there is no problem and the first decision has no precedential effect. Before 1937 when Congress passed a law, the S.C. had to hear all the cases. An appeal from a State court to the S.C. can happen only IF: o Exhaustion of State remedies + o On federal question only. An appeal from a Federal court to the S.C. can happen for: o Any issue (i.e. diversity or federal question). 63

Limitations: 1. Case or controversy: There must be a concrete, definite dispute before two people before the Court can decide.
Ripeness – the case should be ripe. That is, the actual cause has arisen.
Mootness – the case is still in conflict, still relevant. 2. Standing – if you are the plaintiff, you must be the person who was directly injured.
The courts recognize standing to certain organization. However, the fact that you are a citizen, taxpayer, etc. does not grant you standing, unless of course, you are personally harmed. A citizen cannot go to court and ask it to declare that a war is illegal or that the
CIA’s budget is excessive because he does not have standing. 3. Exhaustion of State remedies 4. Narrow reading of statutes 5. Political question doctrine (the courts are not the ones to step in those situations; the political branches have to answer these).

b) Executive Power:

1. Domestic Powers: the president can do very little but it is different concerning his power in foreign affairs. 2. Foreign Policy: since especially the last 50 years, the president has way more power. The power to conduct foreign policy is exclusively a federal power. The most the states can do are to establish relations but not conclude a Treaty. These are concurrent powers; they are shared between the President and Congress. The President has different powers in that respect: ♥ He is Commander in Chief of the armed forces.
♥ He has the power to conclude Treaties (but the Treaties are subject to 2/3 vote in
♥ He has the power to appoint (with 50% vote of the Senate) and receive ambassadors
(exclusive power). The president has the power to conduct foreign policy. Congress has the power to: ♥ Regulate commerce (banning commerce with South Africa).
♥ Raise the army and the navy (appropriations power = budget).

♥ Power to declare war: the Constitution says it belongs to Congress but it the last 50 years, Presidents have been sending troops without the explicit approbation of
Congress but saying at first as “police action” to protect Americans overseas and it’s not really war. After the war in Vietnam, Congress passed the War Power Resolution, but
Presidents say that this law unconstitutional. If such a question would come before the
SC, it would say that this is a political question that cannot thus be dealt by them. In
October 2002, there was a resolution passed to give the President all the power that he deems necessary to lead the war in Iraq and negotiate with the UNO. Everybody agrees that this was not a good way to go to war. Simple majorities are enough by both chambers. Ever since the Korean War there has been a move of power to declare war from Congress to the President. If the Congress doesn’t approve the declaration of war declared by the President is by the appropriations power (not really practical because you cannot let your army in station there starve or die) or by impeaching the President. Treaties are considered as “supreme laws of the land” (federal and state): same power as a piece of legislation (and the American courts will apply the most recent one: the
Treaty/Public International Law or a Statute. In International law the USA would be in breach with the Treaty but not with the law of the land) but lower than Constitutional rank. Self­executing treaties: don’t need any implementation legislation by Congress after its ratification by Senate. Agreements between the President and another President, under International Public
Law it is considered as a Treaty but not under American law because it needs not to be ratified by Senate. Legislative Powers: non enumerated powers of Congress by the Constitution):
♥ Necessary + proper clause: Doctrine of implied powers: McCullock v. Maryland.
The Constitution contains implied powers.
♥ Delegation of legislative powers to administrative agencies: to have the airlines regulated properly it will set up or delegate this power with general guidelines to these agencies that will pass the more specific laws in that area.
♥ Limitations to the power of delegation: o Separation of powers o Federalism o The Bill of Rights Legislative Powers: enumerated powers:
3 less used:
♥ Bankruptcy, patents, coinage, post office.
♥ Citizenship and naturalization (but once someone has gone through the procedure and has become a citizen he has the same rights as any other right as


another American except if he lied during the process of naturalization. There is no citizenship of second category).
♥ Investigatory power: how to pursue legislation. 2 much used:
♥ Tax (even where they cannot regulate: drugs, etc) + spend (can use conditional appropriations: if Congress wants to encourage people not to drink before 21, they cannot regulate in that field, so they going to tell the States if you enforce such a statute we will give you 10 billion dollars to build State roads) for general welfare and only if it has something to do with reason the money is given for and the purpose of the pact.
♥ Regulate interstate + international commerce: o Grants power to Congress o Limits power of States (dormant commerce clause: the courts have interpreted them as)
1. The word commerce has been defined in an extremely broad manner = The Mann Act: forbidden to introduce an underage female for sexual purposes (prostitution) through state borders: you are introducing her into commerce. 2. Cumulative effect = The Civil Rights Act: as long as you discriminate a religion or another and that it doesn’t touch commerce, Congress cannot do anything. If there is a hotel which discriminates, it is not an interstate commerce issue. However, if there are many hotels which discriminate, then they are subject to regulation by Congress as they affect interstate commerce. o States can regulate interstate commerce only to the extent allowed by the federal government. Rules for states’ interstate commerce regulations:

The states cannot regulate international commerce at all. (ii)

If Congress acts, Congress prevails.
If Congress gives power to states, states can act.
If Congress does not act, then courts balance.


Lopez (1995) – Limiting the federal government’s authorities, and transferring broad authorities to the states.


ELEMENTS OF THE US CONSTITUTIONAL LAW Constitutional Law is divided into the law of institutions and the law of individual rights, the latter divided into two subdivisions: Bill of Rights, and the Fourteenth Amendment, the latter divided into two important subsections: Equal Protection Clause and Due Process Clause. These six elements are the most important elements of the US Constitutional Law.




14th Amendment applies to the States. The Bill of Rights applies to the federal government. The Bill of Rights has been incorporated into the state’s constitutional law through the 14th Amendment
(equal protection clause). Note that the Bill of Rights has not been incorporated from the first place as a whole, but rather on a right‐by‐right basis. This is the Incorporation Doctrine. Features: (1)
State‐action requirement (as opposed to an action by a private person, including a private school, even if the private school discriminates). Constitution does not apply to private actors. However, many private schools, like Upenn, will get into trouble if it violates the
Constitutional provisions because they get funding from the government. Another tricky area is “public function” exception – when a private company public functions. Also, private companies engaged in industries which are strictly regulated by the government may become subject to the Constitution. (2)
3 tests for judicial review:
(i) Rational basis test (“rationality review”, or “reasonableness review”):
Is the government’s action rationally related to a legitimate state purpose?
In almost all cases, there will be a legitimate state purpose. Thus, almost always this test will be answered in the affirmative. Answering in the negative means that the government is doing something that is practically insane.
(ii) Strict scrutiny test:
Is the government’s action necessary to a compelling state purpose?
That means that there is no less restrictive means. This one is a much tougher test. If this test is employed, the court will most probably find that the government’s action was violating the individual’s rights.
(iii) Intermediate scrutiny. The trick is to know when to use each of the tests (first or second)? The rational basis test will be always used, except in the following 2 areas, in which the courts will use the strict scrutiny test: Equal Protection Clause: (1)
Unequal treatment with regard to a fundamental right. ♥ Freedom of speech.
♥ Freedom of association.
♥ Bill of Rights.
♥ Right to travel.


Unequal treatment of a “suspect classification.” (Groups easily stigmatized, historically discriminated against.) (“Discrete and insular minorities.”) Protected:
♥ Racial groups.
♥ Religious groups.
♥ Aliens.
Not protected:
♥ Age.
♥ Homosexuality.
♥ The poor.
♥ Mental illness.
Intermediate scrutiny:
♥ Women.
♥ Illegitimate children. Burden of Proof The plaintiff needs to show an intention to discriminate. Burden of proof shifts if the plaintiff shows that statistics shows that there is discrimination. Then the government will be required to show that it had no intention to discriminate. Distinction between de jure and de facto. De jure discrimination is illegal. In de facto discrimination
(or “social” discrimination), there is no constitutional groups for a complaint. De facto discrimination happens, for example, when the parents send their kids to private school instead of sending them to public schools with blacks. Remedies for racial discrimination:
♥ School bussing.
♥ Affirmative action.
♥ Bakke (1976);
♥ Grutter (2003) – For now, affirmative action is legal (however, 5‐4 decision). Due Process Clause Not being deprived of Life, Liberty, or Property without due process of law. Two separate types of cases: Procedural due process.
What is liberty (or property)?
What process is “due”?

Substantive due process. ♥ Economic cases: no longer exists since 1930s+1940s. Rational Basis applies: if it is rational, it is constitutional. ♥ Fundamental personal rights: Griswold (1964) – Facts: Connecticut enacted a law making it illegal for anybody to sell birth control devices. The court held that it is a violation of the
14th Amendment.
Since there was no right to privacy, the court followed the following path: 14th Amendment right to liberty. 9th Amendment: [ ]. 4th Amendment: the government cannot make searches or seizures without a judge’s warrant. There are “penumbras,” “emanations.” The court recognized the right to privacy. In the course of the years to follow, the court expanded such right. Sexual conduct rights to raise children, etc. Roe v. Wade (1973) Right to die? Homosexuality?

14th Amendment. Equal Protection and Due Process. Related but different. Two general remarks: A.
The two tests.

The Court looks at a governmental action and asks whether certain special constitutional issues are involved. If they are, the Court applies one test; if not, then the other.

(a) Rational basis test (reasonableness test). This is the test that applies to almost all legislation that does not involve problematic conduct by the government. The governmental action is valid if it is rationally related to a constitutionally permissible state interest. Under this standard, legislation is almost always upheld. In particular, it is the standard for almost all social and economic legislation. Both components (permissible state interest and rational relationship) are construed broadly: (i) The state needs not show that it, in fact, had the rational end in mind [e.g. statutory rape applies only to males; this could be a measure against teen pregnancy, or a discrimination against women];
(ii) It does not matter if the statute is somewhat over‐ or under‐inclusive writ the stated legitimate end. [Police officers required to retire at 50.] On the other hand, if the statute is on its face wildly irrational, then it is unconstitutional. Example: statute forbidding food stamps to any household


where unrelated persons live. (The aim was to exclude hippie communes.) Or: special‐use permits for a group home for the mentally retarded. (Cleburne 1985) But discrimination against this politically unpopular group was not constitutionally permissible end.

(b) Strict scrutiny. This is invoked when the Court thinks there is special reason to worry about the Government’s actions. Two principal cases: suspect class; fundamental rights. The test: the regulation will be found unconstitutional unless shown to be necessary to promote a compelling state interest. (i)
Necessity. This is interpreted strictly. There must be “no less restrictive means” for achieving the same state interest. So under this test almost all legislation against racial minorities has been held invalid.
There is also a third test, “intermediate scrutiny,” which is applied in a narrow range of cases. (Women, illegitimacy, maybe aliens.) We will come to this later.

Warren Court: two tests (or maybe three). But some dissenters say there’s only one test; and the Court may be moving in the direction (of a balancing test).

The importance: burden of persuasion. RB: plaintiff must show that the state has acted irrationally. SS: State must show that it has not violated the Constitution. [Food, housing, education
– fundamental rights; wealth – protected class.]

B. State action requirement.

14th Amendment does not affect private action; discriminatory educational institutions, for example. (The Civil Rights Statutes are a different matter – here we are just concerned with the

The issues here can become complex, and the cases are not entirely consistent; difficult to predict the future. Burger‐Rehnquist court has been cutting back. [Civil Rights Cases (1883): XIII interpreted narrowly.] Two broad categories:

‐‐ “Public Function”: Private actor doing something that is ordinarily the exclusive preserve of the government. Examples: White Primaries; company towns (operating streets). But not: shopping centers (and 1st Amendment); privately owned utility.


‐‐ “Nexus” – significant state involvement: Symbiosis: discriminatory restaurant operating in a building owned and operated by the State. Amtrak Corporation. But: liquor license to discriminating private club.

Problem: Shelley v. Kraemer (1948): judicial enforcement of racially restrictive covenant as state action. Narrow and broad interpretations. (Trespass laws, etc.) C. Statute invalid “on its face” (“facial” invalidity) vs. invalid as applied (Yick Wo). Same standards for both.

EQUAL PROTECTION A. General remarks.

1. What is "Equality?" The 14th provides that “no state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.” Note: any person, whether or not a citizen of the US or of the state. (Also includes corporations.)

This provision is concerned with differential treatment – whenever the government makes a distinction between how it treats one person and another. (Due Process is a different idea; but often both issues will be present in the same case.)

The difficult question is to say what equality means here. The 14th does not mean that states cannot make distinctions between persons: obviously, in most cases it will have to do so (e.g. in the income tax laws, driving licenses). Nor does it mean that strict scrutiny will always be applied whenever there is differential treatment.

The central idea: apply rational basis, unless there is some reason to think that fundamental constitutional values have been violated. Then apply strict scrutiny.

Here are some examples of rational basis equal protection. (1) Trucks can advertise if they are owned by the advertiser (means of preventing nuisance). (2) Ban on non‐returnable milk cartons. (3) Allegheny‐Pittsburgh: valuation of real estate (similar parcels valued differently).

There are two ways in which strict scrutiny can be triggered:

First, if there is unequal treatment of a protected minority group. Paradigm example: racial discrimination. Second, if any citizen is treated unequally with regard to certain fundamental rights.
Example: statute forbidding taxi drivers the right to run for public office, or the right to marry.


(Note: be sure to distinguish this basis for finding a statute invalid from the due process basis. The two are not the same. Example: forbidding anybody the right to an abortion; forbidding
Republicans the right to put up political posters.) 2. Suspect classification.

There are 3 issues here. What classes are suspect, and why? What kind of discrimination is illegal? How do you prove it? a) Suspect classes: Racial minorities: the paradigm case.

Why these groups? (1) The 14th Amendment is specifically concerned with discrimination against freed slaves. Groups historically discriminated against. (2) Caste, groups as objects of widespread prejudice and stigmatization. (National origins.) (3) More generally, the Supreme Court has said that there is a concern with “discrete and insular minorities.” [Justice Stone, Caroline Products footnote.] Ordinarily the political process can be relied upon to protect groups like, say, airline pilots. But some groups are politically powerless. In these cases, the Constitution protects the group against the prejudices of the majority. (Limits to
Madison’s analysis in Federalist #10.)

What groups satisfy these conditions? Racial minorities; classifications based on national origin; religious classifications; and (sometimes) alienage. Let’s defer racial discrimination until later. b) Discrimination against aliens.

Most state discrimination against aliens is suspect, since they are a "discrete and insular minority" of the sort that is protected by the 14th amendment. (But not the object of prejudice, or historically favored.) Cannot be denied: welfare (they pay taxes; 15 year waiting period); admission to the bar; employment in the civil service (with some exceptions); public education; land ownership. Exception: Aliens can be excluded from participation in self‐government (“political function”): voting, jury service, elective office, police officers, public school teacher.

Rational‐basis (not a suspect classification): age (e.g. statute requiring police to retire at
50); wealth (zoning law barring low‐income housing projects); mental illness; homosexuality. 3. “Quasi‐suspect” classifications. Intermediate level of scrutiny.


Must be substantially related to an important governmental purpose. Two chief categories:

a) Discrimination against women. Here the three reasons do not apply (except history, a little bit.) Not being allowed to administer wills; drinking age differential (males 21, women 18). Compare: pregnancy as a grounds for medical disability; Veteran’s benefits; Statutory rape law. b) Discrimination against illegitimate children. 4. What kind of discrimination is illegal?

We’ve already seen the state‐action requirement. Brown: requirement of intentional discrimination. There are three ways in which this can be shown: a) Discrimination “on its face” ‐‐ open and obvious. Ex: Plessy.

b) Unequal administration of facially neutral laws. Ex: Yik Wo, law stating that laundries could not be operated in wooden buildings without a license. Authority refused licenses only to Chinese. c) Impermissible motive. Some laws seem to be neutral on their face, and are administered neutrally; yet the motive of the legislature was discriminatory. Superficially, a law like the law in Loving treats both races the same: all it does is make a classification. But even so, this sort of classification is invalid (in large part because of its underlying motives). 5. How do you go about showing such intentional discrimination?

This can be shown in various ways.
a) You can show that there was a heavy burden placed on a racial community that cannot be explained on permissible grounds.


(Example: city boundaries changed, with effect of removing almost all black voters from the city.) The courts can undertake a "sensitive" historical inquiry into the facts of the legislation. If it is shown that the state action was in part motivated by a forbidden purpose, then the burden of proof shifts to the state. However, if the state can show that the law would have been passed despite the forbidden motive, then the law stands. Example: taking away the vote from convicted criminals whose crimes involved "moral turpitude." (Hunter, 1985. The underlying motivation was racial.) b) You can also show that there has been a disproportionate racial impact as a result of the state's action. This gives you a prima facie case. Then it is up to the state to furnish the court with a non‐suspect reason for the disproportionate impact. “Burden shifting”; burden of persuasion. Contrasting examples: law requiring that race of political candidates be designated on ballots; ditto, but on marriage licenses, for the gathering of statistics.
c) Compare de facto discrimination ‐‐ where there is no intent to discriminate, but where there is a disproportionate impact. Such acts are judged, not by strict scrutiny, but by the rational basis test. (Tests of verbal skills for police officers, de facto school segregation. Preferences for veterans in state employment.)

B. The central case of racial discrimination.

Brown v. Board: Segregation. This is the most important case historically.

1. Brown I: Separate but equal8; explicit, intentional segregation. (Plessy) Prohibition applies to all governmental facilities, public parks, beaches, etc. ‐‐ but especially to schools.

2. Brown II: Reversing the effects; remedies. “All deliberate speed.” Courts administering desegregation. Clear enough in South – but what about in North? (Northern school districts in
1960s; pattern of past discrimination.) Dealing with non‐facial (covert) segregation. Segregation is proved (usually) by showing disparate impact that cannot be explained on any other grounds than intentional discrimination; once a prima facie case has been raised, then the burden shifts to the
8 separate‐but‐equal doctrine. The now‐defunct doctrine that African‐Americans could be segregated if they

were provided with equal opportunities and facilities in education, public transportation, and jobs. • This rule was established in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138 (1896), and overturned in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686 (1954).


government to show that the segregation was not intentional. This can also apply to the lingering effects of past de jure discrimination: test requirements in Mississippi. Presumptions and burdens of proof.

3. Remedies. Schools have an affirmative duty to eliminate segregation. There are no rigid rules; courts must balance the various interests in the particular case. Some of the remedies include: (i) Busing. The court has the power to order the busing of school children; to forbid subterfuges to perpetuate segregated schools (e.g. building new schools and tearing down old ones).

(ii) Redistricting: re‐draw school district boundaries. Problems: can courts order taxes to be raised, enjoin state officials? How far can judges take over the running of local government? (Conservative drift.)

Affirmative action (remedy by legislature). (“Benign discrimination, reverse discrimination.”) Broad question: can the government pursue diversity, a balanced workforce, economic promotion of racial minorities? Chief areas of controversy: preferential admissions to universities; minority set‐asides in governmental hiring; drawing boundaries of voting districts –
e.g. the creation of a black Congressional district.

Court has become more hostile.

Bakke (1978). Quota admissions set‐aside. Split opinion. 5‐4. It’s OK to take race into account; but quotas are not acceptable. Fullilove (1980) – Congress can use affirmative action to remedy past governmental discrimination.

What standard of review? Intermediate? (The three criteria.)

Court now says (Croson) that all legislation classifying on basis of race is subject to strict scrutiny ‐‐ even if it is designed to favor a racial minority rather than to discriminate against it. The government can introduce race‐based plans to correct past governmental discrimination; but not general societal discrimination. Must show actual intentional discrimination.

Quotas are in any case ruled out: they are too crude a tool. (Not necessary.) Present state of the law: As a remedy against past discrimination, the government can introduce flexible numerical goals, but they must be narrowly tailored, of limited duration, based on relevant racial percentages in the general population, not impose an excessive burden on non‐minorities.

Can state schools take ethnicity, race into account in order to achieve diversity ‐‐ regardless of any past pattern of discrimination? S.Ct. has not said in the light of Croson. Hopwood. California referendum; Berkeley.


C. Fundamental Rights.

Governmental action that impairs a fundamental right is subject to strict scrutiny.

What rights are fundamental? Those in the Bill of Rights, and certain others that seem closely related. The Court has become more hostile in recent years.

1. Freedom of association. Burdensome requirements for a small political party to get its name on the ballot.

2. Right to travel interstate: residence requirements of one year before you can receive welfare benefits or medical care or vote. But: state can impose waiting requirements for reduced tuition, or for divorce: these interests are less fundamental than welfare, not necessities of life. (Balancing test.)

3. Freedom of speech (more on this later).

4. Right to vote. If a state forbids members of the armed forces, or residents of federal enclaves, from voting, that is unconstitutional: no compelling state interest. No poll taxes.
(But felons can be so excluded.)

CENTRAL CASE: Reynolds v. Sims. Legislative districts; apportioning must be so that votes are as nearly equal as possible. (Explain why this is controversial.)

NON‐FUNDAMENTAL RIGHTS: welfare; housing; quality of education. (But these rights are held "important" ‐‐ though not fundamental.)
The existing equal‐protection fundamental rights are not likely to be extended.


Deprivations of life, liberty, or property without due process of law.

Most often used to protect criminal defendants. We've seen several examples: search and seizure; double jeopardy; self incrimination; right to counsel; cruel and unusual punishment.

The DP clause does not protect only the rights of criminal defendants. It also applies to deprivations of liberty or property in the civil setting. Here there are two large areas: procedural and substantive DP.


1. Procedural due process.

Here the courts apply a two‐step analysis: first, determine whether a liberty or property interest has been impaired; second, determine whether due procedures have been followed.

(a) "Liberty." The courts have not said explicitly what constitutes a liberty interest under the 14th amendment. Plainly it includes the freedom from physical restraints. But it also includes the following: ‐‐ right to contract; ‐‐ right to engage in gainful employment ‐‐ right not to be defamed by a governmental official ‐‐ interest in a developed parent‐child relationship (e.g. if a father is playing a substantial role in his illegitimate child's rearing). There is no common principle here that provides a rigorous test; you have to proceed case by case.

(b) "Property" is also difficult. It includes ownership of money, real estate, and chattels.
But also any entitlements to which you have a legitimate claim. For example: continued welfare benefits; public education; retention of a driver's license; public employment.

(c) What is a deprivation? ‐‐ It must be something more than mere negligent conduct.
There must be intentional conduct ‐‐ or perhaps recklessness.

(d) What kind of process is due? Here, again, there are no hard rules. One looks to the importance of the interest, and to the reasonableness of the procedures, and performs a balancing test. (Compare: a litmus test, a rigid standard test). A couple of examples will help make this clear:

Welfare benefits. There must be an evidentiary hearing before termination. The recipient must have notice of the reasons, the opportunity to cross‐examine adverse witnesses, the opportunity to present his evidence orally, and the decision maker must be impartial. Counsel may be provided, but need not be.

Public education. No formal prior evidentiary hearing is required for a suspension. But there must ordinarily be some notice of the charges, and some opportunity to explain. Formal dismissals for academic reasons do not require any formal evidentiary hearing; but they do require notice of the reasons, and an opportunity to explain. 2. Substantive Due Process.

This is the second large division. Falls into two large parts.

(a) Economic and social regulations. The court would review the substance of legislation
(rather than the way it is carried out) under DP, and strike it down as unreasonably interfering with


life, liberty, or property. In particular, in the early years of the 20th century, economic and social regulations were struck down as not being reasonably related to permissible government ends.

Modern practice: economic and social statutes will be presumed valid unless they are arbitrary or irrational. The Court will not substitute its own judgment for that of the legislature; and it will place the burden of proof on the party challenging the legislation. So price controls, trade practices, are now effectively immune from DP attack.

(b) Fundamental personal rights. This is a major area of DP law, since the mid‐60s. The basic rule: if a fundamental right is involved, the Court will apply the standard of "strict scrutiny" ‐‐ the regulation will be struck down unless it is strictly necessary for the promotion of a compelling governmental interest.

Griswold. The most central modern concept is the concept of a right of privacy. This right is nowhere mentioned in the Constitution. [Explain Griswold.] Three theories: 9th amendment; penumbras; concept of liberty in DP clause.

Scope of the right of privacy: marriage (Loving v. Va.); procreation; contraception (Griswold ‐‐ crime to use contraceptives, even if married; extended to unmarried, on privacy grounds); state can't prohibit sale of contraceptives to minors, or require them to be sold only in pharmacies. Right to educate children as one chooses; right of related persons to live together in one household.

Abortion. This is the central modern privacy issue. The Court applies a balancing test ‐‐ state v. mother. One of the best examples of such a balancing test. Three trimesters. #1: decision left to the mother and the physician; state cannot interfere, except with regulations that do not interfere with the exercise of the right. (General health regulations.) May
NOT require the consent of the husband; nor of a mature minor; nor of an unmarried minor. There can be a requirement that one parent be notified. #2: The state can engage in reasonable regulation of abortions ‐‐ but the regulation must not unduly interfere with the exercise of the right. So State can't require that abortions be performed only in state‐certified hospitals, or that the opinion of a second doctor be sought, or that a hospital committee approve the abortion. #3 ‐‐ the stage of viability. Once the fetus is viable, the state has an even greater interest in regulating the practice of abortions. It may prohibit abortions, except to save the mother's life or health. The issue of viability is itself a medical question, and the judgment is to be left to the doctors. Interests not protected by the right to privacy: right to engage in homosexual sodomy; right of policemen not to have the length of their hair regulated; right not to have the state publicize a record of an arrest or other official act. Right to die.

Other kinds of rights protected by DP clause:


(i) Right to interstate and international travel. International travel can be reasonably regulated; passports can be denied to those who might endanger national security; travel can be prohibited to certain danger zones.

(ii) Right to vote ‐‐ a fundamental liberty interest. (iv)
Rights of mentally ill. Deprivation of liberty interest. Only if dangerous or incapable of surviving safely outside. Constitution requires minimum standards of food, shelter, clothing, health care, safe conditions, and freedom from bodily restraints. 83

VI. CIVIL PROCEDURE i. Basic concepts and terminology.

We are going to see a subtle interplay between various aspects of the American legal system. Keep your eyes on three things:

the influence of constitutional law on rules of procedure;


the interaction of state and federal law, especially with regard to jurisdiction; and


the adversary model, and the control of litigation (and of evidence gathering and examining) by the parties. The judge is passive and the lawyer “makes” the case.


Contrasts between civil and criminal procedure.

Criminal procedure: involves the state prosecuting a defendant (accused) for committing a crime; the consequence, after guilt (or non‐guilt) has been proved (standard of proof) beyond a reasonable doubt, is a deprivation of life, liberty, or property as a punishment.

Civil procedure: plaintiff v. defendant; to determine liability; not punishment. Standard of proof: preponderance of the evidence. Remedies: not prison, but money damages, or "equitable relief." (Injunction; specific performance; reform or rescission of contract.) Procedure
Proof burden
Guilty / non‐
Proof beyond a
Procedure prosecutor v. guilty reasonable defendant doubt
Civil Procedure
Plaintiff v.
Liable / non‐
Proof by
defendant liable preponderance of the evidence

Note: criminal procedure mostly involves the interactions between citizens and police; civil procedure the preparations for trial and the rules for conducting the trial. The latter – and the rules of evidence – are largely similar for both civil and criminal trials. Hence the body of evidence law – where civil law systems treat evidence in separate bodies of law separately. Note: ‐ Burden of proof ‐
♥ In a criminal trial, in order to find a defendant not guilty there should be no reasonable doubt, i.e. 99% certainty.
♥ In a civil trial you need to prove that it is more likely that things happened the way you claim, i.e. more than 50%.


For example: in the case of O.J. Simpson, O.J. Simpson was acquitted from the criminal charges, however was found liable in the civil charges! Double jeopardy is only a matter of criminal law, that is, having been sued in criminal charges, you are not immune from civil charges. 2. Two oddities inherited from English common law a) Law and Equity: distinction

Historical roots: courts of chancery.

The modern importance: you only have a constitutional right to a jury trial in a legal action trial and not in an equity trial! b) Jury trial in civil cases: consequences

1) A jury trial in civil cases is a concentrated trial: it must take place at a definite time, rather than being spread out. Consequently, special rules for gathering evidence before the trial have been developed, in order to avoid unfair surprises.

2) The jury is composed of lay‐persons, and there is a split between the role of the judge and the role of the jury. Accordingly, you need special rules of admissibility of evidence, control over the jury by the judge, division of role, etc. (Note that this runs contrary to the continental idea of free evaluation of the evidence – which has roots going back to the aftermath of the French

3) The U.S. trial model is an “adversarial model”: the judge only acts as referee, dealing with questions of law; lawyers have a responsibility for discovering and presenting the facts, and are trying to sway a jury of lay‐persons, often by appealing to emotion and prejudice. So, trials tend to be a clash of opposing views, with the judge as a neutral observer.

Please note that appeals only concern matters of law and not of fact! There is no jury on the appellate level. 3. State and Federal procedure.

Civil procedure differs between the states’ and federal legal systems. Limited by constitutional requirements on jurisdiction. In federal courts, the civil procedure is governed by
“The Federal Rules of Civil Procedure” (1938 Enabling Act). Limited by constitutional requirements on jurisdiction (Diversity; federal question), the FRCP have very much influenced the state civil procedure, but each state does have its separate rules. There are at least 51 different books of civil procedure


In 1938, the Court complained about the way procedure was functioning in the federal courts, went to Congress and received as a response something renowned as the “Enabling Act”.
This Act stated that (i) Congress understood there was a problem with the procedural aspects of trials before federal courts; (ii) Congress however did not have the know‐how to put in place such rules; and (iii) therefore delegated this task to the Supreme Court’s supreme justice, which has to appoint an advisory commission. This commission provides recommendations to the
Supreme Court which, if agreed to by the Supreme Court, will be sent by the Supreme Court to
Congress; giving the “rubber stamp”. [Process of enactment, in other words: Congress passes the
Enabling Statue, instructing the Supreme Court to draft the rules of procedure. The Supreme Court appoints the Advisory Commission, which drafts the rules, submit them to the approval of the court, and the court submit them to the adoption of Congress, which automatically adopts them.] NB

FRCP are very relatively simple: around 82 rules. It has influenced much state procedure; but each state has its separate rules. Moreover, there are still lots of different federal civil procedure rules (lowercase) for each circuit, or for specific types of lawsuit.

ii. Principal stages of analysis

A civil procedure issue can be broken down into the following six steps: 1. Jurisdiction and Venue Does the court have jurisdiction over these parties and over this subject­matter? Is this the correct place for this trial to take place? 
Difference between venue and jurisdiction: the court has the authority to hear the case, but the convenience of the parties would be better served by hearing it someplace else; no res judicata problem if a mistake is made about venue. Venue is merely determined by statute and means which court within a state should deal with a case. Jurisdiction is often, though not always, a constitutional matter. ♥ Jurisdiction: is the question whether or not the Court has the power to hear a case or not, which before federal courts is often a constitutional question.

♥ Venue: if several courts are competent to hear one specific case, which of the several courts is most “appropriate” (can depend on very subjective criteria, such as media attention). There is a big difference in the degree of importance of venue, compared to the importance of jurisdiction: there is no res judicata problem if a mistake is made about venue. Venue is determined by statute.


For example: a car accident takes place in Philadelphia, and the defendant is from
Philadelphia, and presumably the witnesses are also from Philadelphia. Basically, the court in
Pittsburgh will have jurisdiction over the case; however since it will make no sense to litigate in
Pittsburgh under these circumstances, the court may say that the venue should be the courts of
Philadelphia. Venue is merely a question of convenience. Once venue is agreed, cannot appeal decision on basis of wrong venue. But can if jurisdiction wrong. Question of venue is more important in criminal trials, where the venue will influence the composition of the jury. 2. Pleadings and discovery

The parties must state their cases; tell the other side roughly what they will be arguing; and then they must go through a process of taking depositions and written interrogatories, assembling the evidence for trial.

Any pre­trial motions must also be made before the jury is selected. (All this necessitated by the jury trial). 3. Erie questions Where state law arises in a federal court, have to find the applicable state law. Conflict of laws issues – most important issue: federal court sitting in diversity case. 4. Trial procedure and evidence law

The questions that are addressed are the right to a jury trial, questions of burden of proof, and rules of evidence. Basically: how is the trial conducted? 5. Multi­party and multi­claim litigation (so called “complex litigation”)

Counterclaims; joinder of claims; joinder of parties; class actions; cross‐claims and third‐ party practice.

6. Former adjudication ­ Res Judicata.

Res judicata covers the period after the jury has said “liable” or “not liable” and the judge has handed down the verdict and what happens after.


iii. Jurisdiction

Broadly speaking, there are two kinds: (1) jurisdiction over the parties, and (2) jurisdiction over the subject­matter. The latter is important mostly in a federal case, since state courts are generally unlimited, whereas federal courts can only have jurisdiction over diversity or federal questions. 1. Over the parties This is important mostly in State Courts. The federal courts have jurisdiction over the parties with respect to all of the population of the 50 States. That’s why this question arises only in
State courts. The general constitutional framework states that there has to be a “minimum contact” for a Court to have in personam or in rem jurisdiction over a certain case. This applies to both in personam and in rem actions. It is based on the 14th Amendment (Case of 1945). Question is whether or not there is an adequate contact between the parties and the Court? Is it fair to subject the parties to the jurisdiction of that particular Court? For example: presence in the territory is a reason for a Court to have in personam jurisdiction, so is (probably) residence, etc. The defendant must have "minimum contacts" with the state in which the Court sits, as it is required under the
14th amendment (due process). Courts apply a balancing test: look to the kind of contact, how voluntary it is, how severe the burdens are on the defendant of being compelled to defend in this state, etc. In addition, the defendant must be given adequate notice and an opportunity to be heard. These are the two central requirements for personal jurisdiction.

There are three kinds of jurisdiction over the parties: i.
In personam: this is the jurisdiction over the defendant personally. If the defendant loses, the court's judgement can be used anywhere in the US, and against all his assets. This is the
“usual” sort of jurisdiction.

With respect to physical persons A Court would have in personam jurisdiction amongst others in the following cases:

presence: if you are present on its “territory”. Note that this can be quite fleeting, i.e. just making an infrequent visit (Arkansas case: even flying over it in an airplane);

domicile: have domicile (= residence + intention to remain) ;

residence: have residence (probably – no case‐law) ;

consent: you agree. There are different ways in which the Court will consider that you agree: ♥

cognorit note: “we hereby agree that the NY Courts will have in personam jurisdiction” ;

motorist statute: statute states that, if you come in this state, the Courts of this state will have in personam jurisdiction in case of a dispute or an accident ;

general court appearance (of you or your lawyer) ;


There are several problematic areas, where it is debatable whether or not a Court has in personam jurisdiction:

owners of in‐state property ;

“long‐arm” statutes: somebody of out‐of‐state causes harm of to somebody in‐state, therefore the Court will have jurisdiction over the out‐of‐state person.

Can challenge jurisdiction in personam via a special appearance – i.e. only come to state in order to dispute its jurisdiction?

With respect to corporations There is a distinction between an in personam jurisdiction over an individual and a corporation. Criteria that have to be fulfilled for the minimum contact rule to be ok are different.  If a company does a significant amount of business in a certain state, Courts will have jurisdiction with respect to that business (if business is fridges and guns and only guns are sold, courts will only have jurisdiction over guns) ;  Presence is systematic and continuous (business has people and/or offices): courts have jurisdiction over that business and any activity (even overseas) ;  Etc. 89

Some important cases in this respect:

International Shoe (1945): this case lays down the rule that there must be (by due process!!!) minimum contacts between the corporation and the forum state. "Fair play and substantial justice." In general, the test is not very strict:

if a corporation does a significant amount of business in the state through an agent, and if it exercises a significant amount of control over the agent, then the parent company can be sued there on claims arising from the in‐state business ;


if a corporation does a significant amount of business in the state, then the company can be sued there on claims arising from the in‐state business ;

if the in‐state activities are "systematic and continuous," then the corporation can be sued even on claims that are not related to the corporation's activities in‐ state. World Wide Volkswagen (1980): o Facts (see “Introduction,” Byrd, 194): The plaintiff is moving from NYC to Arizona but has an accident in Oklahoma. In addition, there is a problem with his Audi vehicle. Thereupon he decides to sue the retailer in NY, the regional wholesaler, the American importer and VW‐


‐ This case shows you the typical style of Supreme Court opinions in this area.
There is an attempt to sort through the facts, and then to decide whether the due process requirement of minimum contacts has been satisfied;
‐ Note the reference to the 14th amendment, which – remember – only applies to states; ‐ Note the name: WWV v. Woodson. Woodson is the Oklahoma supreme court judge. Petitioner‐respondent; appellant‐appellee? No the appellant judge; ‐ Note the use of a special appearance to contest jurisdiction;
‐ Note that the Supreme Court does not argue on the long‐arm statute, as it probably should have. As the state supreme court did not reference and/or argue on the long‐arm statute – the U.S. Supreme Court has to follow the interpretation of Oklahoma law made by Oklahoma’s supreme court. o Holding:

Minimum contacts do not exist for the first two but “probably” do for the latter two. - Note that line 130/135 is just dictum, Audi and Volkswagen not being party to this judgement. Audi and Volkswagen most probably just acknowledged that the Courts had jurisdiction over them. o Ratio:

The court discusses the case in light of the due process provisions. The court makes a reference to the International Shoe case, setting forth the general concept of “minimum contacts”; however this doesn’t answer the question raised in this case. The court states that the petitioners carry on no business activities in
Oklahoma. Therefore, held the court, there are no minimum contacts, and thus the petitioners should not be subject to the courts of Oklahoma. In order to examine the existence of minimum contacts, the court is not providing a “bright­line rule” (for example, if the company sells in more than $X a year, then there are minimum contacts). Rather, the court determines that a
“balancing test” should apply and tell the other courts in the future to ask themselves a certain number of questions to find out what the decision should be:


examining whether the company has a lot of sales in the State, distribution agencies, advertisements, etc. This test gives the SC enormous power. So the serious legal point is on line 130. The only issue here is a question of jurisdiction. Note: a “Special Appearance” is coming before Court just to oppose the fact that the Court would have in personam jurisdiction.


Note: distinguish the residency test for state in personam jurisdiction (a corporation is a resident of the state where it is incorporated) from the test for federal diversity jurisdiction.
In the latter, a corporation is a "citizen" not only of the state where it is incorporated, but also where it has its principal place of business. In rem: this is jurisdiction over a thing, i.e. a piece of property, a bank account or a marriage. For example: when a couple would like to divorce, the court of the State where they got married will have jurisdiction over the marriage even if they have already moved to another State. Note: “Quiet title actions” are actions where there is no requirement that the individuals concerned receive actual personal notice before a suit can be heard. The principal justification: states have a strong interest in controlling land within their borders. They need to preserve an accurate recording system and their courts offer the best forum, and there is not likely to be any harsh burden on the defendant for being required to defend in the state.
Example of a French national which has very little to do in the US but has a house here; after 15 years people start wondering who owns the house... Note: a “Limited Appearance” is possible, not acknowledging the in rem jurisdiction of the
Court but just coming to clear out the issue. [Can deal with jurisdiction in rem via limited appearance – i.e. only come to court in order to litigate on matter of specific property in dispute, any other property you own is out‐of‐bounds to the court.] Points to Note
 For both in rem and in personam actions, the defendant must have "minimum contacts" with the state in which the court sits: this is a requirement of 14th amendment (due process). Courts apply a balancing test: look to the kind of contact, how voluntary it is, how severe the burdens are on the defendant of being compelled to defend in this state, etc.  The defendant must be also be given adequate notice and an opportunity to be heard.
These are the two central requirements from 14th Amendment for personal jurisdiction.



Quasi in rem: this is a rather odd sort of half­way house. Attach property in state ­­ on a non­ property claim. (Example: contract claim in PA; defendant owns a beach house in CA. CA can't exercise jurisdiction over the contract claim simpliciter; but can hear it as a means of satisfying the judgment.) The court of a certain State, which has no personal jurisdiction over the defendants, exercises jurisdiction based on the fact that the defendant has a property within such
State. In which case, the remedy afforded by such court will be limited to such property.

Note: (i) judgment can only be satisfied out of the attached property ‐‐ and no more. (ii)
Q‐in‐R judgments have no res judicata effect in other courts (generally ‐‐ unless defendant made a limited appearance on the merits; but this is not the universal rule).

Note: For both forms of jurisdiction distinguish limited appearance from special appearance: 

Limited appearance (which some states allow): one contests the in rem or quasi­in­rem action on the merits, but does not submit to unlimited personal liability. One is only liable to the extent of the property involved. “Limited appearance” for the in rem action to limit the appearance to the value of the case litigated before that court without it being able to have a hand on the rest of the goods of the person in another country ; and

Special appearance: one appears in court only to argue that the court does not have in personam jurisdiction, but does not by one's appearance submit to full jurisdiction.
“Special appearance” is a trick to say that I am only here to defend myself about jurisdiction but I do not recognize the jurisdiction of the court. Note: the “Adequate Notice”, sent to the defendant to “warn” him that you started a case against him, must be constitutionally adequate. Normal rule: in hand service of process, i.e. you have to hand it over the person himself. You can however also attach property in in rem actions.
The modern interpretation of the same rules is a bit more loose (but not like in Europe!): papers left at dwelling, left with a person of suitable age and discretion (his wife), and served on a state official
(plus mail): service by mail, class action: service by publication. In general: the service must be reasonably calculated under the circumstances to give actual notice to the defendant. Note that corporations have to designate an officer.

There must also be an opportunity to be heard before your chattels can be repossessed, or you can be evicted from your dwelling. (Requirement of Due Process.) 2. Over the subject matter

This is important mostly in a federal case. Recall that there are two kinds of jurisdiction: over the parties and over the subject‐matter. The following remarks apply only to federal courts; states can stipulate their own rules for subject­matter jurisdiction. (So: small‐claims courts;


jurisdictional limits; even federal questions). Note that there are no constitutional limits on the jurisdiction of state courts, which is only limited by state law.

A central difference between subject‐matter jurisdiction and jurisdiction over the parties:
Jurisdiction over the Parties can be conferred by consent of the litigants, if they agree to come into court and litigate the case, they waive their right to object later that the court did not have jurisdiction over them personally. But subject­matter jurisdiction is not waivable ever. Even on appeal – even after the appellate process has been concluded – the judgment may be voided. A party can always object to the court's lack of subject­matter jurisdiction.

What conditions must be satisfied for a federal court to have subject­matter jurisdiction? It must be a case involving either diversity or a federal question! Federal courts can only decide certain cases, specified in Constitution. State courts are not limited in subject matter. Broadly speaking, there are two kinds of controversy over which federal courts have subject‐matter jurisdiction: diversity cases and federal question cases. a) Diversity.

Original reason: fear of discrimination of out‐of‐state people in another state because of ex. local prejudices. But plaintiff can go federal even in his own state… which is bizarre. Both the federal courts and Congress hate diversity jurisdiction – creates far more work for courts and expensive. You should be aware that Congress hates Diversity Jurisdiction and has therefore imposed a US$ 75,000 amount­in­controversy requirement. In addition, it has attempted to curtail it in other ways. It may eventually be abolished. In addition, in various cases where the states have a strong interest, the federal courts will decline to exercise diversity jurisdiction: probate, domestic relations, etc.

Diversity criterion

Some basic facts on Diversity Jurisdiction: (i)
Date when Diversity Jurisdiction has to be established: at commencement of the action.
Afterwards, you cannot move to destroy Diversity Jurisdiction ; (ii)
Diversity is determined by domicile, not just residence. (For physical persons: residence + intent to remain/ for corporation: incorporated place and principal place of business) ; (iii) Diversity exists only between domiciliaries of different states. So an American citizen living abroad cannot obtain diversity jurisdiction, although a foreign citizen can ;



Aliens: if there is a dispute between an alien (citizen of a foreign country) and a citizen of a US state, then alienage jurisdiction exists. But not between two foreign citizens, which would need to go to a state court. A resident alien counts as a citizen of the state where he is domiciled ;


Complete diversity is required: no plaintiff may be domiciled in the same state as any defendant. Of course, the plaintiffs and the defendants can be domiciled in the same state.
Congress can modify this, and has done so: Interpleader; company says, fight it out, and we'll pay the winner. So long as two of the fighters are diverse, the courts can exercise jurisdiction. (vi)

Courts will look behind the pleadings, ignore nominal parties. They will not allow improper or collusive joining of claims to create diversity: assigning a claim, failing to name an indispensable party, etc. But plaintiff can ‐ to some extent ‐ use these methods to block a removal to a federal court ‐ e.g. join as a defendant somebody from P's state (so long as there is a bona fide claim).


Corporations: these are citizens of the state where they are incorporated, and where they have their principal place of business (determined by home office, or bulk of its activity ‐ the rule is not settled). Note that for partnerships, and other unincorporated associations such as labor unions, the rule is even stricter, as it is domiciled in every single state where any of its partners is domiciled (sometimes you can get around this by bringing a class action). So in diversity no opponent may be a citizen in either place!

Amount criterion

In all diversity cases Congress has imposed a US$ 75,000 jurisdictional requirement (This does not apply to federal question jurisdiction!).

Two hard issues: (i)
How is the US$ 75,000 to be determined? Look at the pleadings. If made in good faith, the
Plaintiff’s claim prevails. He does not need to prove that US$ 75,000 is in dispute. This is especially true if the case is a removal case (since then there is less reason to be suspicious about the plaintiff's claim). The plaintiff can claim less than $75,000 in order to defeat diversity jurisdiction; (ii)
Aggregation of claims. A single plaintiff may aggregate his claims against a particular defendant, adding them all together to get to US$ 75,000. But he may not then add on another defendant against whom his claims are less than US$ 75,000.

Note: consider multiple plaintiffs. If one of them meets the US$ 75,000 amount, it is unclear whether the claims of the other plaintiffs can be aggregated to that claim. But if no


plaintiff meets the amount, then aggregation is clearly not allowed. (SC not yet ruled on this issue). Moreover, it has been established by the Supreme Court that in a class­action based on diversity, every member of the class must satisfy the jurisdictional limit. So this virtually eliminates the possibility of a class‐action in diversity cases (though not in federal question cases!). b) Federal Question Jurisdiction

This is the second main form of jurisdiction for the federal courts. Relatively easy in theory, though can be hard to establish. It arises when the resolution of the case, to be found in the plaintiff’s action, ‘substantially’ turns on federal law, i.e. constitution, statutes, treaties. But there is no precise test…

Two principal points to notice: (i)
The federal question must be central to the plaintiff's action ‐‐ it must appear on the face of the complaint. P cannot simply predict that the D will invoke federal law in the answer. Even if D does so, this does not turn the case into a federal case. [Exception: if
Congress has preempted the entire subject‐area of the dispute: e.g. labor‐management contracts.] (ii)
12(b)(6). Suppose you bring an action that is based on federal law, and that is linked with a related state claim. If the federal claim is invalid on the merits, the court can dismiss it under rule 12(b)(6) (failure to state a claim), and still hear the supplemental claim under its supplemental jurisdiction ‐‐ if it chooses to do so. (But the federal claim must not be frivolous or insubstantial.) c) Supplemental Jurisdiction This deals with the following topic: suppose the federal courts have jurisdiction over a particular case and suppose some related matters ­ an additional claim or an additional party ­ could be added to this federal case. Question: under what circumstances can they be added? For example: a related state claim; or, P sues D in diversity, and D wants to implead X, who is a citizen of the same state as P ‐ i.e. bring in a third‐party defendant: say, an employee of the defendant company; etc.
This area was changed by statute in 1990. Note: This topic has to do only with Subject Matter Jurisdiction. It does not affect jurisdiction over the parties (which still must be satisfied.) In general, the new law gives the district courts supplemental jurisdiction over any claim that is so related to the original case that it forms part of the same case or controversy. It is thus possible to join additional claims, and also additional parties. There must be a common

nucleus of operative fact; the claims must come out of the same transaction or occurrence. The general idea: litigate all the matters that arise out of the same underlying facts in a single trial. The federal court has discretion on whether to exercise its supplemental jurisdiction. If the case involves important and novel issues of state law, or if the federal court has dismissed the federal case, or if state law predominates, or if there are exceptional circumstances, then it may refuse to exercise its jurisdiction. At this stage you must distinguish two kinds of cases; supplemental jurisdiction operates differently in each:  Federal question cases. This is very broad as regards claims. So a federal copyright suit can be joined with a state breach of contract claim (if there is a common nucleus of fact). It is also broad as regards parties. Suppose you have been fired from your
University; you have a federal civil rights action against your former employer (the university), and also a defamation claim against a co‐worker. You can bring your co‐ worker into the federal lawsuit.  Diversity cases. Here the statute is far less generous (reflecting Congress's hostility to diversity cases). The basic idea is this. In a diversity case, the P may not ordinarily use supplemental jurisdiction to tack on new claims or parties; for then the P would sue in diversity, and tack on additional defendants whose presence would have defeated the original claim. The basic idea is this: do not allow the plaintiff to add extra claims or parties; but allow counterclaims or cross‐claims. There are four kinds of case where supplemental jurisdiction exists in a diversity‐ only case: (aa) compulsory counterclaim (P sues D; D counterclaims for 10,000, saying he was injured by P; supplemental applies). (bb) additional parties to compulsory counterclaims. (Same facts; X is from same state as D). (cc) Cross­ claims (claims by one defendant against another). (D impleads X who is from the same state as D.) (dd) Impleader. (Same facts. X makes the claim P slandered X. X v P is
OK; but not P v X.) d) Removal of cases from the State courts to the Federal courts Exhausting State remedies – once a case is brought in the State trial court, an appeal will be made to the State court of appeals, then to the State Supreme Court, and then, if it is a question of federal law, the case may be appealed to the US Supreme Court.

The general rule: the defendant can always remove a case from a state court to the federal courts if the federal courts would have had original jurisdiction.


Exception: if it is a diversity case, the case is removable only if no defendant is a citizen of the state in which the action was brought. (Reason: the factor of prejudice is not present: P is suing in D's home state.) (i)
The usual amounts in controversy ($75,000) and diversity requirements still apply. (ii)
The plaintiff may not remove; only the defendant. (Even if there is a counterclaim.) If a NY citizen sues a NJ citizen, then: (a) if in NY court, the NJ citizen can remove; and
(b) if in NJ court, the NJ citizen cannot remove. The plaintiff could never remove the case from one system to the other. (iii)
In diversity cases the diversity must exist at the time of filing the original state court action (otherwise defendants would acquire new domiciles and remove on the basis of diversity). Otherwise, the right of removal is decided from the face of the plaintiff's complaint in the federal action. (i.e.: if there is a federal question, or if the amount in controversy has been met.) (iv)
A hard issue: suppose there are multiple claims in state court by P against D ‐‐ say, a contract claim and a tort claim ‐‐ and only one of them could be removed. Can all of them be removed? As of 1990 reforms: (aa) diversity: no; so if P can bring in a non‐ diverse party, then the entire case must stay in state court. (bb) federal question. If one of the separate claims is based on federal question, then the entire case can be removed. (But probably supplemental jurisdiction accomplishes the same thing.) iv. Pleadings and Discovery

Because of (i) the jury system; (ii) the concentrated trial; and (iii) adversary control over the trial, there are highly structured rules for the gathering of evidence by the parties. In the past, pleadings were used to state the facts of the case, to define the legal issues for trial, and to eliminate sham claims, with very complex common law rules. But, in the modern FRCP, the sole remaining purpose is to give fair notice to the other side of what issues will arise in the action ‐ state the general position of the party, indicate the grounds of the suit, whether it will be tried by a jury, etc. Courts generally very generous about being able to go back and rewrite the pleadings. Following structure: Pleadings and Discovery Complaint Answer

Amending the pleadings – Based on the results of the discovery phase, the parties are usually allowed to amend their pleadings.


“Plead in the alternative” – plaintiff can describe in his complaint two sets of legal theories, which are inconsistent with one another. This concept applies both to issues of fact and issues of law. Motion to dismiss – once the complaint is filed, the defendant can file a motion to dismiss a claim for failure to state a claim. If the judge dismisses, the plaintiff will be granted the opportunity to amend his complaint, so it does state a claim. Alternatively, the plaintiff can appeal such decision to dismiss the claim. a) Complaint; answer; reply. May plead in the alternative. ((1) I didn’t do it; and (2) even if I did it, it was self­defense.)

Complaint; state grounds of jurisdiction; state claim; and make request for a certain kind of relief (damages, injunction, declaratory judgment). Certain special matters must be pleaded if they are to be raised at trial: e.g. special damages, or the existence of official documents or acts or court judgments on which the pleader will rely.

After the complaint has been filed there can be a 12(b)(6) motion to dismiss for failure to state a claim under any legal theory. We'll see more later (on topic of summary judgment); but one can easily amend the complaint, or appeal.

Generally the rules for amending the pleadings are liberal. b) Discovery

Introductory remarks: The purpose of the discovery phase is to uncover facts and new leads, to preserve the evidence of witnesses who may not be at the trial; to prevent perjury; to aid in formulating the issues. It may be seen as a consequence of the jury system: (i) crystallize the issues in the trial, (ii) reduce the amount of unfair surprise in the trial. It happens after the deposition of the complaint and before the trial.

Discovery also is meant to reduce the workload of the courts – it therefore is designed to work extra‐judicially, and is placed in the hands of the lawyers. NB – in the modern American system, pleadings and discovery are both very liberal. The emphasis is on full disclosure in the discovery phase – getting everything on the table

You can amend your pleadings quite easily through the discovery phase as long as the other side knows about it. The plaintiff’s complaint (can appeal “in the alternative”) is introduced, the defendant gives his answer and then the plaintiff replies. In federal court, once the complaint has been filled, the defendant can file a FRCP [12(b) 6 motion to dismiss] (e.g. 1 sues his neighbor because he is a jerk) because there is no legal claim. But if so, the plaintiff can amend or appeal. (i)
Mechanics of discovery.

There are six methods of discovery (one being divided into 2 categories). All are meant to work extra‐judicially; all are meant to be signed by the lawyer making the request. The courts are directed to limit the frequency of discovery methods if they are invading privacy and/or leading to abuse, harassment, etc. In addition, the methods of discovery should also not be used to drive up the costs of a less affluent party (in this regard, note that there exist limits in the Federal
Rules of Civil Procedure (the “FRCP”) on the number of times you can use discovery against a particular person (party or witness)).

The six methods of discovery (See FRCP): 1. Depositions: These are the most useful, and also the most expensive. They can be taken of either a party or a witness, in contrast to all the other forms of discovery. The deponent appears before the two attorneys and an officer of the court (usually waived), and is questioned under oath; attorneys may inquire about anything relevant that is not privileged.
There is both examination and cross‐examination; new lines of inquiry can be explored. The deposition is transcribed, signed, and sworn to (usually done in the offices of a law firm, but may be tape‐recorded or done over the telephone).
 Transcript of deposition isn’t usually brought out in evidence – witness will come into open court and answer same questions – unless there is a contradiction, or witness dies. But/ is useful in allowing lawyers to find out facts, grill witnesses in extensive, more informal and less constrained way.
 Disadvantages: cost; necessity of traveling to distant witnesses; need for subpoenas for some non‐parties (some tactical risks of a subpoena – likely to be very uncooperative). 2. Depositions upon written questions: the questions are scripted in advance; seen by both lawyers in advance; presented by the court reporter; answers signed and sworn to. Advantages: inexpensive. Disadvantages: inflexible; no ability to follow‐up. Not so much used. 3. Interrogatories: These are written questions, addressed only to parties. Can be answered by both parties and his lawyer. Are especially good for uncovering information about the structure of an organization, or about documents that might be buried in the files. Are inexpensive. Not generally admissible as evidence in trial; mostly used as a start‐up device.
Interrogatories can be burdensome, and are easily abused; hence their limitation to the parties. 4. Discovery of documents and things: Non‐privileged, relevant documents may be discovered, copied, or photographed; no special court order is needed. If a party is in control of the documents or things, they may be discovered ("In control" includes documents you have given to your lawyer or to a friend). Documents in possession of non‐parties may also be


discovered; but under the subpoena power of the court and after the non‐party has been deposed (after deposition + with subpoena). 5.


Physical and mental examinations: This is under the strict control of the Court, because it seriously invades privacy. The requesting party must show "good cause" to the Judge and that the physical or mental health of the party is not only relevant to the issue at hand but actually in controversy.
Admissions: A party is asked to admit some issue of law or of fact. If that party does so, then the issue is taken to be proved at trial. The party must either remain silent (equivalent to an admission), admit or deny each request, object on the grounds of irrelevance or privilege or refuse to answer (for cause ‐ perhaps because unable to admit or deny).

You can admit an issue of law for example by asking the other party “Does law/regulation x apply?” Then the parties would be freed to investigate this issue further. Note that the judge would not be bound, though. (ii)

Scope of Discovery

The next question: what sorts of things can you discover? General rule: any information that is relevant and not privileged is discoverable. I.
Relevance: this is a broad requirement, broader than in the trial. Eventually also hearsay can be discovered. Material that will not be admissible in the trial (like hearsay) may nevertheless be discovered, on the grounds that it may lead to the uncovering of new leads and information that is admissible. So you can ask about the legal theories that the responding party will use at trial, or about the identities and whereabouts of witnesses who may appear at the trial. II.
Privilege: any information that would be privileged at trial is privileged during discovery: lawyer‐client, priest‐penitent, doctor‐patient, etc. Privilege must be asserted by the person (witness) who could assert the privilege at trial (i.e. not by his friend's lawyer). The following relations are generally considered “privileged” in U.S. Law:

Lawyer‐client ;


Doctor‐patient ;


5th Amendment ;


Priest‐penitent ;


spousal ;


Government secrets ; and



The numbers 1‐3 exist everywhere but the numbers 4‐7 depend on the jurisdiction. III.

Work­product immunity: this is tricky. Lawyers preparing their case are not required to turn over all their efforts to the other side. In general, material prepared by the lawyer for trial may not be discovered.

Note that there is a conflict here between two goals of the system: full disclosure of all the relevant information (to avoid surprise) and the adversary model of litigation. Work‐product immunity can be either absolute or qualified:

Absolute: documents containing the subjective thoughts of the party's lawyer, such as theories, conclusions, legal opinions, mental impressions, etc.

Qualified: any other documents have qualified work‐product immunity, unless the discovering party has a substantial need for the materials and the information cannot be obtained from other sources without undue hardship. (Look at cost, financial resources, hostility of witnesses, etc.)


The “balancing test” is used by the court to evaluate the hardship and the cost for one side against the lost of secrecy to the other side. It is up to the discretion of the court. Experts/Expert witnesses: can be requested to give a technical explication of a fact.
You can discover the names and identities of experts who are to be called at trial, and the facts and opinions to which they will testify. Further discovery requires the permission of the court. You cannot in general discover an expert who has been retained by the other side, but who will not be called at trial; or of one who is not even retained, and will not be called at trial. V.

Impeachment: evidence showing that a witness has told a lie. Some courts refuse these.
There is no policy of the federal court on that so far.

Note: You may ask, in interrogatories or requests to admit, what your opponent's legal theories are in the particular case. You can actually ask whether or not you can “lie” … “Are you going to bring something up when I lie?” There is discussion on this matter throughout the different jurisdictions. In any case, pure questions of law are excluded. Suppose you think your opponent may have gathered evidence that will be used to impeach your testimony at trial. Can you discover it? No uniform federal policy exists; there are arguments on both sides.



Insurance agreements: you can automatically discover the existence and contents of any insurance agreements (wouldn’t come out in trial, but may encourage settlement).

v. Ascertaining Applicable Law

This problem arises most often in diversity cases: a conflict of laws problem. Whose law should prevail, state or federal? The general aim: discourage forum shopping, and prevent discrimination against litigants. a) Erie RR v Tompkins. ‐ The ERIE DOCTRINE9 (Erie R.R. v. Tomkins, 1938) ‐ Facts: in 1789, Congress passed the Judiciary Act. One of its clauses states: “The law of the several states…shall be regarded as rules of decision in trials at common law.” What does the “law of the several states” mean? It has always been clear that the Constitution and
Statutes are regarded as law. However, in 1842 there was a very important SC case about Common
Law (Swift v. Tyson) where the Supreme Court said that Federal Courts make their own
Common Law rules (E.g. the Common Law of contract can be discovered by state courts and not created). But the federal court could also make its own common law because it was bound by the
Constitutions and statutes of the states but not their common law. Justice Story, who wrote the majority opinion, hoped that this would mean the federal courts would create a common law of obligations and contract, which the state law would eventually closely emulate – leading to more certainty and uniformity across the USA. This didn’t happen, in fact it just confused matters as there arose very different legal systems in each state and a huge growth in forum shopping. That was the law until 1938, where the SC overruled Swift (and Brandeis even suggested, perhaps, that
Swift had been an unconstitutional decision, and interfered too much in areas reserved for states). The problem also was that in Swift, the Court encourages:

Forum Shopping: the parties go to federal court instead of state court because there they can win their case and in the state court not because the law is different; and


Federalism argument: the Supreme Court would be interfering in domains that normally belong to the State courts.

9 Erie doctrine (eer‐ee). The principle that a federal court exercising diversity jurisdiction over a case that

does not involve a federal question must apply the substantive law of the state where the court sits. Erie R.R.
v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938). Klaxon doctrine (klak‐sn). Conflict of laws. The principle that a federal court exercising diversity jurisdiction must apply the choice‐of‐law rules of the state where the court sits. • In Klaxon Co. v. Stentor Elec. Mfg. Co., the Supreme Court extended the rule of Erie v.
Tompkins to choice‐of‐law issues. 313 U.S. 487, 61 S.Ct. 1020 (1941). ‐‐ Also termed Erie/Klaxon doctrine. See
ERIE DOCTRINE. reverse‐Erie doctrine. Maritime law. The rule that a case in admiralty and maritime jurisdiction may be brought in state court, but the state court must follow federal statutory and general maritime law. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485 (1986). See ERIE DOCTRINE.


Questions: (1) Is one of the FRCP (Federal Rule of Civil Procedure) in question?
If yes: then you simply follow the Federal Rule, and ignore Erie, even if the Federal Rule changes the outcome of the case. (Physical examination, service of process, etc.) See: Hanna v. Plumer
Reason: necessity for a workable system of federal rules and courts. The FRCP is presumptively valid under the Enabling Act as they have been vetted by a distinguished committee and by the
Supreme Court, and are unlikely to change the substantive rights of the litigants.
If no: see question 2. (2) If no FRCP is in question, then ask whether the federal policy conflicts with state law or policy? If yes: then ask whether the state law/policy is procedural or substantive.
If procedural: BALANCE THE POLICIES, i.e. balance the state and federal policies, consider outcome‐determinativeness, equal protection and forum‐shopping in deciding which is weightier.
Example: State statutes of limitations are generally followed; but not state rules on the nature of juries. If substantive: FOLLOW ERIE, i.e. follow state law, not the federal policy. Here there are a special set of further problems. (i)
How do you find applicable state law?


If the highest court has not pronounced, then you follow the decisions of the intermediate state courts, unless they are utterly lacking in precedential value. If no state court has spoken: look to other states, Restatements, etc. ‐‐ but always asking what would the highest court in this state decide? If the decision is an old one, the federal court can treat it as obsolete (if it thinks the state court would no longer follow it). Sometimes the federal court can "certify" a question to the highest state court; but this is not allowed in all states.
And if there is ever a new state court decision, even if it comes between the trial and the appeal, the federal courts are obligated to follow it. (ii)

Conflicts of laws.
Suppose the federal court is in state X, and the tort happened in state Y. Whose tort law should the federal court apply? Answer: apply the conflicts rules of state X and treat this as a part of the substantive law (avoids forum‐shopping and discrimination). Case in reading: soldiers injured in explosion in Cambodia.

Note: finally, you should observe that in certain cases there is a federal common law still.
Mostly the federal common law exists when the claim is a federal question; but it can also be involved in a diversity action if the defense invokes a matter of federal law. If federal common law exists with respect to a particular kind of claim, then state courts are bound to follow it as well
(under the Supremacy Clause). People wanted to reduce Forum Shopping between Federal Courts and State Courts but not between State Courts. If two people from Pennsylvania, tort in Massachusetts, what law will the
Federal Court apply? It will apply the Statute on Conflict of laws of Pennsylvania and see what law it refers to. Most of the states will refer in such a case to the one of Massachusetts. But the important point is that the Federal court must apply the same solution as the Pennsylvania Courts will apply.

Congress passed the Rules of Decision Act in 1789; says that the courts must apply the law of the several states unless Federal statutes are applicable. (So in both federal and state courts, federal law has supremacy if it is on point.) Swift: the Act applies only to state written law
(constitutions and statutes); not to the common law (1842). This decision was meant to promote the creation of a federal common law; justified on the theory that the common law was discovered rather than made. The only question is about unwritten law.

Erie. The Swift doctrine had led to unwelcome consequences: forum‐shopping, and discrimination against litigants. Erie decided that the Rules of Decision Act applied to state common law as well as to statutes and state constitutions. The three main arguments: prevent discrimination by non‐citizens against citizens; prevent forum‐shopping; [unconstitutional assumption of power by the courts].

b) Adjudication without Trial: Pretrial Conference


Not all cases go to a full­blown jury trial: judges are encouraged to try to get the parties to settle. In addition, the parties may choose not to have a jury.

In the pretrial conference, the judge plays an active role in trying to get the parties to move quickly, in scheduling the dates for trail, in hurrying up discovery, in encouraging settlement.

Many minor matters are handled by magistrates (preliminary proceedings in criminal cases, minor criminal cases, civil motions, etc.). The typical judge has about 500 cases per year. However, nine out of ten cases are filed and never go to a trial: they are defaulted, dismissed, settled, or adjudicated without trial. Of the remaining 10%, only about one in three is with a jury (People must wait three years for a judge – “bench trial” ‐‐ five years for a jury trial).

There are five ways in which the issues can be disposed of: (1)
Dismissal for failure to state a claim on which relief can be granted
See 12(b)(6).
This must appear at the time of the pleadings.
Example: you allege that a contract was breached five years ago; but the statute of limitations has expired. (2)

Voluntary dismissal by plaintiff
Plaintiff, any time before Defendant serves an answer, can dismiss the case without prejudice. But this can happen only once.



Involuntary dismissal by the court. The court can dismiss the case for lack of jurisdiction or improper venue or for failure to join an indispensable party (dismissal without prejudice
– can take case elsewhere, still live controversy). Can also dismiss with prejudice e.g. for disobedience in the discovery phase or abuse of procedure or something else that annoys the judge
Summary judgment
This can come after the discovery. Note that institutionally this technique is nicely correlated with “notice pleading” and liberal rules of discovery. Party – either party ‐ shows that there is no genuine issue of material fact in dispute that judgment can be rendered as a matter of law only. This can be shown by affidavits or by discovery materials. There is no evaluation by the judge of the weight of the evidence – just of its non‐ existence, so has to be absolutely no genuine issue. Example: P injured in accident, but D shows that P has no evidence that D's products caused the injury. Problem: issues of burden of proof ‐‐ burden of production, burden of persuasion. Both sides may put forward their evidence and arguments that there is a genuine issue of fact.

For example, I am the defendant, and want Summary Judgement in a products liability action. I must show that you have no evidence that my product caused your injury. Once I have produced my prima facie argument, it is then your obligation to show that there is an issue. If you have the burden of proof at trial – e.g. showing that my product injured you – then obviously you must produce some evidence. But suppose I have the burden of proof at trial. So suppose I have witnesses to our contract, and I must show at trial that they all support my claim that a contract was agreed to. You cannot just sit back and say that my witnesses might be disbelieved, so that there is an issue of fact – you must affirmatively show there is reason to dispute their assertions. There is also partial summary judgment : summary judgment with regard to some of the claims in the lawsuit. (5)

Judgment on partial findings If the judge determines that a single factual issue will resolve the case, he can order a mini‐trial without the jury to resolve the issue. Must then state findings of fact as well as of law. (Example: dispute about statute of limitations; trial on the issue of when the contract was signed).

Trial Itself Proceeds in several stages:

Opening statements – no set rules, often very rhetorical
Plaintiff’s case­in­chief
Motions for a “judgment as a matter of law” – i.e. motion for judge to decide the case, no need to send it to jury. Also at this stage called a motion for non‐suit and only D can file it.
Defendant’s case­in­chief
Motion for a “judgement as a matter of law”, also at this stage called a motion for a directed verdict, and either party can file it.
P’s rebuttal of D’s case
D’s surrebuttal of P’s rebuttal
Closing arguments, judge’s charge, and submission to the jury.
Motion for a JNOV (Judgment Notwithstanding the Verdict) – very unusual, means losing party asks judge to ignore part or all of the jury’s verdict [cannot happen in criminal trials, as jury allowed to ignore law and acquit defendant] Or/ motion for a new trial.

a) Rules of Evidence


These are needed in order to make sure that the jury is not confused by the evidence presented at trial, or that the evidence does not unduly prejudice a party; the rules are more restrictive and formal than in civil law countries.

Here are the basic concepts, in twelve steps:

(1) Kinds of evidence: material, documentary, and testimonial.

All three can be presented at trial. In general, the rules of admissibility are the same (Please note that we will concentrate on testimonial evidence, though). (2) Relevance of evidence + materiality

Basically, any evidence that tends to prove the fact in dispute can be admitted (unless there is an objection). For example, one can introduce evidence that similar house was sold six months earlier for $X; but not that a much different house was sold 20 years ago for $Y. One cannot introduce evidence that the Plaintiff has often filed similar tort claims in the past but you can introduce evidence of previous similar acts to prove the issue of intent (e.g. repeated discrimination against blacks).

>> Materiality is decided as a matter of law by the judge. Evidence can be excluded because it would unduly delay the trial, or confuse the jury, or create prejudice – all at the discretion of the judge. Relevant evidence can be excluded for policy reasons – liability insurance, or settlement offers, or withdrawn guilty pleas. Important to distinguish materiality from relevance (relevance from weight )– the first is a legal determination, the second a factual determination. The materiality of evidence:
 Does fact #1 tend to prove a fact #2, which is legally material? If it tends to prove a legal element of the case then it is material. E.g. does it prove intent in a murder trial?
 It is the judge that decides this point using a balancing test.
The relevance of the evidence:
 What is the weight to give to evidence presented in a trial – does it persuade of a material fact?  It is the jury that decides this point. (3) Character evidence

This raises special problems of relevance. Idea is to avoid, especially in a criminal action, because he/she is just a very bad person. Consequently, evidence about the character of a person is generally not admissible.


This is true in a civil action: character evidence is not admissible, i.e. neither the plaintiff nor the defendant may introduce evidence that the defendant is ‐ generally ‐ a good/bad driver.

In a criminal case, the story is somewhat different. The prosecution cannot introduce character evidence to show that the defendant is a "bad person". However, exceptions:

if the material evidence is material to the trial ;


assuming that the defendant waives his right to “sit down”, the defendant can introduce evidence of good character of himself (which the prosecution can then try to rebut). Two ways of rebutting: (i) cross examination; (ii) testimony of other witnesses about the defendant's bad character ;


[NB – remember Fifth Amendment – cannot be forced to give evidence against yourself.] the defendant can introduce evidence about the character of the victim ‐ e.g. to show that the victim was violent, and was the aggressor (But not in rape cases, thanks to the "rape shield" laws passed by many states during 1980s‐90s). (2) Judicial notice

Judges can instruct jury to take notice of well‐known or easily established facts: the ordinary period of human gestation, that Columbus discovered America, that New York is both a city and a state–‐without hearing evidence. The Judge must also take judicial notice of the law, regardless of whether argued by either party. (3) Competence to testify.

In general, there are no fixed rules. If the witness does not have the capacity to remember, to communicate, to speak truthfully, then he can be found incompetent to testify.
Everybody can justify even if they are too young, senile, enable to observe the events in question, etc. The idea is simply to explain to the jury what are that testimony’s limits. There is no minimum age. Insanity is not a bar to testifying, neither are previous conviction or interested person (except for Dead‐Man statutes). Judges or jurors can however not testify.

(6) Burden of proof

This divides into two parts: a) burden of production and 2) burden of persuasion.
Example: Racial discrimination. Burden shifting. Plaintiff must establish prima facie case (example for torts: intent, causation and harm): if after the pleadings of the plaintiff, he has not proven the prima facie case, then the defendant can ask a special type of judgment: the motion for non­suit. The burden of proof is split in between:


Burden of production (judge decides): have to raise the issue, have to raise evidence, but he doesn’t have to raise evidence that is persuasive, as long as there is some evidence
(minimal to convict/find liable). This burden of proof is very close to relevance and materiality; but now the plaintiff can correct his shot and produce evidence.

Burden of persuasion (jury decides): in this case, you have to persuade that the claim is true. For example (1): Let’s say in a criminal case, that the plaintiff has to establish the prima facie case; he has to show that the defendant killed the victim. He doesn’t have to prove that the defendant was sane. If the plaintiff proves his prima facie argument then the defense for example could say that he had a cause of excuse: I was insane. So it is the job to the defense to raise the insanity defense. If he proves that he was crazy then the prosecution will have to show beyond a reasonable doubt to the jury that the defendant was not insane. The entire idea of burden of proof is based on the idea of presumptions (if not proved that you were insane then you were sane).

For example (2): The fire department’s employees in Philadelphia are fired because of their race. They will have to show in court that the city of Philadelphia treats its employees differently based on the race. Once you have raised that statistical point then it is the city of
Philadelphia that has the burden to prove that there was no discrimination. Note: some burdens of proof may be turned around because of all kinds of presumptions being put into place. Presumptions that may be turned around are called “rebuttable presumption”. (7) Opinion testimony

In general, lay persons may not testify about matters of opinion. They can testify about the general appearance of a person (elderly, about 60 years old); about speed of a moving vehicle; about state of intoxication; even about insanity (in an informal sense).

Otherwise, experts are the only ones who can give opinion evidence; and only in the fields where they are expert. They can base their testimony on personal observation; on facts presented at trial; on an examination out of court (even if some of the evidence gathered in that examination would not be admissible at trial ‐ e.g. statements by the relatives of the examinee about his sanity). The expert witness can also base its testimony on evidence that is as such not admissible before trial. [NB – experts can be paid (IBM, Harvard antitrust professor), certification often examined and cross‐examined]. (8) Direct examination.


Certain kinds of question are NOT permitted in direct examination. (1) Leading question: framed so as to suggest the answer. ("Is it not true that you were driving well within the speed limit?") These questions are permitted in cross‐examination. (2) Misleading question ("Do you still beat your wife?"). (3) Argumentative questions ("Why were you driving so recklessly?").
(4) Conclusionary questions ("What did your friend think about that?").
General effect is that direct examination limited to fairly basic factual questions. The witness can use memoranda to revive his memory, but may not read from the writing.

(9) Cross­examination.

This is in response to the direct examination. The scope of cross is limited to:

(i) the issues brought up in the direct examination and

(ii) the credibility of the witness. (Judge decides on this.) As a result, the lawyer can only ask leading questions, and range more freely, use more tricks to try to catch the witness in contradictions.

Note: if a witness is particularly hostile to a certain party, even though that party had brought up that witness, the lawyer can ask to cross‐examine that witness instead. Or, imagine that a witness called up by one party only testified about certain aspects of a case, whilst it would only be relevant to hear about other aspects especially for the other party; the other party can call that witness to the stand in the forth following step of the trial.

(10) Impeachment You are trying to show that the witness:

is lying (has changed his story since the deposition).

is not to be trusted (has a legal record).

Usually happens in cross‐examination – aims to discredit testimony of witness, can introduce extrinsic evidence. Common methods: prior inconsistent statement, show bias or hostility, show motive to lie, show previous conviction of a crime (but only on the issue of credibility of the witness, and subject to certain procedural safeguards), show poor reputation for truthfulness, illustrate sensory or mental deficiencies (bad eyes etc.)

(11) Privileges Lawyer‐client: is there to protect the professional legal advised sought by the client from his lawyer. ♥

it won’t happen if it is in a public place with a friend that is a lawyer; then, the lawyer can be called to witness.

you cannot be part of a crime (if the client goes to his lawyer to ask him how to break the law without it to be apparent).


Specifically, lawyer cannot allow his client to commit perjury.

Physician­patient (not in criminal cases): is a bit more flexible: if you go to a doctor for a medical treatment then it is covered. If it is to seek an advice about insurance it is not covered. Husband­wife (sometimes for witness‐spouse, and sometimes for defendant‐spouse): confidential communications during the marriage are privileged, and either spouse can assert the privilege. Accountant, journalist: depends on the State.

(12) Hearsay rule

Statements made outside of court to prove the matter asserted are excluded. Reason: can't be cross‐examined, tested for truth, accuracy, memory of declarant. The basic rule is: a Statement is “hearsay” if:

was made outside of the court;

is being introduced into evidence to prove the truth of the statement (very important part: the purpose is essential).

Example: W testifies, "On April 2, Jones told me he had just returned from Buffalo."
Hearsay? Yes‐on issue of Jones's presence in Buffalo. No‐ on issue of Jones's ability to speak.  Evidence that driver said, "My brakes are defective."
= hearsay on matter of whether brakes defective, but not as to whether driver negligent as if he went and drove after saying this, would suggest he is careless as to safety of car.  Evidence that the accused murderer had a letter from "A friend" saying, "Your wife has been having an affair with Jones."
= hearsay on matter of whether wife had affair, but not as to whether accused had motive. There are A LOT OF exceptions (around 12 major ones) e.g.:

prior statement by witness that is inconsistent with what he said before ;

statement against interest, e.g. person makes hearsay statement that admits to committing a crime, or owing money;;

admission by a party opponent, e.g. in a bar that he caused the accident then the testimony of the person that hears it won’t be hearsay ;

excited utterance, e.g. run outside the flat and shouts oh I think I just killed the landlord ;

dying declaration, e.g. someone lying in blood, the police arrive and the dying person says
Smith killed me.


NB – if judge misapplies a rule of evidence, it is duty of lawyer to object immediately, otherwise
(unless catastrophic in impact) cannot appeal on issue of evidence problems.

b) The Jury

Judges are responsible to determine the questions of law. Juries are responsible to determine the questions of fact. Recall this division of labor. There are however numerous complexities: not all trials are jury trials, and the judge can exert an influence over the triers of fact. You’ve already seen some of this in Goodman, Pokara, and in the readings from Byrd.

(i) Seventh Amendment ­­ right to a jury trial in civil actions at law in a federal Court

This applies only in federal courts: not incorporated in the 14th amendment, but one of the th Amendment Rules”. Consequently, the States are not obliged to follow/take over this rule. only “7

This applies only to actions at law (i.e. not equitable actions: injunctions, reformation of a contract). You have to ask yourself what this case would have been more or less 100 years ago.
Roughly speaking, per simplification, if money damages are in question, then there is a right to a jury trial (Sometimes there is also a statutory right, or the parties consent with the Court, to a jury trial). Note: what if there is a mix of legal and equitable claims? Uncertain if the claim would have been at law in 1791? Then the court must try the legal claims first, and only then turn to the equitable claims, and send away the jury for the latter. In general, the decisions of the Court expand the right to a jury trial. (ii) Composition. 113

Traditionally, 12 members; but in modern practice can be as few as 6 (in federal courts). In federal court, the verdict must be unanimous; otherwise a mistrial results. (But some states no longer require unanimity.) (iii) Selection.

Group of people randomly selected by computer and sent notices of possible jury duty.
Then the lawyers for the two sides – or sometimes the judge ‐ select the jurors from a panel of potential jurors; the potential jurors are asked questions, and can be challenged in two ways:

for cause: bias or having connection with parties or witnesses in the case (if the person is partial: close relative, financial outcome at stake, strong emotional feelings about these problems, etc but not ask for all whites or all blacks) No limit to challenges in this way;

Peremptory challenges: no reason need be given; but limited to a small number ‐ 3 in federal civil actions): the lawyers often refuse the very well educated people to sit on the jury. Sometimes alternates are selected (in case some of the principal jurors become ill, or for some other reason are unable to fulfill their job). (iv) Consequences of juror misconduct

If the jurors read extraneous outside material that is forbidden to them, or if they accept bribes, or fail to disclose information about their biases during the voir dire, then there can be a motion for a new trial, at the discretion of the trial court. NB – there are essentially no restrictions on reporting of trials in the USA, they can be filmed, photographed, speculated on, the names of everyone involved revealed etc. (v) Control over jury deliberations.

This is important to the American system. This procedure differs from the style of “free evaluation” in continental countries. Controls are a result of the separation of judge and jury, and of historical factors (French revolutionary distrust of judges). The judge has 3 ways of exercising control over the deliberations of juries:

1) Special verdict: the judge in a federal trial can order the jury to return specific, written answers to individual questions of fact. If these answers are inconsistent with the general verdict, then the judge must send the case back to the jury for further deliberation
(Example: ask the jury whether the defendant caused the fire; if the jury says no, but still awards damages to P, then J is to send the case back).

2) Directed Verdict/ JML (Judgment as a Matter of Law): JML is the new category. The two other categories are older. A directed verdict takes the case away from the jury after all the

evidence has been heard, and as a matter of law the judge decides the case because he thinks that the jury has lost its mind. General rule: no reasonable jury could find for that party with respect to that issue. Courts do not like to do this. [Because they might direct a verdict, then be reversed on appeal; so that a wholly new trial would have to be held, starting from the beginning.]

Hence the JNOV (Judgment Notwithstanding the Verdict) ‐ reserve decision on the motion until after the jury has rendered its verdict; if the verdict is unreasonable, set it aside; if the appeals court reverses, then the jury's verdict stands, and there need not be a new trial.

The motion for a JNOV must be made before the case is submitted to the jury. Why? So that the other side will not be surprised; so that it can repair the mistakes and holes in its case, before the judge renders judgment.] A directed verdict, JNOV, JML is a decision on the merits; it ends the trial, and has res judicata effect. It can be reviewed by an appeals court.

3) New Trial: this is broadly within the discretion of the trial court judge. Standards of review. If the judge has made a mistake of law, then the appellate court will either order the original verdict re‐instated, or order a new trial (if it had originally been denied). If the judge's decision is based on factual grounds, the abuse of discretion must be egregious ‐‐ appeals courts are reluctant to interfere with the trial judge's judgments about the facts.

Grounds for a new trial. Three general points:

(i) It is necessary to distinguish between law and equity. In an action at law, wrongfully‐ admitted evidence may be grounds for a new trial; but not so in an action at equity (without a jury).

(ii) Harmless error doctrine: if the error does not affect the substantial rights of the parties, then it is not grounds for a new trial.

(iii) Objection requirement. If the attorney does not object to the error at trial level, then the objection cannot be raised later.

The principal circumstances under which a new trial can be ordered are these:

i. Mistrial (2 categories): ♥ Prejudicial occurrence: party or attorney behaves improperly, introduces evidence that should not be before the jury; jury reads newspapers when it shouldn't; jury misconduct (is avoided by having other juries in reserve at the back. This procedure, if accepted, is very costly and takes a very long time because everything has to start from the beginning). ♥ Verdict against the weight of the evidence: Here the standards vary widely from state to state. In the federal courts, the judge can order a new trial in circumstances where he couldn't order a directed verdict ‐‐ if the verdict seems to be against the clear weight of the evidence, or


to be a miscarriage of justice. (But it needn't be something no reasonable jury could find to be true). ii. Remittitur10 and additur: conditional new trial, unless the plaintiff agrees to a reduction in damages (Alternatively: can have a new trial on the issue of damages alone). 
Ex: BMW v. Gore ‐ $20M punitive damages award [went to S.Ct. and held that sometimes punitive damages can be so ridiculous as to violate 8th Amendment, but generally will not interfere]. The judge orders a second trial when he thinks that the weight of the evidence goes the other way but he doesn’t think either that the verdict was given by an unreasonable jury = verdict against the weight of the evidence (remittitur + additur). Remittitur: If a person sues McDonald because it sells a coffee too hot and that the verdict gives a verdict of a hundred billion dollars. The judge can go to the plaintiff and propose him to accept a billion instead. If the plaintiff doesn’t accept the judge can order a new trial. Additur: is the same except that the judge goes to the defendant because the jury granted one dollar (far too little in damages).

Once the party accepted the result of Remittitur or additur, it is res judicata.

iii. New trial for new evidence (Only in exceptional cases) New evidence: There are new facts that have been discovered and that could not have been discovered at the time of the trial. c) The American Trial: some general considerations

Let’s now stand back and consider the rules we have just been discussing. (Take this as a paradigm of the sort of thing you will be learning in your other courses.) We’ve seen a number of peculiarities of the American civil trial – ‐‐ Parties control of the gathering and examining of evidence; ‐‐ Civil juries; ‐‐ A highly complex and technical body of evidence law (not simply as an appendix to civil, administrative, criminal procedure, but unitary); ‐‐ A concern, not just with exclusionary rules (which all systems have), but especially with irrelevant evidence, prejudicial (gruesome, emotional) evidence, character evidence (past life) – a generalized worry about the misuse of evidence.

10 (Law) A remission or surrender, ‐ remittitur damnut being a remission of excess of damages.


‐‐ In contrast to continental ideals of “free proof,” free evaluation of all the evidence, the US tries to structure the use of evidence (e.g. telling the jury that it can be used for some purposes and not for others).

Why all these divergences? The answer is very complex. One should observe that the structure of the institutions makes certain solutions, and even certain ideas, possible, and that the various bits of the system are interconnected. Some bits of it look irrational, if taken in isolation –
e.g. passive judge and passive jury. If truth is the goal, why should they not be able to ask questions? There is a complex web of history and institutions and ideas. These three things interact. Let’s look more closely at some of the institutional facts we have just been examining, and see how they hang together. (i)
The split between judge and jury

We have seen that the judge has a large number of ways of controlling the jury. This is in contrast to the continental ideal of “free evaluation of the evidence.” Judge has: ‐‐ discretion over how to conduct much of the trial ‐‐ administers exclusionary rules of evidence (and can keep evidence physically from the jury) ‐‐ decides matters of law, including summary judgment, new trial, judgment as a matter of law ‐‐ gives instructions to the jury, and summarizes the evidence in the case ‐‐ can use a special verdict, or a general verdict with interrogatories.

These controls do not exist simply to correct for lay idiocy, for jurors are also asked to perform mental feats – like using evidence for one purpose, but not another; or to ignore improperly introduced evidence. Let’s reconsider some of the “irrational” elements: 1. The charge seems irrational, until one notices that it is not aimed at individual belief‐ formation, but at the entire group; it excludes certain arguments as illegitimate. 2. Why is so much attention given to the charge, and to evidence, and to structuring the input to the jury room? ‐‐ The jury is incapable of giving articulated reasons for its decision (being laid, and separated from the judge ‐‐ in contrast to continental practice); so they have to give a cryptic verdict; so the input has to be rigidly structured to give the parties a sense that the proceedings will be fair. 3. Moreover, also in contrast to the continental mixed bench, the charge is necessary to transmit information about burdens and standards of proof to the lay jury. In other words, the presence of judge‐jury separation requires a certain structuring of the input, and rules of control over the jury. 4. On the other hand, the separation makes many of the exclusionary rules (like the hearsay rule) possible in an effective way. In the continental system, the judge is supposed to listen but


ignore – which is practically impossible. In the American system, the judge can keep evidence away from the jury altogether. 5. The split between J and J even affects the categories of legal analysis – the distinction between relevance and weight (which has no precise continental counterpart). (ii)
Concentration and time­sensitivity.

This is a further consequence of having a jury, and it leads to several pervasive features of the American system. There is great pressure to limit the amount of evidence that is presented in court. Evidence can be excluded if gathering or presenting it will cause undue delay; new evidence cannot be introduced later in the course of proceedings; and there are all the motions to dismiss, or for summary judgment – all intended to speed things up.

The time‐pressure can also supply an additional argument for the hearsay rule – since it would take time to track down and check the out‐of‐court declarant, it’s unfair to allow hearsay. (iii)
The Adversary Model. This is associated with some of the greatest seeming irrationalities of the system. ‐‐ Lawyers are responsible both for gathering and presenting and examining evidence. ‐‐ Evidence is treated as though it belongs to a party; so are witnesses. ‐‐ Judge and jury sit passively, rarely asking questions (and jurors never). ‐‐ Various kinds of evidence (e.g. undisclosed evidence) are inadmissible, even though probative. This adversarial conception of evidence and trial makes certain other features of the
American system – the ability to cross‐examine, to challenge evidence – extremely important. It also supplies yet another argument for the hearsay rule – not just that hearsay is unreliable, but that it is unfair to the adversary not to produce the original declarant for cross examination.

It is often said that the truth will emerge from the clash of the two parties – but the rejection of probative evidence, the interruption of witness testimony, the use of biased witnesses etc. (and, in criminal law, the 5th amendment privilege) all work against truth‐seeking.

But there are some underlying assumptions about trial procedure at work here, that can usefully be explored by contrasting them with the continental practice.

In England, where in many ways the development of law was less sophisticated than in the
RL tradition, all trials – civil and criminal ‐‐ came to be seen as a form of dispute‐resolution, and thus to require party control. Civil trial – allows more intense discovery; compels parties and witnesses to testify under penalty of perjury and to produce documents. Criminal trial – is seen also as a dispute between defendant and state, with judge as neutral arbiter; same basic rules as in civil litigation. The 5th Amendment is another limitation on power of government so that civil trials


are more exhaustively discovered than criminal. (Shrewd continental lawyers will bring a civil action in the US to uncover leads, and then will use the evidence in Europe.)

a) Multi­party and multi­claim litigation: complex litigation

This is a large topic, which we won't explore in detail. You should be aware of the following concepts: (i) Counterclaims FRCP: if the counterclaim arises out of the same transaction, then it is compulsory to litigate it at the same time as the original litigation. If it does not arise out of the same transaction, then it is permissive – so any counterclaim you have can be adjudicated at the same time as the original action. But/ in each case the counterclaim must satisfy the requirements of federal subject‐matter jurisdiction: supplemental jurisdiction does not apply to these permissive counterclaims.
State rules: differ (same for below). (ii) Joinder of claims

FRCP: once you have made a claim against a party, you can join any other claim you wish (so long as jurisdictional requirements are satisfied) against the defendant in the same trial.: So long as subject matter jurisdiction is satisfied, the plaintiff can bring any claim he may have against the defendant in the same trial. This is permissive, however the judge has discretion whether to allow it. (iii) Joinder of parties

These are different types of joiner:
a. Compulsory joiner: if the party is necessary or indispensable in order to decide the case. they are necessary or indispensable parties ;
b. Permissive joiner: if the party is part of the same transaction. if single transaction or occurrence, and if common question of law or fact ;
There are also different types of answers:
c. Impleader: the defendant says that someone else is liable (probably because they’re “deep pocket” and he/she is “judgment‐proof” i.e. bankrupt or poor) (my boss, my insurance company and so on). The defendant wants to implead that third party ;
P v. D [v. D2]
d. Interpleader: example: parents past away ‐ brother tells the bank to release the money to him ‐ bank is afraid to release the money to the brother, because the sister can then come


and sue the same money from the bank ‐ in a lawsuit brought by the brother against the bank, the bank will want to interplead the sister. That is, the brother and sister will fight the case as to whom the money belongs, and once the jury reaches the verdict, the bank will write a check to either of them, as determined by the jury.

P v. D [v. P2] (e.g. bank wishing to settle who owns the bank account).

(iv) Class actions

Type of action created by FRCP. If the class of affected persons is too large for all of them to come into court, then a subset of the class can sue in their name, means that (i) judge participates much more actively – supposed to monitor fairly carefully how the proceedings are going forward;
(ii) more a matter of making policy.

All the possible parties have to be notified.

The parties not interested can opt out and can file their own independent lawsuit, but after the class action they won’t get any damages granted to the rest.

The judge is going to decide on far more things that in a normal trial and manage it very closely since there are many parties to the claim who are not present and do not participate in the proceedings. 
The court must approve 2 things: (i) any settlement (in case lawyer, who often has most interest in case, settles not taking into account the plaintiffs’ best interest); (ii) the attorney’s fees (e.g. up to 1/3rd of the amount granted sometimes), the judge can reduce them.

Court can also specify the distribution of damages so that e.g. allocate them differently to different members of class, or make them specific means of distribution e.g. medical treatment up to the value of the damages awarded.
Class actions (rule 23, FRCP): e.g. a company has put chemicals in the water of Philadelphia that made many people sick. To get class action need to show…
1. The class has to be sufficiently numerous (the number is decided by the judge, usually more than 21). The judge can also want to join the different clients even though there are not very numerous. 2. You have to show to the court that the litigating representatives are capable of defending the interests of everybody who is affected.
3. There’s got to be a risk of inconsistent judgment so that if you were to allow each one of these parties to sue the company some would not be paid for example because the company would go bankrupt after the 5 first claims. once the class action lawsuit has been concluded, the damages will have to be distributed. Example: a company has put chemicals in the water of Philadelphia that made many people sick vi. Judgment & After trial Note: under certain circumstances a judgment can be set aside ‐‐ mistake; new material evidence; fraud; change in law.


How to enforce a judgement ?
Or if the defendant refuses to conform: present judgment to sheriff;
enforcement action (in another state – “full faith and credit” principle).


A judgement is binding. Two kinds of binding effects:

(1) Res judicata – “claim preclusion” (don't confuse with stare decisis). “Claim preclusion.” The same parties can't re‐litigate the same claim against the same opponent once it has been decided by a court room if there was a final judgment.

You must show: (i) same claim; (ii) there was a final judgment; (iii) it was “on the merits.”
(Not jurisdictional, venue etc.)

The tricky issue is (i) – showing that the same claim is involved. Some jurisdictions (e.g. federal courts) incline to litigating everything that arises out of the same transaction; others take a narrower, traditional view of res judicata – contract, tort, property each counts as a separate action.
This is a judicially created doctrine ‐‐ varies. It applies only to parties (and to third parties). It applies regardless of whether you won or lost. (It is also known as “merger and bar”.)

Full faith and credit. Reasons: (i) overburdening; (ii) stability of judgments; (iii) harassment. (2) Collateral estoppels = issue preclusion.  Sometimes the same issue can arise in two trials arising out of the same underlying facts –
e.g. the issue of negligence in a suit for personal injury and injury to property. Collateral estoppel prevents the same issue from being re‐litigated.
 Must establish: (i) same issue; (ii) issue was actually decided in claim #1; (iii) issue was necessarily decided in case #1.
 Collateral estoppels may sometimes be asserted by a non‐party to the first case against a party who has already litigated the issue in the first case. The jurisdictions are not united on this matter; in general, they are more tolerant of a defensive use than of an offensive one by the non‐party, unless the assessment will not bring unfairness to the party. “Can be used as a shield, not a sword” idea.
 Example: A plane crashes. An injured passenger brings suit against the airline company. If the decision in the first place was that the airline was not negligent, the airline can use such decision as a collateral estoppel as defence against suits brought by other passengers. However, the courts are more restrictive as to offensive collateral estoppel.
That is, if the court decided that the airline was negligent, the other passengers could not easily use that decision.

General rule: only final judgments can be appealed, due to considerations of economy and speed of trial (the “final judgment rule”). Appeals are on issues of law, not of fact. Findings of fact will be set aside only if clearly erroneous, which almost never happens.
♥ Most state court systems are organized like the federal system. But some allow an appeal first to the highest state court, which determines which cases to hear itself, and which to release to the intermediate level appeals court.
♥ Some jurisdictions allow interlocutory appeals at the discretion of both courts for legal issue that will resolve the case (sometimes permitted by statute where immediacy a concern e.g. contempt orders, injunctions). CONCLUSION & NOTES:
- Judicial discretion and balancing tests
- Judicial review (by all courts)
- Elected state judges
- Judiciary as co‐equal branch
Ken Abrahams book on tort – see this. Oliver Wendell Holmes 
Holmes the archetypal legal realist – cynical, purely pragmatic view of law. Aims for a clear division between law and morality, and tries to persuade us of this by two devices: (I) de‐ mystifying the law, (ii) constructive argument. De­mystifying the law 
Prediction theory of law – see p994: “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”.

Bases his view of law on “bad man theory” – have to see the law through the eyes of the bad man who will disobey it.

Looks at e.g. tort  lawyers just dress up in legal language very factual, orders‐backed‐by‐ threats type of things. So…not really “D is liable because D had a duty” but “D has a ‘duty’ because he is held liable”.

Criminal law  no real different between a tax and a fine.

Contract law  promulgates theory of efficient breach.


Questions for Revision 1.

What are the important aspects of American Legal system?
How did the differences between the civil legal system and common law legal system arise? What were the consequences from the historical divergence between the civil and common law systems in England?
What were the three principal traits inherited from English law in the colonies?
What were the problems that plagued the original constitution?
What were the amendments that the southern states had to adopt in order to be accepted back into the Union?
What is the ‘court packing plan’?
In jury trial the judge is responsible for?
In jury trial the jury is responsible for?
What are the most important consequences of the jury trial?
What is the difference between law and equity actions?
What is the origin of the American equity claims?
What are the characteristics of American legal education?
What are contingent fees?
What were the three problems that needed to be solved by the Constitutional Convention of 1787?
What were the solutions provided for these problems?
What is meant by having delegated powers?
How are the two kinds of governments (state and federal) related?
What are the powers vested on the U.S. Congress? (restrictions congress has)
What is a writ of mandamus?
Explain Marshall’s opinion in solving Marbury v. Madison.
What are the three important things about Marshall’s opinion in this case?
What is meant by judicial review?
What are the enumerated powers of congress? ( list of 9)
What are the three categories of governmental power?
What are the limits on the power of states under the commerce clause?
What are the two primary techniques in protecting the integrity of federal law with that of state law?
What are the two primary techniques in protecting the integrity of state law with that of federal law?
What is the structure of the Supreme Court?
What are the Supreme Court’s three‐fold functions?
What is the Supreme Court’s jurisdiction?
What are the two forms of invoking Supreme Court’s jurisdiction?
How are the federal courts limited?
What are the limits to jurisdiction of the federal courts?
What are the president’s chief domestic powers?


What are the president’s chief foreign powers?
What are congress’ chief foreign powers (shared with the president)?
What are the two circumstances in which there is no need for Congress authorization to declare war?
From what three sources do federal and state courts derive its decisions?
What is the difference between venue and jurisdiction?
What is meant by having ‘minimum contacts’ with the state?
In general, how should the adequate notice be for notifying the defendant of an action brought against him?
What are the two kinds of controversies to which federal courts have subject matter jurisdiction? What does diversity mean?
How does supplemental jurisdiction in federal cases work?
What is the purpose of the pleadings?
What is the purpose of discovery and what is the general rule?
What are the six mechanisms of discovery?
What are the most common privileges for discovery?
What is impeachment evidence?
What are the five ways in which issues can be disposed of?
What are the elements of a prima facie case?
Who can give opinion evidence?
What is the basic rule of hearsay evidence?



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