1. INTRODUCING COMMON LAW METHODS & READING US V.

WINDSOR
The States and Federalism. Federalism has two dimensions:
Vertical > Relationship between the states and the federal government (marked by a
growth of federal power at expense of state power); and
Horizontal > (or interstate) Relationship of the states to each other (steady decrease
in the significance of state boundaries).

Sources of Law and their Hierarchy

a) Enacted Law
a. Constitutions. Six substantive articles. Articles I, II and III, create the
legislative, executive and judicial branches of government. Article IV contains
provisions that relate mainly to the states and how they relate to each other.
Article V sets out miscellaneous provisions, the most important of which
declares the supremacy of federal over state law (the Supremacy Clause).
b. Statutes. Laws enacted by federal, state, and local legislative bodies. Proposed
statutes, called bills, must survive close scrutiny from specialized legislative
committees and gain the approval of the appropriate head executive official.
The collection of federal statutes is called the United States Code, while
collections of state statutes are called compiled laws or statutes.
c. Treaties. All treaties are federal law, as states are prohibited by the federal
Constitution from entering into treaties with foreign nations. These treaties
must be concluded by the President and ratified by the Senate. On the same
hierarchical level as federal statutes, meaning that Congress can change a treaty
by simply passing a contrary statute.
d. Court Rules. Court rules govern the procedures to be followed in courts. The
rules are the responsibility of the federal courts; after being reviewed and
revised by the United States Supreme Court, and if Congress does not
intervene, they become law. Federal court rules have the same force as federal
statutes. States also have court rules; and often in states, court rules have higher
status than a statute passed by the legislature and, in case of conflict, the court
rule will prevail.

b) Case Law (sometimes referred to as unwritten law).

a. In a common law system, case law court decisions of individual cases are a
source of law. Thus, a decision of a case is considered to be a precedent that
has legal effect in the future. This effect comes form the principle of stare
decisis- the idea that future cases should be decided the same way as past cases.
There are two types of case law:
i. Common law case law: The term common law is sometimes used
to refer to all judicial decisions in a system where those decisions have
precedential effect. However, in the Redbook, it it only refers to that
body of law developed and articulated solely through judicial decisions.
Common law case law constitutes a separate source of law independent
of enacted law. It is important to point out that a legislature has the

1
 power to abolish or modify the common law as it sees fit. In addition,
common law may also be displaced by a constitutional provision or by
an administrative agency rule properly promulgated and within the
agencys statutory authority.
ii. Case law interpreting Enacted Law: Case law interpreting enacted
law, like common law case law, follows the rule of stare decisis.
Consequently, a case decision interpreting a statute is a source of law
and will control later cases arising under the statute that involve similar
facts. However, as a source of law, it is considered to be derivative
from the law it interprets. As such, it takes the hierarchical level of the
enacted law that it interprets. Thus, case law interpreting the
Constitution prevails over a conflicting statute, case law interpreting a
statute prevails over common law and so on.

c) Hierarchy. From highest to lowest:

(1) The federal Constitution, (2) federal statutes, treaties and court rules, (3) federal
administrative agency rules, (4) federal common law, (5) state constitutions, (6) state
statutes and court rules, (7) state agency rules, (8) state common law.

It is understood that each level of enacted law includes the case law interpreting that
enacted law. If two sources of law on the same level of hierarchy conflict, then the
later in time will govern.

I. Governmental structure

Legislative Branch:
o Congress
Senate
House

Executive Branch
o President
o Executive Office of the President
o Vice President

Judicial Branch
o Supreme Court
o U.S. Courts of Appeals
o U.S. District Courts
o Specialized Courts
o Administrative Office of U.S. Courts

Federal judicial law making is proper only under two circumstances: a) where Congress directs
its application pursuant to a proper exercise of its enumerated powers, and; b) where there are
clear and strong uniquely federal interests that need to be protected.

2
 II. State Government Structure and Powers.

Nature: The Constitution did not create states, they already existed (aboriginal
existence of states). Thus States need not be granted power by the Constitution to
make law; they have the power and inherent competence of separate, independent and
sovereign nations and may pass legislation on any subject they choose, except as
limited by the federal Constitution or their own constitutions. This principle is
delineated by the Tenth Amendment: The powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively, or to the people.

Structure. Like federal governmental structure, state constitutions provide for three
branches of government, with the chief executive officer having veto power over the
legislative branch and the supreme court of the state having the power of judicial
review. State legislatures are bicameral, except for one state, Nebraska, which is
unicameral. The chief executive officer of the state is called the Governor. The chief
legislative body is generally the state legislature or general assembly. The court of
last resort is usually the state supreme court. On the federal level, the President
appoints the members of the cabinet, judges and other high-level executive officials
with the advice and consent of the Senate. By contrast, in many states, the people
directly elect heads of some major divisions of state government, such as the Attorney
General, the Secretary of State or the Auditor General. These officials neither owe
their office to the Governor nor can the governor dismiss them. Additionally, state
judges tend to be elected rather than appointed (nonetheless, some states have
appointment systems and others have combined systems), reason why, executive
power in most states is more diffuse than federal executive power.

Ex parte Levitt
Facts Senator Hugo Black nominated to the Supreme Court. Previously,
Congress passed an act permitting Justices to retire at full salary after a
period of specified service, thereby increasing the emoluments of the
office while Black was a Senator. The ineligibility clause bars on Senators
being appointed to any civil Office under the Authority of the United
States, which shall have been increased during such time Nevertheless,
Black was confirmed and appointed. Levitt filed a pro se motion in that
court requesting leave to petition for an order requiring Black to show
cause why he should be permitted to serve as an Associate Justice of this
Court.

Procedural history -
Issue -

Rule -
Holding It is an established principle that to entitle a private individual to invoke

3
 the judicial power to determine the validity of executive or legislative
action he must show that he has sustained or is immediately in danger of
sustaining a direct injury as the result of that action and it is not sufficient
that he has merely a general interest common to all members of the public.

Reasoning -
Dissent
-
Comments/Class -
Discussion

Correspondence of the Justices 1793

Federal Courts not able to render advisory opinions. The lines of separation drawn by the
Constitution between the three departments of the government and our being judges of a
court in the last resort, are considerations which afford strong arguments against the propriety
of our extra judicially deciding the questions alluded to; especially as the power given by the
Constitution to the President of calling on the heads of departments for opinions, seems to
have been purposely as well as expressly limited to the executive departments.

Baker v. Nelson
Facts Baker and McConnell made an application for a marriage license with the
respondent, clerk of Hennepin County District Court. They were denied a
license on the grounds that they were not man and woman, but man and
man. The trial court ruled that the respondent was not required to issue a
marriage license and specifically directed that a marriage license not be
issued to them. The couple appealed.

Procedural history -

Issue Whether a marriage of two persons of the same sex is authorized by state
statutes and, if not, whether state authorization is constitutionally
compelled.

Rule -
Holding The equal protection clause of the Fourteenth Amendment, like the dual
process clause, is not offended by the states classification of persons
authorized to marry (Concept of Writ of Mandamus > Order from a
superior court).

Reasoning -
Dissent -

4
Comments/Class SCOTUS dismissed the appeal "for want of a substantial federal
Discussion question. Because the case came to the U.S. Supreme Court through
mandatory appellate review (not certiorari), the dismissal constituted a
decision on the merits and established Baker v. Nelson as precedent, though
the extent of its precedential effect had been subject to debate

US v. Windsor
Facts The Defense of Marriage Act (DOMA), enacted in 1996, states that, for
the purposes of federal law, the words marriage and spouse refer to
legal unions between one man and one woman. Since that time, some
states have authorized same-sex marriage.

Edith Windsor is the widow and sole executor of the estate of her late
spouse, Thea Spyer. The two were married in Toronto, Canada, and their
marriage was recognized by New York state law. Spyer left her estate to
her spouse, and because their marriage was not recognized by federal law,
the government imposed $363,000 in taxes. Had their marriage been
recognized, the estate would have qualified for a marital exemption, and
no taxes would have been imposed.

Windsor filed suit in district court seeking a declaration that DOMA was
unconstitutional. At the time the suit was filed, the governments position
was that DOMA must be defended. Afterwards, the President and the
Attorney General announced that they would not defend DOMA. The
Bipartisan Legal Advisory Group of the House of Representatives
(BLAG) filed a petition to intervene in defense of DOMA and motioned
to dismiss the case. The district court denied the motion, and later held
that DOMA was unconstitutional. The U.S. Court of Appeals for the
Second Circuit affirmed.

Procedural history The District Court for the Southern District of New York granted
summary judgment for Windsor. The United States appealed, and the
Court of Appeals for Second Circuit affirmed the previous decision. Both
courts held that the equal protection component of the Fifth
Amendments due process clause was violated when the federal

5
 government imposed Estate Taxes on the estate of Spyer simply because
she was married to a woman (Windsor), instead of to a man.

While reviewing the case, the Court of Appeals requested argument on

whether the United States agreement with Windsors legal position
precludes further review and whether BLAG has standing to appeal the
case. The United States did not comply with the judgment. SCOTUS
granted certiorari.

Issue 1. Whether the executive branchs agreement with the lower court that the
act is unconstitutional deprive the Supreme Court of jurisdiction to decide
the case;
2. Whether the Bipartisan Legal Advisory Group of the House of
Representatives have standing in the case; and
3. (Substantive Issue) Whether DOMA, which defines the term marriage
under federal law as a legal union between one man and one woman
deprive same-sex couples who are legally married under state laws of their
Fifth Amendment rights to equal protection under federal law?

Rule -
Holding 1. No
2. Unanswered
3. Yes
Section 3 of the Defense of Marriage Act, which federally defined
marriage as a union between one man and one woman as husband and
wife, is unconstitutional under the Fifth Amendment Due Process Clause's
guarantee of equal protection. The federal government must recognize
same-sex marriages that have been approved by the states.

Reasoning (With comments) The Supreme Court held that the United States
Government, despite the executive branchs agreement regarding
DOMAs unconstitutionality, retains a significant enough stake in the issue
to support Supreme Courts jurisdiction. Because the judgment in question
orders the U.S. Treasury to refund tax money, the Government stands to
suffer a real economic injury and therefore maintains standing in the case.

BLAG presented substantial arguments for the constitutionality of

DOMA that reflected an actual controversy under Article III, which
allowed the Supreme Court to address the case without needing to decide
whether BLAG would have had standing before a lower court. States have
the authority to define marital relationships and that DOMA goes against
legislative and historical precedent by undermining that authority. DOMA
denies same-sex couples the rights that come from federal recognition of
marriage, which are available to other couples with legal marriages under
state law. The court applied heightened scrutiny to DOMA because it
discriminates on the basis of sexual orientation.

DOMAs discriminatory of same-sex couples violates Windsors right to

the equal protection of the laws as guaranteed by the Fifth Amendment. In
order to give grounds to the decision, the arguments cover: (i) the
historical background of lesbians and gay discrimination, (ii) the fact that a
persons orientation does not affect his or her ability to contribute to

6
 society and (iii) the point that sexual orientation is an immutable and
distinguishing characteristic that is a core attribute of personhood. The
decision also affirmed the equal protection guarantee of the Fourteenth
Amendment makes that Fifth Amendment right all the more specific and
all the better understood and preserved. The decision held that, even
under rationality review, DOMAs provision under discussions would be
determined unconstitutional because it is not related to any legitimate
government interest. DOMA does not encourage uniformity in the
administration of federal benefits. To the contrary, it creates disparity by
treating legally married couples differently even within the same state
domicile. Also, DOMA creates two regimes at federal and state level
regarding the definition of marriage, reflecting in matters such as taxation,
housing and criminal sanctions. The purpose and effect of DOMA is to
impose a disadvantage, a separate status, and so a stigma on same-sex
couples in violation of the Fifth Amendments guarantee of equal
protection.

Dissent Scalia> SCOTUS had neither the jurisdiction to review the case nor the
power to invalidate democratically enacted legislation. The majority
opinion did not address the issue of whether or not the Equal Protection
Clause required laws restricting the definition of marriage to be reviewed
under a rational basis or strict scrutiny standard. Scalias supported the
constitutionality of DOMA because interests in uniformity and stability
amply justified Congress's decision to retain the definition of marriage
that, at that point, had been adopted by every State in our Nation, and
every nation in the world (This last part joined by Chief Justice Roberts).

Alito (joined in part by Thomas) > According to Justice Thomass

opinion, the Supreme Court and the Court of Appeals had no power to
decide the suit. Under his opinion, if majority of both houses of congress
care enough about the matter under discussion, they have innumerable
ways to compel the executive action without a lawsuit. Also, under Justice
Alitos opinion, Congress did not violate Windsor's constitutional rights by
enacting 3 of DOMA, which defines the meaning of marriage under
federal statutes that either confer upon married persons certain federal
benefits or impose upon them certain federal obligations.

The United States Government did not have standing in the case because
the executive branch declined to defend the statute, but BLAG did have
standing because it chose to defend the otherwise undefended statute. The
Constitution does not guarantee the right to enter into a same-sex
marriage because that right is not deeply rooted in this Nations history
and tradition. Instead, the issue of the definition of marriage is left to the
people to decide, a decision in which DOMA does not interfere.

Comments/Class In US v. Windsor, SCOTUS incorporates equal protection clause of 14th
Discussion amendment into liberty protection of 5th amendment. (Reverse
incorporation: provision addressed to states, incorporated to Fed.
Government).

7
8
 2. CRIMINAL LAW AND PROCEDURE

Roper v. Simmons (2005)

Court Supreme Court of the United States
Facts The 17-year-old Christopher Simmons with other two juvenile felons
conspired and committed a capital crime, by robbing, kidnapping and
killing Mrs. Crook. Simmons introduced into Mrs. Crook house, tied
her up with duct tape and electrical wires, brought her to a state park
and throw her into a river form a bridge. Mrs. Crook died by
drowning. Simmons was taken under custody by the police and
confessed the crime perpetrated.
Simmons was sentenced to death penalty by the trial court, since the
jury considered proved the existing of three aggravating factors
(murder was executed with the purpose of receiving money, for
preventing a lawful arrest and involved depravity of mind). The
judgment was affirmed by the Missouri Supreme Court.
After the criminal proceeding was over, the SCOTUS held in Atkins v.
Virginia (2002) that the Eighth and Fourteenth Amendments to the
Constitution prohibit the execution of mentally retarded persons. The
SCOTUS overruled the former opinion held in Penry v. Lynaugh (1989),
which admitted this kind of executions.
Thus, Simmons filed a petition for post-conviction relief arguing that
the same principle held in Atkins should have been applied to juvenile
offenders.
The Missouri Supreme Court agreed with Simmons, arguing that since
Stanford (1989) a national consensus had developed against the
execution of offenders under the age of 18.
Issues Whether it is permissible under the Eight and Fourteenth amendments
to the Constitution of the United States to execute a juvenile offender
who was older than 15 but younger than 18 when he committed a
capital crime / whether death penalty constitutes a disproportionate
(cruel and unusual) punishment for juveniles.
In particular, the Court asks itself whether it should overrule its
former opinion Stanford v. Kentucky where the court deemed this capital
punishment not barred by the Constitution.
Note: how quickly can standards evolve? Timeline of Cases:
- Thompson (1988). No death penalty under the age of 16;
- Stanford (1989). Admits death penalty for juveniles btw 16 -18.
- Penry (1989). Admits death penalty for mentally retarded offenders;
- Atkins (2002). No death penalty for mentally retarded offenders.

9
Holding The SCOTUS affirmed the decision of the Missouri Supreme Court.
Reasoning The issue at stake falls within the scope of the Eight Amendment
which states: excessive bail shall not be required, nor excessive fine imposed, nor
cruel and unusual punishment inflicted (the provision is applicable to the
states through the Fourteenth Amendment). According to the court,
the expression cruel and unusual punishment constitutes expansive
language whose mean must be determined through its text by
considering history, tradition, and precedent, and with due regard for
its purpose and function in the constitutional design. Hence, in order
to establish the exact meaning of the aforesaid expression, the Court
refers to the evolving standards of decency that mark the purpose of
a mature society.
Firstly, the Court acknowledged (through objective indicia) the
development of a general consensus among the states against death
penalty for juvenile offenders. In its survey of state legislations and
practice, the Court revealed that the majority of states had forbidden
the capital punishment of minors or, in any case, had rarely applied it.
Secondly, the Court held that, since death penalty is the most severe
punishment, it must be be limited to those offenders who commit a narrow
category of the most serious crimes and whose extreme culpability makes them the
most deserving of execution (the 8th Amendment applies to death penalty
with special force). Based on this principle, the Court faced the issue
of whether juveniles may fall within the category of the most
deserving/worst offenders and barred such possibility by highlighting
three major differences between juvenile and adult offenders:
1. A lack of maturity and an underdeveloped sense of responsibility
(in recognition of which states forbids juveniles from voting);
2. Juveniles are more vulnerable and susceptible to negative
influences and outside pressures, including peer pressure;
3. The character of juvenile offenders is not as well formed as that
of adults.
Thus, the Court deemed that the irresponsible conduct of a juvenile is
not as morally reprehensible as that of an adult (diminished
culpability).
Based on this ground, the Court also held that the application of death
penalty to minors would be unjustified also under a penological
perspective, since it would not pursue the two distinct social purposes
of capital punishment: retribution and deterrence of capital crime by
prospective offenders.
Thirdly, the Court argued the disproportionate character of death
penalty (cruel and unusual) for juvenile offenders by referring to the
common experience of foreign countries and international authorities,
clearly oriented against this kind of punishment. The opinion of the world
community, while not controlling our outcome, does provide respected and significant

10
 confirmation for our own conclusion.
Rule The Eighth and Fourteenth Amendments to the Constitution forbid
imposition of death penalty on offenders who were under the age of
18 when their crimes were committed.
Dissent SCALIA, J: challenges the Courts opinion in all its three main
arguments.
Firstly, he argues that the majority, despite of its apparent statement,
failed to demonstrate a national consensus against the execution of
juvenile offenders based on objective indicia. In particular, he
challenges that the decision of only four states to forbid death penalty
for minors is not by itself sufficient to prove a change of the standard
of decency in the U.S.
Secondly, Scalia argues that the distinction drawn by the Court
between minors and adults is not scientifically grounded and should be
rejected. In particular, he affirms that in some extraordinary cases
minors that commits premeditated murder are as much culpable as
adult. the studies the Courts cites in no way justify a constitutional imperative
that prevents legislatures and juries from treating exceptional cases in an
exceptional way.
Finally, the Justice challenges the majoritys argument based on
international consensus, as in Scalias view, foreign legal experiences
are absolutely meaningless in the perspective of the interpretation of
the US Constitution.
Notes Prof. Thomas argued that the majority argument based on
international and foreign practice was part of the reasoning of the
decision. This view does not seem clear since the Court expressly
states that the opinion of the world community, while not controlling our
outcome, does provide respected and significant confirmation for our own
conclusion.

Tison v. Arizona (1987)

Court Supreme Court of the United States
Facts The petitioners (Ricky and Raymond Tison) and their mother
engineered with their father (Gary Tison) a prison break in order to
free the latter and his cellmate Randy Greenwalt from an Arizona state
prison. Gary Tison was sentenced to life imprisonment for the murder
of a prison guard during a prevision escape. On July 30, 1978, the
petitioners entered armed into the prison, locked the guards and the
visitors in a storage closet and freed their felons, without firing a shot.
The Tison and Greenwalt, who were driving a Lincoln, travelled for
two days in secondary roads through the desert, until a tire blew out.

11
 The group decided to flag down a motorist and steal his car. They did
so. They stopped, assaulted and kidnapped the Lyons family, taking
their car and driving them along a secondary road into the desert.
Once the group stopped, the Lyons were told to step out of the car
and to stay in front of the Lincoln, guarded by Gary Tison and Randy
Greenwalt. At some point Gary Tison told to his sons to go to Lyons
car and take some water. They did so and while they were heading
towards the car, Gary Tison and Greenwalt suddenly opened fire
against the Lyons, brutally killing them.
Several days later, the petitioners were arrested. The state individually
tried each petitioner for capital murder and for the associated crimes
of armed robbery, kidnaping and car theft.
Based on the felony-murder rule, the trial court sentenced both
petitioners to death, as the judge ascertained the existence of the
aggravating factors that (i) the Tison had created a great risk of death
to the others (not the victims); (ii) the murders had been executed for
pecuniary gain; (iii) the murders were especially heinous. Moreover,
the judge found that the participation of each petitioner in the crimes giving
rise to the application of the felony murder rule in this case was very substantial.
The Arizona Supreme Court affirmed.
The petitioners sought post-conviction relief arguing that the recent
case Edmund v. Florida (1982) imposed to reverse the death penalty
conviction, since in petitioners view, the SCOTUS opinion required
the finding (absent in the present case) of the intent to kill in order
to apply that punishment to the co-felon who did not commit the
murder.
The Arizona Supreme Court dismissed the motion, on the ground that
the Tison had an intent to kill, since intent to kill includes the situation
in which the defendant intended, contemplated, or anticipated that lethal force
would or might be used or that life would or might be taken in accomplishing the
underlying felony (this broad definition of intent to kill was rejected by
the SCOTUS, which excluded that the Tison brothers had the intent
to kill).
Issues Whether the Eight Amendment prohibits the death penalty under the
felony-murder rule in the intermediated case of the defendant whose
participation is major and whose mental state is one of reckless
indifference to value human life.
Holding The SCOTUS vacated the judgment of the Arizona Supreme Court
and remanded for determination of the latter.
Reasoning Firstly, the SCOTUS excluded the applicability of the rule of law set
forth in Edmund v. Florida to the present case.
In the Court view, the Edmund case dealt with two distinct subsets of
felony murder, both different from the present case: (i) on one hand,
the minor actor of an armed robbery, not on the scene, who neither

12
 intended to kill or had any culpable mental state; (ii) on the other
hand, the felony murderer, who actually killed, attempted to kill or
intended to do so. This precedent involved that the death penalty
could not be applied, under the Eight Amendment, to the first subsets
of felony murder, whilst it was absolutely proportionate in the second
case.
Tison brothers conduct, however, did not fall within the scope of
either one of these categories. Hence, the Court identified a different
general rule of law applicable to the present case.
In order to evaluate the proportionality of death punishment in this
type felony-murder cases, the Court carried out a survey of the current
legislation of the states. The Court highlighted that in many
jurisdictions, where death punishment was permitted, the intent to kill
was not a necessary requirement for its application, being, instead,
sufficient that the defendant was a major actor in a felony in which he
knew that murder could occur. Moreover, the Court noted that also
state courts had interpreted Edmund as permitting capital punishment
in aggravated felony murder. Thus, based on these grounds, the Court
noted the apparent consensus that substantial participation in a violent felony
under circumstances likely to result in the loss of innocent human life may justify
the death penalty even absent an intent to kill.
Then the Court analyzed the proportionality of death penalty in these
midrange felony murders, in the perspective of the individualized
culpability based on mental state (since the heart of the retribution
rationale is that a criminal sentence must be directly related to the personal
culpability of the criminal offender). The Court denied that the intent to
kill is a satisfactory mean for distinguishing the most culpable and
dangerous murderers and stated that a reckless indifference to the
value of human life may be every bit as shocking to the moral sense as
an intention to kill. Hence, in the Court view, the reckless disregard
for human life represents a highly culpable mental state, sufficient for
justifying death penalty when the serious conduct perpetrated causes
its natural, though also not inevitable, lethal result.
Rule Major participation in the felony committed, combined with reckless
indifference to human life, is sufficient to satisfy the Enmund
culpability requirement and so justify the application of death penalty
under the felony-murder rule.
Comments The Arizona felony-murder law provides that a killing occurring
during the perpetration o robbery or kidnapping is capital murder and
that each participant in the kidnaping or robbery is legally responsible
for the acts of his accomplices.

Missouri v. Frye (2012)

13
Court Supreme Court of the United States
Facts In August 2007, Galin Frye was charged with driving with a revoked
driving license. He was charged with a class D felony, subject to a
maximum punishment of four year imprisonment. On November 15,
the prosecutor sent to Fryes counsel a letter with two different plea
offers, which would have expired on December 28. One, of the
offered plea bargains reduced the felony charge to a misdemeanor,
subject to a maximum term of imprisonment of one year. Freys
counsel failed to inform the respondent of the prosecutors offers,
which consequently expired.
Before, the preliminary hearing, Frye was again arrested for the same
violation. He pleaded guilty. The court accepted the plea and the
prosecutor recommended a 3-year sentence.
Subsequently, Frye filed a motion for post-conviction relief in the state
court, arguing that counsels failure to inform him of the plea offer
had denied him the effective assistance required by the Sixth
Amendment to the Constitution.
The trial court dismissed the motion, but the Missouri Court of
Appeal reversed. In particular, the appellate court found: (i) Freys
counsels performance was deficient; (ii) Frye had suffered a prejudice
by pleading guilty to a felony, instead of a misdemeanor.
Issues 1. Whether the constitutional right to effective counsel, set forth by
the Sixth Amendment, extends to the negotiation and consideration of
plea offer that lapse or are rejected.
2. In the case the right of assistance extends to the said preliminary
phase, which are the requirements that a defendant, who did not enter
into an earlier and more favorable plea agreement due to his counsels
failure to provide prompt and accurate information on the plea offer,
has to prove in order to ground a sixth amendment violation claim
(claim of ineffective assistance).
Holding The SCOTUS vacated the appellate decision and remanded the case to
the Missouri Court of Appeals, alleging that the latter had failed in
finding the actual existence of a prejudice suffered by the respondent.
Reasoning The right of effective counsel granted by the Sixth Amendment to the
Constitution applies to all critical steps of a criminal proceeding,
including those stages that precede trial such as plea negotiations. The
Court refers to two former precedents Hill v. Lockhart and Padilla v.
Kentucky, in which two defendants, who had entered into plea
agreements without a full understanding of the agreement content due
to their counsels misinformation, challenged a violation of their
constitutional right.
According to Hill, the claims of ineffective assistance in plea
negotiations are governed by the two-part test set forth in Strickland v.

14
 Washington, which imposes to the defendant the burden to prove that:
(i) defense counsel had been ineffective; (ii) the ineffective defense
caused an actual prejudice to the defendant. Padilla made clear that the
negotiation of a plea bargain is a critical phase of litigation for purpose of the Sixth
Amendment right to effective assistance of counsel.
The Court, however, does not consider those two precedents directly
applicable to the present case. Indeed, whilst in those former cases the
misinformation of the defendants concerned the plea agreements
actually executed (and so affected their validity), in the Fryes case, the
challenge is not addressed against the accepted plea, but concerns the
entire bargaining process (the course of legal representation that preceded it
with respect to other potential plea).
Hence, the Court evaluates whether the requirement of effective
defense should be met during the entire process of bargaining. The
Court provides a positive answer to that question. In particular, it
highlights the central role played by plea bargaining in the US criminal
justice system (plea bargaining is not some adjunct to the criminal justice
system; it is the criminal justice system) and acknowledges that these
negotiations represent almost always, the critical point for the
defendant.
Once clarified this preliminary issue, the Court evaluates whether
Freys claim passes the Strickland two part test, as deemed by the
appellate court.
The Court has no doubt in relation to the first requirement (ineffective
defense). It is clear that when defense counsel allowed the offer to expire
without advising the defendant or allowing him to consider it, defense counsel did
not render the effective assistance the Constitution requires.
The Court, however, disagrees with the state court on the second
requirement (an actual prejudice). In the Courts opinion, a defendant
has to show:
1. a reasonable probability that he would have accepted the earlier
plea offer had he been afforded effective assistance;
2. a reasonable probability that the prosecutor would have not
cancelled the executed plea agreement and that the court would
have accepted it, if they had the power to exercise this discretion
under state law.
The second requirement was not met in this case (although the court
acknowledges that this should be a matter of state law), as: (i) under
Missouri state law the prosecutor and the court have the discretion to
cancel plea agreements; (ii) Frye arrest before the preliminary hearing
made like that the prosecutor and the court would have not adhered to
the plea agreement.
Rule 1. Under the Sixth Amendment the right to effective defense must be

15
 granted during the entire process of plea negotiation.
2. A Sixth Amendment violation claim, based on counsels failure to
inform the client about a plea offer, requires the defendant to prove:
(i) the ineffectiveness of counsels defense; (ii) the existence of an
actual prejudice and, in particular, (a) a reasonable probability that the
same defendant would have accepted the earlier plea offer had he been
afforded effective assistance; (b) a reasonable probability that the
prosecutor and the court would have adhered to the plea, if they have
the power to exercise this discretion under state law.
Dissent Scalia dissent from the majoritys opinion. On one hand, he deems
that the plea bargaining process fall outside from the scope of the
Sixth Amendment. Thus, Fryes claim should have been dismissed on
this sole ground. Counsels mistake did not deprive Frye of any substantive or
procedural right, only of the opportunity to accept a plea bargain to which he had
no entitlement in the first place.
Scalia also challenges the inadequacy of the method adopted by the
Court for determining the existence of a prejudice, stating that
prejudice is to be determined, the Court tell us, by a process of retrospective crystal-
ball gazing posing as legal analysis.

16
 3. CONTRACTS

1. What is a contract under U.S. law? A contract is a promise between two or more
parties that the law recognizes as binding by providing a remedy in the event of breach
a. Offer and Acceptance: [F]or promises to be enforceable there must be
mutual assent between the parties.
i. Offer: A manifestation of willingness to enter into a bargain so made as
to justify another person in understanding his assent to that bargain is
invited and will conclude it. An offer must be sufficiently definite such
that, if accepted, there would be a sufficient basis for determine the
existence of a breach and for giving an appropriate remedy.
ii. Acceptance: The offeree accepts the offer by agreeing to the proposed
bargain.
1. Means of Acceptance:
a. bilateral contracts: where the offeror seeks acceptance
through a promise of performance
b. Unilateral contracts: where the offeror seeks acceptance
through actual performance.
The offeror, as the master of the offer, may prescribe the
method by which the offer will be accepted. Unilateral contracts
require full performance, until then, there is no acceptance and
therefore no contract. As this latter rule may cause unfair results
(revoking offer after receiving partial performance), the law
generally provides two alternative protections: equity doctrine
of in quantum meruit to recover the value of the performed
work, or hold that the offer has become an option contract.
2. Time for Acceptance: power to accept does not belong to the
offeree forever since it can be determined by lapse, rejection,
revocation, or the death of a party. If no time is specified, offer
expires after a reasonable time (depends on circumstances).
3. Mail-box rule: offer and acceptance are deemed given at the
time they are mailed. Revocation, at the time of receipt by the
offeree.
4. Option Contracts: for the protection of the offeree, there are
some situations in which an offer is irrevocable for a period of
time. An offer is irrevocable if the offeree gives the offeror
consideration for a promise not to revoke the offer for a period
of time. This means that the offeree pays or otherwise gives
value to the offeror to keep the offer open for some period of
time. Another occasion is when the offeror wants acceptance
by performance and the offeree begins the invited performance.
The length of this option contract is reasonable time.

b. Consideration: A bargained-for exchange between the promisor and the

promise. Promisee is the person benefiting from a given promise, while the
promisor is the person who made the promise and is being called on to carry it
out. Intention is not important, but an objective manifestation of agreement.

17
 i. Promise to make a gift: usually enforceable since the promisor wants
nothing in return for the promise.
ii. Illusory Promises: appears to promise something, but in fact does not
commit the promisor to anything at all. It is insufficient consideration.
A promise is similarly illusory when one of the parties reserves an
unrestricted right to terminate the agreement at any time. If termination
requires a prior notice, then such notice is a detriment and, therefore,
valid consideration. In some cases seemingly illusory promises have
been enforced as they imply a duty to use good faith in performing the
promise.
iii. Pre-existing duty rule: exchange of pre-existing duty (already a legal
duty) is not valid consideration for a new promise. This rule has been
criticized because it interferes with the parties freedom to modify their
agreements.
iv. Promissory Estoppel: alternative to consideration. It provides that
reliance on a promise can make the promise binding or enforceable to
some extent, even without consideration, but only if it was foreseeable
to the promisor that the promise would rely on the promise.

2. Remedies for Breaches of Contracts

a. Damages
i. Expectation Damages: they remedy the unfulfilled expectations of a
party. Put the aggravated party in the same position the party would
have been in the contract had been fully performed.
ii. Mitigation of Damages: injured parties are under the obligation to take
reasonable steps to mitigate or minimize their damages to the extent
that this can be done without undue risk, burden or humiliation.
iii. Foreseeability: damages are not recoverable for loss that the party in
breach did not have reason to foresee as a probable result of the breach
when the contract was made. A breaching party may be liable for
unforeseeable or unusual losses if that party had actual notice of the
possibility of special losses.
iv. In general, only expectation damages are recoverable. Compensation
for emotional distress and punitive damages are normally not available.

b. Equitable Relief
i. Specific Performance: equitable remedy in which the court orders the
breaching party to perform duties under the contract
ii. Restitution Remedies: places the parties back in the position they were
before the contract was made. There are 2 distinct uses: undo a
contract that is void or voidable; or an alternative to suing for damages
for breach of contract, but only in case of full breach of the contract.
Difference of the latter with expected damages: restitution is measured
by the gain the breaching party obtains, while the expectation damages
are measure by the befit the innocent party should have expect
according to the contract.
iii. Quasi-Contract Theories of Recovery: there is no contract but the
defendant had nonetheless been enriched by the plaintiffs action, then

18
 the plaintiff can recover under this theory. The recovery comes from
duties imposed by the law as a means of ensuring justice by preventing
one party from being unjustly enriched at the expense of another.

Other issues addressed in class: Two views of the common law cathedral of contracts, in
connection with Payne and Vergara:

- Ideological (Official story): the society is organized trough the formation of voluntary
contracts among free and equal citizens, with whose choice the state will not interfere,
creating a classless society where everyone has equal opportunity for personal gain and
happiness. The purpose of the rules is create the conditions for private relationship in
which the State is out. The primacy and priority are on the decision of the individuals
that take part of the marketplace. Contract law is therefore private. The only interest of
the state is proving the frame within the people can enter into the contract they may
need. That is the social understanding that animates the rules.

- Social-Economic view: The social order is organized through free competition, made
coercive through the operation of an unregulated market, creating relations of class
dominance determined primarily by the ownership of capital. Issues of status and
power are very much present even when they do not form the face of the legal analysis.

Dementas v. Tallas
Facts Tallas filed a claim against Dementas state in order to enforce a
written memorandum signed by Tallas and Dementas before his
death, by which Dementas recognized a 50,000 debt in favor of
Tallas as consequence of a series of minor services previously
rendered, and also promised to amend his will in order to include
him as heir.
Issue Whether there was sufficient consideration to show that Tallass
promise was enforceable.
Rule To be enforceable, a contract requires consideration.
Holding There was no consideration in the document to be considered as a
contract and, therefore, it is not enforceable.
Reasoning The memorandum lacks consideration in order to be enforceable.
Consideration: a legal detriment has been bargained for and
exchanged for a promise (Miller v. Miller). The mere fact that one
man promises something to another creates no legal duty and
makes no legal remedy available in case of non-performance.
Determining the existence of consideration: the focus is not
whether the amount promised represents the fair market value for
the services rendered. On the contrary, there is consideration
whenever a promisor receives a benefit or where promise suffers a
detriment, however slight (Gasser v. Horne).

19
 Past consideration is not consideration: Tallas promise was made
for services already performed by Dementas, which is not a
promise supported by legal consideration. Events which occur prior to
the making of the promise in exchange are viewed as past consideration and
are the legal equivalent of no consideration (Corbin, On Contracts).
There is no bargaining since the promisor is making his promise
because those events occurred, but he is not making his promise
in order to get them; no saying that if you will do this for me I will do
that for you (County of Clark v. Bonanza: a benefit conferred or
detriment incurred in the past is not adequate consideration for a
present bargain).
Moral Obligation? An answer to past consideration (Mawill v.
Oyler), but courts apply the exception in cases where services
rendered in the past were rendered with the expectation of
payment rather than gratuitously. Even in this case Dementas
would not prevail.
Related Secondary Consideration Restatement:
Source: Restatement
(2nd) Contracts I. To constitute consideration, a performance or a return
promise must be bargained for
II. A performance or return promise is bargained for if it is
sought by the promisor in exchange for his promise and is
given by the promise in exchange for that promise
a. The performance may consist of
i. An act other than a promise, or
ii. A forbearance, or
iii. The creation, modification, or destruction of a
legal relation
b. The performance or return promise may be given to
the promisor or to some other person. It may be given
by the promise or by some other person.
III. Gifts? A gift is not ordinarily treated as a bargain, and a
promise to make a gift is not made a bargain by the
promise of the prospective done to accept the gift, or by
his acceptance of part of it. This may be true even though
the terms of gift impose a burden on the done as well as
the donor. In such cases the distinction between bargain
and gift may be a fine one, depending on the motives
manifested by the parties. In some cases there may be no
bargain so long as the agreement is entirely executory, but
performance may furnish consideration or the agreement
may become fully or partly enforceable by virtue of the
reliance of one party or the unjust enrichment of the

20
 other.
IV. Types of consideration: May consist of a performance or
of a return promise. Consideration by way of performance
may be a specified act of forbearance, or any one of
several specified acts or forbearances of which the offeree
is given the choice, or such conduct as will produce a
specified result. Or either the offeror or the offeree may
request as consideration the creation modification or
destruction of a purely intangible legal relation.
Consideration by way of return requires a promise;
consideration may consist partly of promise and partly of
other acts or forbearances, and the consideration invited
may be a performance or a return promise in the
alternative.
V. Third parties: It matters not from whom the consideration
moves or to whom it goes. If it is bargained for and given
in advance for the promise, the promise is not gratuitous.

Hadley v. Baxendale
Facts Hadley was a mill operator and one its mill shaft broken. Therefore,
it entered into a contract of carriage with a company represented by
Baxendale so that it delivers the shaft to the manufacturer.
However, the latter delayed the delivery, which caused a 5 days
delay in reopening the mill, thus causing damages to Hadley as a
result of paying wages and loss of profits. The defendants alleged
that damages were too remote. The jury found a verdict of damages
beyond the sum already paid into Court by the defendants to settle
the case considering loss of profits.
Issue Whether the loss of profits suffered because the mill could not
operate without the shaft should be considered damages for breach
of contract.
Rule Recoverable damages must be reasonably foreseeable
Holding The judge failed to provide proper directions over the rule to be
considered by the jury, since the jury couldnt take the loss of
profits into consideration since damages by breach of contract
should be only foreseeable under the particular circumstances.

Reasoning Where the parties have made a contract which one of them has
broken, the damages which the other party ought to receive in
respect of such breach of contract should be such as may fairly and
reasonably be considered either arising naturally, i.e., according to
the usual course of things, from such breach of contract itself, or
such as may reasonably be supposed to have been in the

21
 contemplation of both parties, at the time they made the contract,
as the probable result of the breach of it.
Now, if the special circumstances under which the contract was
actually made were communicate by the plaintiffs to the
defendants, and thus known to both parties, the damages resulting
from the breach of such contract which they would reasonably
contemplate, would be the amount of injury which could ordinarily
follow from the breach of contract under these special
circumstances so known and communicated.
But, on the other hand, if these special circumstances were wholly
unknown to the party breaking the contract, he, at the most, could
only be supposed to have had in his contemplation the amount of
injury which could arise generally, and in the great multitude of
cases not affected by any special circumstances, from such a breach
of contract.
Related Secondary I. Mainly highlights the importance of the rule for contract
Source: Hadley v. law and details the scope of the rule, stating that this is a
Baxendale: A Study new rule crafted by Baron Alderson.
in the II. The case arises in a legal system that had to deal with the
Industrialization of transition to a modern/industrial economy
the Law, Richard III. The case shows underdeveloped nature of the law of agency
Danzig
in England at the time, since Baxendale was the principal of
the carrier company and, as such, personally liable for the
negligence of the latter.
IV. The rule helps managing risks and exposure in connection
with contract breaches.
Additional Notes Efficient breach: It could be economically more interesting to
breach the contract and pay the damages to plaintiff. It would be to
everyones advantage to breach (the other party is not losing, in that
it is getting the money).
I would hope that this discussion would serve as a counterpoise to
the tendency to regard some rules of law as fixed stars in our legal
system. Judicial rules are more like inventions, designed to serve
particular functions in particular settings.

Scott v. Cingular Wireless

22
Facts A group of consumers entered into an agreement with CW
(adhesion contract) by means of which they acquired cellphone and
calling plans. The contract included an arbitration clause that, in
addition, prevented them from filing class actions before the
arbitrator. CW kept the right to unilaterally modify the agreement
and, upon it, it later modified the arbitration clause in order to
lessen the restrictions to start arbitration proceedings, but keeping
the prohibition of class actions. As the consumers were affected by
improper roaming and long distance charges, involving amounts
that individually were nominal they filed a class action.
Issue Whether or not the waiver of class actions contained in the
arbitration clause is substantively and procedurally unconscionable
and, therefore, unenforceable.
Rule -
Holding The waiver is unconscionable and therefore unenforceable due to 2
reasons:
1. The waiver of class actions is against the public policy of
the State and, therefore, void, as it is against the
Washington.
2. This clause ensures exculpation of the breaching provider
since, in practice, consumers do not start individual claims
just to recover nominal amounts of damages.
Reasoning Analysis of contracts from the public policy point of view: an
agreement that has a tendency to be against the public god, or to be
injurious to the public, violates public policy (King v. Riveland)
and, therefore, can be void and enforceable (Restatement (2nd) of
Contracts). Washington CPA authorizes class actions and
demonstrates a state policy favoring aggregation of small claims for
purposes of efficiency, deterrence and access to justice.
Class actions waivers have been found permissible in some contexts
(Discover Bank). Therefore, the analysis must be made regarding
the particular circumstances.
Class actions are critical piece of the enforcement of consumer
protection law, therefore the clause is substantively unconscionable
because it is against the States policy to protect the public and
foster fair and honest competition.
Is it procedurally unconscionable for effectively exculpating its
drafter from liability for a large class of wrongful conduct? This
type of clauses undermine the public good and, therefore,
exculpation violates public policy. On its face the clause does not
exculpate, but, in effect, it exculpates Cingular from legal liability
for any wrong where the cost of pursuit outweighs the potential

23
 amount of recovery.
The amendments introduced by CW to the clause were not
sufficient to prevent exculpation.
Dissenting Madsen - The public policy that supports the majority decision is a
public policy created by the majority itself. If there is to be state
policy forbidding class action waivers in consumer agreements, it
should come from our legislature, not this court.
Commentaries [T]he realistic alternative to class action is not 17 million individual
lawsuits, but zero individual suits, as only a lunatic or a fanatic sues
for 30 dollars. Judge Richard Posner, Carnegia v. Household Intl.,
Inc. 376 F. 3d. 656, 661 (7th Cir. 2004)
Other cases addressing the importance of class actions as a
mechanism designed to overcome the problem that small
recoveries do not provide the incentive for any individual to bring a
solo action: Anchem Products, Inc. v. Windsor, 521 U.S. 591, 617
(1997): Thibodeau v. Comcast Corp., 912 A.2d 874, 884 (Pa. Super.
Ct. 2006) (citing Smith v. Swormstedt).

US v. Vergara
Facts Vergara was sentenced after being arrested for conspiring with others to
sell cocaine but, prior to such sentence, he executed a plea agreement
pursuant to which he was obliged to plead guilty and cooperate with the
prosecution of his coconspirators. In exchange, the prosecutor would
make a motion on Vergaras behalf in order to allow the court to grant a
benefit to Vergara at the time of sentencing. Vergara provided
substantial assistance but he did not showed up to his sentence hearing
and, upon this basis, the prosecutor did not made de motion stating that
he had committed a crime which, under the terms of the plea
agreement, authorized it to dishonor the agreement. Vergara contends
that his conduct does not authorize such behavior.

Issue Whether or not the terms of the plea agreement authorize the
government to dishonor his previous commitment, considering
Vergaras breach.
Rule
Holding The government is not authorized to not filing the motion since the
plea agreement terms expressly contains the consequence of Vergaras
behavior, among which was not the right of the government to decline
the submission of the motion.

Reasoning Recent Second Circuit cases considering plea agreements established 2

propositions: they are interpreted under principles of contract law (this

24
 is not to say that they are agreements under contract law), and, because
prosecutors draft them and enjoy advantages in bargaining power over
defendants, courts will construe plea agreements strictly against the
government, as occurs with any contract in which the drafting party has
an overwhelmingly superior bargaining position (Padilla, Gottesman,
Ready and In re Altro: here, Court rejected defendants invocation of
the spirit of the agreement).
The plea agreement expressly contemplates the consequences of
Vergaras breach (be subject to prosecution for any federal criminal
violation).
Moreover, after Vergara the government changed its form of letter
agreement to provide explicitly for a release of its obligations.

Payne a The Western & Atlantic Railroad Company

Facts A Chattanooga businessman, whose store is located nearly in the center
of five railroad termini leading to the city and that has built up extensive
and profitable business with the employs of the company, files a claim
against the Railroad Company after the latter published an order
threatening its employees with firing them if they trade with the plaintiff.

Issue Is it unlawful for one person, or a number of persons in conspiracy, to

threaten to discharge employees if they trade with a certain merchant?
Rule -
Holding Companies are free to discharge their employees, with good, bad or even
no cause, without being guilty against them; and, therefore, even less
against third parties.
Reasoning Parties enjoy freedom of contract
Is it unlawful for one person, or a number of persons in conspiracy, to
threaten to discharge employees if they trade with a certain merchant? It
maybe be unjust, but is it unlawful? Everyone has the right to dismiss
their employees at will.
The great and rich and powerful are guaranteed the same liberty and
privilege as the poor and weak. All may buy and sell when they choose;
they may refuse to employ or dismiss whom they choose, without being
thereby guilty o a legal wrong, though it may seriously injure and even
ruin others. (class highlight)
Dissenting Injuries to property, indirectly brought about by menaces, false
representation or fraud, create as valid a cause of action as any direct
injury from force or trespass. Damages are recoverable.
but whenever the exercise of the right was solely for the purpose of

25
 injury to another, and such injury followed, he should respond in
damages for that which he had purposely inflicted. If, however, he could
show it was exercised for justifiable cause then such an order would be
justified.
Maxim of law: a man must so use his own as not to do an injury to
others. Perfect freedom in all legitimate uses is due to capital, and should
be zealously enforced but public policy and all the best interests of
society demands it shall be restrained within legitimate boundaries, and
any cannel by which it may escape or overlap these boundaries, should
be carefully but judiciously guarded. Freedom has boundaries and,
among them, are third partys rights willfully affected by the behavior of
the defendant.
Overall, dissenting seemed to state a different issue of the case: Whether
or not such threaten entitles the plaintiff to recover damages against the
company.
In view of the immense development and large aggregations of capital
in this favored country . . . It is the demand of a sound public policy, for
the future as well as now, that the use of this power should be restrained
within legitimate boundaries. If . . . these masters of aggregated capital
can use their power over their employees as in this case . . . . [the] result
is that capital may crush legitimate trade, and thus cripple the general
property of the country and the employee be subject to its grinding
exactions at will. (class highlight)
Gay Teacher Does the teachers right to be free from discrimination trump the
Fired: Does schools right to safeguard its theological convictions about marriage by
Discrimination dismissing a teacher whose life is at odds with that teaching?
Law Trump
Theological
Conviction? LA
Times

26
 4. PROPERTY
General Outline

I Introduction

A. Article I, Section 9 Clause 1:

B. Article IV, Section 2, Clause 3:
C. Article IV, Section 3, Clause 12:
D. Due Process Clause of 5th and 14th Amendments:
E. Takings Clause of the 5th Amendment Eminent Domain

II. Chapter XII - Property Law

A. Types of Property
1. Real Property or Realty
2. Personal Property or Personality

B. Nature of Property Rights

1. Property Interests defined by Degree of Ownership or Control
2. Property Interests defined by Physical Limits
3. Property Interests defined by Time
4. Property Interests defined by How the Interest is Held

C. Government Control over Real Property (Eminent Domain)

III. Case Briefs

A. Johnson and Graham's Lessee v. William M'Intosh (1823)

B. Pierson v. Post
C. Association for Molecular Pathology v. Myriad Genetics, Inc.
D. Kelo v. City of New London
E. Dred Scott v. Sandford, excerpt

IV. Articles

A. A City Invokes Seizure Laws to Save Homes, NY Times

I. Introduction

The Constitution has many references to property since one of the things that led to the
substitution of the articles of confederation (1st constitution) was anxiety among the
property owners of the status of their property.

Article I, Section 9 Clause 1:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit,
shall not be prohibited by Congress prior to the Year one thousand eight hundred and eight . . . .

27
No law could be enacted at the federal level, which interfered with the transportation and
migration of slaves.

Article IV, Section 2, Clause 3:

No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in
Consequence of any Law or Regulation therein, be discharged from such Service of Labour, but shall be
delivered up on Claim of the Party to whom such Service or Labour may be due.

Sough to prevent the northern states from becoming a safe place for slaves escaping the
south.

Article IV, Section 3, Clause 12:

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States; and nothing in this Constitution shall be so
construed as to Prejudice any Claims of the United States, or of any particular State.

Due Process Clause of 5th and 14th Amendments:

No person . . . shall . . . be deprived of life, liberty or property, without due process of law

[No State shall] deprive any person of life, liberty, or property, without due process of law.

Takings Clause of the 5th Amendment Eminent Domain

. . . [Nor] shall private property be taken for public use, without just compensation.

II. Chapter XII - Property Law

(P. 471-476)

Types of Property:

Real Property or Realty: Land and the structures built upon it. In Civil Law, immovable
property.

Personal Property or Personality: All other forms of property. In Civil Law, movable property.

Nature of Property Rights:

Property rights concern the rights and obligations of people with respect to things. The
aggregate of such rights and obligations is sometimes analogized to a bundle of sticks. Each
stick can be seen as a specific right:

The right to possess (which allows persons to possess but not sell (See: Johnson v. Mcintosh);

28
 The right to use;
The right to exclude others; and
The right to alienate (sell).

Property Interests defined by Degree of Ownership or Control

Ownership Interests: Fee Simple Absolute - The owner holds all possible rights and interests
associated with a property in a single bundle. The owner may transfer through deed or will.

Possessory Interests in Property: Leases - The owner of a property can convey to another
person the right to possess the property for a limited period of time . The owner of the
property is called the lessor or landlord and the person using the property is called the
lessee or tenant. A landlord may sell land subject to a lease, however, the buyer will not be
able to exercise his right to possess until the term of the lease has ended.

Use and Access Rights: Easements - An easement is the right to use land owned by another .

Splitting Legal and Equitable Title: Trusts - A fee simple owner, referred to as the trustor, may
transfer property into a trust to be controlled and managed by a trustee, while another person,
referred to as the beneficiary, is entitled to receive the benefits from the property. The trustee
will have legal title over the property but must manage it in accordance with the terms of the
trust agreement.

Property Interests defined by Physical Limits

Boundaries of Land: It is the most common way in which land properties are defined. The idea
that a person owns everything above and below the land is no longer feasible, as the use of air
space has certainly become vital in air transport and underground utilities are also a limiting
factor to this idea.

Physical Structures on Land: Physical structures located on land are part of the real property,
included are also items of personal property that have been affixed to a certain land, such are
called fixtures.

Space Inside Buildings: In condominiums, the owner of a unit owns the unit, as well as part of
the building which he shares with the rest of the members of the condominium, just by
belonging to it.

Property Interests defined by Time

Present Indefinite Continuous Ownership: fee simple ownership continues for an indefinite
period of time.

Property Interests of Limited Definite Duration: leasehold interests which terminate after a
certain term.

Interests of Periodic renewable Duration: Some leases have periodic tenancy. This happens
when a tenancy is set to renew automatically after a certain period of time if the parties do not

29
notify each other of their intention to terminate the lease.

Life Estates Terminating upon Death: A possessory interest that terminates at the end of a
personss life. For example, elderly parents will setup a life estate when they want to transfer
their house to their children but want to be able to keep living there until they die.

Future Interests: A present interest to enjoy possession of a property sometime in the future.

Discontinuous Periodic Ownership Interests: Timeshares. May be sued for specific period of
time every year.

Property Interests defined by How the Interest is Held

Single Ownership: Held by one person or entity.

Joint Tenancy: Joint tenants own an undivided, equal portion of the property.

Tenancy by the Entirety: Tenancy by which a married couple may jointly own property.
However, as opposed to joint tenancy, division may only be made through divorce or mutual
agreement.

Tenancy in Common: similar to joint tenancy but without right of survivorship. This entails
that if a tenant in common dies, that tenants interest descends to his or her heirs and the
tenancy in common continues.

__________

(P. 482-487)

Government Control over Real Property

Eminent Domain:
The governments power to take private property for public use is known as the power of
eminent domain The government most often exercises its power of eminent domain to
condemn property needed for public improvements, such as for the construction of a
highway or a park. However, the 5th Amendments takings clause provides that private
property [may not] be taken for public use, without just compensation.

The Public Use Requirement Sometimes the public use requirement is clearly met. But
sometimes, like when the State takes property to transfer it to another private party, the
presence of this element is somewhat less evident. Some transfers are uncontroversial (e.g.,
where a railroad company builds a station). Evidently there is a public use, even if the company
is another private party.

In some cases, however, private transfers may be permitted even where public use is not
contemplated , so long as the transfer is for a public purpose.

For example, in Hawaii Housing Aauthority v. Midkiff, the SCOTUS held that the Public Use

30
Clause did not preclude Hawaii from taking title in real property, with just compensation, for
the purpose of reducing the concentration of ownership. Noting that Hawaii's statute was
rationally related to a conceivable public purpose, the Court argued that "debates over the
wisdom of takings" were best carried out by legislatures, not by federal courts. The Court also
held that the fact that the property taken by eminent domain was transferred to private
beneficiaries did not condemn the law to having a solely private purpose, as in this case Hawaii
was trying to redistribute lands from few owners to a wider number of owners so as to solve a
real estate crisis in the State.

This was also the case in Kelo v. City of New London (See case brief).

Pierson v. Post
Facts Post (P) was in pursuit of a fox while hunting with his hounds. Pierson (D)
killed and captured the fox despite knowing that Post had been pursuing it.
Neither party owned the land on which they were hunting. Post brought
suit in trespass on the case, contending that he acquired title to the fox
when he began to hunt it. Pierson asserted that Post did not have control
over the fox and therefore had not acquired any property interest in it. The
trial court entered judgment for Post and the plaintiff appealed.

Issue Whether Post, by the pursuit with his hounds in the manner alleged in his
declaration, acquired such a right to, or property in, the fox, as to sustain
an action against Pierson for killing and taking him away?

or

Does the mere fact that a person is pursuing a wild animal grant that
person a right to the animal?

Rule In order to obtain title to a ferae naturae (wild animal) a person must take it.

Holding No. The mere fact that Post was pursuing a wild animal does not grant him
a right to the animal.

Reasoning The first to kill and capture is the superior rule of law. Had Post mortally
wounded the animal, it would have been sufficient to show possession
since this would have deprived the animal of its natural liberty. However,
the plaintiff was only able to show pursuit and therefore acquired no
property interest in the animal.

Comments / Pierson v. Post is a canonical case which means that it is one of the basic
Class and fundamental cases of US property law. However, the dispute (as put
Discussion by Bethany Berger) was not really about the fox at all.

The real question is the intersection between public and private property,

31
 namely the land. It is not about the object that is at stake, but rather the
location.

The case takes place in the wasteland or wilderness (nobodys land).

What if Mr. Post had been hunting in private land? Could this have
changed the holding?

The case establishes a rule as to how should the law deal with property
issues with respect to objects that may be located in the commons? The
commons is an old english concept that describes the idea of land that
belongs to the public in general.

There is a constant debate between two notions, ideas or images of

property:

Property as a Possessive Interest: It is an individual interest; property

rights are absolute; views the individual as having private rights of
ownership.

Property as a Relational Interest: Social or communal interest;

contingent (which gives rise to a public interest) and shared right of access.

Johnson & Grahams Lesse v. Mcintosh

Facts In 1775, Thomas Johnson and other British citizens purchased land in the
Northwest Territory, then in the colony of Virginia, from members of the
Piankeshaw Indian tribes. This purchase was arranged under a 1763
proclamation by the King of England. Thomas Johnson left this land to his
heirs.

In 1818, William M'Intosh purchased from Congress, 11,000 acres of the

land originally purchased by Johnson.

Upon realizing the competing claims on the land, Johnson's heirs sued
M'Intosh in the United States District Court for the District of Illinois to
recover the land. The District Court ruled for M'Intosh, reasoning that
M'Intosh's title was valid since it was granted by Congress. Johnson's heirs
appealed to the Supreme Court.

Issue Whether the Indians had the right to transfer the land title to private
citizens?

Rule Native americans do not have a right to sell land.

Holding No, the Indians had no right to transfer the land to private citizens because

32
 they only have right to possession and not title in the lands that they
occupy.

Reasoning The Court established that the federal government had "the sole right" of
negotiation with the Native American nations. Through the Revolutionary
War and the treaties that followed, the United States earned the "exclusive
rightto extinguish [the Indians'] title, and to grant the soil." The Indians
themselves did not have the right to sell property to individuals. M'Intosh's
claim, which was derived from Congress, was superior to Johnson's claim,
which was derived from the non- existent right of Indians to sell their land.

Comments / - The title to land depends entirely on the land of the nation in which they
Class lie and in the principles, which the government has adopted in the
Discussion particular case.

- The rights of the original inhabitants were considerably impaired: they

were admitted as the rightful occupants of the soil with a legal right just
to retain the possession and use it to their own discretion. But their
rights to complete sovereignty and to dispose of the soil at their own
will was denied by the original fundamental principle that discovery gave
exclusive title to those who made it (i.e., the US).

- After the war of independence the United Stated had title to all the land
of the country, subject only to the Indian right of occupancy. This right
could be extinguished by purchase or by conquest.

- The Indians were savages and to leave the country in their possession
was to leave the country in the wilderness.

- The Indians are to be considered as occupants and to be protected while

in peace but are incapable of transferring the absolute title to others.

- Consequently, the Court states that the settlers discovered America and
that discoverer vests rights in them notwithstanding that the land they
discovered was occupied by the Indians. One main issue was that the
people who inhabited the land had some qualifications and habits that,
in their opinion justified taking there property through discovery.

- Conquest: the act through which title is vested. It is the law of the
sword. Title to property by conquest is acquired and maintained by
force.

- Marshall said that the Native Americans have a possessory interest in

the land, they could occupy the land and they can even alienate those
rights of occupation but only to the US government. The US holds an
exclusive right when it comes to the question of title. The bundle of
rights is disaggregated and title belongs to the US government.

33
 - According to Marshall, Property is a legal institution and the status and
nature and scope and limits can be determined by our positive law and
not just by principles of natural law.

- The legal analysis takes as its point of departure discovery and conquest
as the law of the land, although conquest is most of all a political fact.
The source of the title is the discovery.

Susette Kelo, et al., v. City of New London

Facts In 2000, the city of New London approved a development plan that was
projected to create in excess of 1,000 jobs, to increase tax and other
revenues, and to revitalize an economically distressed city, including its
downtown and waterfront areas.. In assembling the land needed for this
project, the city's development agent has purchased property from willing
sellers and proposes to use the power of eminent domain to acquire the
remainder of the property from unwilling owners in exchange for just
compensation.

The nine petitioners own 15 properties in Fort Trumbull. There is no

allegation that any of these properties is blighted or otherwise in poor
condition; rather, they were condemned only because they happen to be
located in the development area.

In December 2000, petitioners brought this action in the New London

Superior Court. They claimed, among other things, that the taking of their
properties would violate the public use restriction in the Fifth
Amendment. After a 7day bench trial, the Superior Court granted a
permanent restraining order prohibiting the taking of the properties
located in parcel 4A (park or marina support).

After the Superior Court ruled, both sides took appeals to the Supreme
Court of Connecticut. That court held, over a dissent, that all of the City's
pro- posed takings were valid.

We granted certiorari to determine whether a city's decision to take

property for the purpose of economic development satisfies the public
use requirement of the Fifth Amendment.

Issue Whether a city's decision to take property (and sell it to a third party) for
the purpose of economic development satisfies the public use
requirement of the Fifth Amendment.

Rule The court had previously held in the Midkiff case that such economic
development qualified as a valid public use under both the Federal and

34
 State Constitutions. The court has to meet two burdens for eminent
domain- (1) that the takings of the particular properties at issue were
reasonably necessary to achieve the Citys intended public use and (2)
that the takings were for reasonably foreseeable needs.

Holding Takings of private property by a city in order to sell it for private

development as part of the citys economic development plan is in
accordance with the Fifth Amendment of the US Constitution.

Reasoning The public use requirement of the Taking Clause has to be interpreted as
public purpose. The court broadly interprets the meaning of public use
as it has been historically applied. When an area is planned as a whole to
benefit an area facing economic hardship such plans will be upheld. Public
use of property (use it with public purposes) in an economic development
usually gives benefit to certain private parties that do not invalidate its
public use.

Comments / - Eminent Domain: the power of a state or a national government to

Class take private property for public use. It can be traced back to the
Discussion Takings Clause of the 5th Amendment Nor shall private property be
taken for public use without just compensation

- The Court clarifies that it is not its role to determine the particularities
of the development project. The Courts role is simply to determine if
it has a public purpose an concludes that the development plan
unquestionably serves a public purpose, because economic
development qualifies as a valid public use under both the Federal and
State Constitutions.

- Following Berman v Parker the Court refused to evaluate this claim in

isolation, deferring instead to the legislative and agency judgment that
the area must be planned as a whole for the plan to be successful

- As in Berman, to resolve the challenges of the individual owners in this

case, the case should be resolved in light of the entire plan and not on a
piece-by-piece basis. Because the plan unquestionably serves a public
purpose, the taking challenged here satisfies the public use requirement
of the 5th Amendment.

- The constitution does not use the phrase public purpose; it uses the
phrase public use. Presumably the persons who wrote the constitution,
had available to them the word purpose, and had they so chosen, they
could have included it in the Fifth Amendment.

35
 Association for Molecular Pathology et al., v. Myriad Genetics, Inc., et al.
Facts The Association for Molecular Pathology along with several other medical
associations, doctors and patients sued the United States Patent and
Trademark Office (USPTO) and Myriad Genetics to challenge several
patents related to human genetics.

Myriad's patents would, if valid, give it the exclusive right to isolate an

individual's BRCA1 and BRCA2 genes. The patents would also give
Myriad the exclusive right to synthetically create BRCA cDNA. In Myriad's
view, manipulating BRCA DNA in either of these fashions triggers its
right to exclude others from making its patented composition of matter
under the Patent Act.

Myriad argued that once a gene is isolated, and therefore distinguishable

from other genes, it could be patented. By patenting the genes, Myriad had
exclusive control over diagnostic testing and further scientific research for
the BRCA genes.

Petitioners argued that patenting those genes violated 101 the Patent Act
because they were products of nature. They also argued that the patents
limit scientific progress. 101 limits patents to any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof.

Issue Whether Myriad's patents claim to isolated DNA (namely BRCA1 and
BRCA2), as well as cDNA, are a new and useful ... composition of
matter, and thus patentable, or instead claim naturally occurring
phenomena, and thus not patentable.

Holding No and yes, naturally occurring DNA segments such as BRCA1 and
BRCA2 are products of nature and not patent eligible merely because they
have been isolated, but cDNA is patent eligible because it is not naturally
occurring.

Rule Naturally occurring phenomena are not patentable.

Comments / - The legislative may only exercise legislative powers to those matters
Class within its competence in the text of the constitution or inferred from
Discussion the express grants of powers. Which provision of the constitution gives
the congress power to enact a bill like the patent act? Article 1 Section
8 subsection 8: that is the constitutional source of the possibility of
patent copyright and trademark.

- The authority of Congress to regulate patents comes from the

Constitution and the express mandate therein established. Remember,
the federal governments authority is given by and limited by the US

36
 Constitution.

- Section 101 of the Patent Act establishes:

- Whoever invents or discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may obtain a
patent therefore, subject to the conditions and requirements of this title.

- It would seem that the word discovers would allow to patent

naturally occurring DNA. However, it does not! Laws of nature, natural
phenomena and abstract ideas are not patentable.

- The court does Judicial Balancing of the interests. Here it balances

the interests and rights of a community of researchers to develop their
discoveries and the rights and interests of a different group of
researchers for scientific knowledge goals and medical research.

- Discovery is not Invention

Dred Scott v. Sanford

Facts Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in
Illinois (a free state) and in an area of the Louisiana Territory, where
slavery was forbidden by the Missouri Compromise of 1820. After
returning to Missouri, Scott sued unsuccessfully in the Missouri courts for
his freedom, claiming that his residence in free territory made him a free
man.

Scott then brought a new suit in federal court. Scott's master maintained
that no pure-blooded Negro of African descent and the descendant of

37
 slaves could be a citizen in the sense of Article III of the Constitution.

Issue Was Dred Scott free or a slave?

Holding Dred Scott was a slave.

Rule No person descended from an American slave could ever been a citizen
for Article III purposes.

Articles

A City Invokes Seizure Laws to Save Homes, NY Times

Summary

The power of eminent domain has traditionally worked against homeowners, who can be
forced to sell their property to make way for a new highway or shopping mall. But now the
working-class city of Richmond, Calif., hopes to use the same legal tool to help people stay
right where they are.

Scarcely touched by the nations housing recovery and tired of waiting for federal help,
Richmond is about to become the first city in the nation to try eminent domain as a way to
stop foreclosures.

Richmond is offering to buy both current and delinquent loans. To defend against the charge
that irresponsible homeowners who used their homes as A.T.M.s are being helped at the
expense of investors, the first pool of 626 loans does not include any homes with large second
mortgages, said Steven M. Gluckstern, the chairman of Mortgage Resolution Partners.

The city is offering to buy the loans at what it considers the fair market value. In a hypothetical
example, a home mortgaged for $400,000 is now worth $200,000. The city plans to buy the
loan for $160,000, or about 80 percent of the value of the home, a discount that factors in the
risk of default.

Then, the city would write down the debt to $190,000 and allow the homeowner to refinance
at the new amount, probably through a government program. The $30,000 difference goes to
the city, the investors who put up the money to buy the loan, closing costs and M.R.P. The
homeowner would go from owing twice what the home is worth to having $10,000 in equity.

The banks and the real estate industry have argued that such a move would be unprecedented
and unconstitutional. But Mr. Hockett says that all types of property, not just land and
buildings, are subject to eminent domain if the government can show it is needed to promote
the public good, in this case fighting blight and keeping communities intact. Railroad stocks,
private bus companies, sports teams and even some mortgages have been subject to eminent
domain.

38
Opponents, including the Securities Industry and Financial Markets Association, the American
Bankers Association, the National Association of Realtors and some big investors have
mounted a concerted opposition campaign on multiple levels, including flying lobbyists to
California city halls and pressuring Fannie Mae, Freddie Mac and the Federal Housing
Administration to use their control of the mortgage industry to ban the practice.

39
 5. TORTS
TORTS = injuries outside contractual or criminal context. Divided in:
(i) intentional torts (battery, assault, false imprisonment, trespass to land...);
(ii) negligence (liable if there is fault);
(iii) strict liability (liable without fault). see pp. 434-436 Red Book

Negligence = an action that creates an unreasonable risk of an injury because of a conduct

that falls below the standard of care a reasonable person would employ). Elements:
1) duty of due care;
2) breach of the duty of care;
3) injury as a result of the breach;
4) causal connection between the breach and the injury. Two subcomponents to be
ascertained:
(a) but-for cause, it is the cause in fact (but for the defendants act, would the
harm have occurred?, almost anything is a cause in this sense); AND
(b) proximate cause or legal causation (it has little to do with cause, it is a
question of public policy; whether the defendant should be held liable for his
act, it is a way to correct the but-for cause). Has the defendant caused the
loss, in a legal sense?

Particular types of torts see pp. 454-460 Red Book

1) Dignitary torts:
a) defamation: public statement that is published and damages the P.'s reputation;
Defense:
1) absolute privilege = that protects a speaker who carries out important duties (e.g.
government official)
2) qualified privilege = made to protect one's interest or in matter of public interest -
protects the speaker only if he did not made the statement with malice
b) infliction of emotional distress: does not require physical contact
the D. behaves outrageously toward the P., causing him distress;
c) invasion of privacy: it is divided in (i) appropriation (use of another person's name); (ii)
intrusion (invasion of person's solitude, e.g. taking photo); (iii) publicity of private life
(make public details of one's private life); (iv) displaying in a false light.

2) Constitutional limits on dignitary torts

a) 1st Amendment and defamation = 1st Am. Protects politic debate.
+ If the victim of defamation is a public figure and the object of the defamation is a
public concern, there is usually no tort (is the P. that has to prove that the
statement is false and that there was malice).
+ If the victim is a private figure but there is a public concern, 1st Am is less
protective (the P. must prove the truth of the statement and actual malice, but
there is a less strict scrutiny).
+ private figure and private concern: 1st Am. has no effect.

40
 U.S. v. Carrol Towing
Facts Connors Company (Connors) chartered the barge Anna C to the
Pennsylvania Railroad Company (PRC) which included the services of a
bargee limited to the hours of 8:00am to 4:00pm. The barge, which had
lifted a cargo of flour, was moored off Pier 58 and afterwards shifted to Pier
52. Some time later 5 other barges were moored outside Anna C and her
lines to the pier were not strengthened. The Grace Line chartered the tug-
boat Carrol and sent it to drill out one of the barges in the adjacent Public
Pier and in order to do so it was necessary to throw of the line between the
two tiers. On board the tug was a harbormaster employed by Grace Line.
The harbormaster and the deckhand went aboard the Anna C and readjusted
its fasts to their satisfaction. After doing so, they threw off the line and
boarded the tug, which backed away from the outside barge. The tier of Pier
52 broke adrift because the fasts of Anna C rendered. The Anna C hit a
tanker and the propeller of the tanker made a hole in Anna C and it sunk
with the cargo. The Carroll would had been able to prevent Anna C from
sinking but the bargee was not onboard to inform that it was leaking.
Procedural Appellants sought review of a judgment from a district court that held them
history liable for damage to a barge and for lost cargo.
Issue Whether Connors, Grace Line and Carroll should be held partially liable for
the damages to the Anna C barge and for the lost cargo?

Rule Court reversed adopting the formula: liability depends upon whether B
(burden) is less than L (injury) multiplied by P (probability).

Holding The judgment of the circuit court was reversed and modified as follows: (i)
since the harbormaster and the deckhand took part in the decision regarding
the moored barges, Carroll and Grace Line are held equally liable for the
total collision damages, (ii) since there was no bargee aboard the Anna C,
Connors is liable for 1/3 of the sinking damages (flour cargo), while Grace
Line and Carroll are equally liable for the rest.
Reasoning There is no general rule to determine when the absence of a bargee will
make the owner of the barge liable for injuries to other vessels if such barge
breaks free from her moorings, therefore the court sets forth the following
variables to calculate the damages: (i) the probability that the barge will break
away, (ii) the gravity of the resulting injury, and (iii) the burden of the
adequate precautions.

Dissent N/A
Comments Holmes, The Common Law (1881): loss lies where it falls
/ Class if there is no fault, there is no liability and the loss stays where it fell.
Discussion if there is no fault, there is no principle that justifies liability (mere

41
 responsibility of an act does not mean automatically liability).
To have liability you need to prove that:
the physical act was result of a choice by the defendant (it was
volitional, and not involuntary);
there was no moral blameworthiness. Law and morals (legal
rules are fashioned on a certain conception of morality): no legal
liability unless the act is morally blameworthy and it is so if a
reasonable person under the circumstances (the ordinary man):
(a) could foresee the harm and
(b) prevent it (he must have the power to avoid the evil).

Posner, A theory of negligence (1972) =

Learned Hand formula for the negligence standard: gives content to
the ordinary care concept, measure
(i) the magnitude of loss (L);
(ii) probability of the accident (P)
(iii) the burden of taking precautions (B) (it's the cost of prevention)
(iv) if B greater than LxP = no liability (economic meaning of
negligence)
when cost of accidents is less than cost of prevention, a rational
enterprise prefers to incur in liability
overall economic value/welfare increase. Society is better off
we find the efficient and cost-justified level of accidents and safety
there is a moral disapproval in the accident, because there was a cheaper
alternative to it (cost of prevention was cheaper).

RYAN v. NY Central Railroad

Court of Appeals of NY (1866)
Facts The New York Central Railroad Company, by the negligent manner of
conducting an engine, or by the defective condition of the engine, set fire to
a quantity of wood in one of their sheds. The fire consumed the woodshed,
and spread to and consumed the house of the plaintiff (James Ryan), which
was about one hundred and thirty feet from the shed.
Issue Is D. liable to P. for the damages sustained because of the fire?
Rule Damages are remote result of the negligence, therefore there is no liability.
Holding No, the damages incurred are not immediate, but the remote result of the
negligence of the defendants. The immediate result was the destruction of
D. own wood and sheds; beyond that, the damages are too remote and
unusual.
Reasoning You are liable only for damages which are natural/necessary consequences
of your negligent acts (the burning of the second house depended on
accidental circumstances, e.g. the wind).
You cannot be held liable for injuries against which you cannot act or guard
(otherwise you will be an insurer).
Comments Horowitz, The doctrine of objective causation = evolution of causation

42
/ Class (i) objective causation: find the actual cause (that could be superseded
Discussion by intervening events)
proximate cause (not remote cause)
objective chain of causation (that can be broken by separate
intervening acts)
function of tort is corrective justice (restoration of the status quo
ante), there is no public goals of the state/redistribution
(ii) superseded by legal realism:
Green was a precursor: distinction between proximate and remote
cause is discretional, it is a matter of policy the court thinks the
plaintiff should not recover)
Judges import moral ideas into the decision
Holmes: prediction theory of law (law is a prophecy of the court,
there is no certainty)
shift to foreseeability in torts (you are liable is the consequence of
your actions follows naturally from the action and if you can
foresee it)
Ryan v. NY Central RR rejects objective causation (destruction of
first house was proximate, other were remote, it limits liability
against the common sense of proximity, limits the liability of
companies)
Wharton: doctrine of independent and intervening cause to limit
entrepreneurial liability within the objective causation
(foreseeability test is dangerous, all risks are predictable)
(iii) now, without objective causation, liability is just another cost of
doing business, that can be estimated and insured against (and
ultimately paid by the public)

43
 6. CIVIL PROCEDURE & REGULATION (AND THE UBER
QUESTION)
Red Book

I. The Course of a Civil Lawsuit

According to the Federal Rules of Civil Procedure (FRCP), which were adopted by
most states, the course of a Civil Lawsuit is the following:

A. The Pleading Stage

1. Plaintiffs complaint
a. must contain (i) a statement of the grounds upon which subject matter of the
court is based, (ii) a short and plain statement of the claim showing that the
pleader is entitled to relief (see Iqbal brief on interpretation of this standard),
and (iii) a demand for the relief that the pleader seeks.
b. Notice pleading: the complaint should be simple; it requires only enough facts
to give the defendant fair notice of what the plaintiffs claim is and the grounds
on which it rests (see Iqbal brief on interpretation of this standard).

2. Service of process: service of the summons (an order of the court directing the
defendant to respond to the complaint or suffer a default judgment) and of the
complaint is necessary to establish personal jurisdiction of the court over the
defendant.

3. Defendants Response: can be (i) a procedural defense, called motion to dismiss,

(ii) an answer, which contests the complaint on its merits, or (iii) both.
a. Motions to Dismiss are challenges to:
i. The courts jurisdiction (personal or subject matter)
ii. Improper venue (place the case was filed)
iii. Improper service of process
iv. Failure of the plaintiff to join an indispensable party
v. Failure of the plaintiff to state a legal claim: it tests whether, assuming
hypothetically that all the facts alleged in the complaint are true, the
plaintiff would be able to recover => plausibility pleading standard
(see: Iqbal brief).

B. Discovery Stage

1. Definition: pretrial process to investigate the facts of the case. Largely conducted by
lawyers without the presence of the judge.
a. The most common discovery methods are:
i. oral depositions,
ii. written interrogatories,
iii. request to produce documents and things,
iv. order for physical or mental examination,

44
 v. request for admissions (written requests asking the other party to admit
the truth of undisputed facts).
2. Summary Judgment: will be granted to the party if there is no genuine issue as to
material fact and the moving party is entitled to judgment as a matter of law (see Scott
v. Harris).
3. Final Pretrial Conference: is not required but very common, specially for settlement
purposes.

C. Trial Procedure

D. Judgment

1. After trial, a judgment is entered on the jury verdict. Several kinds of relief may be
granted, such as: money judgments (damages of 3 types: compensatory, punitive and
nominal), equitable relief (such as injunction, rescission of a contract, etc.), declaratory
relief and awards of costs.

Rule 11, FRCP: according to this rule, lawyers and parties who file motions,
pleadings, other papers, or assert a position in court, certify that they have
investigated the grounds for the relief requested and that their request is
well-grounded in law and fact or supported by non-frivolous arguments. If
parties fail to meet this standard, judge may award sanctions against the
attorney or party, such as the payment of the full amount of the opposing
partys attorney fees.

II. Jurisdiction

A. Subject Matter Jurisdiction (SMJ)

1. State Court SMJ: state courts potentially have general and unlimited subject-matter
jurisdiction over disputes of all types that are not prohibited to them by federal law.

2. Federal District Court SMJ: in contrast, federal courts are courts of limited
jurisdiction; they must trace their jurisdiction to some affirmative source of power in
the Constitution, such as cases arising under:
a. The Constitution
b. the Laws of the United States
c. Treaties (i.e.: civil rights, antitrust, violation of federal criminal statutes, bankruptcy, patent
and copyright infringement, securities violations and labor law.)
d. Controversies between:
i. Citizens of different states
ii. Natural persons citizenship: place of domicile, or permanent home, at
the time suit is filed.
iii. Corporation has dual citizenship: state where it is incorporated and
state where it has its principal place of business (see: Daimler brief).
Requisite amount: $75,000

45
 Removal jurisdiction: plaintiff makes the initial court choice (SMJ either in state or
federal court); however, defendant can choose the federal forum as well through a
procedure called removal => a defendant sued in a state court on a claim that would
have qualified for federal court jurisdiction, may remove the case from state court to
the local federal court (strategic technique).

B. Personal Matter Jurisdiction (PMJ):

1. State Court PMJ:

a. In International Shoe Co. v. Washington (1945), the Supreme Court
departed from the traditional view PMJ = territoriality; according to the Court,
for PMJ to exist over an out-of-state defendant, the Intl. Shoe test requires
only that there be a certain minimum contacts with the forum state such that
exercising jurisdiction over the defendant would not offend traditional notions
of fair play and substantial justice embodied in the 14th Amendment due
process clause (see: Daimler brief). How many contacts are sufficient to
constitute the requisite minimum contacts depends on the circumstances.

b. Specific Jurisdiction: exists when the defendants contacts with the forum state are
more limited, but the claim involved arises out of or relates to those contacts
(i.e. a person hitting a state resident while driving). Reasonableness Factor =>
courts must also consider 1) the actual burden of the defendant on defending
in the forum, 2) the interest of the forum state in the case, 3) the plaintiffs
interest in getting relief, and 4) systemic interests in efficient resolution of
controversies ad fundamental substantive social policies.

c. General Jurisdiction: regarding individuals, general jurisdiction exists if the person

is served with process while physically in the state or if the person is domiciled
in the state; for corporations, general jurisdiction exists if the defendant has its
principal place of business in the state, is incorporated there or carries on a
continuous and systematic part of its general business in the state. If there is
general jurisdiction over the defendant, it may be sued on any claim (even
claims unrelated to the defendants contacts with the state) (see: Daimler brief).

d. State Long-Arm Statutes: Statutes that authorize their courts to assert

jurisdiction over out-of-state defendants, by specifying what powers state
courts have. Some state long-arm statutes define state-law authority to be the
same as the due process limits, so in this case there is no separate issue of
whether the assertion of jurisdiction is authorized as a matter of state law.

2. Federal Court PMJ: In contrast, the territory of the federal courts is the entire
country of the U.S.

46
 a. Diversity Claims: a federal court may exercise no more power of personal
jurisdiction that may a state court of general jurisdiction of the state where the
federal court is located.

b. Federal Claims: a federal court will have personal jurisdiction over all defendants
residing in the U.S. and all foreign defendants who have the appropriate
minimum contacts with the U.S. as a whole.

Ashcroft v. Iqbal
Facts After 9/11, Iqbal, citizen of Pakistan and Muslim, was imprisoned. He filed a
lawsuit against several government officials, including prison guards, the
former AG (Ashcroft) and the FBI, claiming that: (i) he suffered cruel
discriminatory treatment because of his origin, race, and religion; (ii) his status
as a high interest prisoner was due to a policy based on race and religion,
approved by the defendants in contravention of the 1st and 5th Amendments,
and (iii) the defendants knew and maliciously agreed with the harsh conditions
he was subjected to. The government officials sued by Iqbal (officials) move
to dismiss the complaint for failure to state sufficient allegations to show their
own involvement with the unconstitutional practices.
Issue Whether Iqbals complaint satisfied the requirements of Rule 8 of Federal
Rules of Civil Procedure (a pleading must contain a short and plain statement of the
claim showing that the pleader is entitled to relief), so that it could survive the motion
to dismiss.
Holding The Court holds that Iqbals complaint fails to plead sufficient facts to state a
claim for purposeful and unlawful discrimination against him. To survive a
motion to dismiss according to Rule 8, a complaint must contain factual matter
enough to reach a plausibility standard.
Reasoning The Court finds that the claim is based on mere assumptions and legal
conclusions. Thus, it is not entitled to the assumption of the truth and is
insufficient to state a plausible claim for relief under Rule 8. The complaint is
not enough to show that the officials purposefully adopted the said
unconstitutional policy because of suspects race, religion or origin. All it
plausibly suggests is that the officers sought to keep suspected terrorists in the
most secure conditions available until they could be cleared.
The following elements must be present when a plaintiff pleads to state a
claim of unconstitutional discrimination against officials entitled to have
qualified immunity: (i) a plaintiff must identify which officials own individual
actions violated the Constitution; (ii) plaintiff must plead and prove that the
defendant acted with discriminatory purpose - acted because of not merely
in spite of the discriminatory effects; (iii) the claim should have factual
plausibility: the Court must be able to draw the reasonable inference that the
defendant is liable.
Uses Twombly (case discussing the standard for evaluation if a complaint is
sufficient to survive a motion to dismiss) construction of Rule 8 in order to

47
 prove that Iqbals complaint has not nudged his claims of invidious
discrimination across the line from the conceivable and plausible.
Dissent Souter, Stevens, Ginsburg and Breyer: The majority misunderstood the
Twombly standard. In a motion to dismiss, the court isnt supposed to consider
whether the allegations are probably true they are supposed to take them as
true and see if the alleged facts taken as true are suggestive of illegal conduct.
The allegations in the complaint are neither mere legal conclusions nor
consistent with legal conduct (as in Twombly where competing theories were
present). The complaint related to the officials knowledge and indifference
regarding the discriminatory policy based in race, religion and origin is
sufficient to make them liable for the illegal action. Iqbals complaint therefore
contains enough facts to state a claim to relief is plausible on its face and
satisfies Rule 8.

Daimler v. Bauman
Facts Bauman and twenty-two Argentine citizens (Bauman) filed a complaint in a
district court in California against DaimlerChrysler AG (Daimler) - a German
company that owns a subsidiary, Mercedes-Benz (MB), which sells Daimler
products in the US claiming that Daimlers subsidiary in Argentina
collaborated with the governments security forces to kidnap, detain, torture
and kill workers during Argentina Dirty War. Bauman claims damages for the
human rights violations and alleges that the California court has general
personal jurisdiction over Daimler based on Mercedes Benz USAs business in
the State.
Procedural history Daimler moved for dismissal based on a lack of personal jurisdiction. The
district court granted the motion to dismiss for lack of jurisdiction since (i)
Daimlers affiliations with California were insufficient, and (ii) Bauman failed to
prove that MB acted as Daimlers agent. The U.S. Court of Appeals for the 9th
Circuit first affirmed the District Court judgment adressing the matter of
agency, but then reversed the decision and held that it is reasonable for a
California court to have jurisdiction over a multinational company that is
capable of litigating the case regardless of the location and has pervasive
business contacts in the State. US Supreme Court granted certiorari.
Issue 1) Whether a court in the US has the authority to entertain a claim brought by
foreign plaintiffs against foreign defendant based on events occurring
outside the US.
2) Whether the Due Process clause of 14th Amendment precludes the District
Court from exercising jurisdiction over Daimler in this case, given the
absence of any California connections with the crimes described in the
complaint.
Holding Daimler cant be sued in California for injuries plaintiffs attribute to MB
Argentina. There is no specific jurisdiction because the facts of the claim have
no connection with Daimlers activities in California, and there is no general
jurisdiction because Daimler is not essentially at home (in their principal
place of business or place of incorporation) in California.
Reasoning Bauman claims Californias general jurisdiction over the lawsuit due to MBs

48
 Californian contracts. In this sense, California would be a place where Daimler
could be sued on all and any claims against the company. However, court
understands that Daimler had little connection with California and that the suit
has nothing to do with the companys acts in the state: to allow the district
court to decide such case would grant the courts essentially global reach as long
as the foreign company in question did any business with the state. The Court
also held that subjecting the company to this suit would not be in line with the
fair play and substantial justice
standard (established at International Shoe case) the Due Process Clause of the
Fourteenth Amendment demands.
According to International Shoe case, a State may authorize its courts to exercise
personal jurisdiction over an out-of-state defendant if the defendant has certain
minimum contacts with the State so that the suit does not offend notions of
fairness. After the personal jurisdiction theory was then divided in 2 categories:
1) general jurisdiction, when the defendant has continuous and systematic
contacts and affiliations related to the State so that they are essentially at
home in the state (may be used even if the claim is unrelated to the
defendants activities in the state) and 2) specific jurisdiction, in which the suit
arises from or relates to the defendants contact with the State. In this case,
neither Daimler nor MB were incorporated California, nor does the companies
have their principal place of business in the state. The companys activities in
the states are not enough to allow California to judge the case. Conclusion is
that the Due Process clause prohibits the exercise of personal jurisdiction over
Daimler in this specific set of facts.
Concurring Justice Sotomayor wrote a concurring opinion to disagree with the majoritys
opinion reasoning. She argued that the case dealt with foreign plaintiffs suing a foreign
company for actions committed abroad and that more appropriate forum is
available. This would be enough to consider California jurisdiction
unreasonable. No further analysis was needed.
Comments/ Class The Supreme Court addresses the question of personal jurisdiction and the
Discussion scope of the Due Process Clause. The Court reinterprets legal tests and decides
whether general personal jurisdiction over a foreign corporation can be based
solely on the services performed by an indirect corporate subsidiary in the
forum state. Further, the decision determines how far U.S. courts can reach to
bring foreign defendants into U.S. courts.

Scott v. Harris
Facts A Georgia county deputy clocked Victor Harris (Harris) travelling at 73 miles
per hour on a road with a 55 miles-per-hour speed limit. He activated his
flashlight to indicate that Harris should pull over.
Harris sped away and a chase initiated between the deputy and Harris down a
two-lane road, at speeds exceeding 85 mph.
The deputy radiohead his dispatch to report that he was pursuing a fleeing
vehicle and Deputy Timothy Scott (Scott) heard the report and joined the
pursuit.
In the middle of the chase, Harris pulled into a parking lot of a shopping center,
was nearly boxed by police vehicles, and evaded the trap by colliding with
Scotts car, exiting the parking lot and speeding once again down a two-lane
highway.

49
 Scott took over the lead pursuit of the vehicle and 6 minutes later decided to
attempt to terminate the chase by employing a Precision Intervention Technique
(PIT) maneuver (his supervisor allowed him to take Harris out).
Instead of the PIT maneuver, Scott applied his push bumper to the rear of
Harris vehicle.
Harris lost control of his vehicle, which crashed and left him badly injured and
was rendered a quadriplegic.
Procedural history Harris filed a suit against Scott and others under Rev. Stat. Section 42 U.S.C.
Section 1983, alleging a violation of his federal constitutional rights as a result of
use of excessive force resulting in an unreasonable seizure under the Fourth
Amendment.
Scott filed a motion for summary judgment in the District Court based on an
assertion of qualified immunity. The District Court denied the motion
understanding that the material issues of fact present sufficient disagreement to
request submission to a jury.
Scott filed an interlocutory appeal before the United States Court of Appeals for
the Eleventh Circuit. The Court of Appeals affirmed the District Courts
decision and concluded that Scott was not entitled to qualified immunity
because his actions violates the constitutional right to be free from excessive
force during seizure.
Scott appealed to the Supreme Court, which granted certiorari and reversed the
decision.
The Supreme Court understood that Scott is entitled to summary judgment.
Issue Whether it is objectively reasonable for a law enforcement official to take
actions that place a fleeing motorist at risk of serious injury or death in order to
stop the motorists flight from endangering the lives of innocent bystanders,
pursuant to the Fourth Amendment.
Rule A police officers attempt to terminate a dangerous high-speed car chase that
threatens lives of innocent bystanders does not violate the Fourth Amendment,
even when it places the feeling motorist at risk of serious injury or death.
The implicit bias is that the existence in the record of a videotape (the videotape
speaks for itself) capturing the events in questions that shall supersede any facts
or information given by the parties. Thus, the summary judgment is applicable is
this case, as no jury will judge such case in a different way.
Holding Harris posed an actual and imminent threat to the lives of third parties (no
reasonable jury could have concluded otherwise). Considering relative
culpability, even though Scotts actions posed a high likelihood of serious injury,
Scott did not violate the Fourth Amendment because his seizure of Harris
was objectively reasonable. Scott is, therefore, entitled to summary judgment.
Reasoning As the case was decided in summary judgment, there were no factual findings to
be mentioned. The court is required to view the facts and draw reasonable
inferences in the light most favorable to the party opposing the summary
judgment motion. The existence of a videotape (not questioned by Harris)
contradicts his version of the story and demonstrates that police officers and
innocent bystanders were at great risk of serious injury. Thus, at the summary
judgment stage, facts must only be viewed in the light most favorable to the
nonmoving party if there is genuine dispute as to those facts.
The Supreme Court further argues that the Tennessee v. Garner test1 is only an
application of the Fourth Amendments reasonableness test and has no

1
Establishes the preconditions for actions to survive a Fourth Amendment scrutiny, which are: (i) the suspect
must have posed and immediate threat of serious physical harm to the officer or others; (ii) deadly force must

50
 applicability to Scott v. Harris, because of the different nature of the facts
involved. Whether or not Scotts actions constituted application of deadly
force requires the analysis of whether his actions were reasonable (balance of
nature and quality of the intrusion on the individuals Fourth Amendment
interests against the importance of the governmental interests alleged to justify
the intrusion).
Dissent J. Ginsberg and Breyer concur in judgment but argue that whether a high-speed
chase violates the Fourth Amendment may well depend upon more
circumstances than what was set forth in the majority rule.
J. Stevens dissents arguing that whether or not Scotts actions were reasonable
depends on the understanding of a jury, since there are diverging interpretations
with regards to the facts on the videotape.

Comments/ Class Article: Video evidence and summary judgment

Discussion Three myths about video evidence (Justice Stevens recognized these myths in
his dissent):
Video speak for itself
Meaning of the video is unambiguous and obvious to the viewer
Viewer is an eyewitness to real events
The video told the majority and the dissent two different stories the video was
not so obvious that a reasonable jury could reach only one conclusion or
inference.
A way a video is viewed, alone or in conjunction with other evidence, may
change its meaning

UBER DECISION:

Facts:
o Drivers (Plaintiffs) who drive for Uber filed a class action claiming they are
employees of Uber, as opposed to independent contractors, and thus are
eligible for various statutory protections for employees codified in the
California Labor Code.
o Uber filed a motion for summary judgment saying that plaintiffs are
independent contracts as a matter of law.

have been necessary to prevent the escape; and (iii) where feasible, officer must have given the suspect some
warning)

51
 Court decision:
o Denied the summary judgment because the classification of an employee or
independent contractor under California law presents a mixed question of law
and fact that must typically be resolved by a jury. The Court understands that
the plaintiffs are Ubers presumptive employees because they perform
services for the benefit of Uber.
o As a number of facts material to the employee/independent contractor
determination in this case remain in dispute, the Court denies Ubers summary
judgment motion.

LYFT COMPLAINT:

A class action was filed by current and aspiring Lyft drivers, accusing Lyft of promising
and not paying $1,000 bonuses for those who joined Lyft according to the rules of 2
promotions launched.
Lead plaintiffs Casey Loewen and Jonathan Wright claim Lyft breached their contract
and defrauded recruits by failing to pay the $1,000 bonuses. According to the
complaint, in an effort to grow its driver community and compete with other rideshare
companies, Lyft launched two $1,000 new driver referral programs on February 25,
2015. These programs were available in several cities and in order to qualify for the
bonuses, drivers had to apply on or after midnight February 25th and complete their
first ride on or before March 5th.
The promotions resulted in a huge wave of applicants and Lyft sent an email to all of
its new applicants and drivers in participating cities, which said that: last week's
invitation apply to be driver, give 1 ride by March 5th, and make $1,000 brought
the biggest wave of applicants in Lyft history. As we're processing the applications, it's
important that we continue to fulfill our safety obligations. Some of these steps,
including DMV and background checks, are outside our control and can vary in length
for different applicants. It is possible that you won't qualify for the promotion if all
steps aren't completed by the March 5th deadline, along with the ride requirement."
However, Lyft was not able to provide timely background checks for new drivers
making it impossible for them to give their first ride by the deadline imposed. Thus,
the lawsuit alleges that Lyft breached its contract and is guilty of fraud. It seeks
compensatory damages as well as punitive damages.

7. CORPORATE LAW
Introduction

What is a corporation? Its a form of organization used by human beings to achieve desired
ends. The laws that regulate corporations establish the rights and obligations of people

52
 (shareholders, officers, employees) who are associated with a specific corporation. When rights
are extended to corporations, the purpose is to protect the rights of this people.

There are different conceptions of corporations:

Aggregation vs. Entity.

Artificial vs. Natural: Corporations are artificial creatures of state law and policy vs.
corporations are the product of market activity.
Public vs. Private: Corporations should have a public end vs. they should have an
individual purpose.

Theories about what corporations are influence thinking about how the law ought to treat
corporate activity:

The shareholder theory of the corporation: A corporation is organized and carried for
the profit of stockholders. The powers of the directors are to be employed for that end
(never to: reduction of profits, or non-distribution of profits among stockholders).
The management theory of the corporation: Management can operate the corporation in
their own interests, and can divert portion of the asset fund or the income stream to
their own uses.
The stakeholder theory of the corporation: Corporations serve not alone the owners but
all society. It has to balance a variety of claims by various groups in the community and
assign to them a portion of the income stream on the basis of public policy rather than
private cupidity. Business and society have a symbiotic relationship: one cannot grow
and develop without the other.

Burwell v. Hobby Lobby

Facts There are two cases that are resolved simultaneously by the Court. Both cases
have the same relevant facts.
1. For-profit closely held corporations and individuals who owned or
controlled such corporations, brought action against secretary of Health
and Human Services (HHS), seeking relief regarding regulations issued
under the Patient Protection and Affordable Care Act (ACA).
2. According to them, the preventive services coverage mandate for
employees violates the Religious Freedom Restoration Act (RFRA), as
it forces them, as employers, to provide health insurance coverage for
abortion-inducing drugs and devices.
3. Contraception methods deeply violate their religious beliefs.
Procedural Case 1: U.S. District Court for the Western District of Oklahoma denied
history plaintiffs motion for preliminary injunction. Plaintiffs appealed. The U.S. Court
of Appeals for the Tenth Circuit reversed and remanded.
Case 2: The U.S. District Court for the Eastern District of Pennsylvania denied
plaintiffs motion for preliminary injunction. Plaintiffs appealed. The U.S. Court
of Appeals of the Third Circuit affirmed.
Certiorari was granted in each case and cases were consolidated.
Issue Whether the RFRA permits the HHS to demand these corporations provide
health insurance coverage for methods of contraception that violate the sincerely
held religious beliefs of the companys owners.

53
Rule RFRA regulations cannot be violated, unless the statute or action constitutes the
least restrictive means of serving a compelling governmental interest.
Holding The regulations violate the RFRA, as the provision of contraception methods
within the health coverage plan by the corporations is not the least restrictive
mean to achieve the compelling governmental interest (public sexual health).
Reasoning 1. The Court starts addressing the question whether the RFRA protection
includes for-profit organizations. The Court uses the Dictionary Act to
define person and it finds that it includes corporations, companies and
associations among others. As there is no provision on the RFRA that
suggests otherwise, it concluded that corporations are included within the
scope of protection of the RFRA.
2. Taking into account that in the case in which these companies decide to
provide the insurance coverage in accordance with their beliefs, they will
be forced to pay a huge amount of money as a fine, it is clear that the
mandate imposes a substantial burden on those beliefs.
3. Since there is a substantial burden, the HHS has to show that the
mandate both: (i) is in furtherance of a compelling governmental interest;
and (ii) is the least restrictive means.
4. Sexual reproduction is a compelling governmental interest, but the HHS
is not the least restrictive mean (the Government could expend additional
funds to accommodate citizens religious beliefs).
Dissent (J. 1. Whether a corporation qualifies as a person capable of exercising
Ginsburg, J. religion is an inquiry one cannot answer without a reference to the full-
Sotomayor, J. body of pre-Smith free-exercise caselaw. There is that case law no
Breyer and J. support for the notion that free exercise rights pertaining to for-profit
Kagan). corporations.
2. Until this litigation, no decision of this Court recognized a for-profit
corporations qualification for a religious exemption from a generally
applicable law, whether under the Free Exercise Clause or RFRA.
3. The absence of such precedent is just what one would expect, for the
exercise of religion is characteristic of natural persons, not artificial
entities.
4. Corporations have no consciences, no beliefs, no feelings, no thoughts,
no desires.
Comments/ Although this is not a constitutional case, the language of the opinion is held
Class under the context of constitutional law = doctrinal tests, standards of
Discussion reviewetc.

Dodge v. Ford Motor Co.

Facts 1. Ford Company was a very strong corporation at the time in which this case
was decided (1919), and the cars were sold for relatively high prices.
2. However, Ford decided to decrease the price of the cars (down to less than
1/3 of their original price), because he wanted the cars to be affordable for
more people.
3. Further, he announced a plan to end paying out special dividends to
shareholders, and would instead take the profits and reinvest them in order to
employ more employees and build more factories.
4. Minority shareholders sued to stop Fords plans.
5. Plaintiffs argued that the purpose of a company is to maximize shareholders

54
 profits, not to help community by making more affordable cars or employ
more employees.
Issue Whether Plaintiff shareholders can force the Company (Defendant) to payout larger
dividends.
Rule The corporations directors have some discretion to chart the course of the business.
However, that discretion does not extend to the reduction of profits or the non-
distribution of profits among stockholders in order to benefit the public.
Holding Plaintiff shareholders can force the Company to increase dividends. Indeed, a
corporation is organized first for profit and not for charity.
Reasoning A corporation is a business, and it is created to produce wealth.
The primary duty of the management is to maximize the shareholder wealth.
This doesnt mean that the sole duty of the directors is to maximize profits,
indeed, the Court noted that an incidental humanitarian expenditure for the
benefits of the employees is permissible.
Comments/ In this case, the Court applies the shareholder theory of corporation and
Class minimizes the stakeholder theory of corporation.
Discussion Article Companies with benefits is about Warby Parker eyeglasses = the
companys approach is to sell stylish specs at affordable prices. This company
created a B-Corporation = for-profit company that pledges to achieve social
goals as well as business ones. In these corporations, shareholders can sue its
directors for not carrying out the companys social mission. This article
contrasts the decision of the Court in Dodge.

55
 8. PROFESSIONAL RULES, ROLES AND NORMS

Northern Pipeline Co. v. Marathon Pipe Line Co.

Facts Northern Pipeline filed a petition for reorganization and brought suit before
Marathon for breaches of contract and warranties, misrepresentation,
coercion and duress. Marathon filed motion for dismissal, claiming an
unconstitutional power to bankruptcy judges, who lack life tenure and
salarial protection. The US defended the Constitution. The judge dismissed
motion, but the District Court granted it on appeal. Northern Pipeline
appealed.
Procedural Petition for cert. granted.
history
Issue Whether bankruptcy judges fall under article III of the Constitution as part
of the judiciary system.
Rule Article III judges are protected by life tenure and compensation clause.
Holding Bankruptcy judges are not article III judges.
Reasoning - Separation of powers is necessary not to have tyranny; judiciary must be
independent.
- Article III is an inseparable element of checks and balances and guarantees
impartiality by giving power (life tenure) and independence (compensation
clause, salarial protection)
- These protections are long-standing traditions of an independent Judiciary
and a fundamental principle of the US Constitution.
- If bankruptcy judges do not have these protections, they are not article III
judges.
Dissent N/A
Comments Life tenure and compensation clause protect judges from interferences in
/ Class their offices, making them independent from other political forces.
Discussion

Yulee v. Florida Bar

Facts Yulee decided to run for a seat on the county court in Hillsborough and
drafted a public letter announcing her candidacy, where she asked for
contributions to raise initial funds for her campaign. The Florida Bar filed a
complaint against her for violation of Rule 4-8.2(b) of the FL Bar
(demanding compliance with FL Code of Judicial Conduct, whose Canon
7C(1) prohibits solicitation of funds). Yulee admitted signing the letter but
affirmed her right to solicit funds were protected by the First Amendment.
FL Supreme Court appointed a referee, who recommended finding of guilt
and that Yulee was publicly reprimanded and paid costs of proceedings,
which was adopted by the court.
Procedural Petition for cert. granted.
history
Issue Whether the First Amendment allows prohibition to prevent judges or
judicial candidates from soliciting funds for their election campaigns.
Rule Stet judges must be independent and impartial when conducting their
office.

56
Holding First Amendment allows this restriction on speech.
Reasoning - Exacting (strict) scrutiny should apply on speech limitations: should be
justified by narrow tailoring of a compelling interest. Speech on public
issues and qualifications of candidates is at the highest level of protection
by the First Amendment. Closely drawn (not as strict) standard used in
Buckley (involving matters of rights of free association) is a poor fit when
dealing with freedom of speech.
- Canon 7C(1) advances compelling vital interest: preserving public
confidence in the integrity of the Judiciary, through narrowly tailored
means.
- Judges cannot solicit donors without diminishing public confidence in
judicial integrity. Judiciary authority depends on public willingness to
respect and follow its decisions.
- Even if judges can refrain from favoring donors, the mere possibility
imposes a risk.
- When a judge solicits, stakes are higher.
- Possibility of thank you notes and committees respect First Amendment
right.

Dissent N/A
Comments / When State adopts narrowly tailored restriction like in this case, the
Class following principles do not conflict:
Discussion 1. Candidates have First Amendment right to speak in support of
their campaigns; and
2. States have compelling interest to preserve judicial public
confidence.

Caperton v. Massey
Facts Plaintiffs filed claim against defendants on grounds of fraudulent
misrepresentation, concealment and tortious interference with contractual
relations. After trial jury returned verdict finding defendants liable,
defendants chairman, chief executive officer and president Don
Blankenship (hereinafter Blankenship) provided financial support in the
campaign to elect attorney Brent Benjamin as Justice in the Supreme Court
of Appeals of West Virginia. Plaintiffs moved to disqualify Justice
Benjamin under the Due Process Clause in the United States Constitution
and the West Virginia Code of Judicial Conduct, based on conflict resulting
from Blankenships involvement in the Justices election campaign.
Defendants filed appeal to reverse trial courts decision. Supreme Court of
Appeals of West Virginia denied plaintiffs motion and reversed trial court
decision to favor defendants. Plaintiffs requested rehearing of the case and
motion to disqualify three Justices, arguing involvement with Blankenship.
Justice Starcher recused, while Justices Maynard and Benjamin denied
motions. Rehearing was granted by the court and plaintiffs presented new
motion to disqualify Justice Benjamin, who denied the motion. The Court
again reversed trial jury verdict. Plaintiffs filed petition for writ of certiorari
to the Supreme Court of the United States seeking to reverse Supreme
Court of Appeals decision. Justice Benjamin filed concurring opinion
defending the merits of the courts decision and his own decision not to
recuse.
Procedural Petition for cert. granted.

57
 Caperton v. Massey
history
Issue Does participation of a party (in this case, by an individual occupying
managerial positions in defendant) in a Justices election campaign affect
the impartiality of said Justice in such an extent as to require
disqualification under the Due Process Clause?
Rule The Due Process Clause requires that a judge or justice is impartial on
objective and subjective grounds, considering both concrete interests in the
dispute and the risk of bias.
Holding The Court held to reverse the judgment of the Supreme Court of Appeals
of West Virginia, considering that Blankenships participation in Justice
Benjamins election was significant enough to affect the Justices
impartiality.
Reasoning The Court considered the extremity of the involvement, especially the
significance of the contribution, sufficiently substantial risk of bias and
timing of the contribution, before presenting an appeal to reverse the trial
courts decision. Even where a direct personal or pecuniary interest in the
outcome of the dispute is not proven, regard should be had to more
indirect interests or a temptation to disrespect the neutrality requirement.
In the present case, the elements of the involvement of defendants in
Justice Benjamins election constitute a probability of bias strong enough to
justify disqualification.
The Court relied on some cases to support their reasoning, such as (a)
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), to
introduce the common law concept of direct, personal, substantial,
pecuniary interest in a case, as mentioned by the court, as grounds for
recusal; and (b) Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43
L.Ed.2d 712 (1975), to present the reasoning that a probability of bias is
too high to be constitutionally tolerable from an objective perspective.
Dissent Chief Justice Roberts and Justices Scalia, Thomas and Alito joined in
presenting a dissenting opinion, affirming that the Federal Due Process
Clause requires disqualification of a judge only where there is a financial
interest on the outcome of the dispute or certain criminal contempt,
rejecting vaguer notions of bias as grounds for disqualification. Common
law, statutes or professional standards shall address other hypotheses for
disqualification or recusal. Moreover, the dissenting opinion disagrees that
Blankenships contribution was so extreme and not able, in itself, to affect
the outcome of Justice Benjamins election.
Comments
/ Class
Discussion

Fre Le Poole Griffiths for Admission to the Bar

Facts Fre Le Poole Griffith was born in the Netherlands and came to the US as a
visitor, where she married a US citizen and became a Connecticut resident.
She graduated from Law School and applied to take the Connecticut State
Bar. County Bar Association refused to allow this based on Rule 8(1),
which required applicants to be US citizens, finding she was otherwise
qualified. Le Poole sought judicial relief and was refused by the Superior
Court of Connecticut and the Connecticut Supreme Court.

58
 Fre Le Poole Griffiths for Admission to the Bar
Procedural Petition for cert. granted.
history
Issue Whether Rule 8(1) of the Connecticut Practice Book violates Equal
Protection Clause of the Fourteenth Amendment.
Rule Equal Protection Clause should allow resident aliens to apply for the Bar
Exam, since citizenship is not relevant for legal practice.
Holding Rule 8(1) violates Equal Protection Clause, as it unconstitutionally
discriminates against resident aliens.
Reasoning - States can only adopt suspect classification if there is a constitutionally
permissible and substantial interest, and if the classification is necessary to
protect it.
- Interest to be protected should be qualification. Le Poole was qualified to
take the bar; the sole basis for her disqualification was her resident alien
status.
- Citizenship is not relevant for faithful conduct of a lawyers work. Oath
and supervision by the Bar are enough to maintain standards.
- Lawyers are not officials of government; do not play a role so close to
formulation of governmental policy.
Dissent (Burger, J. and Rehnquist, J.)
- Lawyer as officer of the court: lawyers have a monopoly on their
function, are part of the mechanism of justice, have obligations of duty and
conscience.
- This interest is as crucial as independence of judges.
- Fourteenth Amendment should not be stretched to force States to accept
nationals of any country.
Comments Prof. Thomas inquired student whether it was necessary for a lawyer to be
/ Class a US citizen and students discussed mainly that citizenship or nationality
Discussion does not necessarily affect a lawyers practice or duties.
After discussion, Prof. Thomas inquired how this should be differentiated
from the position of judges.

Connick v. Thompson
Facts John Thompson was charged with murder. In the investigation, in the
victims pants was found a swatch of fabric stained with the robbers blood,
which was blood type B, according to a lab report. This report was never
disclosed to Thompsons counsel, there is no evidence that his blood type
was ever tested. District attorney Deegan put all of the evidence except the
swatch in the courthouse property room. Jury convicted Thompson of
attempted armed robbery. A few weeks later, he was also convicted and
sentenced to death for murder. Thompson presented several challenges to
his conviction (during 14 years), which were all reviewed and denied. His
execution was scheduled for May 20, 1999. In late April, 1999, the lab
report was discovered by a private investigator. Thompson was tested and
found to have blood type O. His attorney presented this evidence to the
district attorneys office, which moved to stay the execution and vacate
Thompsons armed robbery conviction. The Louisiana Court of Appeals
then reversed Thompsons murder conviction, because he was
unconstitutionally deprived of his right to testify in his own defense at the

59
 Connick v. Thompson
murder trial. In 2003, the district attorneys office retried Thompson for
the murder and he was found not guilty.
Thompson brought action against the district attorneys office, Connick,
Williams and others claiming they violated the Brady rule (below) by failing
to disclose the crime lab report in his armed robbery trial. The jury rejected
Thompsons claim that an unconstitutional office policy caused the Brady
violation, but found the district attorneys office liable for failing to train
the prosecutors, awarding Thompson $14 million in damages and $ 1
million in attorneys fees and costs.
After the verdict, Connick renewed his objection based on the fact that
there was no evidence that he was aware of a pattern of similar Brady
violations. The argument was rejected and in this order the court had
concluded that a pattern of violations in not necessary to prove deliberate
indifference when the need for training is so obvious. A panel of the
Court of Appeals affirmed, holding that Thompson did not need to prove a
pattern of Brady similar violations. The Court of Appeals sitting en banc
vacated the panel opinion, grante
Procedural
history
Issue Whether the non-disclosure was caused by either a policy, practice, or
custom of the district attorneys office or a deliberately indifferent
failure to train the offices prosecutors.
Rule Brady v. Maryland (Brady Disclosure Requirement): The State has to disclose
to the defense evidence in its possession that is favorable to the accused.
Pembaur v. Cincinatti interpreting Title 42 U.S.C. 1983: Plaintiffs
who seek to impose liability on local governments must prove that
action pursuant to official municipal policy caused their injury.
Holding Thompson did not prove a pattern of similar violations that would
establish that the policy of inaction was the functional equivalent of a
decision by the city itself to violate the constitution. The judgment of the
US Court of Appeals is reversed.

Reasoning Under Thompsons failure to train theory, he had the burden of proving:
(a) that Connick was deliberately indifferent to the need to train the
prosecutors about their Brady disclosure obligation; and (2) that the lack of
training actually caused the Brady violation in this case. Under Title 42
U.S.C. 1983, local governments are not vicariously liable for their
employees. For liability to be imposed, it has to be proved that action
pursuant to official municipal policy caused the injury. In limited cases, a
municipalitys decision not to train its employees may be seen as policy, as
long as deliberate indifference is proved.
Deliberate indifference is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known and obvious consequence of
his action. A pattern of similar constitutional violations by untrained
employees is ordinarily necessary to demonstrate deliberate indifference
for the purposes of failure to train. Showing merely that additional training
would have been helpful does not establish municipal liability.
Additionally, to prove deliberate indifference, Thompson needed to show
that it was so predictable that failing to train the prosecutors amounted to
conscious disregard for defendants rights, which he did not do.
The only issue at hand is if Connick, as policymaker for the district

60
 Connick v. Thompson
attorneys office, was deliberately indifferent to the need to train the
attorneys under his responsibility, which he failed to do.

Dissent Justices Ginsburg, Breyer, Sotomayor and Kagan:

Brady requirement is among the most basic safeguards brigading a criminal
defendants fair trial right. Evidence in this case presents overwhelming
support for the conclusion that the DAs office slighted its responsibility to
the profession and to the States system of justice by providing no on-the-
job Brady training.
Comments
/ Class
Discussion

61
 9. GUNS & THE CONSTITUTION
Introduction

1. General outline of the subject:

- Substantive Power (Congress)

- Methods of Interpretation
- Standards of Judicial Review
- Institutional Question of Judicial Review (allocation of responsibility/authority
between Court and Congress)

2. Important contents of the Red Book:

Judicial Review as a legal rather than a political determination. The critic is that it is not
clear what is the precise distinction between a non-justiciable political question and a
justiciable legal one.

Modes of Interpretation: Textual v. Functional v. Structural

The type of analysis depends on the clarity of the Constitutions text. The clearer the text,
he greater the attention to its wording. However, different members of the Court have
different views as to what constitutes a clear textual command.

In many cases, a particular statute violates principles represented in the Constitution and
not the Constitution itself. The process of assessing the principles leaves ample room for
judges to inject political, economic or social theories.

Characteristics that invites judicial activism: The Constitutional text is general and has 200
years old (amendment is not a realistic option).

Interpretive Methods:

Originalism/Strict Interpretivism (political conservatives): It is illegitimate to go beyond

the original intent of the Framers.

The critic is that original intent of the Framers is undiscoverable.

Non-Interpretivism/Fundamental Rightisim: Judges to find in the general provisions

fundamental rights that must be respected. They claim this is supported by the 9th Amend.

3. Comments on articles:

There are no articles, but news. The main idea is to show that the possession of guns in the
North-American society is a matter of politics.

Besides, it reveals the cruel effects of being allowed to keep and bear handguns.

62
 4. Other relevant theoretical issues:

- Standards of Judicial Review:

Strict Scrutiny:

Fundamental Rights/Suspect Classifications

Compelling Governmental Interest + Narrowly Tailored (least restrictive)

Intermediate Scrutiny:

Equal Protection Clause/Quasi-Suspect Classifications

Important Governmental Purpose + Substantial Relationship

Rational Basis: Default category/Non-Suspect Classifications

Legitimate Governmental Purpose + Rational Relationship

- Institutional Question of Judicial Review (allocation of responsibility/authority between Court

and Congress):

- Marbury v. Madison (1803): It is the Courts duty to apply, expound and

interpret the rule.
- Political Safeguards of Federalism: The Court should not interfere, but leave
the matters for political safeguards. Hence, the judicial role is limited and
relegated to political branches (political arena).
- Representation Reinforcement Theory: The judicial role would be to examine
the process and not the substantive legislation.
- Counter majority difficulty: The problem with the legitimacy of the institution
of judicial review. If a Court is not elected, how could it interfere in the balance
between the powers?

United States v. Lopes

Facts The Gun-Free School Zones Act of 1990 (GFSZA) made it a federal offense for any
individual knowingly to possess a firearm at a place that he knew or had reasonable
cause to believe is a school zone. Alfonso Lopez Jr., a 12th- grade student, carried a
concealed and loaded handgun into his high school and was arrested and charged
under GFSZA premises.
Procedural The District Court denied Lopezs motion to dismiss, concluding that the GFSZA
history was a constitutional exercise of Congress power pursuant to the Commerce Clause of
Article 1; the Fifth Circuit Court reversed, holding that the Act exceeded Congress

63
 power under the Commerce Clause and was therefore unconstitutional. The Supreme
Court granted certiorari.
Issues 1. Does the GFSZA exceed Congress authority under the Commerce Clause
(extending to activities that have no apparent connection to interstate commerce?)
2. What categories of activity may Congress regulate under its commerce power?
Rule The activity under regulation must substantially affect interstate commerce.
Holding The Fifth Circuit Court decision is affirmed.
The GFSZA exceeded Congress authority under the Commerce Clause.
Reasoning The three broad categories of activity that Congress may regulate under its commerce
power are: the use of the channels of interstate commerce (e.g. transportation
systems; interstate shipments and accommodations); b) regulate and protect the
instrumentalities of interstate commerce (persons and goods in transit; vehicles,
vessels); and c) regulate those activities having a substantial relation to interstate
commerce.
In numerous occasions, the Supreme Court held a congressional act to be a rightful
exercise of its regulatory attribution. Yet, in this case, the Supreme Court understood
that the possession of a gun in a local school zone is in no sense an economic activity
that might, through repetition elsewhere, have a substantial effect on interstate
commerce.
The GFSZA is a criminal statute that by its terms has nothing to do with commerce
or any sort of economic enterprise. It is by nature a statute aimed at gun possession
regulation. It is not an essential part of a larger regulation of economic activity, in
which the regulatory scheme comes for the benefit of an intrastate activity. It cannot,
therefore, be sustained under the Courts precedents.
The statute contains no provision, which ensure that the firearms possession in
question has any relation to interstate commerce, and Congress provided no findings
in the statute showing possession of guns in schools affected commerce. There is no
indicator that the defendant even bought the gun in a different State.
In order to accept governments argument that firearms possession a school zone
affect interstate commerce (by imposing high financial costs upon society through
insurance, and by preventing individuals from traveling into violent areas), the Court
would have to rely on too much interference and assumptions, instead of finding a
factual immediate relation.
Under the governments theories, there would be very little limit on federal power.
The commerce clause could be used to limit and regulate almost any activity with
potential violent and any activity related to the economic productivity of individuals.
For Prof. Thomas, the majority has reasserts judicial supremacy over federalism;
rejects congressional determination of causality.
Maintain some residuary of states rights; reduces power of national government;
reduce economic regulation.
Kennedy (concurrence): Federalism balance primarily (not entirely) entrusted to
political process.
Dissent Breyer: Violence in schools interferes with the quality of education and education is
inextricably tied to the economy. Congress could have rationally concluded that the
possession of guns in school zones is related to interstate commerce, and in this sense
lawfully exercised its commerce clause regulatory power.
The majority disregard precedent. He defends the counter majority difficulty,
affirming that there is a rational basis to conclude the link between the legislation and
Congress Power.
Souter/Kennedy: They believed the majority opinion is a radical judicial activism.
The only inquiry should be whether the legislative judgment is within the realm of
reason. Congress should have plenary power to legislate under the Commerce Clause

64
 as long as the law passes the rational basis test, because there is a well established
modern respect for the competence and primacy of Congress in areas affecting
commerce. Previous assertions of judicial primacy in this area went terribly stray. He
rejects originalism.
Stevens: Guns are articles of commerce. The national interest justifies prohibiting
their use by children in school.
Comments/ National Government is a government of enumerated powers (unlike states). When
Class acting in its enumerated powers, it has plenary power, which comprehends incidental
Discussion and implied powers. Whether a law is necessary to carry out one of the enumerated
powers is a matter of Congress to decide (unless it is arbitrary, irrational or prohibited
by Constitution).
Reservation of state powers (enumeration suggests some powers not given; confirmed
by the Tenth Amendment).
Powers over commerce both GIVEN and RESERVED. Congress has powers
INTERSTATE (international and Indians) and States have powers INTRASTATE
(to avoid completely centralized government and preserve states autonomy).
The original intent was to restrict the interference (states and national government).
However, in the 21st century: Is there something wholly intra-state commerce?
Prof. Thomas mentioned that besides the Commerce Clause found in Art. I, Section
3, Clause 8 of the Constitution, which is an enumerated power of the Congress, there
is the Necessary and Proper Clause Art. I, Section 3, Clause 9, which, generally
speaking, allows the Congress to make law it deems essential and appropriate. It
expands the power of the Congress beyond the enumerated powers. See McCulloch v.
Maryland.
One of the big issues regarding this decision is who decides what is SUBSTANTIAL
for interstate commerce? To prove it is substantial for the interstate channels:
1)Commercial Transactions: Sale of guns Yes
Mere possession of gun No
2) Jurisdictional Element: Proof that the gun has traveled interstate
Must be element of prima facie case.
3) Legislative Findings: Aids courts in determining the link: Would court defer to
Congress? No rubber stamp (obliterate distinction) Institutional question that
addresses the judicial role.

NOTE: None of the three aforementioned elements are dispositive. Court still have
discretion to find no substantial effect.

He also mentioned the federalism as a limit on the National Power, Tenth

Amendment. Vertical separation (Federal v. States) and horizontal separation
(between the three branches).
It seems that what the majority wanted to say is that it should remain vigilant in areas
of state concern (the problem is what is traditional state concern?)

District of Columbia (D.C.) v. Heller

Facts D.C. prohibits the possession of handguns. No person can carry a handgun without a
license issued by the Chief of Police. Residents are required to keep such firearms
unloaded and dissembled unless they are located in a place of business or are being
used for a lawful recreational activity.
Respondent Dick Heller was a special police officer authorized to carry a handgun

65
 while on duty, and applied for a registration of a handgun to keep home. D.C. denied
such registration. He filed a suit in the Federal District Court of D.C. claiming that
these laws violate his Second Amendment right to keep and bear arms.
Procedural The District Court dismissed Hellers complaint. The Court of Appeals for the D.C.
history Circuit reversed and directed the District Court to enter summary judgment in favor
of the D.C. The Court of Appeals construed Hellers complaint as seeking the right to
render a firearm operable and carry it in his home only when necessary for self-
defense, and held that the total ban on handguns violated the individual right to
possess firearms under the Second Amendment. The Supreme Court granted
certiorari.
Issue Does the D.C.s prohibition on the possession of usable handguns in the home violate
the Second Amendment?
Rule The Second Amendment extends a right to all individuals to keep firearms, and
although the Second Amendment is not absolute, a complete ban on a class of
weapons (handguns), even for a lawful purpose, violates the constitution.
Holding A complete ban on handgun possession violates the Second Amendment, as does its
prohibition against rendering any lawful firearm within home inoperable for the
purpose of immediate self-defense.
Reasoning The Second Amendment protects the individual right to possess a firearm
unconnected with service in a militia, and to use that arm for traditionally lawful
purposes, such as self-defense within home.
The Amendments prefatory clause announces a purpose, but does not limit or
expand the scope of the second part, the operative clause. The operative clauses text
and history demonstrated that it connoted an individual right to keep and bear arms,
and the Court's reading of the operative clause was consistent with the announced
purpose of the prefatory clause. None of the Court's precedents foreclosed its
conclusions. The Court held that the Second Amendment right was not unlimited,
and it noted that its opinion should not be taken to cast doubt on certain long-
standing prohibitions related to firearms.
Dissent Stevens: The Second Amendment was adopted to protect the right of the people to
maintain a militia, and thus there is no right to use arms for nonmilitary purposes such
as hunting and self-defense. The text of the Amendment, as well as history is
protecting the right of a militia to bear arms, and not all citizens. Specifically, the
amendment is most naturally read to secure to the people a right to use and possess
arms in conjunction with service in a well-regulated militia.

Breyer: The majority is wrong for two reasons. First: The Second Amendment only
protects militia-related, not self-defense related interests. Second: This protection is
not absolute, and permits the government to regulate the interests that it serves. Thus,
any regulation has to be unreasonable or inappropriate. As a conclusion, Districts
regulation is a permissible legislative response to a serious problem (he comes to this
conclusion based on an interest-balancing approach).
Comments/ Problems of law are problems of language.
Class Role of the Court: Interpreting and creating new law.
Discussion The method of interpretation used by J. Scalia was originalism and historic.
Prof. Thomas tried to show how it is difficult to dissociate law and politics.
We cannot accept the idea of absolute rights.
The power of the Congress comes mainly from the Fourteenth Amendment, Section
5 (rather than only Article 1). The problem is this power is that can be interpreted
creating a new legislation (far from what was established on Art. 1), what court cannot
accept.

66
67
 10. CONSTITUTIONAL LAW THE EQUAL PROTECTION
CLAUSE

Rights to Equal Protection of the Laws

14th Amendment. Provides that no state shall deny to any person within its jurisdiction the equal
protection of the laws. The 14th Amendment is only applicable to the states.

5th Amendment. The Supreme Court has read that the due process clause of the 5th Amendment
contains an equal protection component, which imposes equal protection limitations upon the
federal government.

The book states that there are three levels of scrutiny that are applied to equal protection cases.
a) strict scrutiny when the classification is related to suspect classes; b) rational basis
when dealing with business, economic or welfare matters; and c) middle-level scrutiny for
distinctions based on the grounds of sex. However, in class we studied that there were five
levels of scrutiny: the three expressed in the book, plus two intermediate ones.

1. Strict Scrutiny for Suspect Classifications and Burdens on Fundamental

Rights
A law that distinguishes along suspect classes or discriminates with regard to a fundamental
right is applied a strict scrutiny test.

a) The ends sought to be achieved must be extremely important.

b) The means used must involve the least possible burden or least restrictive means.

a. Suspect Classifications

Any classifications based on race are suspect classifications to which strict scrutiny must be
applied.

For discrimination to violate equal protection, it must have been intentional. The
discrimination can be a) explicit and on the face of the statute or b) be facially neutral but have
disproportionate impact on a race.

The equal protection was ratified in 1686. In 1896, the Court in Plessy v. Ferguson held that
separate but equal treatment treatment of racial minorities was all that equal protection
required. In Plessy, a Louisiana law separated train passengers according to race.

In Brown v Board of Education, in 1954 the Court overturned Plessy and ruled that separate but equal
is always unequal. The Court ordered the desegregation of public schools.

Affirmative Action. Strict Scrutiny is applied to all cases involving distinctions among the races,
even to affirmative actions cases. That is, even when the legislation is trying to remedy past
discrimination and help minorities, that legislation is subject to Strict Scrutiny. That generates
that most affirmative action legislation also be declared unconstitutional, for it is very difficult

68
to surpass the hurdles of a) aiming to achieve an extremely important aim and to b) implement
the legislation in the least restrictive means possible.

b. Classifications Affecting Fundamental Rights

The Court has also applied Strict Scrutiny to classifications that affect fundamental rights,
such as 1st amendment (religion, speech, press), plus any other right that the Court has
considered fundamental (such as right to vote and right to privacy).

2. Lax Rational Basis Scrutiny for Economic and Business Regulation or

Social Welfare Programs

The Court applies Rational Basis test in all classifications involving distinctions based on
economic social welfare or business regulation.

Under Rational Basis test, a) the purpose of the law must be legitimate and b) the means to
achieve the goal must be rationally related to the purpose. A law is constitutional unless it is
completely irrational. If any possible reasons justify the distinction, even those not considered
by the legislature, then the law is valid. It is a very lax test.

Under Rational Basis test, the Court has struck down legislation that affects homosexual
minorities. Sexual orientation is not a Suspect Class, thus Rational Basis is applied.

However, distinctions based on sexual orientation have not passed the Rational Basis test.
Animus toward (that) class lacks any rational relationship to legitimate state interests. Some
say that the court has not applying Rational Basis test in sexual orientation cases, instead it has
been applying Rational Basis Test Plus, more searching inquiry.

3. The Middle-Level Test for Semi-Suspect Classifications

An intermediate level of scrutiny was created for equal protection issues based on gender.

In Craig v Boren, the Court ruled that distinctions among sexes must serve important
government objectives and must be substantially related to achievement of those objectives.
The elements arte that the a) interest be important, b) that the means be substantially related
and c) that interest be the one actually relied upon by the legislature to draw the distinction.

In US v. Virginia (1996) (VMI Case) the Court required that a state military academy (Virginia
Military Institute) with a reputation for tough training admit women, despite arguments that
the presence of women would disrupt its adverse approach training. In the VMI case, the
Court seems to have created an intermediate level of scrutiny (between Strict Scrutiny and the
Middle Level Test). In this test, the goal or aim of the act must have an exceedingly
persuasive justification

69
Any distinction based on gender, regardless of it discriminating men or women, is subject to
this middle level of scrutiny. However, under this level of scrutiny, affirmative action programs
benefiting women to remedy past discriminations are usually constitutional. The same cannot
be said of affirmative action based on race.

Only the main three levels of scrutiny are addressed in the book. However, in class we learned
about five different tests. The following table helps clarify the five different tests created by the
Court to address equal protection claims, including those in the book and others explained in
class:

Strict Scrutiny a) Extremely important aim. Compelling aim.

b) Least restrictive means
Heightened Scrutiny a) Exceedingly Persuasive Justification
b) Substantially related to the goal
Based on sex c) The interest must be the one actually relied upon when the legislature
VMI case drew the distinction.
Middle Level Test a) Important Interest
b) Substantially related to the goal
c) The interest must be the one actually relied upon when the legislature
drew the distinction.
Rational Basis Plus It is rational basis test with a more searching inquiry and less deference
upon the legislature.
Sexual Orientation
Roamer v. Evans
J.E.B. v. Alabama
US v. Windsor
Rational Basis Test a) Legitimate Interest
b) Rationally related to the goal
c) The interest may be any conceivable one.

Juries & The Adversary Jury Trial and the Lawyers Role in It

B. Juries

1. Some History

It was imported by the Normans into England after the invasion of 1066 and firmly
established as part of the English legal procedure.

Juries are supposed to increase the diversity of viewpoints on the proper resolution of cases, to
spread responsibility for decision-making and to bring a common sense of justice to the legal
system. They deliberate separately from the judge in secret, and usually does not need to justify
its decision.

Juries are told that they must accept the law as given to them by the judge, determine what the
relevant facts are, apply the law to those facts and in that manner decide the case.

70
 2. The Division of Labor Between Judge and Jury

Judge decides issues of law and the jury decides issues of fact.

3. Characteristics of the Modern Jury

Nowadays prospective jurors is taken from both voter lists and drivers license lists.
Traditionally, important professionals would be exempt from jury duty, but those exemptions
have been recently removed in most jurisdictions.

Failure to comply with a jury subpoena is contempt of court and is punishable by fine or
imprisonment.

Diversity of Jury Pools. Inclusive methods for creating jury pools are designed to increase the
diversity of juries selected from it. Federal law require procedures designed to ensure random
selection of a fair cross-section of the persons residing in the community. Beyond the ability to
read and write the English language, there are no educational requirements for being a juror.

Juror Pay. Jurors receive pay for their service. Usually between $5 and $40 a day.

C. The Adversary Jury Trial and the Lawyers Role in It

1. Jury Selection

Size of the Jury. State criminal cases usually have a jury of 12, but can have as few as 6 persons;
in civil cases there is variation, but most states permit 6-person juries.

Jury Selection Process. The jury selection process is sometimes called voir dire. The panel of
prospective jurors or jury venir is usually given some brief introduction to the case for which
they are being selected. As a general rule, federal courts have judge-conducted jury selection,
while state courts allow lawyer-conducted selection.

Lawyers can make peremptory challenges, which allow them to exclude a certain number of
jurors for no reason at all. For a 12-person jury in federal court in felonies not involving the
death penalty, the prosecution has 6 challenges and the defense has 10. In death penalty cases,
the prosecution and defense each has 20 challenges.

Plessy v. Ferguson
Facts Mr. Plessy was a man who had African American antecessors, who -
according to the Louisiana statute- had to sit in the train places reserved
for African American people, separated from white peoples sits. He
bought a coach ticket he wasnt allowed to use.

Procedural [Court below dismissed complaint]

71
History
Issue Does the statute (railroad segregation) conflict with the 13th (abolishes
slavery) and 14th (prohibits certain restrictive legislation of state equal
protection) amendments?

Rule This case is later (other cases) referred as implementing the separate but
equal doctrine.

Holding Affirmed (dismissed Mr. Plessys position)

Reasoning The statute does not conflict with 13th amendment (not implies slavery).
Underlying fallacy of the plaintiffs argument: assumption that the enforced
separation of the two races stamps the colors race with a badge inferiority
Legislation is powerless to eradicate racial instincts, or to abolish distinctions based
upon physical differences ()

Dissenting Justice Harlan: The arbitrary separation of citizens, on the basis of race, while
they are on a public highway, is a badge of servitude wholly inconsistent with civil
freedom and the equality before the law established by the Constitution. It cannot be
justified upon any legal grounds.
Our Constitution is color blind

Comments / The Court refers to 3 kinds of equality: (i) political; (ii) social and (iii)
Class civil. According to the Court the equal protection clause protects
discussion political and civil equality: Law cannot protect social equality

Another argument discussed: white as property

72
 Brown v. Board of Education
Facts Cases from the States of Kansas, South Carolina, Virginia and Delaware
were consolidated because they had the same premise. These cases are
regarding segregation of people in public schools based on the sole
condition of race (especially between African American and white
people).

Procedural - Delaware case: 3 judge federal district court denied relief to the
History plaintiffs based on the separate but equal doctrine. Delawares
Supreme Court adhered to that doctrine, but ordered that the plaintiffs
be admitted because of the superiority of the whites people school.
Issue Does segregation of children in public schools solely on the basis of
race, even though the physical facilities and other tangible factors may
be equal, deprive children of the minority group of equal educational
opportunities? (Then violates equal protection clause?)
Rule Separate educational facilities are inherently unequal.
Holding Restored to docket for further argument on question of appropriate decress.
Segregation is a denial of the equal protection of the laws.
Reasoning The Court established that the doctrine of separate but equal didnt
apply in the field of public education. Segregation in these cases violates
the Equal Protection Clause of the Constitution.
Dissenting None
Comments / This case doesnt expressly overrule Pressy v. Ferguson, as it only says
Class that separate but equal doctrine doesnt apply in public education.
discussion * Influenced by a case decided 2 weeks before: Hernandez v. Texas
(Mexican-American)

Loving v. Virginia
Facts and Two residents of Virginia: Mildred Jeter (negro woman) and Richard
Procedural Loving (white man) got married in the District of Columbia. Afterwards,
History they returned to Virginia and established their marital abode in Carolina
County. There, they were sentenced to prison for marrying each other.
Their marriage violated the state's anti-miscegenation statute (Racial
Integrity Act of 1924) which prohibited marriage between people
classified as white and people classified as colored

The trial judge suspended the sentence for a period of 25 years on the
condition that the Lovings leave Virginia.

The Lovings left Virginia and instituted a class action requesting that
antimiscegenation statutes, be declared unconstitutional. Trial and
Supreme Court of Appels upheld the constitutionality of the
antimiscegenation statutes.

Issue Does a statutory scheme adopted by the State of Virginia to prevent

marriages between persons solely on the basis of racial classifications
violate the Equal Protection and Due Process Clauses of the 14th
Amendment?

73
Rule Restricting the freedom to marry based on racial classifications violated
the Equal Protection Clause. Strict scrutiny is applicable in these kind of
cases.
Holding The Supreme Court reversed the judgment of the appellate court.

Reasoning The Court rejected the notion that the mere "equal application" of a
statute containing racial classifications was enough to remove the
classification from the 14th amendment proscription of all racial
discriminations and held there was no legitimate overriding purpose
which justified the classification.

The Court found that restricting the freedom to marry solely because of
racial classifications violated the central meaning of the Equal Protection
Clause and deprived appellants of liberty without due process of law in
violation of the Due Process Clause.

Dissenting None
Comments /
Class
discussion

McCleskey v. Kemp
Facts and McCleskey, a black man, was convicted to two counts of robbery and
Procedural one count of murder in the Superior Court of Fulton County in
History Georgia. When he was captured he confessed having participated in the
robbery but denied that he had shot the white police officer that died.

The jury recommended that he be sentenced to death and the court

followed this recommendation.

The state supreme court affirmed the trial court's decision and denied a
petition for writ of certiorari. Petitioner then filed a petition for a writ of
habeas corpus in federal court in which he alleged the state's capital
sentencing process was administered in a racially discriminatory manner
in violation of the 14th amendment.

He presented statistical information (Baldus study) that showed that

persons who murder whites are more likely to be sentenced than
persons who murder blacks, and black murders are more likely to be
sentenced to death than white murderers.

Issue The question is whether a complex statistical study that indicates a risk
that racial considerations enter into capital sentencing determinations
proves that petitioners capital sentence is unconstitutional un the 8th or

74
 US v. Virginia (case known as VMI case)

14th amendment.

Rule Criminal defendant must prove that the purposeful discrimination had a
discriminatory effect on him (not statistics).

Holding The Supreme Court affirmed the decision of the appellate court that
denied petitioner's application for a writ of habeas corpus.

Reasoning - McCleskey offers no evidence specific to his own case that would
support the inference that racial considerations played a part in his
sentence.
- Also he would have to prove that the Georgia Legislature enacted or
maintained the death penalty statute because of an anticipated racially
discriminatory effect.
- Legislatures have wide discretion in the choice of criminal laws and
penalties. Court should not interfere.

Dissenting Justices Brennan, Marshall, Blackmun and Stevens.

There was a significant chance that race would have play a prominent role in
determining if he lived or died.

Historical review of Georgia criminal law and the mayor punishments to

black people when they committed crimes against white people.

It is role of the courts to attend voice of minorities because Constitution

establishes that majorities cant dictate conditions of social life.

Comments / Can statistics be used to prove discrimination?

Class
discussion

75
Facts and Virginia Military Institute (VMI) was a public military college, with strong
Procedural reputation among Virginias institutions of higher learning. It was a single-
History sex (only men) school.

Prompted by a complaint filed by a female high school student seeking

admission to VMI, the United States sued alleging that VMIs exclusively
male admission policy violated the equal protection class.

First, District court ruled in favor of VMI. Court of Appeals reversed and
remanded suggesting these options: (i) admit women; (ii) establish parallel
institutions or (iii) abandon state support.

* In response Virginia established a parallel institution - VWIL. Although it

shared same mission, they were not the same.

District Court decided the plan met requirements of equal protection and a
divided Court of Appeals affirmed.

Writ of certiorari

Issue 1. Does denying womens admission to VMI (public funded

institution) violate the equal protection clause of the Constitution?
2. If it violates the equal protection principle, what is the remedial
requirement?
Rule
In cases of official classification based on gender, the proffered justification
must be exceedingly persuasive.
The burden of justification was demanding and rested entirely on the state.
The state must show at least that the challenged classification served
important governmental objectives and that the discriminatory means
employed were substantially related to the achievement of those objectives.
The justification must be genuine, not hypothesized or invented post hoc
in response to litigation; and it must not rely on overbroad generalizations
about the different talents, capacities, or preferences of males and females.

Holding Judgment reversed.

Reasoning According to the Court, Virginia failed to satisfy its burden of providing an
exceedingly persuasive justification for its sex-based admissions policy or
that the policy was substantially related to the achievement of those
objectives.
Creation of a different school is not a remedy (not same reputation,
tradition, etc). Court rules that Virginia has not shown substantial equality
in the separate educational opportunities.

Dissenting Justice Scalia: Court applies a higher level of scrutiny than intermediate.
Although it is hard to consider that women are a minority unable to employ

76
 political processes.

Comments / In some cases differentiating among men and women might be reasonable.
Class Differences: cause of celebration not denigration
discussion =/= from race for example.
Exceedingly persuasive justification is between Strict Scrutiny and
Intermediate Scrutiny
* Private discrimination cannot be reached through the equal protection
clause. If private -->statutory regime.

Case J.E.B. v Alabama 114 S.Ct. 1419 (1994)

Facts State of Alabama filed a complaint for paternity and child support against
petitioner Mr. J.E.B. in a District Court in Alabama.
During jury selection, the State exercised its available peremptory strikes
and managed to remove all the potential male jurors.
The jury found petitioner to be the father of the child, and the court entered
an order directing him to pay child support.
Procedural JEB challenged peremptory challenges on the ground that they were
history exercised against male jurors solely on the basis of their gender. The court
rejected the claim.
Certiorari was ultimately granted.
Issue Does intentional discrimination on the basis of gender by state actors in a
jury selection process violate the EPC.
Rule Gender based classifications are subject to heightened scrutiny;
discrimination in jury selection based on gender violates the EPC.
Holding The EPC prohibits discrimination in jury selection on the basis of gender,
or on the assumption of generalizations about gender. The State of
Alabama violated the EPC by its exercise of preemptory strikes to remove
male jurors based on solely on their gender.
Reasoning Gender based discrimination should be subjected to a heightened scrutiny.
There isnt an exceedingly persuasive justification to allow for gender
discrimination in jury selection, other than archaic and overbroad
generalizations about gender.
Discrimination in jury selections affects litigants, the community and the
individual jurors. Any proceedings stemming from discrimination lack
legitimacy and generate cynicism with respect to the jurys neutrality and
fairness.
Dissent There is a dissent by Scalia, but it is not in the reader.
Comments/ This case was not discussed in Class. However, it is an application of the
Class level of scrutiny created in the VMI case: heightened scrutiny.
Discussion

77
 11. CONSTITUTIONAL LAW SUBSTANTIVE DUE PROCESS

Introduction

There are two (2) due process clauses in the Constitution:

(i) In the 5th Amendment, which applies only to the federal government, and
(ii) In the 14th Amendment, which applies only to states.
Collectively, they provide that a person may not be deprived of life, liberty or property without due
process of law by any governmental body in the US.
Due process establishes three (3) distinct sets of rights:
(i) Incorporated due process rights
(ii) Procedural due process rights
(iii) Substantive due process rights
Substantive due process seems to be a contradiction in terms, as the doctrine has little to do
with process and a lot more to do with substance. Indeed, Substantive due process
does not have much to do with procedure, but with the fact that there are certain rights
encompassed within the term liberty2 that the state (and the federal government) may not
infringe no matter what process it provides.

There is an overlap between substantive due process and the top (strict scrutiny) and bottom
(rational basis) levels of three-tier equal protection doctrine.

Fundamental rights substantive due process corresponds to strict scrutiny equal

protection, in that it requires a compelling governmental interest to sustain any infringement in
fundamental rights.

There is also a lax form of substantive due process identical to rational basis equal protection:
it applies to business, welfare or economic legislation and invalidates a law only if its
completely irrational. Today courts judge the validity of business, welfare and economic law
almost always under the equal protection rubric rather than due process. That is why the Red
Book only discusses the fundamental rights side of substantive due process.

The fundamental rights side of substantive due process.

Substantive due process has become the major source of unwritten fundamental rights
outside the more specific rights-bestowing provisions of the Constitution. Therefore,
substantive due process raises the question of the Courts legitimate role in applying its power
of judicial review to invalidate governmental action.

The most famous case is Lochner v. New York3. Lochner invalidated state laws setting maximum
working hours on the ground that the law interfered with the liberty of employers and

2A person may not be deprived of life, liberty or property without due process of law by any governmental body in the
US.
3 The professor mentioned this case in class but it was not part of the reading materials, therefore you will only
find a very concrete reference of it in this summary, to provide context on the subject matter.

78
employees to freely contract with each other. Substantive due process cases that favored
business interests would end when the Court upheld a minimum wage law.
Substantive due process reemerged not to protect business interests, but rather the Court has
and continues to confine its elaborations on what is included in liberty to individuals right
of privacy.

Right to privacy (birth control and abortion) - Casey v. Planned Parenthood of Pennsylvania.

Commentators have argued that the Court maybe have added a new tier (the
undue burden standard) in the levels of three-tier equal protection doctrine.
The Court held that before fetal viability, a woman has a right to terminate her
pregnancy, and a state law is unconstitutional if it imposes an undue burden
on the womans decision (i.e. if it has the purpose or effect of placing a
substantial obstacle in the womans path).
There is not really a question of privacy in this case but rather a social question
on gender and equality. Justice OConnor gives an equal protection spin to the
due process clause. Talks more about dignity than of privacy.

Reading: Letter from Texas Attorney General Ken Paxton (June 28, 2015)

The letter was addressed to the Lieutenant Governor of Texas, Dan Patrick to answer
a question4 he raised before the Obergefell v. Hodges case (in which the Supreme Court
determined that there is a constitutional right to same-sex marriage). The answer was
provided after Obergefell.
The Attorney General indicated that clerks and their employees may have a claim that
forcing the employee to issue same-sex marriage licenses over their religious objections
is not the governments lease restrictive means of ensuring a marriage license is issued 5.
The justices of the peace may also argue the latter, taking into account that unlike the
clerks, Justices of Peace have no mandatory duty to conduct any wedding ceremony,
they are authorized to do so, but not required.
A court must balance the statutory duty (of issuing a license) against the clerks
constitutional rights and statutory rights under the Religious Freedom Restoration
Acts, as well as the constitutional right of the applicant to obtain same-sex marriage.
Importantly, the strength of any particular religious-accommodation claim depends on
the particular facts of each case.

4Whether in the event the Texas definition of marriage is overturned- government officials such as employees
of county clerks, justices of peace and judges may refuse to issue same sex marriage licenses or conduct same-sex
marriage ceremonies if doing so would violate their sincerely held religious beliefs.
5 The statutory rights protecting freedom of religion are known as the Religious Freedom Restoration Acts and
require the government to use the least restrictive means to further a compelling government interest when
substantially burdening a persons free exercise of religion.

79
 Lawrence v. Texas
Facts Police officers, in response to a reported weapons disturbance, entered
the residence of Lawrence and saw him and another man engaging in a
sexual act. The two petitioners were arrested under a Texas statute that
prohibited such conduct between two persons of the same sex; they
were charged and convicted before a Justice of the Peace. The Court
of Appeals rejected defendants federal constitutional arguments under
both the Equal Protection and Due Process Clauses of the Fourteenth
Amendment, and affirmed the judgment.

Procedural history N/A

Issue Whether a statute prohibiting certain sex acts between same sex
couples violates liberty under the Due Process Clause of the 14th
Amendment.

Rule While homosexual conduct is not a fundamental right, intimate sexual

relationships between consenting adults of the same sex are protected
by the Due Process Clause of the 14th Amendment.

Holding A statute making it a crime for two persons of the same sex to engage
in certain intimate sexual conduct violates the Due Process Clause.
The statutes (both the Texas one and the Georgia one) seek to control
a personal relationship that, whether or not entitled to formal
recognition in the law, is within the liberty of persons to choose
without being punished as criminals.

Adults may choose to enter upon these relationships in the confine of

their homes, and their own private lives, and still retain the dignity as
free persons. Their right to liberty under the Due Process Clause gives
them the full right to engage in their conduct without intervention
from the government.

The case of Bowers v. Hardwick, which concluded that such act of

consensual sodomy is not protected under the fundamental right to
privacy or any right protected under the Constitution, should be
overruled.

Reasoning The Court demonstrated that precedents before and after Bowers
contradict its central holding. Bowers itself causes uncertainty; it was
not correct when it was decided and it is not correct now and for that
it is overruled. The Texas statute furthers no legitimate state interest,
which can justify the intrusion into the personal and private life of the
individual.

There is no longstanding history in this country of laws directed at

homosexual conduct as a distinct matter. The right the petitioners seek
in this case has been accepted as an integral part of human freedom in
many other countries.

80
Dissent Scalia (joined by Chief Justice and Thomas): The Courts opinion
doesnt declare that homosexual sodomy is a fundamental right
under the Due Process Clause; nor does it subject the Texas law to
the standard of review that would be appropriate (strict scrutiny) if
homosexual sodomy were a fundamental right. The Court simply
describes petitioners conduct as an exercise of their liberty and
proceeds to apply an unheard-of form of rational-basis review that will
have far-reaching implications beyond this case. No purpose to
discriminate against men or women as a class can be gleaned from the
Texas law, so rational-basis review applies. What Texas has chosen to
do is well within the range of traditional democratic action, and its
hand should not be stayed through the invention of a brand- new
constitutional right by a Court that is impatient of democratic
change.

Thomas - I cant find neither in the Bill of Rights nor any other part of
the Constitution a general right of privacy.

Comments/Class -
Discussion

Casey v. Planned Parenthood of Pennsylvania

Facts United States, having joined the petitioners as amicus curiae, asked to
overrule Roe v. Wade (1973), which established the protection
provided by the Constitution to women in regard to their right to
terminate pregnancy in its early stages.

This action concerns five provisions of the Pennsylvania Abortion

Control Act of 1982. One provision, designed to ensure that a woman
seeking an abortion has given her informed consent, requires the
referring physician or the physician who will perform the abortion to
speak with the patient at least 24 hours prior to the abortion,
informing her of the nature and risks of abortion, the probable
gestational age of the fetus, and the risks of carrying the child to term.
One of those physicians, or a qualified medical practitioner, must also
inform her of printed materials available from the Commonwealth
concerning alternatives to abortion, medical assistance benefits for
childbirth, and the liability of the father for support.
The second provision requires a minor seeking an abortion to obtain
the informed consent of one parent, but contains a judicial bypass
option for a minor who cannot or does not want to obtain a parent's
consent.
The third provision requires a married woman seeking an abortion to
notify her husband in advance of the abortion.
The fourth exempts a woman from each of these three requirements
in the event of a medical emergency, defined as a situation in which
the physician believes an immediate abortion is necessary to avoid

81
 death or believes a delay will create serious risk of substantial and
irreversible impairment of major bodily function.
The fifth provision imposes recordkeeping and reporting requirements
on physicians and abortion clinics.
In 1988, five abortion clinics and one physician challenged these
statutory provisions as violating the right of privacy embodied in the
Due Process Clause.
Procedural history The Court decided in 1973 (Roe v. Wade) decided that women had the right
to decide whether to have an abortion before viability (ability to survive
outside the womb).
Issue Whether these provisions violate the Due Process Clause.
Are womens rights to terminate their pregnancies contained in the Due
Process Clause of the Fourteenth Amendment? (Under liberty).
Rule Due Process Clause: No State shall deprive any person of life, liberty, or property
without due process of law.

Former rule held by the Court (in Roe v. Wade): The right to decide
whether to have an abortion is contained in the Fourteenth Amendment.
Holding While the effect of reliance on Roe cannot be measured, the costs of
overruling would be huge for people who have ordered their lives
according to it; no constitutional principles has been affected by Roe; and
facts have not changed and viability may continue to serve as the critical
fact to determine the point of intervention of the State.

The fact that a woman has the right to terminate her pregnancy before
viability does not imply that the State is prohibited from taking steps to
ensure that her choice is/going to be thoughtful and informed; so even in
the early stages of pregnancy the State should be able to enact rules and
regulations destined to inform.

Based on principles of constitutional integrity and the rule of stare decisis,

the Court resolved that the essential holding of Roe v. Wade should be retained,
and reaffirmed. Such reaffirmation has three parts that constitute such
essential holding:

1. Recognition of the right of the woman to choose to have an abortion

before viability and to obtain it without undue interference from the
State.
2. The confirmation of the States power to restrict abortion after fetal
viability, if the law contains exceptions for pregnancies which
endanger the womans life or health.
3. State has legitimate interests from the outset of the pregnancy in
protecting the health of the woman and the life of the fetus that may
become a child.

The Court pointed out that the consent of a woman prior to the abortion
and the requirement to obtain the consent of one of the parents of a
minor seeking an abortion, are not an undue burden; however the
necessity of notification to the husband of the woman seeking an

82
 abortion is (provided that married or not such right is one conferred to
her), so the latter was considered invalid.

Reasoning The Fourteenth Amendment protects the right to make personal

decisions such as marriage, procreation, contraception, child rearing and
the decision whether to bear or beget a child. Those intimate choices are
central to the liberty protected by such Clause.

The State has the right to protect the potentially human life, so it is able
to issue and enact regulations and rules even during the early stages of
pregnancy, with the purpose to inform. In order to avoid any regulation
or rule beyond the information purpose, the undue burden analysis
shall be made, considering that an undue burden exists (invalid provision)
when the intention is to place a substantial obstacle in the path of a
woman seeking an abortion before the viability. The trimester framework
therefore, was abandoned.

Likewise, the disposition regarding the faculty of the State to restrict an

abortion after the viability shall maintain since the woman who has failed
to act before viability, has consented to the States intervention o behalf
of the developing child.

Dissent Scalia, White and Thomas - They disagree with the partial reaffirmation
of a rule, in their words the keep-what-you-want-and-throw-away-the-
rest-version. Moreover, they suggested that the Court should not
continue to impose a rigid national rule and instead should allow regional
differences.

Comments/Class Is the right to abortion still a fundamental right? Or has the court abandoned
Discussion this tier of scrutiny? (Not answered but mentioned as interesting
points).

See comments above on introduction.

Obergefell v. Hodges
Facts Petitioners seek to obtain full recognition to their same-sex lawfully
performed marriages.

Procedural history N/A

Issue 1. Whether the Fourteenth Amendment requires a State to license a
marriage between two people of the same sex;
2. Whether the Fourteenth Amendment requires a State to recognize a
same-sex marriage licensed and performed in a State which does grant that
right.

Rule Due Process Clause (Fourteenth Amendment): No State shall deprive any
person of life, liberty, or property, without due process of law.

Equal protection clause is also cited.

Holding The fundamental liberties protected by the Due Process Clause include most

83
 of the rights enumerated in the Bill of Rights, and are extended to personal
choices central to individual dignity and autonomy, including intimate
choices that define personal identity and beliefs.

The Court considered that a 4-principle analysis shall be made to determine

that the reasons marriage is fundamental under the Constitution apply with
equal force to same-sex couples:

(i) Right to Personal Choice regarding marriage: It is related to individual

autonomy.
(ii) Commitment: Marriage dignifies couples who whish to define
themselves by their commitment to each other.
(iii) Marriage safeguards children and families: it draws meaning from related
rights of children, procreation and education. It also allows children to
understand the integrity of their own family and its concord with other
families.
(iv) Marriage is a keystone of social order: Marriage is the basis for an expanding
list of rights, benefits and responsibilities; however by virtue of the
exclusion of same-sex couples, there are denied to the constellation of
benefits linked to marriage.

Reasoning Included in Holding above.

Dissent Roberts, Scalia, Thomas They provide the following arguments for their
dissent:

1. The fundamental right to marry does not include a right to make

a State change its definition of marriage; and the decision of a
State to maintain the meaning of marriage in a way that has been
historically accepted, should not be considered irrational.
2. In a democratic republic, a decision should rest with the people
acting through their elected representatives rather than five
lawyers who happen to hold commissions authorizing them to resolve legal
disputes according to law.
3. Unelected judges should not select which rights are
fundamental or not. That is a concern about the judicial role.
4. The marriage laws do not violate the Equal Protection Clause
because making a distinction between opposite-sex couples and
same-sex couples is rationally related to the States legitimate
state interest in preserving the traditional institution of
marriage.

Comments/Class -
Discussion

84
 12. AMERICAN EXCEPTIONALISM: FIRST AMENDMENT

The first Amendment protects the rights of free speech, press and assembly, the freedoms of
expression, including symbolic speech.

Purpose of the law/ Policy reasons: In a democracy people must be informed to govern
themselves. Free flow of discussion and criticism control abuses of government. A market
place of ideas is necessary for democracy.

Issues:
1. Cross Burning:
Scope- does it cover hatred speech?
2. Corporate Personhood and the Law of the Political Marketplace
Liberty v. Democracy.
Liberty v. Equality
Neoliberalism (laissez faire) v. political equality

Rules:

1. Content and viewpoint neutrality6: Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or disagreeable. Government
regulation of expression must be content neutral. (Cross burning cases).

2. Government has no power to restrict expression because of its message, its ideas, its
subject matter, the speakers identity (Citizens United v. Federal Election Commission), or
its content.

3. Restrictions based upon content-based speech can only be upheld if it survives strict
scrutiny7. To satisfy strict scrutiny, the law in question must be:
a. Narrowly tailored, and
i. A law is narrowly tailored if it employs the least restrictive means to
achieve its goal and if there is a nexus between the governments
compelling interest and the restriction.
b. Promote a compelling government interest.

4. Unprotected speech: Fighting words is a kind of speech not protected under the First
Amendment. Fighting words are words which by their utterance inflict injury or tend to
incite an immediate breach of peace.

6 Content-based regulations can be split into two sub-categories: (i) if a law regulates the expression of some
viewpoint, (ii) if a law regulates the discussion of some topic.
7 There are other restrictions to the freedom of speech: time, place and manner. When the restriction is not
content- base an intermediate scrutiny test applies.

85
 R.A.V., Petitioner v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)
Facts The Petitioner allegedly burned a cross on a black familys lawn. The Petitioner
was charged with violation of the St. Paul Bias-Motivated Crime Ordinance,
which provides that:

Whoever places on public or private property a symbol, object, appellation, characterization

or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows
or has reasonable grounds to know arouses anger, alarm or resentment in others on the
basis of race, color, creed, religion, or gender commits disorderly
conduct and shall be guilty of a misdemeanor.

Issue Whether the provision in the Ordinance prohibiting the display of a symbol
which arouses anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender is in violation of the First Amendment
(Free Speech Clause).

Rule Regulation that prohibits speech solely on the basis of the subjects the speech
addresses is unconstitutional.
Holding The Court concluded that even if the expression reached by the ordinance was
prohibited under the "fighting words" doctrine, the ordinance was facially
unconstitutional because it prohibited otherwise permitted speech solely on
the basis of the subjects the speech addressed.
Reasoning 1. The Ordinance applies only to fighting words that insult, or provoke
violence, on the basis of race, color, creed, religion or gender.
Displays containing abusive expressions, no matter how vicious or severe,
are permissible unless they are addressed to one of the specified disfavored
topics. Those who wish to use the fighting word in connection with
other ideas are not covered (for example, ideas to express hostility on the
basis of political affiliation, union membership, or homosexuality). The
First Amendment does not permit St. Paul to impose special
prohibitions on those speakers who express views on disfavored
subjects.
2. The ordinance is a content-based regulation that does not fall within the
exception for content discrimination (fighting words). The reason why
fighting words are excluded from the protection of the First Amendment
is not because of their content, but because of the mode of expressing
that idea. St. Paul did not singled out an especially offensive mode of
expression (for example threats). The court uses a policy argument: by
regulating content the city may seek a possibility to handicap the
expression of particular ideas.
3. Although the statute served a compelling interest, there were content-
neutral alternatives available. An alternative could have been an ordinance
not limited to the favored topics.
Concurring 1. The ordinance is unconstitutional, because it is overbroad; not because of
the subjects it addresses.

86
 2. It is inconsistent for the court to say that a government may proscribe an
entire category of speech because the content of the speech (neutrality
reason); but that the government may not treat a subset of that category
different (groups subject to discrimination).

Comments 1. First amendment regulations are subject to strict scrutiny

2. Is there any other basis for punishing the Petitioners conduct? Yes. There
are other laws/regulations to hold the Petitioner criminally liable for his
conduct.
3. The basis of the Ordinances facially unconstitutionality is that its
restriction on freedom of speech was content-based and viewpoint-based.
The Supreme Courts rationale was that the state must remain neutral; and
the value protected here is neutrality.
4. If the 1st Amendment only governs the Congress, how does it apply to a
city ordinance? Because under the incorporation doctrine, even if the 1st
Amendment does not by its terms address state/local governments, it is
incorporated into the 14th Amendment (due process clause) and thus
becomes applicable to state/local governments, as if the 14th Amendment
contains the 1st Amendment. (Similarly, in Windsor v. US, the Supreme
Court used the equal protection doctrine to find the federal legislation
DOMA unconstitutional by way of reverse incorporation doctrine, as
if the 5th Amendment (which applies to federal government) contains
the 14th Amendment (which only applies to the state governments).

87
 Virginia v. Black
538 U.S. 343 (2003)
Facts Black and two other defendants were prosecuted and convicted of violating a
Virginia statute any such burning of a cross shall be prima facie evidence
of an intent to intimidation that are most likely to inspire fear of bodily harm.
Issue Does the Commonwealth of Virginia's cross-burning statute, which (i)
prohibits the burning of a cross with the intent of intimidating any person or
group of persons, and (ii) considers cross burning as prima facie evidence,
violate the First Amendment?
Rule A form of expression cannot be treated as being prima facie evidence in a
process.
Holding The court concludes that while a State, consistent with the First Amendment,
may ban cross burning carried out with the intent to intimidate, the provision
in the Virginia statue treating any cross burning as prima facie evidence
of intent to intimidate renders the state unconstitutional.

Reasoning 1. Content-based discrimination - not a ground for unconstitutionality: A ban

on cross burning carried out with the intent to intimidate is possible under
the First Amendment (it bans conducts rather than expression). The
Virginia statute is different from the one declared unconstitutional in
R.A.V., as it does not discriminate that speech directed toward one of the
specified disfavored topics.
The First Amendment is not absolute and permits restrictions upon the content of
speech in a few limited areas, which are of such slight social value as a step to
truth that any benefit that may be derived from them is clearly outweighed
by social interest in order and morality.
2. Prima facie evidence provision - ground for unconstitutionality: The prima
facie provision permits the state to proscribe cross burning regardless of
the "intent to intimidate", and, in doing so, creates "an unacceptable risk of
the suppression of ideas." While agreeing that cross-burning may arouse "a
sense of anger and hatred", the Court states that contextual factors need to
be analyzed in deciding whether the "intent to intimidate" was actually
present. Therefore, Virginia must prove the intent to intimate.

Dissenting Justice Thomas

opinions
1. Context matters: In every culture, certain things acquire meaning well
beyond what outsiders can comprehend.
2. This statue prohibits only conduct, not expression so there is no need to
analyze it under any of our First Amendment tests. Just as one cannot burn
down someones house to make a political point and then seek refuge in
the First Amendment, those who hate cannot terrorize and intimidate to
make their point.
3. Even assuming that the statue implicates the First Amendment, the fact
that the statue permits a jury to draw an inference of intent to intimidate
from the cross burning itself, presents no constitutional problem since
prima facie evidence can be rebutted.

88
Justice Scalia: Prima facie evidence does not eliminate defense since it can be
rebutted and contradicted.
Justice Souter: Souter agrees with the majority's judgment on the
unconstitutionality of the Virginia statute, but argues that the implicit content-
based distinctions of the statute render the legislation invalid regardless of the
prima facie provision.

89
 Citizens United v. Federal Election Commission
130 S. Ct. 876 (2010)

Facts 1. Citizens United, which is a nonprofit corporation, produced a documentary

named 'Hillary' critical of Senator Clinton Hillary.
2. Citizens United was willing to commit its own funds to pay for
advertisement to promote the film.
3. Section 441b of the Bipartisan Campaign Reform Act (BCRA) prohibited
corporations and unions from using their general treasury funds to make
independent expenditures for electioneering communication.

Issue Whether the Federal Election Commissions statute, which imposes restrictions
to corporations regarding campaign expenditures solely on their corporate
nature, violate the First Amendment regarding political speech.
Rule 1. Government may not, under the First Amendment, suppress political speech
on the basis of the speaker's corporate identity
2. Restrictions on political expenditures for corporations are unconstitutional.
Holding The statute violates the First Amendment. The government may not suppress
political speech on the basis of the speaker's corporate identity (overruling
Austin case) and federal statute barring independent corporate expenditure for
electioneering communications violated the First Amendment (overruling
McConnell case).
Reasoning 1. Strict scrutiny: Laws that burden political speech are subject to strict
scrutiny. To restrict it, the government should prove that:
a. the restriction furthers a compelling interest and,
b. is in narrowly tailored to achieve the interest.

The statute fails the strict scrutiny test. Court gives also policy reasons:
corporations contribute to the discussion debate (market place of ideas).
2. The government argues that corporate political speech can be banned to
prevent corruption or its appearance. However, independent expenditures
do not give rise to corruption or the appearance of corruption and the
societal interest in avoiding such a danger does not provide an adequate
justification for regulating corporate expenditures on candidate elections.
3. The argument that restriction is necessary to protect shareholder's interest is
both underinclusive (because the law don't ban certain media corporation)
and overinclusive (because the law covers all corporation including
nonprofit corporations).

Dissent 1. Corporations are different from human speakers because they cannot vote
or run for office and their interests may conflict with the interests of eligible
voters.
2. Restriction on corporate independent expenditure is necessary to prevent
corruption and the appearance of corruption in the electoral process and to
protect the expressive interests of shareholders.
Comments 1. If we are arguing as a textualist we can say that the right of speech is a right
of the people and corporations are not people. Others may argue that there
is nothing in the language that corporations are not part of the people
(aggregation theory of corporate identity)
2. Article- Law and Legal Reason:

90
 a. Critique to Citizen United v. Federal Election.
b. Law shapes the economy. Law and legal reasoning not only give
form to the economic, but also economize new spheres and practices
(for example, democracy).
c. Law becomes a medium for disseminating neoliberal rationality
beyond the economy. Redefines political rights, citizenship and
democracy (dedemocratization).
d. This reasoning strengthens the hand of capital and weakens
associations of citizens, workers, and consumers.
e. Several Emblematic cases of neoliberalization in the judicial sphere:
i. Court permitted corporate money to decide election
process (Citizen United v. Federal Election)
ii. Permitted corporations to end class action suits, forcing
consumers to enter into individual arbitration. Eliminates
primary legal mean to fight against corporate abuses.
iii. Constrict the capacity of public and private sector to act
in concert (cuts political bargaining power of public
unions).
In these cases the court has applied neoclassical principles to the
interpretation of rights and the space of politics (equality, liberty,
access, autonomy, fairness, the state).
f. Court considered speech as capital: democracy is conceived as a
marketplace where ideas, votes, opinions are its goods. Under this
theory, speech must flow freely (restrictions distort the market). The
first victim is political equality.
g. Under this scenario political representatives will respond to
corporates will and not for securing national justice or welfare.
3. Powell Memorandum: Citizens United v. Federal Election Commission
relies on this ideology. Memorandum written to the US Chamber of
Commerce. The memo stated that Americas economic system was under
attack.
Powell called for corporate America to become more aggressive in molding
politics and law. Recommended (i) active participation in education (schools,
textbooks), (ii) active participation in the media (television, journals,
advertisement), (iii) defense from the political arena, (iv) active participation
n courts, (iv) a more aggressive attitude from corporations.

4. Lochner v. New York (1905)- Laissez faire- Neolibralism

interpretation of the constitution (case discussed in class)
a. Citizens United Expands and Extends Lochners Logic
b. Opinion:
o The New York State law limiting the hours of bakers can work
each week unconstitutionally infringes upon the right to
contract of employers and employees.
o No State can deprive any person of life, liberty or property
without due process of law. The right to contract for the
purchase or sale of labor is part of the liberty protected by this
amendment.
o There is a limit to the valid exercise of the police power of the
state.
o There is no reasonable ground for interfering with the liberty of

91
 person or the right of free contract, by determining the hours of
labor, in the occupation of a baker.
o There must be more than the mere fact of the possible existence
of some small amount of unhealthiness to warrant legislative
interference with liberty.
c. Dissenting opinions
o The Courts decision impermissibly limits the state sovereign
authority under the general police power, whose reach extend[s]
at least to the protection of the lives, the health, and the
safety of the public against the injurious exercise by any
citizen of his own rights.
o Special-interest legislation
o A constitution is not intended to embody a particular economic
theory, whether of paternalism and the organic relation of the
citizen to the State or of laissez faire.
o Law as a medium for disseminating neoliberal rationality.

92
13. CONCLUSION: THE RULE OF LAW AND THE LIMITS OF LAW

Mapp v. Ohio
367 U.S. 643, 643, 81 S.Ct. 1684, 1685 (1961)
Facts Appellant possessed lascivious books, pictures and photographs in violation of
Ohio Code. Three Ohio police officers forcefully entered her home without a
warrant, alleging that she was hiding someone under investigation for
bombing. Police officers faked a warrant. When women grabbed the fake
warrant, police officers physically attempted to get it back. A struggle ensued
and woman was handcuffed. The obscene materials were found during
search. Trial court held that evidence unlawfully obtained could be used in
trial. Supreme Court of Ohio confirmed. SCOTUS granted certiorari.

Issue Whether Fourth Amendment right of privacy (through operation of

Fourteenth Amendment) prevents states from using evidence unlawfully
obtained.

Rule -
Holding Evidence obtained in violation of Fourth Amendment right of privacy is
inadmissible in a state court.
Weeks v. United States (1961) federal exclusionary rule also applies to
states.
Ruling otherwise would encourage lack of care.
Opinion overruled Wolf precedent, which excluded application of
federal exclusionary rule to states.
Reasoning
Dissenting Harlan: Federal rules should not impose federal standards of search and
seizure on states.

Comments / -
Class
discussion

I. T. 303-305 (Exclusionary Rule)

Purpose of exclusionary rule is to exclude evidence obtained in violation of constitutional

rights. Theory of fruit of poisonous tree: if tree is poisoned fruit will also be poisoned.
Ruled introduced in Weeks v. United States (1961) at the federal level; by Mapp at the state
level.
Mapp ruling considered two justifications: (i) discouraging authorities from obtaining
illegal evidence knowing that it would be acceptable in trial and (ii) protecting judges
integrity.
After Mapp, SCOTUS narrowed application to (i) above and recognized the following
exceptions:
o Goof faith If police did not know or could not reasonably know that evidence
was unlawful (United States v. Leon; Arizona v. Evans)

93
 o Impeachment Even when exclusionary rule applies, evidence may be used in
cross-examination to attack defendants credibility.
o Derivative Evidence Exception to poisonous tree theory if evidence attenuated to
dissipate the taint (Nardone v. United States). Also, exception applies if inevitable
that evidence would have been discovered legally.
o Proceedings other than criminal trials Does not apply to civil tax proceedings,
deportations, grand juries, etc.

II. Policing and Profit, by Developments in the Law (128 Harv. L. Rev. 1723)

Article discusses culture of using law enforcement to extract revenues in context of

Michael Brown case.
Missouri privatized probation systems and other security systems. Citizens not as persons
with rights, but sources of revenue. Missouri and other states and cities as examples of
when a public service becomes a source of revenue. Consequence: regressive tax.
Sources:
o Usage fees Privatization and excessive charges and fines for arrest, adjudication
and incarceration. Fees to avoid jail are also high, and when citizens cant pay
they go to jail (and owe more money for jail time). In certain cases fee applies
regardless of whether arrest was lawful.
o Profit Probation Companies have become debt collectors with incarceration
powers: when probationer stops paying, company may obtain arrest warrant.
o Civil Forfeiture.
Ferguson population is around 21,000 and municipal court had issued more than 30,000
arrest warrants in 2013. Court fines in Ferguson are the second largest source of income.
Explanation: easy source of revenue. Budget now designed assuming that revenue (i.e.,
less budget resources to police).
Paper suggests violations of:
o Due Process Clause (neutral administration) Financial motive increases bias.
o Equal protection Clause (ban of discriminatory punishment) Enforcement
system against the poor, i.e., those who cannot pay fines.
o Eighth Amendment (excessive fines) As opposed to Cruel and Unusual
Punishment, Excessive has not been interpreted by Supreme Court. Suggests
that now is good time to start.

Floyd v. City of N.Y.

813 F. Supp. 2d 417 (S.D.N.Y. 2011)
Facts Facts: A tenant was locked out of his building and received help from the
plaintiff, who was the owners nephew. When NYPD officials saw the plaintiff
holding several keys and trying to enter a building, they frisked (searched) both
men. Plaintiff was arrested for suspected burglary. Court considered that facts
were undisputed and detention presumed lawful based on areas burglary
pattern and reasonable suspicion due to plaintiffs handling of multiple keys.
However, with new evidence from findings of Prof. Jeffrey Fagan (Columbia),
plaintiff sought to reopen the case for reconsideration. New evidence
suggested that NYPD officers mislabeled the area as high crime.

Issue Whether Fourth and Fourteen Amendment Constitutional rights were violated
for lack of reasonable suspicion and burglary pattern in the area to justify
detention.

94
 Issue of discrimination on the basis of color/origin is also claimed,
although the court does not address it in the context of this motion
for reconsideration.

Rule -
Holding Area wrongly labeled as high crime. Circumstances of reasonable suspicion
overruled because they depended on allegation of high crime (i.e., just handling
multiple keys is not enough to suspect that a person is breaking and entering).
Reasoning -
Dissenting -
Comments / -
Class
discussion

Fact Sheet: Questions and Answers for Columbia Law School Students about Grand
Juries, by Jeffrey Fagan and Bernard e. Harcourt

Grand Juries Generally

Empowered to investigate criminal conduct and determine whether criminal procedures
may be brought.
Grand jury practice is determined on state-by-state basis (not mandatory for states under
Fifth Amendment).
Common requirement in states for prosecution in felony cases.
Differs from typical juries in that:
o Closed to public and media.
o Size from 23 (federal) to 12 (Missouri).
o No judge in the grand jury room (prosecutor presides).
Case of Michael Brown
What was strange in this case? Resembled a trial rather than grand jury proceeding. About 60
witnesses (usually there is only one per case).
Issue: State grand juries tend to excuse police officers.

95