2/26/13 Response paper: 3 separate response papers, 3 readings, 2 pgs per reading, summary/response. or combine all 3 readings.

Using I is ok. 12pt, 1 Times double spaced. Quiz #1 Q1: be part of check and balance system, voice of const., interpret const., protect minority rights. Q2: common law: a legal system in which courts make law. significance: if courts make law, it makes them deeply political. precedent is the body of law that gets created by common law. stare decisis: doctrine, means precedent is binding. Q3: why hershal wants strong courts: hegemonic preservation thesis (4 components) political actors want strong courts and a const bc places limitations on enemies & doesnt put burden all on them. people dont think their power will last very long, willing to put limits on themself to make sure all that they worked for isnt undone in the future. judicial elites are acting in concert with political elites. economic elites want strong judiciary bc their power is protected i.e. trade not in favor of: functionalist: something wrong with govt i.e. deadlock, legislature ineffective; court arises from this dysfunction to fix everything, evolutionist: courts evolve into administrative state, institutional economics: strong courts to create stable environment to promote economy-courts acting like fire alarms to let govt know something is wrong. Q4: shapiro theory of the triad: 2 conflicting parties that go to a 3rd party to settle their dispute. 3rd could be a judge. each of the 2 parties has consented to the 3rd mediating the problem, consent is important to avoid a 2 to 1 scenario, thus judgement is legitimate. consent gets replaced by law and office C (mediator) starts enforcing social control and becomes the regime and developing law (common law). administrators represent interests of the regime. A and B eventually go to C for mediation and eventually trust their laws. Feely: Judges make policy 3 diff kinds of policy making: classic analytic: identify problem, range of solutions, settle on one, and implement it. muddling through: judicial policy making, make a rule, expand it, h. circle: idea to consider whole context. look at text and excerpt. look at political, social context. issues possibly relevant. This violates (federalist papers) separation of powers, rule of law. courts arent supposed to be making really specific law. ex. nutritional content of prisoner food and amount of sun they get.

feely is ok with this because he thinks separation of powers is outdated. rule of law is ok but needs to be expanded/revised. interpretations of the const originalism: idea that we should be constrained by actual text, meaning of the words, as they meant at that time, and the intention of the writers. problem?: political rivals wrote the const, it was meant ot be a compromise between anti-fed and fed. thus, which group do we look to when we need to know what is meant? can words ever really demonstrate what we mean? Madison says, language isnt always precise. living constitutionalism: considers contemporary values and political climate when interpreting const jurisdiction: whether a court can hear a particular case, does the court have the authority to hear a case? SC: this is a political question. not appropriate for us to here, should go to congress. must prove: standing: show personal harm/injury case or controversy: courts cant issue advisory opinion ripeness: something has happened mootness: has to still be relevant, not too much time has passed 3 kinds of jurisdiction: original: deals with federal official or state, appellate: question of federal law or const, diversity: conflict between 2 states everything in law is true about 90% of time, then there are the exceptions feely, jurisdiction, interpretation, originalism POP QUIZ

HOW TO WRITE A CASE BRIEF FACTS: Identify salient facts of case. Dont note age of P unless it is relevant. 1-3 paragraphs ISSUE: (HOLDING) what happens to this particular dispute. (law should be overturned) RULING: rule or law that gets made. precedent. REASONING: use bullet points CONCUR/DISSENT: Agree with ruling but not reasoning DICTA everything that the court says thats non-binding

why do courts reference dissents? to show who wrote the dissent, re-establishes legitimacy of the court plurality opinion when you dont have a majority of judges completely agreeing to the holding/ruling/reasoning. opinion, concurrence, dissent. 2/28/13

Marbury v Madison limiting your enemies, were on your side 3/7/13 Angela Davis: Slavery, Jim Crow, Mass Incarceration Southern elites would lose their authority and power without slavery. Slaves were integral part of south economy and thus of the whole country. 1808: end of slave trade --> make sure black slave women keep procreating to keep getting new slaves. torture: flogging, mutilation, rape, suicide, killing of children, separating families black female slaves are genderless. no hierarchy between black slave men and women. fugitive slave act: if slaves end up in the north they are required to be returned back to their owners. reciprocity between north and south Missouri compromise: between slave and free slaves. new states coming into the union could decide whether they wanted to be free or slave. south feels like theyll be isolated from rest of free country and their political need wont be met. 1857: dred scott. Justice Taney: had slaves, but freed them believed in states rights politically aligned with Andrew Jackson slave apologist populist anti-federalist

Emerson and Scott travel throughout the US. Emerson dies, widow sells him to Sanford. Scott says widow doesnt have right to sell Scott bc hes free for living in free states. loses case. scotts case get sent to federal court bc of diversity jurisdiction bc he was from missouri and sanford was from ny. holding: no ruling: slaves are not citizens const says we can import slaves up until 1808 -- supporting practice of slavery. fugitive slave act. const recognize difference between citizens and slaves. looking at intention of the framers and the plain text of the const can slaves be citizens? 3/5ths clause used to give south more representation majority of framers slave owners tension between anti feds and feds was about who would hold more political power interpret the instrument according to its true intent from when it was adopted...can change the true meaning of the const -- shouldnt consider shifting public opinion Emancipation Proclamation war document during the civil war all slaves in rebelling areas are free ( should 1 join the northern army 2 work for reasonable wages 3 don't resist/act rebelliously) Abe has to appear reasonable and has to preserve the union the legality vague war powers (temporary) seizing property of warring nations south isnt a nation states not rebeling breaking federalism - has authority to overrule states doesnt know if its legal but going to act as if it is legal has to wait for supreme court to say so abe only president to appeal habeas corpus courts told him he couldnt do it but he did anyways very limited document -- weak 13th amendment 1865 abolishes slavery unless as punishment for a crime

14th amendment 1868 former slaves are citizens (dred scott) privileges or immunities no state should make or enforce a law that should abridge of citizens in the US nor shall any state deprive life lib or property without due process of law due process concept of fairness cant take someones life or freedom or property without a good reason in a fair way no state shall deny a citizen in its jurisdiction protection 15th amendment gives citizens the right to vote should not be denied or abridged on the basis of color or previous condition servitude some states created state laws that abridged liberties of freed slaves slaughter house cases 1873 Louisiana--no other SCo can run in here controlled hiring products etc. LOU said were going this as a part of police powers state authority to make law; regulate life of citizens; for the general welfare safety and health of their state butchers sued saying this violated the 14th amendment privileges and immunities clause i cant work -- employment is part of privilege is LOU making appropriate use of its police powers? does making a monopoly effect citizens privileges and immunities? is employment a privilege? immunities and privilege: article 4: states cant abridge privileges and immunities of other states what do we means about privileges and immunities state and country citizenship the idea of protecting property is the same idea of protecting employment protecting employment part of citizenship 14th amendment doesnt transfer power to the federal govt priv and immun federal priv.. protection to travel overseas LOU law stand bc its constituional how can you get full equality if you cant guarantee employment (reconstruction era amendments) dissent 14th amendment meant to address state actions that impacted/discriminated against freed slaves even the intent of this amendment is the same as article 4 this amendment is to address slavery not employment not looking at legislative history

is the court making policy? defining federal fundamental civil rights prioritizing federalism over equality

Plessy v Ferguson Plessy could pass as white gets told to move, doesnt move, gets arrested does equal protection clause violate the 14th amendment rule: separate but equal later turns into rational basis review separation implies inferiority court argues segregation laws held by every state -- its ok bc everyone does it enforced separation does not create inferiority, and if it does the construction of race chooses to put this frame on all it can do is create civil and political equality isnt the const job to fix social inequalities reconstruction era failed many of the laws overturned and the rest were narrowly interpreted separate is not equal

3/28/13 Quiz #2 Establish Jurisdiction standing: plaintiff has to prove that they have suffered an injury as a result of a law and that the court can offer a remedy mootness: not too late, injury has passed and wont happen again ripeness: not too soon, had to have occurred case or controversy: actual dispute at issue Types of Jurisdiction original: in the constitution diversity: interstate issue appellate: power of the United States Supreme Court to review decisions and change outcomes of decisions of lower courts appeal of lower court: more time to argue point; amicus briefs judges dont just interpret laws, they make policy. classic analytic [come up with options and pick one], muddling through [incremental changes, tweaking as you go along], hermeneutic circle [cant just by just individual or just the whole, need to use both to understand context] marbury v mcculloch: judicial review and commerce clause (congress can create federal bank)

necessary and proper clause supremacy clause: federal laws trump state laws. federalism wins. federalist papers: madison: articles of confederation did not work bc no strong central power. coming up with a constitution is hard. language and ideas imprecise. 51: congress is the strongest branch so it must be weakened. judiciary keeps congress in check. hence by exec and legislative elect judges Hamilton: what the judiciary is going to do. interpret the law. act as the voice of the constitution. the weakest and strongest branch of the constitution. doesnt have the power of the purse or the sword, but its word is final. Women and the Courts litigate issues through 14th amendment Minor v. Happersett (1872) husband had to bring case to court for his wife who was arrested for trying to vote. women, once married, no longer existed. husband owned them. said that as a citizen she should be allowed to vote (14th a privileges and immunities) the court said no Bradwell v Illinois privilege and immunity of citizenship to engage in any profession no, the right to practice law is not a P/I of citizenship women do not belong in courtrooms, not proper sphere for women, belong in domestic sphere Protected classes religion race gender illegtimacy alienage must possess immutable trait discrete insular minority historically discriminated against difficulty with the law highly visibly trait does not inhibit it from contribute meaningfully to society Reed v Reed parents of dead son fighting for will will automatically prefer males does this violate equal protection clause?

administrative costs legit govt interest. by automatically picking one side over the other court does not agree with govt, keeping admin costs down not rationally related to gender. other ways of keeping costs down. lowest level of review to overturn state law womens movement in the 60s-70s Frontiero v. Richardson plurality decision no real majority. over half didnt agree on the holding/rule spouses of men in the military get extra support automatically while spouses of women have to provide more documentation plaintiff--argues that this violates due process 5th amend court answers her as though talking about the 14th amend any division of the sexes for admin purposes is arbitrary plurality opinions are not binding precedent

4/2/13 gay marriage ban too broad, not restrictive enough, not tailored enough to the governments interest banning minors getting married: regulating marriage and regulating with minors can do compelling govt interest: can decide whether a reason is or isnt does the state have a compelling interest to making sure marriage is between two people? frontiero v richardson .. plurality decision no group of five justices could decide what to do with this case what is footnote four************************* compares women plight to slavery And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. plurality decision made this the only gender case to use strict scrutiny 3 yrs later Craig v Boren established gender to be subjected to intermediate scrutiny idea that its ok to have state discrimination of certain groups (like minors) physical disabilities cant receive strict scrutiny bc they cant contribute meaningfully to society craig v boren --- oklahoma. low alcohol content beer. women could buy it at 18 while men only at 21 justification: public safety, traffic safety. 2% of men between 18-20 have been arrested for DUI. .18% women arrested for DUI compelling govt interest issue: does it violate the 14th amendment equal protection claus

low content beer not leading cause of DUI, gender discrimination not justified bc drinking and driving not relationship bwt gender/drinkingndriving court creates intermediate scrutiny rule statutes discriminating against gender when there is no valid relationship between gender___ nd compelling govt interest while there be stat significance, can hardly be used for state based discrimination used social science research (like use in Brown v Board) can use social science research when it wants to, doesnt have to, and can reject it restricting 100% of group for the actions of 2% of that group Reinquest--dissent: rational basis review is fine discrimination against men isnt the same as discrimination against women wtf is intermediate scrutiny (originalist dissent)

4/4/13 extra credit: 5-6 pgs 3 readings summaries and response procedural & substantive due process procedural cant take an individuals life liberty or property without due process of law, fair trial immigrants facing deportation: face loss of liberty, requires that they get a hearing procedural DP: prevents govt from taking away benefits (medicaid) determine whether life lib property is being threatened; did they get a notice and a hearing? did they get a chance to set up defense? fair trial? frontiero v richardson: due process violated, my husband and i have to go through diff process than other families, unfair substantive DP state infringes on certain fundamental rights, generally when individual makes personal decisions (privacy) subject to strict judicial scrutiny state has to prove that the law is necessary govt interest, and law narrowly written for that interest 8 basic rights marriage abortion divorce death contraceptives obscene material parental rights sexual activity privacy (inferred): first comes into play in Griswold v CT 1965 Dr writes prescription for birth control

Feely:: interpretation applying the rules that are laid out in the doc. apply the rules with whatever intererpretation policy making we have authority to deal with this case bc individual has standing. and were gonna take that rule and create something that didnt exist before. Roe v Wade right of privacy extends to access to abortion policy making here is your framework for dealing with abortion fundamental right --> strict scrutiny state has interest in protecting fetal life, the mother women have fundamental right to privacy, to make decisions about health less restrictions on abortion during founders time allowed abortions until (quickening, first movements of the baby) Doe v Bolton georgia: be a resident of the state, have 2 drs concur, performed only in accredited hospitals, approved by the hospital abortion committee unduly restrictions or regulations unduly -- and restriction to slow down or limit access to abortion ex, waiting period Casey v Planned Parenthood

CT law prevented use of contraceptives Dr had standing bc he was being prosecuted against court says there is a right of privacy in the constitution 3rd amendment: not being forced to have soldiers live with you The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. 5th amendment 9th amendment there are rights not listed (un)enumerated) and it is up to future generations to figure it out. language not precise, making constitution is difficult penumbra --> shadow of those amendments this case establishes right to privacy, access to contraceptives, therefore falls under substantive DP P&I clause doesnt do anything except reiterate what is already in the constitution

undue burden, got rid of trimester framework states can restrict access to abortion in the first trimester undue burden-- restriction whose purpose or effect is to place substantial obstacles in the path of women. 24 hr period waiting period for minors informed consent spousal consent - only undue burden Carhard v Gonzalez (2007) bans partial birth abortions

4/9/13 state cant block you from getting an abortion but not required to help you get one ban on partial birth abortions, no undue burden bc of how narrow the law was possible to get one earlier, etc. court based decision on congressional findings dicta, whatever the court talks about that isnt binding precedent Casey is still the law no justice willing to overturn Roe 3 court cases chipped away holding/reasoning Roe Griggs v Duke Power Company title 7 regulations 1963 ^ forbade discrimination on employment context basis of race and gender, gender added at the last minute power company hires ppl from town, 4 types of jobs black workers only hired for lowest paid jobs title 7 passes company implements testing and education requirements done to discriminate against blacks are these requirements in violation of title 7 court holds yes, bc disparate impact title 7 allows for certain testing educational requirements those tests have to measure knowledge or skill required for the job business necessity theses tests are not necessary to hold high paid jobs in this company requirements implemented on traditionally white jobs black workers, less likely to have hs diploma absence of discriminatory intent equal work= jobs that require equal skill and responsibility and performed under similar conditions and effort pay and equity, doing a better job, any other reason other than gender for paying women less than men=totally fine why do so few people pursue discrimination claims very difficult to prove interpreted so narrowly, no practical good. access to courts

Commerce Clause congress can regulate interstate commerce always federalism issue how much power congress has v how much power states have to regulate certain activity Gibbons v Ogden restrict waterways nj boats had to pay big fine to go to ny 1793, federal navigation act within congress commerce power. federal law trumps local law if these two laws conflict, the federal law will win (supremacy clause) dormant commerce clause, by negative implication, takes some power away from the states dagenhart v hammer prevented interstate shipment of goods made by child labor does this congressional act violate the commerce clause / 10th amendment (lockner v ny) production is not commerce and therefore outside congress power to regulate clear only purpose is to the address the issue of child labor not a commerce clause issue give states that use child labor advantage, cheaper wages, impact on interstate economy court says not legit use of commerce clause powers ^ dissent: homes: now would be a good time to insert opinion about how bad child labor is 4/16/13 court in lopez says no, carrying a gun is not economic activity. US v morrison vtech student claimed she was raped violence against women act protection against gender motivated crime oppression/discrimination against gender reason for crime rape, kidnap issue: does this violate the commerce clause interstate interactions must be interactive in nature aggregate gender based crimes doesnt have substantial impact on interstate commerce, govt opinion (but decided that racial discrimination does) impact on womens emotional state --> impacts interstate commerce but-for causal chain: but-for this one action, this wouldnt occur; cause/effect but-for gender motivated crime, women would have different effect on interstate commerce slippery slope, congress will get the ability to regulate any crime bc any crime could have affect on interstate commerce

stretching this clause, attenuated impact, not but-for, infringing over state power concurrence: thomas, this is not the original understanding of congress powers dissents: restating SC rule, in aggregate, congress better to understand impact of interstate commerce. we just approve if rational or not. reports from experts and states, mountain of evidence to justice violence against womens act. more evidence to justify congress commerce power. founding fathers made commerce clause vague. political and not judicial review should mediate as evidence inevitable growth of the economy. 50 yrs of precedent. overturning precedent, big deal. whole legal system rests on precedent. (legitimacy, stability, interpret/live breathe const, create law) medical marijuana cali violation of controlled substances act violation of congress commerce powers? SC says, congressional CSA stays, not violation of congressional commerce clause power should congress only regulate economic activity? CSA ok but should have exceptions

4/18/13 affordable care act obamacare what kind of insurance employers have to provide how long parents can keep their kids on their insurance tax levied against individuals who don't purchase minimum insurance states have to provide for ppl that live under the (133%) federal poverty line (1 person household < $15,000) federal govt provide funds for this expansion all funding for medicaid program court upheld individual mandate roberts: commerce clause, congress has the ability to regulate interstate commerce. implies economic activity requires commercial activity everybody does participate in healthcare market extend commerce clause too far congress can require a great deal of action of the states by providing and withholding funds as long as relationship is related HS funding =/= highway speed bc congress takes away all medicaid money; had to be written; if they dont engage in the program they wont get the extra money; less of an incentive to join

congress isnt requiring ppl to become part of the healthcare market, ppl in general live in a state of being in the healthcare market CJ - ppl can go through a long period of time without being part of the healthcare market. govt shouldnt force these people to be part of something they might not need. mandatory - coverage. but can pick which type of coverage, just cant pick no coverage public/private universal healthcare, not socialized healthcare standing: group of small businesses [employers forced to provided X amount of heatlhcare for employees; $$$ unaffordable?] collinsworth v perry challenge to prop 8 windsor v US challenge to DOMA marriage fundamental right, strict scrutiny, prop 8 violated SS/rational basis review discrimination against sexual orientation due process strike down gay marriage bans but doesnt protect gay people from other types of discrimination state goes along with district decision (cali prop 8) group brought this to circuit court, appeal ppl who put prop on ballot have standing in court fadouchary duty ** parents/kids, doctors/patients upholds due process right to get married prop 8 violates equal protection clause on rational basis review (you can get married now you cant) now appealed to SC discrimination based on orientation violates equal protection marriage fundamental right, due process SC appeal oral arguments standing? prop 8 advocates have standing? (Sotomayor, etc. those who are for gay marriage) protection for children: Kennedy: how does this protect children to tell them their parents dont have the same rights as others? Scalia: when did gay marriage become unconstitutional? considering social science research could be seen as policy making by judges for their inconsistent use of it they dont have standing (Standing) Dist < (DIG) Circuit < SC DP, EP, RB, SS; DP, EP, RB, EXT; ?? goes back to district court because SC said they didnt have standing to appeal in the first place. states interest: defendant why prop 8 should not be overturned, restrict marriage have population growing states have interest in upholding particular model of marriage

EP : states argument upholding prop 8, child rearing, procreation, protecting welfare of children, we dont know if gay ppl should raise children, define model of marriage, proceed with caution if were gonna start changing the definition of marriage, must move slowly, marriage long history 4/23/13 windsor v US progressive justices dont want to make ruling that will be limited. could be waiting for different justices to come in to make ruling civil unions does the same thing as marriages do therefore there is no real vested state interest in marriage and are just discriminating states have legit concern with children gay people raise if prop 8 violation for due process gay marriage bans struck down across the country, but gay people are not seen as protected class and are not protected from other discrimination if prop 8 violation for EP SS broader protections prop 8 violation for EP RB similar to DP final paper group cases by era social issues race and gender EP, P&I bradwill, 14 amendment civil rights cases compare cases from different eras give background on race/gender discrimination 4/25/13 reading: intro, conclusion, cases, no such thing as pre existing neutral law bc law made by politicians and they have own interests carey: subjective not a science not legal reason, legal rhetoric skilled legal reasoning developed in law school prepare them to be judges, just rhetoric legal training - just learn the cases and decisions. very rigid. judges come from privileged background tends to a certain kind of outlook court to solve social justice problems from reconstruction era coretta scott king: critique brown v board, didnt address other forms of discrimination/segregation that keeps blacks from quality education title 7: in order to prove that you have a claim, have to prove, racial minority, rejected despite qualifications, as long as you can prove other reason besides gender, viable defense for unequal pay why ppl dont pursue claims:

unbearable worklife time consuming, confusing lack of knowledge need lawyer $$$$ having to identify as a victim

4/30/13 Williams Anecdotal stories with conclusions race discrimination promote diversity every decision implies a preference for something need to promote what we consider to be social good title 7 doesnt work bc ppl dont use it proactive measures to enforce social change