Outline Con Law

FUNDEMENTALS

Sarah Garrott

Purpose of the Constitution o Establishes Federal government (stronger than Articles of Confederation) o Separates the fed governments power into three braches Purpose of separation of powers Create a system of checks and balances to reduce the possibility of tyranny Generally two braches must agree in order to act Branches Legislative (Article 1) Executive (Article 2) Judicial (Article 3) o Regulates the relationship between the Federal government and state governments Division of power between fed gov and state gov = Federalism Division implicit in Article 1 Grants specific powers to congress those powers not granted assumed to be left to state government Division explicit in 10th Amendment Supremacy Clause (Article 6) = fed law preempts state laws if the two laws conflict Federalism does not allow states to impose burdens on other states. o Protects individual rights Only protects individuals form the government not from private conduct (except for the 13th amendment dealing w/ slavery) Bill of Rights Originally only protected individual rights from the fed government Now protects rights from fed government and state and local governments

Benefits of having a constitution o Makes the law much more difficult to change Framers purposefully made constitution difficult to change to prevent tyranny by the majority and protect the rights of the minority from oppression by social majority

Protects long term values from short term passions. (Tendency to change laws in a way that undermines cherished values) Puts certain things beyond the democratic majority (anti-majoritian document)

History o 1791 Articles of confederation= first constitution of US Weak national government Problems states discriminating against out of state goods no executive/judicial authority to force state compliance with fed laws o 1787 Constitutional convention purpose was to amend articles of confederation, but ended up abandoning articles of confederation and created new constitution o 1787-1790 Constitution ratified/adopted by the states o 1789/1791 Ratification of bill of rights

THE FEDERAL JUDICIAL POWER A. THE AUTHORITY OF JUDICIAL REVIEW Article 3 created Judiciary and defined its powers Vests judicial power in a supreme court and inferior courts as Congress may form time to time ordain and establish o debate over whether state courts were enough to enforce fed law or whether the fed inferior courts were needed Ensures independence of fed courts o Appoints fed judges for life, and sets their salary Makes them impervious to electoral influence/independent Power over 9 types of cases and controversies o Vindicate and enforce power of the federal government Legally defend the US (when US is named a party to a lawsuit o Resolves interstate disputes

Establishes allocation of power between Supreme Court and lower fed courts o Supreme court has original jurisdiction over Disputes between states Can have concurrent jurisdiction with lower fed courts Requires trail by jury for all crimes (also trial must be in state where crime was committed)

Article 3 never expressly grants fed courts power to review the constitutionality of fed or state laws or executive actions Marbury v. Madison Established the authority of the judiciary to review the constitutionality of executive and legislative acts. Facts : 1800 election. Adams defeated by Jefferson and then (Adams) attempts to pack the ct. Marbury appointed as justice by Adams, but Jefferson refuses to deliver commission. Marbury files for writ of mandamus to force delivery of commission. ** Ruled Against Marbury, because it decided Court could not hear the case Constitutionally as a mater of original Jurisdiction b/c its original jurisdiction was limited to what is enumerated in the Constitution. This rendered a provision of the Judiciary Act of 1989 unconstitutional and ESTABLISHED 3 PRINCIPLES 1. Authority of judicial review of executive Can review if it is a matter of individual rights as opposed to areas where executive has discretion 2. Authority of judicial review for legislative actions: Declares fed. Law unconstitutional 3. Article III = Ceiling of fed court jurisdiction Congress can not expand the original jurisdiction of the supreme court set out in Constitution Reasoning: Three Questions

1. Does Marbury have a right to the Commission? (yes) o no person is above the law no matter their position in government, and the very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives injury o the judiciary can provide specific remedies against the executive when there is a specific duty to a particular person; but not when it is a political matter up to executive discretion 2. Can Supreme court issue the remedy? (yes) o The court has this authority b/c the delivery of commission falls into a specific duty to a particular person, rather than a political question of executive discretion (i.e. matters like vetoing a bill or appointing to office are entirely w/in the presidents discretion and cannot be judicially reviewed) 3. Court looks at jurisdiction and says they dont have it here. Other Marbury v. Madison Notes The parts of the decision not having to do with jdx arguable were improper should have decided this issue 1st (Ex Parte McCardle) o Possibly the court saw no way to decide case w/out considering the constitutionality of the staute Chief Justice Marshall knew it would be futile to rule in favor of Marbury and could result in undermining the Courts authority is Jefferson ignored the verdict o This is thought to be a masterful part of the decision b/c the Jefferson administration would be content with the holding of the case, while at the same time Marshall was securing heightened power for the judiciary holding that the statute was unconstitutional and thus claiming the power of judicial review The Statute was questionably talking about appellate jdx but if it had been read differently there would have never been the chance for the court to grab power

o Martin v. Hunters Lessee Expanded Marbury v. Madison, The Supreme Court has power of judicial review over the constitutionality of executive and legislative acts AND decisions by state courts Land dispute, had inherited land from British lord, claimed Virginia had taken land before treaties to uphold the right of British citizens thus did not have valid title State court ruled for , Supreme court reversed State claimed that the supreme court lacked authority to review state court decisions Supreme Court reviewed and reversed the challenge title was valid & SC had authority to review state court judgments Policy/Reasoning: Constitution gives Congress ability to create lower fed courts, but if Congress does not create them, SC could only hear few cases it has original jurisdiction in. Also state interests may obstruct the regular administration of justice. SC review is essential to ensure uniformity in the interpretation of fed law.

Cohens v. Virginia- Criminal s can seek review in SC when they claim that their conviction violates the constitution (brothers convicted in st. court for selling lotto tickets, sought SC review, State say SC cant review this) State can not be adequately trusted to protect federal rights because in many states judges are dependent for office and for salary on the will of the legislature.

Cooper v. Aaron Debate about SC judicial review still comes up more recently. Arkansas basically decides not to follow Brown v. Board of Education. Ark says they were not a party to the suit ruling doesnt bind them. SC said no remember Marbury v. Madison you have to follow ruling

B. LIMITS ON THE FEDERAL JUDICIAL POWER 1. INTERPRETIVE LIMITS ORIGINALISM o Interpretation of the constitution is limited to the text and the intention of the framers. (Scalia: societies accepted views at time Constitution was written )

o Orginialism constrains judicial discretion, and limits judicial power Originalist are conservative and think that judicial review is undemocratic because it permits unelected judges to overturn actions by elected officials o Originalists almost always respect stare decisis even if it is different that the fact-based inquiry o PROBLEMS Purely fact based inquiry does not eliminate judicial discretion People understand facts in different ways Historical record can be marginal and requires interpretation and therefor judicial discretion

Can lead to bad results (ear cropping example) because no evolution of ideas since time of ratification Not forward thinking Throws away reason Raban thinks it is outdated and fails its basic premise (eliminating judicial discretion) NON-ORIGINALISM o Maintain it is desirable to have constitution evolve by interpretation and amendment, to meet the needs of society o The framers intent itself requires interpretation effected by contemporary values No singular intent of framers Therefore originalism and non-originalism are the same Even if there was singular intent historicall record to meager to support an authoritative conclusion o The framers intended non-originalist approach (little to no support for this view) o PROBLEMS Empowers unelected judges If the intentions of framers not clear then job for legislature not judicial branch

District of Columbia v. Heller invalidating DC law regulating use of handguns as being unconstitutional against 2nd amendment o Question: whether right to bear arms = limited to militia service or not? o Majority- Originalist Approach (5 conservative Justices) Right to bear arms not limited to militia service therefore DC ord. unconstitutional structure of text prefatory clause states purpose but does not limit or expand the scope of

operative clause (op clause self defense) History When 2nd amendment ratified drafters intended it to protect self defense

Lord Richman described an order to disarm private cit. as unconstitutional o DISSENT Breyer non-originalist approach (4 lib. Justices) Reasonableness test DC ordinance = reasonable in light of handgun violence Deference to legislature Originalism only first step in analysis must also apply it to todays society and modern problems Requires moral judgment and judicial discretion o DISSENT Stephens: same analysis as majority but reached op. conclusion: orig. draft of amendment included exemption from militia service and it was removed later from 2nd amendment. 2. CONGRESSIONAL LIMITS ARTICLE III SC shall have appellate jurisdiction both as to Law and Fact, with such exceptions and under such regulations as the Congress shall make. Argument for congress having broad power to remove matters from SC jsx = Article III this allows Congress to preclude review of certain topics by the supreme court

(assumes that another court is available to hear claim otherwise congress would be acting unconstitutionally) argues that congressional control of S. Ct. jurisdiction is a check on judicial power which framers intended Framers limited appellate jds to decisions of states highest court that ruled AGAINST a fed. Const. claim only

Arguments that Congress has narrow power to preclude review o argue that congress can only make exceptions and regulations in terms of fact finding by s. ct. not review of law. o Congressional preclusion of certain topics by s. ct. is unconstitutional Ex Parte McCardel Art. III as a limit on SC jdx. opponent of reconstruction jailed seeks Habeas writ o Court has jurisdiction based on 1867 statute o After case begins legislature repeals the part of the 1867 statute that gave s. ct jurisdiction, specifically intending to get case dismissed b/c concern that it could invalidate reconstruction o Court decides after leg. Passed law they have no jurisdiction and dismiss case (implied that leg acted cosnt. Because it was a clear exception) o Proponents of limiting s. ct. juris = McCardel establishes that congress can prevent s. ct. review of constitutional issues. o Opponents of limiting = different than modern day challenges to jurisdiction because leg did not entirely preclude review of habeas writs just some. Therefore congress did not preclude review of whole topic only part, and in modern cases congress trying to preclude review of whole topic.

Congress can limit Jdx. For SC review of matters of FACT, but not for issues of LAW United States v. Klein Statute stating that property owners can get back any property seized by gov. during civ. War so long as didnt help the enemy (Sep of Powers as a limit) o S. Ct. held that presidential pardons mean that individual didnt help enemy

o Congress passed a new statute saying presidential pardons = proof that a person did aid enemy (opp. of what court found) and that if there was a pardon court must dismiss case. S. Ct. held that this statute was unconstitutional Congress can not direct results of particular case because it violates separation of power o Opponents of Cong. Limiting S. Ct. = congress can not restrict S. Ct. jurisdiction to dictate substantive outcomes o Proponents =congress can not restrict S. Ct. jurisdiction in an unconstitutional way, every time cong. Amends a statute they may be directing an outcome so that is not unconstitutional McCardel v Klein o In Klein Statute Passed was possibly infringing on executive power to pardon as well as courts power, McCardel statute only limited courts power o Both cases say Congress can tell us what the law is but not how to apply it. o Raban thinks these cases could have gone either way and are very similar despite the outcomes Judicially created limits on matters that can be heard in fed courts Some are CONSTITUITIONAL and some are PRUDENTIAL o Constitutional = Congress can not override them by statute o Prudential = Congress can override them by statute because they are not constitutional requirements Purpose/Policy: o Uphold separation of power o Conserve judicial resources allow courts to focus there attention on matters most deserving of review o Improve judicial decision making by providing the fed courts with concrete controversies best suited for judicial resolution Also 7 Principles of avoidance help limit how and what the court decides on constitutional issues (See P. 41)

3. JUSTICIABILITY LIMITS

a. Prohibition of Advisory Opinions (Constitutional) Article 3 Cases and Controversies Requirements Other Justiciability doctrines support prohibition on adv. Opin. Standing/Mootness/ Ripeness (therefore often courts do not address ban on advisory opinions separately) (doesnt apply to every court some state courts do not follow) Policy: Upholds separation of power because it keeps courts out of legislative process (restricts judicial power) Conserves judicial resources by decreasing workload of judges Provides courts with specific questions rather than hypothetical legal questions (advisory opinions = hypothetical questions)

This allows for better more specific constitutional analysis and review Criteria to avoid being an advisory opinion 1) Requires that there be an actual dispute between adverse litigants Secretary of st. Jefferson (Washington Administration) asked S. Ct. for advisor opinion regarding US neutrality in War between France and England. o S. Ct. declined and said to issue such an opinion would violate separation of power 2) Substantial likelihood that a fed. Court decision in favor of a claimant will have some change or effect (Hayburns Case) Statute permits revolutionary war veterans to file claims in fed cir. Courts. Judges would then issue non-binding opinion stating amount of benefits to be paid o Found that this was not a judicial nature and violated separation of powers b/c it allowed congress to control judicial actions.

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(Plaut v. Spendthrift Farm Inc). declared fed statute overturning S. Ct. decisions unconstitutional o Distinguished from Hayburn but applies Hayburns finality principle. o Unconstitutional because gives parties cause of action where court said there was none = violation of separation of powers o Negative treatment now not clear it is well reasoned Declaratory Judgments advisory opinions or not? Originally thought declaratory judgments not justiciable because no actual dispute BUT (Nashville C. & St. L. Ry. v. Wallace) upheld fed. Courts power to issue declaratory judgments, because the request would have been justiciable as a claim for injunction. Focus on substance not form, so long as it is not hypothetical but actual controversy it is judiciable

b. Standing (Constitutional & Prudential) Whether the litigant is entitled to have the court decide the merits of the dispute/particular issues Most used/ most important of the Justiciability requirements Policy Reasons for Standing: Promotes separation of powers (supported by Allen v. Wright) Promotes judicial efficiency Improves decision making because ensures actual controversy Policy Concerns Inconsistency in rulings Often political/ideological split Liberals want to broaden standing allow more cases Conservatives- want to narrow standing and exclude as many cases as possible Standing can sometimes = bad results because hard to prove personal injury Animal cruelty cases

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Sometimes standing protects unconstitutional gov. actions if no one can prove standing o Nat. Security Agency secret surveillance prog. o See: City of Los Angeles v. Lyons

o See: Allen v. Wright (maybe) (Prudential Requirements 1) A party can only assert his/her rights not a 3rd partys rights

2) A can not sue as a taxpayer who shares grievances in common w/ all taxpayers) i. Constitutional Standing Requirements Derived from the S. Ct.s interpretation of Article 3 1) must suffer a concrete and personal injury Allen v. Wright s claim that they were stigmatized by governments policy was to abstract to = personal injury therefore no standing o challenge the IRS policy of tax exemptions to privates schools that racially discriminate o Claimed injury = their (clack) children cant go to desegregated schools because all whites going to IRS tax exempt private schools Lujan v. Defenders of Wildlife claim of an aesthetic or environmental harm (observing animals for aesthetic reasons) might be sufficient to constitute injury o claim failure to comply with endangered species act outside US = killing endangered species they had seen and planned to go back and see in the future o Court found no standing because it is not clear they would actually return to see animals Dissent thinks this is stupid because under this view if s had plane ticket then they would have had standing o Court also found that Citizen Suit Provision in endangered species act (allowing anyone to sue for violation of act)

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did not automatically create standing (standing is constitutional so statute can not override) This ruling invalidated a ton of statutes City of Los Angeles v. Lyons Requires seeking injunctive or declaratory relief must show a likelihood of future harm o Police policy to use chokehold, policy use chokehold on and he is injured (16 people have died from this) seeks injunctive relief to stop police using chokehold o Court found that had no standing for injunctive relief because not likely to happen to him again so no likelihood of future harm o However still had standing to sue for damages Massachusetts v. E.P.A. harms from global warming are sufficient for state to have standing to sue E.P.A. for failure to regulate greenhouse gas emissions (Dissent thinks to general to be personal injury) (United States v. Hays) - who reside in racially gerrymandered district have standing to challenge but those outside district do not. (Federal Election Commn. v. Akins) Congress can create right of information and denial of such information =personal injury for standing.

2) must show causation i.e. injury traceable to conduct of Allen v. Wright - claim that their (black) childrens chances to receive integrated education were diminished by IRS tax breaks to discriminatory schools (this was found to be an injury) o Denied standing for this injury because there was no causation. IRS did not cause the segregation directly

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3) must show the court has ability to redress the injury through a favorable ruling (often 2 and 3 are melded into one) Massachusetts v. E.P.A Maj. even if global warming is not reversed/stopped slowing or reducing it would be enough for redressability (b/c big policy concerns here) o Dissent focuses on lack of redressability says redressability must be likely and that in this case it is pure conjecture that injury would be prevented.

c. Ripeness (Constitutional & Prudential) When can a party seek review before an injury has actually occurred? Seeks to separate matters that are premature for review, because the injury is speculative and may never occur, from cases appropriate for review. Policy: this exists so that a person can sue before they violate the law. Can always claim a law is unconstitutional if person has broken law and is persecuted for it Person shouldnt be forced to break the law to bring suit in every circumstance

Promotes separation of power/ increases judicial economy Fed courts have great deal of discretion when finding ripeness :. often case law not clear Two Main Considerations: 1) Hardship to the parties of withholding court consideration (constitutional Article 3 cases and controversies) two situations where court found enough hardship to justify review before injury 1) when individual is faced with a choice between forgoing lawful behavior and risk prosecution with substantial consequences and breaking the law w/ substantial consequences. Courts will find the case ripe without forcing the individual to break the law prior to review o (Abbot Laboratories v. Gardner)

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o (Abbot Laboratories v. Gardner) FDA required generic names be included on all prescription drugs. Because to comply would force sellers of prescription drugs to change everything at great cost ect. allowed review before injury i.e. case was ripe. 2) when a law has yet to be enforced, but in inevitable and is certain to bring about hardship when it is enforced courts will find ripeness (Regional Rail Reorganization Act Cases) (MacMullan) If hardship is minimal or unlikely to occur than not ripe o (Poe v. Ullman) - s sued challenging law banning distribution and use of contraceptives Found not ripe because law was basically never enforced so no hardship 2) The fitness of the issues for judicial decisions (prudential) more a question is legal question not dependent on facts the more likely it is to be ripe. The more it is dependent on specific facts the less likely it is ripe. d. Mootness (Constitutional) Cases require actual controversy so if the issue in the case becomes irrelevant before it is resolved case is moot/dismissed Changes in fact or law can render a case moot Cases settles, litigant dies, someone withdraws Policy -Ensures actual controversy, increases judicial economy 3 EXCEPTIONS: 1) Wrongs capable of repetition but evading review injury likely to recur in future/injury possibly could happen to again Injury of such short duration that it will always be over before review is completed Roe v. Wade Pregnant women seeking abortion, by time case is decided she had baby/technically moot. But injury occur in future could happen to again and will always evade review so found that case was not moot. 15

2) Voluntary Cessation if voluntarily ceases the prosecuted behavior but is free to return to it anytime

Friends of the Earth Inc. v. Laidlaw Env. Services Polluting company proves they no longer pollute but could start up again as soon as case was dismissed so therefore not moot 3) Class Action Suits because it is a certified class even if all named members no longer have live controversy it is ok because class

(United States Parol Commission v. Geraghty) e. The Political Question Doctrine (Constitutional? Prudential? Both?) i. The Political Question Doctrine Defined: Certain allegations of unconstitutional governmental conduct can not be ruled on by the court (even though court has jurisdiction and all Justiciability requirements are met) and should be left to politically accountable branches of government Derived from Separation of Powers in constitution, not explicit in constitution but implied (not derived from Article 3) Definition of political question not clear Fed Courts often deal with political issues all the time United States v. Nixon Political questions can be defined narrowly to be only matters where the president had unlimited discretion and .: no allegation of unconstitutional conduct Marbury v. Madison Now political question more broad includes instances where individual alleges violation of specific constitutional provisions and they have suffered a concrete injury Arguments for Political question Doctrine Allows court to avoid controversial constitutional issues and limits the courts role in democratic society Allocates decision making to branches of government with superior expertise in certain areas 16

Increases separation of power b/c minimizes courts interference in other branches of government Arguments Against Political Question Doctrine It is judicial role to enforce constitution so can not leave constitutional questions to other branches of government Matters in constitution should be beyond majority control therefore can not entrust political branches of government to enforce the document meant to restrain them. If judiciary avoids controversial constitutional issue will avoid deciding issues that most need it (highly popular unconstitutional government actions) Many political questions do not involve expertise but need interpretive measures The Issues of malapportionment/partisan gerrymandering Malapportionment- not reapportioning congressional districts after growth in cities. Urban dweller underrepresented, rural dweller overrepresented challenges to malapportionment under the guarantee clause (guarantees republican form of government) are a non-justiciable political question o (Colegrove v. Green) o (Luther v. Borden) BUT challenges to malapportionment under equal protection clause can be justiciable Baker v. Carr- distinguishes challenges to gerrymandering/malaportionment brought under equal protection from those brought under guarantee clause o Says that judicial standards under equal protection well developed and familiar and not so under guarantee clause (not clear this is actually true) o If yes to one or more then = political question Does the text of the constitution commit the issue to another branch of the gov. Nixon v. United States 17

Is there a lack of judicially discoverable standards for resolving the issue

(Goldwater v. Carter) 4 more on page 105 o DISSENT- If it is hard to decide or controversial dump it on someone else. Should have stuck with stare decisis and not gone through analysis o Two competing views of political ? doctrine Brennan- deciding whether or not something is a political question in and of itself is an important constitutional issue Frankfurter- not our job we dont want to go there period.

(Davis v. Bandemer) The Political Question Doctrine Applied ii. Congressional Self-Governance Should congressional decisions concerning its processes and members be subject to judicial review? (Powell v. McCormack) rejects application of the political question doctrine to judicial review of internal congressional decisions House of Rep refused to seat even though he was elected sues arguing that it is unconstitutional not to seat him because met all the qualifications to be seated despite his immoral behavior argue it is political question because it is job of congress to judge qualifications of members Court says no congress can only judge qualifications set out in constitution (age/citizenship/residence) therefore not political question and justiciable

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iii. Foreign Policy Court generally hold that cases dealing with issues of foreign policy are non justiciably because they are political question (Goldwater v. Carter) Claim that president can not unilaterally rescind treaty w/out approval of president Plurality said non-justiciable political question Lack of judicially discoverable standards of review Challenges to Presidents use of war power often found to = political question However just because foreign policy does not automatically = political question Using military force w/out approval of Legislature is appropriate for courts to review iv. Impeachment and Removal Challenges to impeachment process are non-justiciable/ political question Nixon v. United States Fed. Court judge jailed for purgery Senate votes to impeach him based on findings of a senate subcommittee Judge claims use of sub committee to hear claims = unconstitutional Court said it is political question because text of the constitution commits impeachment to the senate Impeachment only leg. check on judiciary so judicial branch can not interfere CONCURRANCE- says if senate acted clearly erroneously (coin toss) then judicial review may be appropriate CONCURANCE (White/Blackmund): you are doing hot potato theory of political question, need more detailed analysis, judges should be able to define the word trying because it is their job to interpret const. Brennen theory

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THE FEDERAL LEGISLATIVE POWER A. INTRODUCTION: CONGRESS AND THE STATES INQUARY: 1. Does Congress have express or implied constitutional authority to act? If yes move to 2, if no end of analysis act unconstitutional 2. Does this action infringe/violate any other part of Constitution? Esp: sep of powers/ 10th amendment If yes action unconstitutional If no action constitutional Major underlying issue: FEDERALISM (Policy issues The division of power between congress and the states o Article 1: Congress can Act only if the constitution expressly allows it o 10th Amendment: States can act so long as the constitution doesnt prohibit it Benefits of a federal system (p.138-141) o Allow radically different laws to apply o Fear of tyranny eliminated o Increases government accountability McCulloch v. Maryland defines the scope of Congresss power and defines the relationship between the fed government and the states. o Facts: Fed gov. chartered a bank, MD tried to tax fed. Bank. o Power to create bank? Constitution ratified by the people NOT ratified by the states fed. Government supreme over states and states have no authority to negate federal action Article 1: Congress is not limited to only acts specified in constitution Nec. & Prop. Clause: Congress can choose any means not prohibited by constitution, to carry out lawful auth. let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional. 20

The Relationship Between the fed government and the state

o Can MD tax bank? NO Power to create bank= power to preserve bank Power to tax= power to destroy If yes taxation w/out representation Scope of Nec & Prop clause US v. Comstock- reaffirms McCulloch v. Marylands holding on Nec. & Prop Clause. Statute involved allowed for indefinite detention of sex offenders (gov power to extend sentences indef. to certain prisoners) o Lower court said Means bust be rationally related/reasonably adopted to legitimate end under a constitutional authority AND no more than one step removed from enumerated power o SC no there can be many more steps between power and law but they all must be legit rationally related etc (p 21 Supp) o 5 factors to considered (i.e. possible limits on Cong power): 1. breadth of nec. & Proper clause 2. history of fed involvement in the area 3. reasons for statutes enactment 4. accommodation of states interests 5. scope of statute (narrow impact v. broad impact) B. COMMERCE POWER Commerce Clause: Article 1 8 Congress shall have the power to regulate commerce with foreign nations, and among the several states Regulation of commerce one of the main reasons we have fed government Government regulation of commerce increases economic efficiency 1. THE INITIAL ERA Commerce power broadly defined minimally used Gibbons v. Ogden- defines commerce and among the states and finds 10th amendment not limit to fed com. power Commerce= all phases of business (commercial intercourse) Among States = Congress can regulate intrAstate commerce so long as the commerce affects/intermingles with intERstate commerce (can not regulate purely intrAstate commerce) Not clear what impact on intERstat commerce is necessary or where line is

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2. 1980S-1937: LIMITED FEDERAL COMMERCE POWER Conservative court committed to Laissez-Faire economics Invalidated a ton of fed economic regulations 3 doctrines come out of this era 1. Narrowly defines commerce, so as to leave a zone of power to the states Commerce is one phase of business different than earlier stages like production. Fed gov only has power to regulate this step (commerce) rest of phases regulated by state U.S. v. E.C. Knight- Challenge to a fed law that prohibits monopolies (invalidated fed. Law) Distinction drawn between production and commerce (specifically to allow zone of solely state regulation) Arbitrary distinction Productions affect of intERstate commerce to indirect/incidental to allow fed regulation of production

(Carter v. Carter Coal Co.)- reaffirmed E.C. Knight distinction between production and commerce and importance of leaving zone of regulation to state 2. Among the states= see ogden but add substantial/direct effect on intERstate commerce Close/sub related & stream of commerce approach Shreveport Rate Cases- upheld fed gov setting intrAstate railroad rates b/c directly impact intERstate commerce Congress can regulate intrAstate activity (even to the detriment of intrAstate commerce) if the activity has a close and substantial relationship to intERstate activity

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(Other cases (Swift & Co. v. U.S./Stafford v. Wallace) activities can be regulated by fed. Gov. if in stream of commerce dealing mostly with regulations regarding food safety)

Stream of commerce approach not consistent Begins to narrow w/ Direct Impact test A.L.A. Schechter Poultry v. U.S. Fed law regulating wages at slaughterhouse unconstitutional because no direct impact on interstate commerce. (new deal leg. Invalidated) Stresses importance of direct v. indirect reaffirms doctrine 1 by saying that even though all the chicken from out of state slaughterhouses purely in state in the zone only for state regulation that activity is in stream of commerce is not enough for fed regulation o (Carter v. Carter Coal Co.)- invalidated fed law establishing union rights/labor standards (new deal leg. Invalidated) Court says purely local activity and only indirect impact on intERstate commerce 3. 10th amendment carved out zone of activities that could only be regulated by the states even if congress had the power to regulate them (production/mining/manufacturing) Hammar v. Dagenhart- Invalidates fed labor law dealing only with intrERstate activity which is traditionally w/in scope of commerce power (later OVERRULED Darby) Finds that fed law attempts to regulate production Production is left purely to state by the 10th amendment Uses 10th amendment as doctrinal restriction on congressional commerce power Contrast w/ Champion v. Ames

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NOTE: 10th amendment as limit not consistently applied most likely to be applied to Fed economic regulations US v. E.C. Knight (above) Carter v. Carter Coal (above) Least likely to apply to fed regulations prohibiting immoral behavior Champion v. Ames- upheld fed. Law prohibiting intERstate shipment of lotto tickets and rejected 10th amendment challenge Very similar to Hammar v. Dagenhart Distinguishes because law regulated movement of already produced lotto tickets v. law that prohibits movements of good based on their production Simply says 10th amendment not a bar

3. 1937-1990S: BROAD FEDERAL COMMERCE POWER factors leading to change 1. The prior commerce clause decisions intellectually vulnerable Frequently inconsistent Based on arbitrary distinctions Commerce v. mining/production/manufacturing Livestock in stream of commerce but not chickens Prohibition on lotto tickets but not child labor 2. The economic crises of the great depression made the courts endorsement of laissez-faire economics seem archaic/ pernicious 3. Political pressure developed for change Roosevelts court packing plan to uphold new deal legislation etc. (never happened intensely criticized) Justice Roberts changed his vote and started upholding new deal legislation (not clear why he changed sides the switch in time that saved the nine.)

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NLRB v. Jones & Laughlin Steel- Rejects distinction between commerce and production/manufacturing (upheld new deal legislation) Direct relation between production/manufacturing and commerce could be squared with decisions of past era but makes clear there is shift to broad cong.commerce power. U.S. v. Darby- challenge to fed. Law prohibiting interstate shipment of goods made by employees paid less than min. wage. (like Hammar v. Dagenhart) Marks complete departure from past era Expressly overrules Hammar v. Dagenhart Rejected the 10th amendment as limit on congresss power no zone left solely to state regulation 10th amendment is but a truism

Wickard v. Filburn- upheld fed. Law capping wheat prod. Expressly does away with distinctions between Direct v. indirect Commerce v. production/manufacturing Congress can regulate intrAstate activity so long as the activity in the aggregate (cumulative effect) will substantially effect interstate commerce.

Test after these cases: Congress could regulate the activity if there was a substantial effect on intERstate commerce Substantial effect (activity looked at cumulatively over whole country has an effect= enough Wickard v. filburn) Did away with substantial by using rational basis test (Hodel v. Indiana) a court may invalidate legislation enacted under the commerce clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects intERstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends 25

Civil Rights Cases Civil Rights Act 1964 (enacted under Commerce Power) Prohibited private employment discrimination by places of public accommodation such as hotels and restaurants Heart of Atlanta Motel v. U.S. Upholds civil rights act as applied to places of public accomidation. Discrimination against black at motels makes them travel less= substantial impact on intERstate commerce Act meets the Rational basis test see (Hodel v. Indiana) Doesnt matter that it was meant to fix moral wrong a. Champion v. Aimes (p ) Doesnt matter that it is purely intrAstate activity so long as there is an effect on intERstate commerce a. Sheveport Rate Cases ( p )

Katzenbach v. McClung- Upholds Civil Rights act as applied to a small business (family owned restaurant) Congresss power under commerce clause broad and sweeping Restaurant sold less intERstate goods b/c discriminating... Used rational basis test: Congress rationally concluded that discrimination by restaurants cumulatively had an impact on interstate commerce. a. Cumulative impact- Wickard v. Filburn Criminal Cases Perez v U.S. upheld law prohibiting intrAstate loansharking. Rational basis test.

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10th Amendment Between 1937 an 1990s (Not a Limit) from 1937-1990 followed U.S. v. Darby- 10th amendment is but a truism/ not a limit on commerce power 1 exception to this in 1976 w/ National Leauge of Cities v. Usery - Invalidated a fed law which required the payment of minimum wage to (only) state & local employees Congress violates the 10th amendment when it interferes with traditional state and governmental functions Not clear what = traditional state function outside this min. wage law. DISSENT: States can protect their own interests, not job of judiciary to take care of states, job for political process Garcia v. San Antonio Metropolitan Transit Authority (1985) Expressly overrules National Leauge of Cities v. Usery See Dissent from NLC States can take care of themselves Distinction between traditional/nontraditional state functions is unworkable Job for political process not judiciary

4. 1990S-? NARROWING OF THE COMMERCE POWER AND REVIVAL OF THE 10TH AMENDMENT AS A CONSTRAINT ON CONGRESS a. What is Congresss Authority to regulate Commerce Among States? In 1995 departure from broad commerce clause authority U.S. v. Lopez- invalidating Fed law criminalizing guns w/in 1k of a school, as beyond the scope of congresss commerce clause authority because law did not substantially affect intERstate commerce Three areas where Congress can regulate 1. use and channels of intERstate commerce Heart of Atlanta Motel v. U.S. (p ) 2. instrumentalities of intERstate commerce including persons and things in intERstate commerce (including only intrAstate activity) Shreveport Rate Cases (p ) 27

3. activities that have a substantial affect to intERstate commerce (gov. can only regulate economic activities not non-economic activities under this prong) Guns near schools did not substantially affect intERstate commerce and is noneconomic activity Aggregation principle from Wickard v. Filburn only applied to economic activities

CONCURRENCE (Thomas): narrower view of commerce clause power return to 1887-1937 approach DISSENT (Breyer)- stick to rational basis test, there is no distinction between economic and non-economic activity U.S. v. Morrison- Reaffirmed 3 part test in U.S. v. Lopez, & significantly further limits the scope of congresss commerce power. (invalidates fed law creating cause of action for victims of gender motivated violence) Congress can not regulate a non-economic activity by finding that, looked at cumulatively, it has a substantial effect on intERstate commerce Link between regulated activity and substantial affect on intERstate commerce to attenuated DISSENT: thinks this is an abandonment of rational basis test

Criminal laws traditionally regulated by state distinction truly local /truly national (Pierce County Washington v. Guillen)- unanimously reaffirmed broad authority for Congress to legislate concerning road safety as a part of its power to regulate the channels on intERstate commerce.

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Gonzales v. Raich- Congress did not go beyond its commerce clause power to prohibit cultivation and possession of small amounts of med. Marijuana IntrAstate production of a commodity sold in intERstate commerce is economic activity and thus substantial effect can be based on cumulative impact. med. Marijuana looked at cumulatively has a substantial impact on intERstate commerce

(controversial decision some thought this case may be an opportunity for court to shift back to broad commerce clause power) CONCURANCE (Scalia)- Nec & Proper clause can also play a role in finding this law constitutional Review of Obama Care/ Patient Protection and Affordable Care Act will be the next big commerce clause case

Raban thinks it will be constitutional b. Revival of 10th Amendment as a Limit on Congresss Authority First indication of the revival (Gregory v. Ashcroft)- A federal will be applied to important state government activities only if there is a clear statement from Congress that the law was meant to apply. Stressed importance of autonomous state governments & 10th amendment as constitutional protector of State sovereignty

New York v. U.S.- 1st case since National League of Cities v. Usery (overruled) to invalidate fed law as violating 10th am. Fed law reg. hazardous waste, gave states choice to either take possession of waste or reg. according to Congs insts Because of 10th am. as limit on the scope of Congresss power fed government cannot compel state leg. to adopt laws/ agency regulations. (beyond commerce power) Government accountability problems Congress can regulate state activities by: Setting standards/ attaching strings to state funding May induce state actions but not compel them 29

C. THE TAXING AND SPENDING POWER Article 8 Congress shall have the power to lay and collect taxes to pay the debts and provide for the common defense and general welfare of the United States 1. For what purpose can Congress tax and spend? U.S. v. Butler- Congress has the broad authority to tax and spend for the general welfare of the public so long as it does not violate any other part of the constitution. (taxing and spending power not limited to carrying out enumerated powers in Article 1) Issue: conditions of federal money spending power/regulatory power?

Congress can tax/spend beyond enumerated powers but Can not regulate beyond enumerated powers (Sabri v. United States) reaffirmed a broad scope for Congresss authority under the spending clause. Placing conditions of federal grants can be a way for congress to constitutionally influence areas that are beyond its power to regulate South Dakota v. Dole- upheld congresss condition (min drinking age of 21) on state highway funding Analysis whether condition on spending is w/in congresses spending power. 1. spending must be for general welfare of public (defer to congresss judgment 2. Condition must be clear and unambiguous Pennhurst St. School and Hosp. v. Halderman 3. conditions on federal grants may be illegitimate if they are unrelated to the federal interest in particular national projects/programs most important prong Amici brief suggest there must be direct relation Limits Congresss power to interfere with areas beyond congresss ability to regulate

2. Conditions on Grants to State Governments

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4. Other constitutional provisions may provide an independent bar to the conditional grant of federal funds At some point financial inducement offered by congress might be so coercive as to pass the point at which pressure turns into compulsion D. CONGRESSS POWER UNDER THE POST-CIVIL WAR AMENDMENTS After the civil war 3 Amendments were added to the constitution Each contained provisions that empowered Congress to enact civil Rights Legislation 13th Amendment: Prohibits slavery and involunary servitude 14th Amendment: All persons born in US are citizens, no state can abrige the privleges and immunities of citizens, nor may states deprive any person of life liberty or property without due process of law, or deny = protection of laws 15th Amendment: Right of citizens to vote shall not be denied or abriges by US or state on account of race, color, previous condition of servitude

2. WHOM MAY CONGRESS REGULATE UNDER THE POST-CIVIL WAR AMENDMENTS? Civil Rights Cases - Federal government can regulate state and local governments and officials but can not regulate private actions Civil rights Act 1875 meant to eliminate discrimination of black still happening in South (Found unconstitutional as beyond Congresss power to regulate) 13th Amendment could regulate private behavior (no one can own slaves) but discrimination prohibited in the Act has noting to do with slavery 14th Amendment- Only applied to government actions and can not be used to regulate private behavior

Jones v. Alfred H. Meyer Co. Under 13th Amendment Congress can prohibit PRIVATE discrimination (in selling and leasing property) Overrules Civil Rights Cases on 13th amendment issue Congress has the power under the 13th amend. rationally to determine what are the badges and incidents of slavery and to determine what the badges of slavery are under 13th a.

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and has the authority to translate that determination into effective legislation Congress had power beyond the enumerated prohibition in 13th amendment U.S. v. Guest- Suggested: Under 14th Amendment Congress can regulate PRIVATE discrimination (not law today overruled) Racially motivated killing ended up saying government could intervene and prosecute killers based on state involvement (police)

U.S. v. Morrison- Under 14th Amendment Congress can not regulate PRIVATE discrimination/actions Reaffirmed 14th amendment portion of Civil Rights Cases disavowed U.S. v. Guests suggestion to contrary.

14th amendment only applies to government actions Importance of Boernes proportionate and congruent test ( p ): Even if congress can not regulate private activity directly (under 14th amendment), it may be able to regulate private activity indirectly if it can show regulation of this private activity is proportional and congruent to prevent/remedy unconstitutional behavior by the state. If there is no evidence of state violation of constitution the statute will be found not proportional or congruent

3. WHAT IS THE SCOPE OF CONGRESSS POWER? Two major view of Scope of Congresss power under the post-civil war amendments (really under 14th amendment): 1. Broad/nationalist perspective Congress has the authority to prevent/provide remedies for violations of rights recognized by supreme court AND can expand (but not restrict) the scope of rights by creating new rights (by statute) i.e. congress can regulate things that are not themselves violations of the 14th amendment Text of Constitution says Enforce creating new rights beyond those recognized by court is enforcement Court & Congresss role to recognize and protect rights under Constitution.

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 Creating needed national power to protect rights under the constitution Katzenbach v. Morgan (not rule today) Congress can expand civil liberties under 14th amendment(possibly even overturn the supreme court) (upheld Fed. Law prohibiting use of literacy tests in voting) Even though literacy tests were specifically found not to violate 14th amendment (Lassiter Case) Congress can still prohibit them so long as the prohibition is nec. & proper to guarantee rights under 14th amendment If Congress has rational basis for thinking activity is nec. To ensure 14th amendment rights that is enough for court

Congress has same broad powers under 14th amendment as it does under nec. & proper Clause. 2. Narrow/federalist perspective Congress only has the authority to prevent/provide remedies for violations of rights recognized by supreme court (and the laws must be narrowly tailored) i.e. Congress can only regulate actual violations of 14th amendment 1. Texts of Constitution says Enforce no authorization to create new rights 2. Courts Role: to decide what rights are protected by Const. 3. Limits federal power, leaves more governance to states, decreases instances where federal government can regulate state and local actions Transition between broad view in Katzenbach v. Morgan to narrower view Dpt of Human Resources of Oregon v. SmithSignificantly decreased the protections for the free exercise (of religion) clause. o Upheld OR law prohibiting use of peyote o Did away with strict scrutiny test for the burdening of religious freedom

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In Direct response to (Smith) Congress enacts Religious Freedom Restoration Act o Express intent to overrule Smith, reinstate strict scrutiny for laws burdening freedom of religion

City of Boerne v. Flores- declared Religious Freedom Restoration Act Unconstitutional b/c beyond Congresss ability to regulate under 14th amendment (Rule Today) Congress can not create new rights or expand rights, Congress can only enact laws that prevent or remedy violations of rights recognized by supreme court Congress can always regulate actual violations of 14th amendment To regulate activities that are not direct violations of the 14th amendment Congress must show: 1. Law is congruent AND Must show a link between the regulated (nonviolating activity) and unconstitutional conduct I.E. must show why/how regulation of this activity will prevents/remedies unconstitutional

conduct 2. Law is proportionate The scope of the regulation must be directly proportionate to the harm it is seeking to prevent

i.e. even if first factor met, if the law is too broad it can still be found unconstitutional See: importance of prop. and congruent test (p ) o Other cases dealing with Congresss power to legislate under 14th amendment see Cases Denying Congress Authority to Act Under 5 to Authorize Suits Against State Governments (p )

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E. CONGRESSS POWER TO AUTHORIZE SUITS AGAINST STATE GOVERNMENTS 1. BACKGROUND ON THE 11TH AMENDMENT AND STATE SOVEREIGN IMMUNITY GOVERNMENTS 11th Amendment: The judicial power of the United states shall not be construed to extend to any suit in law or equity, commeced or prosecuted against one of the States by citizens of another state, or by citizens or subjects of any forign state. Adopted in direct response to a allowing a citizen to sue a state (Chisholm v. Georgia) This sovereign immunity only protects state governments not local governments Hans v. Louisiana- extended the 11th Amendment sovereign immunity to states from suits (in fed court) by its own citizens Also extends 11th amendment to Fed. Question jurisdiction Very Controversial Harsh rule: st. can violate fed law & is immune

from suit 3 ways around Hans harsh rule: 1. Ex Parte Young- sue state officers for injunctive relief the remedy will enjoin the state policy that may be violating law Can not get $ damages (from state) only force state to stop violating federal law not many people use this exception 2. States may waive their 11th amendment immunity and may consent to be sued in Fed. Court. Only explicit waivers (but can get $ from state) 3. Congress can authorize suits against state governments under the 14th Amendment

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2. CONGRESSS POWER TO AUTHORIZE SUITS AGAINST STATE GOVERNMENTS (IN FEDRAL COURTS) 1. The Basic Rule: Congress May Authorize Suits Against States Pursuant Only to 5 of 14th Amendment Fitzpatrick v. Bitzer- Congress can authorize suits against state governments under 14th amendment 14th amendment followed 11th amendment modifies it 14th amendment limit on state power authorizes money damages! So long as the fed statute under 14th amendment states clearly that congress intends to abrogate state power then state can be sued for $ Pennsylvania v. Union Gas Co.- Congress can authorize suits against state governments under any of its constitutional powers (including commerce clause) so long as the statute expressly authorizes such suit (overruled ) Seminole Tribe v. Florida- overrules Pennsylvania v. Union Gas Co., Congress can only authorize suits based on 14th Amendment not under its Article 1 power. 11th amendment comes after Article 1 regulates it 14th amendment comes after 11th Amendment regulates it. Due mainly to 4 judges from majority of Penn leaving court and dissenters staying on court (note 1 yes before City of Boerne v. Flores limits congresss power under 14th amendment, explains shift 2. Cases Denying Congress Authority to Act Under 5 to Authorize Suits Against State Governments In order to sue a state government for $ damages must 1st show that statute is constitutional pursuant to 14th amendment Ofted trying to prove that a statute is justified under 14th amendment when really it was enacted pursuant to Article 1

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Florida Prepaid Postsecondary Expense Education Board v. College Savings Bank- State infringing on patent, fed law prohibiting patent infringement (arguable enacted under 14th amendment b/c deprivation of property w/o due process.) Law not w/in 14th amendment power b/c it is not congruent and proportional (Boerne test) to remedy constitutional violation (i.e. it is to broad/not narrowly tailored) Congress had scant evidence of widespread patent infringement on part of state not proportional.

congress can not authorize suits against states for $ under fed. Patent law states can infringe on patent law w/o facing suit b/c patent law only fed law no state law. Kimel v. Florida Board of Regents- State agencies age discrimination, fed. Law prohibiting age discrimination Claims against state agencies (for $ damages) were bared under 11th amendment/ Fed law was not a valid exercise of 14th amendment power can not be used to sue state Congress = no evidence of widespread age discrimination by state statute neither congruent/proportional to the alleged harm

Board of Trustees, University of Alabama v. Garrett State governments violating Americans w/ disabilities act. Claims against state agencies (for $ damages) were bared under 11th amendment/ Fed law was not a valid exercise of 14th amendment power can not be used to sue state Congress = no evidence of widespread violation of American w/ disabilities act

statute neither congruent/proportional to the alleged harm 3. Congresss Greater Authority to Legislate Concerning Types of Discrimination and Rights That Receive Heightened Scrutiny Different fundamental rights/discrimination must meet strict scrutiny (most likely to be found unconstitutional) Racial discrim/infringement of fund. rights 37

 Some fundamental rights and discrimination meet intermediate scrutiny Gender discrimination Some rational basis test (least likely unconstitutional) Age discrimination More likely it is that activity is unconstitutional more likely court will uphold fed. Regulation of it vice versa. Congress had more power under 5 14th amendment to regulate activities that are closer to an actual constitutional violation than those farther away from actual violation. U.S. v. Georgia- Congress may authorize suits against states pursuant to 5 14th for actions that actually violate 14th amendment. actual violation of 14th amendment disabled prisoner denied medical treatment/treated badly by prison.(infringement of a fundamental right) Proportional/congruent not relevant here b/c actual violation only relevant if it is an activity that is beyond congresss power to regulate.

SUMMARY Private citizens can sue state government for injunctive relief in state and federal courts for any federal statute pursuant to Article 1 or 14th amendment powers Private citizens can sue for money damages only in fed courts and only on federal statutes pursuant to 14th amendment Private citizens can not sue for damages in state or federal court on statutes authorized by commerce clause/Article 1 UNLESS states waive 11th amendment sov. immunity

3. CONGRESSS POWER TO AUTHORIZE SUITS AGAINST STATE GOVERNMENTS IN STATE COURTS Alden v. Maine- state governments can not be sued in state courts (for $) without their consent.

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THE FEDERAL EXECUTIVE POWER A. INHERENT PRESIDENTIAL POWER INQUARY: What Zone of Power is President Acting w/ in? Does the Action interfere w/ another branch of gov/const provision? Article II: The executive power shall be vested in a President of the U.S. Policy: Separation of Power Debate = whether president has inherent power not expressly granted in the constitution President can act w/in enumerated constitutional power President can act if a statute authorizes his action (assuming statute is constitutional) If neither enumerated power or statute it is not clear if president has authority to act Youngstown Sheet & Tube v. Sawyer- Defines 4 possible approaches to Presidential Power. (presidential action found unconstitutional) President issues executive order to seize still mills to keep them in operation after a strike (Korean war happening) alerts congress after the fact congress does not act. 1. MAJORITY- No Inherent Presidential Power, President can act only if there is express statutory or constitutional authority. 2. CONCURRANCE (Douglas)- President has inherent authority unless the president interferes with the functioning of another branch of government or usurps power of another branch 3. **CONCURANCE JACKSON President may exercise powers not mentioned in the constitution so long as the president does not violate a statute or the constitution Most Important Opinion

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**CONCURANCE JACKSON 3 Zones of Presidential Power 1. when the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, b/c it includes all his authority and all that congress can delegate o Acts presumed valid unless congresss law = invalid 2. When president acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers o Zone of Twilight- He and congress may have concurrent authority or it is uncertain 3. When the president takes measures incompatible with the express or implied will of congress, his power is at its lowest ebb o Act presumed invalid unless congresss law =invalid (by the court) 4. DISSENT (Vinson)- President has inherent powers that may not be restricted by Congress and may act unless the Constitution is violated The Scope of Inherent Power: Executive Privilege Executive Privilege: ability of president to keep secret correspondence with his advisors Not express power in Constitution Important to: Receiving candid advice from advisors Protects national security

Necessary for Diplomacy U.S. v. Nixon- recognized executive privilege as an inherent presidential power Watergate scandal Nixon trying to withhold tapes under executive privilege Executive privilege is not absolute, but rather must yield when countervailing interests

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Must balance the executive privilege with the countervailing interest

the need for evidence in a CRIMINAL trial outweighed executive privilege if not the case impair basic functions of the Judicial branch & inconsistent w/ grantee of due process

Cheney v. District Court for D.C.-(not decided on executive privilege) Stresses the distinction between civil and criminal proceedings Suggest that getting evidence is much more important in criminal than civil i.e. executive privilege less likely to be outweighed in civil suits Also suggests that the request for information could make a difference Narrow v. Broad requests, Narrow more likely to outweigh executive privilege

B. THE AUTHORITY OF CONGRESS TO INCREASE EXECUTIVE POWER Clinton v. City of New York- found that statutory increase of the presidential power unconstitutional (allowed president to line-item veto legislation) Statute gives the President power to repeal or amend legislation which is not constitutional b/c reserved for Congress (veto=repeal b/c law already has taken effect) DISSENT: more practical less formal approach the president is following the law based on grant of power not changing bill only deleting things

C. CONSTITUTIONAL PROBLEMS W/ ADMINISTRATIVE STATE Administrative agencies were created and became necessary for the creation and enforcement of laws Agencies are useful Helps congress reduce workload

Better equipped to make regulatory laws Congress can avoid political heat of specific regulations Agencies may be at odds with Constitution/Separation of Powers Agencies posses powers of all three branches of government Ways to address this problem 1. THE NON-DELEGATION DOCTRINE & ITS DEMISE Non-Delegation Doctrine: Congress may not delegate its legislative power to administrative agencies 41

A.L.A. Schechter Poultry v. U.S.- Regulation unconstitutional as impermissible delegation of legislative power (to president) Congress is not permitted to abdicate or to transfer to others the essential legislative function with which it is thus vested.

(Panama Refining v. Ryan)- declared unconstitutional a provision of act that authorized the president to prohibit the shipment of oil produced in excess of state-imposed production quotas impermissible delegation of legislative power to president Lack of any standards in the act to limit presidents discretion

Decisions have never been overruled but no longer followed. In past 70 years never found that delegation of power unconstitutional (Whitman v. American Trucking Assoc.) unanimously upheld the delegation and the constitutionality of the EPAs air quality regulations.

2. THE LEGISLATIVE VETO & ITS DEMISE Created as a check on agency power Congress writes into statute ability to overturn agency actions by doing something less than adopting a new law usually a vote of one or both houses Immigration and Naturalization Services v. Chadha- Declared legislative veto unconstitutional According to Article 1 7 congress may legislate only if there is bicameralism passage by both house and senate, and presentment, giving bill to president to sign/veto. Legislative veto was legislation without bicameralism or presentment (only voted on by house and no presentment) Expressly rejected that legislative veto necessary to ensure adequate checks and balances. CONCURRANCE: this feels sketchy doctrine thinks legislative power interferes with judicial authority.

3. CHECKING ADMINISTRATIVE POWER Congress can control agencies through statutes Congress controls the budgets for agencies

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President has appointment (subject to affirmation by senate) and removal power of agency members and officials Article II 2 the president shall nominate and w/ consent of senate, shall appoint Congress my by law vest the appointment of such inferior officers in the president alone

Morrison v. Olson- principles of both removal/appointment power F: Title Vi of the ethics in government act allows for the appointment of independent counsel to investigate/prosecute high ranking gov officials for violations of fed crim law. Attorney general conducts prelim investigation and goes to special court if he decides it warrants further investigation the special division appoints the counsel. The counsel has full power to exercise investigative and prosecutorial functions of depart. Of justice. Can be removed by attorney general/president for good cause, powers end when invest over :appointment violates Article II and removal violates sep of powers b/c putting restriction on presidents removal powers. President power to appoint superior officers but congress may grant power to appoint inferior officers Decides special counsel =inferior officer limited duties/limited in jdx/tenure/removed by high of. Court says limits on pres. removal power is minimal so it is ok. Question is really whether the restriction is such that it impedes the presidents ability to perform his const. duties.. In this case doesnt impede pres ability to perform duties. Here cong not violating sep of power b/c removal power still solely in exec. Branch and doesnt interfere with executive duties

DISSENT (Scalia)- the statute deprives the president of exclusive control over the exercise of executive power it is unconstitutional. Proposed that checks against president abusing that power are political and there is always impeach. NOTES: rejects idea of unitary executive advanced by Bush Also authority to create indep. Counsel was let expire some think it vindicates Scalia others think it will be regretted 43

D. SEPERATION OF POWERS AND FOREIGN POLICY 1. WAR POWERS Article 1 grants Congress the power to declare and the authority to raise and support the army and navy Article II Makes the President the Commander-in-Chief often tension between President & Congress about war Very few cases in this area so not clear what the presidents war powers are if congress has not acted. Case often dismissed as non-justiciable political questions Policy: Some think executive war powers should be expanded at time of war. Others think it is at time of war that constitution must be strictly followed/scrupulously enforced Can Congress limit Presidential War Power? War Powers Resolution 1973 (p 378)- Seeks to constrain ability of president to engage in war, and to define the balance of power between congress and the president. response to unpopular Vietnam war President cant really act w/out cooperation of Congress EXPAND?

Presidents routinely violate Act and courts refuse to get involved declaring it non-justiciable political question

E. PRESIDENTIAL POWER AND THE WAR ON TERRORISM 1. DETENTIONS When may the executive detain American enemy combatants? Hamdi v. Rumsfeld- An American citizen apprehended in a foreign country and held as an enemy combatant must be accorded due process and a meaningful factual hearing. Does President have authority to hold an American citizen apprehended in a foreign country as an enemy combatant? b/c there was a statue authorizing the detention President acting at his highest power (AUMF) o (See Youngstown Jackson Concurrence)

What if any process must be accorded to Hamdi? Entitled to notice of the factual basis for classification and a fair opportunity to rebut governments factual assertions before a neutral decision maker 44

DISSENT (Thomas): Even w/out statute the president has inherent authority pursuant to Article II to hold Hamdi as an enemy combatant. CONCURRACNE (Scouter): The statute doesnt authorize detention presidents powers at lowest ebb (see Youngstown) DISSNET (Scalia/Stevens): no authority to hold American citizens as enemy combatants w/out charges or a trial unless Congress has expressly suspended the writ of habeas corpus

(which they have not done here full due process rights (Rashul v. Bush)- Federal courts may hear the habeas corpus petitions of prisoners being held at Guantanamo Detainees have constitutional right to Habeas Corpus as well as a statutory right to Habeas corpus Johnson v. Eisentrager-Access to American courts does not extend to foreigners in military custody who at no relevant time and in no stage of captivity has been within any territory over which the US is sovereign. (this holding basically is what lead to Guantanamo Bay detention center, idea was if aliens kept there they have no recourse (including writ of habeas corpus in American courts)

Response to Rashul v. Bush and Hamdi: Congress passed Detainee Treatment Act Takes away prisoners ability to seek habeas corpus in Fed. Court must now go through Military tribunals to challenge status of enemy combatants (can appeal to fed. Court) Under Act, Tribunals = limited rights for prisoners o No right to counsel o Presumption that Gov. evidence is correct o Detainee limited right to produce evidence

(Hamdan v. Rumsfeld)- The Detainee Treatment Act does not apply retroactively to those cases pending prior to its enactment. Bushes executive order creating military tribunals was not authorized by congress & violated Uniform Code of Military Justice & Geneva convention

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Response to Hamdan v. Rumsfeld: Congress passed Military Commission Act which seeks to strip Fed courts jurisdiction for pending claims, and specifies the procedures for military tribunals Basically both the MCA and the DTA was trying to get at the not enough procedure problem in Hamdi Boumediene v. Bush- it is unconstitutional to deny habeas corpus to non-citizens held as enemy combatants at Guantanamo. Gitmo detainees have constitutional right to habeas corpus: Can Congress constitutionally suspend this writ via the Detainee Treatment Act/military commission act? (NO) 3 factors to determine scope of suspension clause 1. Citizenship and status of Detainees & process by which status was determined Esientrager, full military trial to determine status Here: DTA= much less procedure/protection 2. Nature of the detention site Esentrager: detainees held in theater of war US = limited control/sovereignty Here: US defacto control over gitmo even if Cuba= de jure sovereignty 3. The Practical Obstacles inherent in resolving prisoners entitlement to writ Esentrager detainees hard to get to court, and detainees could appeal to German Government Here: Detainees easy to get to court, detainees cant appeal anywhere but US Is the protection/procedure in the Detainee Treatment Act adequate to satisfy detainees constitutional habeas c. rights? NO, reviewing court =no power to release prisoners even if they reverse tribunal the part of Military Commission Act that denies access to fed courts (except as in DTA) to all cases

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including pending is unconstitutional suspension of writ of Habeas Corpus DISSENT: DTA= enough procedure to satisfy their rights POLICY: Maj. think laws should be followed in time of war Dissent: law should bend in time of extraord. circumstances

2. MILITARY TRIBUNAL Ex parte Quirin- (WWII spys) American Citizens can be classified as enemy combatants and tried in military tribunals President essentially orders detainees to be tried in military tribunals detainees challenge his authority Acting pursuant to statute Zone 1 (Jackson Concurrence in Youngstown) trying them in military tribunal legit Lawful v. Unlawful combatants (bottom p 416) Lawful: subject to capture /detention as Prisoner of war Unlawful: Same as subject to trial and punishment by military tribunal (detainees are unlawful) Citizenship of unlawful enemy combatant does not relieve him of being tried in military tribunal (at odds with Hamdi difference maybe Hamdi says not combatant at all, and here admitted combatants and wanted more protections)

See (Hamdan v. Rumsfeld) (p ) F. CHECKS ON THE PRESIDENT 1. SUING AND PROSECUTING THE PRESIDENT Nixon v. Fitzgerald- A president or former president may not be sued for $ damaged for his conduct while in office Absolute immunity from civil suits (only not criminal suits) ONLY for official act as president DISSENT: immunity places the president above the law and would allow him to knowingly break law violate peoples constitutional rights w/ no recourse Some presidential conduct should be immune some shouldnt

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Clinton v. Jones-The President may be sued in civil court, while holding office, for actions performed prior to taking office. There is no basis for immunity from suit for the presidents unofficial conduct. Can be sued for conduct prior to taking office and suits will not be dismissed or stayed

President is not above the law Not clear if president can be criminally liable(No cases/big debate still 2. IMPEACHMENT The ultimate check on presidential power Article II 4 The president shall by removed from office on impeachment for , and conviction of treason, bribery or other high crimes and misdemeanors. Article I 2 House has sole power to impeach Article I 3 If house impeaches Senate has the sole power to try impeachments and impeachment must be 2/3 vote

What are high crimes/misdemeanors? Some think violations of criminal law/serious threats to society Some think that it is much less whatever the house thinks it should be Generally thought cant impeach for political reasons Courts generally see impeachment as a non-justiciable political ? Andrew Johnson impeached (avoided impeachment by 1 vote) Clinton and Nixon came close but didnt get impeached

LIMITS ON STATE REGULATORY AND TAXING POWER Limits on st. power that derive from existence of a national gov./existence of othr sts. Federalism: allocation of power between state and fed. Government Two Scenarios State regulates something that Congress is silent on No preemption, but could still find the state or local law invalid via Dormant Commerce Clause State regulates something that Congress also regulates Preemption : If the laws conflict Fed. Law wins b/c Supremacy Clause Article VI (Gibbons v. Ogden) All preemption boils down to Congressional intent 48

A. PREEMPTION OF STATE AND LOCAL LAWS 1. EXPRESS PREEMPTION occurs where there is explicit preemptive language in the federal law Chamber of Commerce v. Whiting- State law was not preempted even though there was express preemptive language in Fed. Statute o AZ law allows state to rescind/regulate license of anyone employing unauthorized aliens Fed law expressly preempts some state power and expressly preserves others (in this area) This law falls well within the Authority Congress left to

states it is not expressly preempted 2. IMPLIED PREEMPTION Occurs when no express preemptive language in Fed law but preemption is implied by clear congressional intent to preempt o Three types of Implied Preemption

a. Conflicts Preemption o Occurs when a federal law and a state law are mutually exclusive, so that a person cannot comply w/ both Strongest type of preemption claim o Wyeth v. Levine- no conflict preemption state law upheld Women lost hand sued drug co. on tort liability failure to warn (does FDA law preempt state tort liability?) Drug co. claimed couldnt comply with both requirements of state and FDA Court rejects this. Drug co. could have added another warning to the label without even getting approval from FDA

b. Obstructive Preemption (state law impedes achievement of a federal objective) o Occurs were fed and state law are not mutually exclusive (a person can comply with both) but the state law interferes/impedes a federal legislative goal o Wyeth v. Levine- no obstructive preemption state law upheld Drug co. claims that FDA purpose = national uniform regulation of drug labeling laws complying with state law would frustrate the FDAs purpose 49

Court says no FDA purpose = protect consumers state tort liability actually furthers the purpose of FDA DISSENT (Thomas)- Obstructive Preemption is crap and should never be used. People just making up purposes left and right. Chamber of Commerce v. Whiting- no obstructive preemption state law upheld AZ allows state to rescind/regulate licenses of anyone employing unauthorized aliens o Purpose of fed statute= protect authorized aliens and their employers from wrongful accusations AZ law interferes with fed purpose AZ requires employer to use e-verify program to check status of aliens v. Fed law says it is voluntary o Fed statute intended employers to find out if they are employing unauthorized aliens but intended flexibility in how they comply o AZ law impeding fed. Statute flexibility Court Rejects both these claims, states had authority and manner=least likely to cause conflict w/fed law

c. Field Preemption o Occurs when there is: 1. A clear congressional intent for federal law to occupy the entire field in a particular area of law OR 2. Comprehensive fed. Regulation in an area evidences a congressional intent for fed law to occupy the field o Strong claim, rarely used compared to other types o Field preemption found in immigration and foreign policy o Hines v. Davidowitz- congress intended to occupy the entire field of alien registration state law preempted St law requiring aliens to register w/ state and pay fee State law in no way interfered w/ the federal law Congress did not expressly occupy this field: court stressed the comprehensive fed. regulation in this area

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B. DORMANT COMMERCE CLAUSE Can invalidate state laws when Congress has not acted Dormant/Negative Commerce Clause- State and local laws are unconstitutional if it Unduly/excessively burdens interstate commerce

Inferred from Article I 8 commerce power (not express in Const.) Allows states to regulate commerce so long as it doesnt impede it. 1. WHY A DORMANT COMMERCE CLAUSE? Congress can always regulate laws that burden commerce by preemption so why have Dormant commerce clause? Arguments for Dormant Commerce Clause Historical: Framers intended Fed. Gov. to control Commerce (one main reason for Fed Gov. creation) Economic: abolishing protectionist measures by states is better for the overall economy Political: States/citizens should not be harmed by the laws of other states where they have no political representation.

Decreases trust in political system if not regulated Arguments Against Dormant Commerce Clause (Thomas/Scalia) Textual: Dormant Commerce power appears nowhere in constitution, if framers intended it would have expressed it Federalism/Separation of Powers: deciding to preempt state laws is job for Congress not unelected judiciary

If Congress wants to act they can preempt via statute 2. THE CONTEMPORARY TEST FOR THE DORMANT COMMERCE CLAUSE a. Determining whether a law is discriminatory laws Determining whether the state law is discriminatory to out-ofstaters is the first step in the analysis Discrimination will be found if: 1. Law facially discriminates OR 2. There is sufficient proof of discriminatory effect/purpose (facially Neutral laws) o Turn of specific facts of each case o More likely to be found Discriminatory if:

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1. Effect is to exclude virtually all out of stators from state market (Hunt) v. excluding only one group (Exxon) 2. St law. Imposes costs on out-of-staters that in staters dont have to bear (Hunt) 3. Court believes law is motivated by a protectionist purpose (help in staters at benefit of out of staters) 3 Modern categories state laws can fall into 1. Facially Discriminatory State laws that explicitly discriminate against out of stators in their text o Most likely to be found invalid o per se invalid = strict scrutiny test states must prove non-discriminatory and legit purpose of the discim. st. law AND, that the st. law is the least discriminatory means to achieve the legit state interest City of Philadelphia v. New Jersey- NJ attempts to protect its natural resources (banning hazardous waste dumping)from out of stators by limiting out of stators from using them was invalid o It doesnt matter what the purpose of NJ law was (protect resources/economic protection) it is discriminatory facially and in effect Unless there was a reason to treat in and out of state good differently (no reason) o Invalid not narrowly tailored/least discrim. method of achieving state purpose (Hughs v. Oklahoma)- invalidated state law that prevented shipment of minnows out of state o found the law facially discriminatory (presumed the state interest legit (protecting nat. resources) o But state did not choose lease discriminatory alternative in its regulation unconstitutional 52

Maine v. Taylor- Facially discriminatory state law held constitutional because it met strict scrutiny and served an legitimate state interest o Purpose of facial discrimination not because good from out of state but to protect unique and fragile fisheries from parasite imported from out of state via live bait. o Legit state interest & no less/nondiscriminatory

way to accomplish this interest const. 2. Facially Neutral (discriminatory) State laws that do not explicitly discriminate, but whose purpose/effect is to discriminate against out of state commerce o Big distinction between discriminatory effect v. discriminatory purpose o Still must meet strict scrutiny test (see above ) Hunt v. Washington State Apple Advertising Commn.invalidating NC state law banning labels on apples b/c = discriminatory effect on Washington apple growers o Not clear whether purpose is discriminatory but court says purpose doesnt matter b/c there is sufficient proof of discrimination against out os state products discriminatory (Exxon Corp v. Governor of MD)- St. law was nondiscriminatory even though it greatly harmed out of state oil co in favor of local business o effect=exclude of state gas retailers, but o act creates no barriers against intERstate dealers, does not prohibit floe of intERstate goods or place added costs on them, or distinguish between in state and out of state co. constitutional

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Dean Milk v. Madison- Invalidated a local law (pasteurization of milk) that was discriminatory against out of state & in state commerce o Court says its irrelevant that it also discriminates against in state commerce it burdens intERstate commerce that is enough St. laws that dont explicitly discriminate, and purpose/effect is NOT to discriminate against out of state commerce but= disproportionate adverse effect on out of state commerce If states can prove non-discriminatory purpose then in this category o Often courts seem not to buy the nondiscrim. purpose if there is discriminatory effect Generally nondiscrim. St. laws found constitutional Balancing test (not strict scrutiny/controversial) o Whether the benefit of the state law outweighs its burden on intERstate commerce. (see Pike) This test gives courts get discretion because balancing two very different interest cons. Justices think all nondiscrim. laws should be upheld

3. Facially Neutral (nondiscriminatory)

Pike v. Bruce Church-invalidates nondiscriminatory state law: state interest<burden on interstate commerce o Defines balancing test: o where law effectuates a legitimate local/public interest and its effect on interstate commerce are only incidental it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the state interest

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o the extent that the burden (on interstate commerce) will be tolerated depends on nature of local interests involved and on whether (st interest) could be promoted as well with a lesser impact on interstate commerce o Second part of test never actually used to invalid non discriminatory law Consolidated Frieghtway v. Kessel- invalidates nondiscriminatory state law (banning use of double trailers in trucking) o state interest (safety)<burden on interstate commerce (all trucks have to go around Iowa) o Turned on the fact double trailers not less safe than allowed single trailers b. Exceptions To The Dormant Commerce Clause 1. Congress Approval (p. 502-503) Congress can authorize otherwise prohibited (even facially) discriminatory laws via statute. One of the few times congress can overturn supreme court decisions Const. approval does not bar claims under equal protection or privileges and immunities clause (fundamental right) If the state is literally participating in the market (buying/selling goods in state owned business) and not acting as a regulator of the market, it can discriminate w/out worrying about Dormant Commerce clause. Again still doesnt bar claims via privileges and immunities clause or equal protection Limitations on Exception: South-Centeral Timber Development v. Wunnickethe limit of the market participant doctrine must be that it allows states to impose burdens on commerce within the market in which it is a participant, but allows 55

2. The Market Participant Exception

it to go no further. The state may not impose conditions that have substantial regulatory effect outside of that particular market. o If they impose such conditions (in this case timber must be processed w/in AK) they =regulator of market not participant o claims it is still const. b/c meets balancing test No balancing test b/c facially discrim. Would fail strict scrutiny invalid

THE STRUCTURE OF THE CONSTITUTIONS PROTECTION OF CIVIL RIGHTS AND CIVIL LIBERTIES A. INTRODUCTION Very little text in the actual constitution about protecting individual liberties Framers didnt think it necessary because created a government of limited power without authority to violate basic liberties Framers also concerned that if they attempted to enumerate the rights it would inevitable be incomplete and didnt want people to think if it wasnt listed it wasnt protected (fixed via 9th amendment) Some state were concerned about the lack of individual liberties and ratified the Constitution with request to add bill of rights Bill of rights = 1st -10th amendments to the constitution 1st-8th Amendments: detail individual liberties 9th Amendment: The enumeration of certain rights shall not be construed to deny or disparage others retained by the people 10th amendment: powers not delegated to Fed gov. and not prohibited by constitution = reserved for state and people.

B. A FALSE START IN APPLYING THE BILL OF RIGHTS TO THE STATES 1. THE REJECTION OF APPLICATION BEFORE THE CIVIL WAR Does the Bill of Rights apply to state and local governments? Barron v. Mayor/City Council of Baltimore- The Bill of Rights was a restriction of Federal actions not state and local conduct (not rule now) Bill of Rights only applicable to Fed. Government Framers intend it only to apply to fed government, and if they didnt they would have explicitly said it applied to states

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Problem: If bill of rights only applies to fed gov. States can infringe on even the most precious individual liberties

2. A FALSE START IN APPLYING THE BILL OF RIGHTS TO THE STATES: THE PREIVLEGES OR IMMUNITIES CLAUSE AND THE SLAUGHTERHOUSE CASES. 14th Amendment: No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United states. Argument about whether this applies the bill of rights to the states. (p. 527) Historical and textual arguments that privileges and immunities = fundamental rights/bill of rights framers intent with Prv. & Imm. Clause was to apply bill of rights to states o If this is the case Slaughterhouse Cases wrong o Others disagree about meaning of P&I Slaughterhouse Cases 1873- privileges and immunities are left to the state governments for security and protection, and not by this article placed under the special care of the fed. gov Louisiana law- created monopoly in a slaughterhouse for health reasons Butchers challenged this law as a violation of the 13th amendment (abolishing slavery) 14th am Equal Protection/Due Process Priv & Imm Court narrowly construes all provisions and upholds law creating the monopoly 13th /14th ament: sole purpose to protect former slaves (later overruled/applies more broadly) o Due Process doesnt protect a right to practice ones trade (later overruled/applies broadly) Privilege & Imm. (only part not expressly overruled) o **Cant use privileges and immunities clause of 14th amendment to apply the bill of rights to the states, or to protect any right from state interference

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o Distinction: Privileges & Imm. Derived from citizenship in the US v. Privileges & Imm. Derived from citizenship of a state Says 14th only protects those derived from citizenship in US Assert claim against Gov. Right to access seaport Care and protection of gov. (would have all these w/o priv. and imm. Clause of 14th amendment priv. & imm. clause = meaningless) All important individual liberties/rights are protected by the state not Fed. Gov./Constitution

POLICY: federalism concern: transfer protections for individual rights from states to fed gov? No b/c states ate better equipped to protect the fundamental privileges and immunities of their citizens

(Saenz v. Roe)- anomaly case uses priv. & Immunities clause to invalidate a state law (later cases still suggest that slaughterhouse cases should be followed)

3. THE INCORPERATION OF THE BILL OF RIGHTS INTO THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT Cant use privileges/immunities clause to apply bill of rights to states New approach: (at least some of) the bill of rights provisions are part of the liberty protected from state interference by the due process clause or 14th Amendment Due Process clause traditionally seen as procedural protections Over time court started reading substantive limitations (on the government) into the due process clause There are certain rights the government cant interfere w/ or take away regardless of how much process and procedure it affords

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Twining v. New Jersey- expressly recognized the possibility that the due process clause incorporates provisions of the bill of rights and thereby applies them to state and local governments it is possible that some of the personal rights safeguarded by the first eight amendments against national action may also be safeguarded against state action, because the denial of them would be a denial of due process law If this is so, it is not because those rights are enumerated in the first eight amendments, but because they are of such a nature that they are included in the conception of due process law o **Apply to the states because the rights are sufficiently important and fundamental not because they are enumerated in bill of rights Test for incorporation: Is (the right) a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such government (if yes = incorporated to states via due process clause) (In this case right not to incriminate yourself was not sufficiently fundamental to be incorporated even though it was enumerated in bill of rights| later overruled this)

NOTE: In theory the right may bind the federal government in a different way as it binds states i.e. certain aspects of right are incorporated others not TODAY: not the case if it is incorporated binds state and federal government in the same way o Exceptions: # of people jury/unanimous verdicts

Debate over Incorporation: Once the Due process clause found to protect fundamental rights from state infringement: major debate over which liberties were safeguarded (2 views)

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Total Incorperationsits All the bill of rights should be included/incorporated in the due process clause. o Argues history backs their view Adamson v. California- DISSENT Yes to Total incorp. Slaughterhouse cases should be overruled (priv & Imm. makes all bill of rights applicable to state) Incorporation=too much power to courts/too much subjectivity o Federalism is not a sufficient reason for tolerating violations of fundamental rights o States can not adequately protect fund. Rights o Judges have far to much discretion under selective incorp. View totally subjective

Selective Incorportationists Only some of the bill of rights were sufficiently fundamental to apply to state and local governments o Also argue history supports their view o Federalism: wants to increase autonomy of state/local govs. By freeing them from application of bill of rights o States on their own can of protect fund. Rights o Not subjective determination by judges: total incorp=more judicial oversight of state actions

Debate important in determining the reach of the bill of rights and extent people could be protected from state/local actions Palko v. Connecticut- Test for incorporation (Whether the right is) of the very essence of a scheme of ordered liberty (so that to abolish it is) to violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental

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Who Won Debate: Selective incorp. won in the sense that total incorporation was never actually accepted by courts Total incorp. Won in the sense that almost all the bill of rights have been incorporated one by one o 4 provisions not incorporated (pg 545) *2nd amendment incorp. now! Duncan v. Louisiana- we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the 14th amendment guarantees the right of jury trial that is protected by 6th amendment earlier the court can be seen as having asked if a civilized system could be imagined that would not accord the particular protection (Palko). The recent cases on the other hand have focused on the characteristics of the common law systemin England and in this country. The question is whether a procedure (fundamental right) is necessary to an Anglo-American regime of ordered liberty. McDonald v. City of Chicago- 2nd Amendment is incorporated applies to state and local governments through Due Proc. Cl. F: city of Chicago have laws against gun possession (like in Heller) but allege that their laws are constitutional because the 2nd amendment doesnt apply to the states. Argued under the (1) priv & immunities clause seeking rejection of the narrow interpretation of it in the slaughterhouse cases (2) Due Process Clause through incorporation Test: Decide whether the right is fundamental to our scheme of ordered liberty (moral component), and whether right is deeply rooted in this Nations history and traditions (historical component takes over) o Use of handguns for self defense deeply rooted in history and traditions (set up in Heller) CONCURRANCE (Thomas): Agrees with the test but it shouldnt be enforced under due process clause only under priv. & immunities 61

DISSENT(Breyer): courts test is almost relying entirely on history, should not do that history has gotten it wrong (i.e. slavery) (Scalia concurrence counters) NOTES: Heller essentially set up this case, basically framed it so 2nd amend easy to incorporate later ALSO many people though this was a chance for court to overrule slaughterhouse cases and revive priv and immunities clause so due away w/ sub due process

C. APPLICATION OF BILL OF RIGHTS TO PRIVATE CONDUCT 1. THE REQUIREMENT FOR STATE ACTION State Action Doctrine: The constitutions protection of individual liberties only applies to the government and doesnt extend to Private Actions Costs- (p. 551) Private conduct can infringe and impede the most basic rights Private conduct can infringe just as much as government Private discrimination causes and perpetuated societal inequities at least as pernicious as those caused by government.

Benefits (p 551) Preserves a zone of private autonomy Advances federalism by preserving a zone of state autonomy

Civil Rights Cases- federal constitutional rights do not govern individual behavior and congress lacks authority to apply them to private conduct Structuring the legal relationship of private citizens was for the state not federal government Civil Rights Act broadly prohibited private racial discrimination by hotels, restaurants etc. (ruled unconstitutional) 14th amendment only applies to state conduct not private conduct

NOTE: 13th amendment regulates private conduct, constitution offers no protection against private wrongs no matter how discriminatory or how much they infringe fund. rights 62

2. THE EXCEPTIONS TO THE STATE ACTION DOCTRINE (p 551-2) 1. Public Function Exception Private entity must comply w/ constitution if it is performing a task that has been traditionally exclusively done by government Private conduct must comply w/ constitution if the government has authorized, encouraged, or facilitated the unconst. conduct

2. Entanglement Exception

ECONOMIC LIBERTIES (ECONOMIC SUBSTANTIVE DUE PROCESS) A. INTODUCTION Economic Liberties: Constitutional rights concerning the ability to enter into/enforce Ks, to pursue trade/profession. Rise and Fall of Economic Liberties (same Commerce Clause rise and fall) ~1880- 1937: Freedom of K= fundamental right under Due Process clause/ Aggressively protected economic liberties Freedom of K limited states ability to regulate or impair future/existing K ** so during this time if Congress passed law setting min wage or max work hours it would be found unconst. as beyond Congresss Commerce Clause power & if state made the same law it was found unconstitutional for impairing K under due process clause Court motivated by commitment to Laissez-faire economy and protecting businesses from government regulation! (p. 605)

1937-- great deference to government economic regulations Freedom of K not protected under due process clause B. ECONOMIC SUBSTANTIVE DUE PROCESS 1. INTRODUCTION 14th Amdt 5 Due Process Clause (2 kinds of due process) Procedural Substantive focuses on whether gov. has an adequate reason for taking away a persons life/liberty/property If right found fundamental under due process o Gov. must prove (strict scrutiny) its actions are necessary to achieve a compelling purpose

See class note for more policy 63

2. EARLY HISTORY OF ECONOMIC SUBSTANTIVE DUE PROCESS (p 604-606) Supreme court rejected due process challenges to gov economic regulations but suggested that it would invalidate laws as violating due process if they interfered w/ natural principle of liberty

Also found that Corporations were persons under due process clause 3. SUBSTANTIVE DUE PROCESS OF THE LOCHNER ERA Allgeyer v. Louisiana- First time (federal) courts used substantive due process to invalidate a law (state law) The Liberty mentioned means not only the right of the citizen to be free from the mere physical restraint (procedural due proc.) but the term is deemed to embrace the right of citizens to be free in the enjoyment of all faculties and for that purpose to enter into all Ks which may be proper/nec /essential *Lochner v. New York- Came to stand for substantive due process (invalidates st. law setting max. work hours for Bakers) Established 3 main principle of sub due process 1. Freedom of K is a basic/fundamental right under word liberties in 14th amendment 2. The government could interfere w/ freedom of K ONLY to serve a valid police purpose (i.e. compelling state interest) Valid purposes: protecting public health/safety/morals 3. Job of the Judiciary to scrutinize legislation to ensure it served such a valid police purpose Court found that state law was not a health/safety law and was a labor law police purpose is invalid law unconst. DISSENT (Holms): Purely political/inappropriate decision The case is decided upon an economic theory which a large part of the country does not entertain 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 laissezfaire.

Lochner used to invalidate ~ 200 state laws until the 1937 Laws Protecting Unionizing/ Consumer Protection laws Maximum Working hrs. laws/Minimum Wage Laws

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4. ECONOMIC SUBSTANTIVE DUE PROCESS SINCE 1937 Depression lead to criticism of Lochner Doctrine/Laissez-faire economics (again political pressure from Roosevelt) 1. Moral Criticism: Freedom to K not fundamental right. Government should be able to interferer w/ right to K in more areas then health/safety morals (no real bargaining power) Regulation need to protect moral failures in Unregulated economic market 2. Practical Criticism: no regulation in economy doesnt work. Market Failures- monopolies make market less efficient and no regulation has lead to depression 3. Intellectual Criticism: State governments can not be neutral in economic matters b/c it enforces the Ks. No such thing as Laissez-faire under government b/c always making political choices. There is no natural economic order, and courts are just sub. their political views for political views of state, which undermines the political process. West Coast Hotel Co. v. Parrish- Court abandons the Lochner doctrine (Upheld minimum wage law for women expressly overruled cases from Lochner era) 1. Freedom of K is not a fundamental right 2. The government can regulate to serve ANY legitimate purpose (not just health/safety/morals Lochner) 3. Judiciary would defer to the legislature so long as they are reasonable (rational basis test) US v. Carolene Products- (reaffirms Parrish) So long as the court can conceive of some legitimate purpose and so long as law is reasonable, law will be upheld. Rational Basis test: end = legit, means = logically connected basically presumes law= constitutional gov does not need to prove end is legit it is presumed Famous for footnote 4 Judicial deference for econ. Regulations BUT

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Stricter Scrutiny for laws o interfering with fund. Rights o laws that burden democracy itself o laws oppressing minority

Basically any law can meet rational basis test (no economic regulations have ever been invalid by due process clause since) Williamson v. Lee Optical- Upheld state law (prohibiting optician to fit lenses w/o prescription) that seemed to fail rational basis test (D. court found that it failed Rational basis) The day is gone when this court uses the due process clause to strike down state laws, regulatory of business and industrial conditions because they may be out of harmony with a particular school of thought.

Economic due process rights (economic sub. due process) dead.

FUNDEMENTAL RIGHTS UNDER DUE PROCESS & EQUAL PROTECTION (SUBSTANTIVE DUE PROCESS) A. INTRODUCTION o Originally Thought that all sub due process died with Lochner (clearly not the case) revival of sub due process and right to privacy in the 1960ies o Right to privacy tied to liberalism there are certain activities/zones that the democratic majority can not regulate o Right to privacy Has fallen into disrepute language of right to privacy used less and less defines the right as something more specific than right to privacy Some dont like notion of right to privacy/sub due process in general dont like the controversial rights created by sub Due process/right to privacy Thinks right to privacy not supported in Constitution too much judicial deference should leave these issues to legislature

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B. FRAMEWORK FOR ANALYSING FUNDEMENTAL RIGHTS 1. **Is there a fundamental (Due Process) right? If the right = fundamental then government must meet strict scrutiny to infringe on right (law must be narrowly tailored to serve a compelling state interest Reno v. Flores) If right fundamental then government only has to meet rational basis test (law= reasonable relation to legitimate state interest - Glucksberg) Economic right fundamental Policy: originalism v. nonoriginalism v. moderate originalism (p 946) Defining right is important The narrow it is the less likely it is found fundamental The broader the more likely it is found fundamental Modern emphasis on history and tradition (Michael H case) For history and tradition must show the right was respected and/or PROTECTED not enough that is wasnt criminalized

At odds w/ Liberalism 2. Is the right infringed? Not always clear Considers directness and substantiality of interference (Zablocki) 3. Is there sufficient justification for government infringement? If right = fundamental- gov. must show compelling state interest If right fundamental- gov. must show legitimate state interest Traditionally protecting morality = legit state interest Lawrence suggest protecting morality legit st. interest 4. Is the means/law sufficiently related to the governments purpose? If right = fundamental- gov. must show law is narrowly tailored to the state interest Gov could not attain the goal in any way that infringes less If right fundamental- gov. must show rational relation to st. interest Does not require it to be the least restrictive means C. RIGHT TO FAMILY AUTONOMY 1. RIGHT TO MARRY Loving v. Virginia- The right to marry as a fundamental right under due process (st. law prohibiting interracial marriages unconst.)

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Zablocki v. Redhail - Invalidated st law requiring proof of child support payment before person could marry Found that marriage = Fundemental right St law was directly burdening this right Court found that state had a compelling interest Ensuring payment of child support BUT law not narrowly tailored to the interest Many alternatives to achieve st. interest w/ out infring. marriage (wage garnishment, civ./crim liability)

What makes right to marry fundamental will be pivotal in the discussion of same sex marriages (see class notes p ) Stanley v. Illinois- invalidated st. law terminating custody of father upon mothers death with no showing father unfit parent Fundamental right = protecting the integrity of the family unit Michael H v. Gerald D- A biological father does not have a liberty interest (due process right) in custond/relationship w/ child b/c there is no tradition of protecting this right when the mother is married to someone else. (upheld state law) Emphasizing focusing on history and tradition when deciding if rights = fundamental DISSENT (Brennan): family rights should not by narrowly defined as existing only within certain types of families and the Court should not be restricted to traditions in determining the scope of constitutional rights. Defined right too narrowly.

2. RIGHT TO CUSTODY OF CHILDREN

(p 958 Lots of note p ) 3. RIGHT TO KEEP FAMILY TOGETHER Moore v. City of East Cleavland- right to keep family together included extended family protecting family including extended family rooted in tradition Emphasizes people must be related to each other to = family invalidated a city zoning ordinance that limited # of unrelated people living together (related only=immediate family)

Village of Belle Terre v. Boraas- (upheld a similar zoning ordinance) this right does not extend to unrelated individuals (i.e. college students/roommates) 68

4. RIGHT FOR PARENTS TO CONTROL UPBRING OF CHILDREN Meyer v. Nebraska- invalidated state law that prohibited teaching any language in school but english b/c it violated due process clause/ right of parents to make descisions for their children Pierce v. Society of the Sisters of the Holy Names of Jesus & MarySt invalidated state law that required children to attend public schools Relies on Meyer (Prince v. Massachusetts)- right of parents to make decisions for children not absolute the need to protect children from being exploited or harmed justified upholding law prohibiting child labor, even if the work was at the direction of parent and for religious purposes

(Troxel v. Granville)- State law as applied in this case was unconstitutional because infringed on parents right of care custody and control of their children grandmother got court order to see grandchildren more than mother wanted her to Mother was fit law allowing anyone to petition for visitation right to broad

D. RIGHT TO REPRODUCTIVE AUTONOMY 1. RIGHT TO PROCREATE (Buck v. Bell)-upheld the ability of the government to involuntarily sterilize the mentally retarded. (not good law ) (Skinner v. Oklahoma)- (essentially overrules bell) invalidated state law that allowed court ordered sterilization for criminals Recognizes the fundamental right to have offspring Therefore any laws burdening right to procreate must meet strict scrutiny

2. RIGHT TO BUY/USE CONTRACEPTIVES Griswold v. Connecticut- invalidated a state law that prohibited the use and distribution of contraceptives (1st revival of sub due process after demise of Lochner) Distinguished from Lochner Doctrine: Lochner = about economic regulation v. here societal moral regulation

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Right to privacy = fundamental right implied in the penumbras of bill of rights NOT under due process (even though use due process to apply to states) There is a zone of privacy created by several constitutional guarantees

Right to/zone of privacy belongs to the marital union but not just specific individuals (this changes) CONCUR (Goldberg p 981): 9th Amendment is additional authority for he court to protect nontextual rights like privacy. DISSENT (Black): Concerns about judicial discretion i.e. right to privacy not in text of constitution

Eisenstadt v. Baird- (Reaffirmed and extended Griswold)- Invalidated state law prohibiting distribution to unmarried couples Extended right to privacy to unmarried people If the right to privacy means anything it is the right of the individual, married or single, to be free from unwanted government intrusion into matters so fundamentally effecting a person as the decision to bear and beget a child Redefines right to privacy no longer about marriage about decisions to have child or not.

3. RIGHT TO ABORTION a. Recognition/Reaffirmation of Right to Abortion Roe v. Wade- The right of a women to terminate pregnancy prior to viability =fundamental right under due process. Looked at the history of abortion Does Prohibiting abortions infringe on this right? o forcing a women to continue pregnancy against her will obviously imposes enormous physical and psychological burdens Does the state have interest in preventing abortions o Health of the mother Yes this is a compelling state interest after the first trimester b/c at this point abortions less safe than childbirth o Protecting prenatal life 70

o Protecting prenatal life Court refuses to decide when human life begins, no consensus in other better equipped fields Also Prenatal life person under the 14th amendment 1st Trimester- No government regulation, decision is solely up to women and her doctor 2nd Trimester-Government can regulate abortions only in ways reasonably related to maternal health 3rd Trimester- Government can regulate/ban abortions to protect prenatal life after viability (unless the life/health of the mother is at stake) DISSENT: This right is not in the constitution and not w/ framers intent. Judges finding this right withdraws from the states the power to legislate.

Planned Parenthood v. Casey- Reaffirmed Roe, but the government may regulate abortions before viability so long as it does not place an undue burden on access to abortions Found that right to choose to have an abortion was a fundamental right In depth discussion about Stare Decisis- (notes p. ) Main difference w/ Roe found that state had substantial interest in protecting prenatal throughout pregnancy o This can justify many new regulations o No more trimester distinctions from Roe Also did away w/ strict scrutiny test for government regulation and created the undue burden test Undue burden test o undue burden= unnecessary health regulations that have the purpose or effect of placing a substantial obstacle in the path of a women seeking an abortion of a non-viable fetus

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o State can adopt measures that persuade women to choose childbirth over abortion Women only free from undue burden before viability. Like Roe after viability state can prohibit abortions DISSENT: Think Roe should have been overruled. Drawing a line at viability is political decision and is arbitrary line should be at conception.

After Casey it became much easier for states to burden womens right to an abortion because the Undue burden test much more lenient than strict scrutiny under Roe

b. Government regulation of Abortion (Forced waiting period/Forced disclosure of information) (Stenberg v. Carhart)- invalidated a law prohibiting partial birth abortions b/c it would be imposing an undue burden 2007 Fed. Partial Birth Abortion Ban Act (stealth overruling of the Stenberg case i.e. distinguished it on poor grounds) Gonzales v. Carhart- Upheld the federal Partial Birth Abortion Ban Act. Found that the Act/ banning partial birth abortions did not create an undue burden on womens right to abortion b/c the procedure pose health risks to women o Also suggested that it wasnt a burden because it did not effect a large fraction of women. State interest in protecting womens health (from depression and self esteem issues) Also protecting dignity of human life/ protect the dignity of the medical profession o Something not moral about the procedure Door open for As Applied challenge to the act DISSENT: This decision is at odds with Casey and Stenberg, (Disregards line of viability)

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DISSENT cont.: Demeaning to women, (depression/self-esteem) paternalism, women can decide for themselves The Act does not further state interests. Med. evidence shows it is safe for women, it doesnt protect fetal life b/c other ways to get abortions.

c.

Government Restriction on Funds /Facilities for Abortion (The kinds of clinics can perform abortions) (Maher v. Roe)-Gov. is not required to subsidize abortions even if it is subsidizing childbirth (upheld state law that denied Medicaid funds for nontherapeutic 1st trimester abortions) Harris v. McRae- upheld fed. Law that denied public funding for medically necessary abortions except were necessary to save mothers life or in cases of rape/incest The due process clause confers no affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests, of which the government can not deprive the individual DISSENT: Denying aid for abortion while providing aid for childbirth is a burden on womens rights. Equal rights issue if Gov. funds one should fund the other

d. Spousal Consent & Notice Requirements (Planned Parenthood v. Danforth)- Invalidated st. law requiring wife to get written consent from husband for abort. when the husband and wife disagree only one view can prevail inasmuch as it is the women who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weights in her favor. (Planned Parenthood v. Casey)- Invalidated st. law requiring women to notify her husband before getting an abortion notification requirement is likely to prevent a significant number of women from having abortion Could spark abuse/ women is more directly effected

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e.

Parental Consent & Notice Requirements Minors are required to either notify their parents or get a court order from a judge in order to have an abortion

E. RIGHT TO MEDICAL CARE DESCISIONS 1. RIGHT TO REFUSE TREATMENT Cruzan v. Director, Missouri Dept. of Health-(Girl in coma parents want to remove life support) upheld st law requiring clear and convincing evidence that person would have refused treatment 1. Recognized the right of a medically competent adult to refuse medical treatment including the right to refuse lifesaving treatment (like feeding tubes) Liberty interest seems like suggesting it is a fundamental right but never completely clear o Look at history and traditions tort law for medical battery and past decisions o (right is a liberty under 14th amendment NOT under right to privacy- technically same) 2. The State may require clear and convincing evidence that a person wanted treatment terminated before it is cut off State has interest in protecting patients wishes etc. Balances high burden of proof w/risk of error o Error on side of caution if remove life support no way to correct mistake o In this case parents didnt meet burden of proof 3. The state may prevent family members from terminating the treatment for another DISSENT: Thinks the burden should be preponderance of evidence b/c under clear and convincing it could be more likely than not that the person would refuse treatment but they would be forced to continue it.

Keeping someone alive against will is just as bad as removing treatment against will 4. CONCURANCE (Scalia): Courts have no business in this field refusing life saving treatment is like suicide state has always had power to prevent suicide even by force. 74

2. NO FUNDEMENTAL RIGHT TO PHYSICIAN ASSISTED SUICIDE Washington v. Glucksberg- upheld st law prohibiting physician assisted suicide (was as applied but turned into facial challenge) The right to commit suicide/help to commit suicide is not a fundamental right under due process liberty Fundamental rights are supported by tradition Distinguished right from Cruzan o Cruzan right to refuse medical treatment supported by history and tradition o Here right to suicide not supported by history and tradition or ordered liberty 700 years of Anglo American history suggest suicide = crime law must only meet rational basis test (it does) Legitimate state interest: o Protects vulnerable groups/integrity of md. prof. o Preserve life/Prevent slip. slope to Euthanasia Implicitly (by all fractured opinions) recognized a fundamental right to be free from pain Ok with doctrine of double effect- i.e. if the dose of medicine that would free person from pain also would incidentally kill them it is still ok

Leaves open possibility of an as applied challenge Vacco v. Quill- laws prohibiting physician assisted suicide do not violate equal protection Issue: someone with one illness can constitutionally refuse medical treatment and die quickly others with illness would take a long time to die if they refused treatment should have same right to die as those with faster acting illness Court draws a distinction between Killing v. Letting Die (not good distinction) Intent in letting die is to respect patients wishes Intent helping to commit suicide is to make person dead

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Even though right to physician assisted suicide fundamental state legislatures can protect this right (since only rational basis most likely will be upheld) WA, OR, MT have protected this right via statute

F. RIGHT TO SEXUALY ORIENTED SEXUAL ACTIVITY Bowers v. Hardwick- The Right to privacy does not protect the right to engage in private consensual homosexual activity (overruled) Even though statue applied to heterosexuals and homosexuals court focused only or right of homosexual sodomy Looks at history/traditions, past privacy right decisions None support finding this a fundamental right No connection to family, marriage or procreation argues that law fails rational basis test b/c no legit state interest Court says no upholding morality = legit state interest DISSENT: Recharacterized/broadened right, right to privacy= private sphere of activity that state can not interfere with (homosexual sex fits in sphere fundamental) (Pro Liberalism) the constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of the government giving individuals freedom to choose how to conduct their lives is appreciable of the fact that different individuals will make different choices likely think upholding morality legit state interest Lawrence v. Texas- Expressly overrules Bowers, states may not prohibit private consensual sexual activity between same sex adults. Powerful reaffirmation of general right to privacy under Constitution Recognizes that right to sexual activity is a major aspect of personhood and is entitled to protection under constitution Not clear if court is finding it fundamental/not clear which test should be used Reliance on Casey suggests fundamental/strict scrutiny Looks at history and Tradition Says it was never criminalized but this means nothing Also looks at Englands tradition of protecting it

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Also looks at Englands tradition of protecting it o Very controversial originalist do not like the fact that the governing majority in a state has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice the statue furthers no legitimate state interest

morality legit state interest fails under either test Most important decision to date recognizing rights of same sex people DISSENT (Scalia): Court never says it is a fundamental right it should be rational basis test & advancing morality = legitimate state interest

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Outline Criminal Law

BASIC PRINCIPLES OF THE CRIMINAL LAW

5/3/2012 1:34:00 PM

Introduction o Criminal Law What is crime/What should the punishment be? o Criminal Procedure How people are treated within criminal law o If society views the law as unjust Jury nullification Less respect for the law/more people breaking the law Law may evolve to meet societies view Aims of the Criminal Law 1. Commands what one must not and sometimes must do 2. Commands have the backing of society and are valid and binding even if they are not expressed 3. The community has representatives to enforce the commands 4. Difference between criminal/civil law= community condemnation for crim.

A. Sources of Criminal Law o No Standardized Criminal law (State and Federal) Two main Jurisdictional approaches 1. Model Penal Code Enumerated law based on statutes (kind of like a restatement but not based on state laws ) No state has adopted MPC entirely but many base code on it o 2/3 of states use MPC to create laws

Focus is on statutes less on judge interpretation 2. Common Law Focus on judge made law for England and US Focus on Judges interpretation of statutes

Statutes Constitution (source for much of fed criminal law)

B. Justifications for Punishment o Consequentialist: Utilitarian Forward looking Act are not right or wrong in themselves only look at consequences 1. Deterrence

Specific- Punishment to deter the individual from committing the same crime in the future Criticism: high recidivism rate (notes p. 6) General Punishment of to deter others from committing the same or similar offenses Criticism: not effective for all crimes/all people o Crimes committed under emotional distress o Crimes committed by expert criminals o (notes p. 6)

2. Rehabilitation-change a criminal w/ programs to make them into a law abiding citizen b/c they are given other skills their motivation for committing crime gone. Criticism: Not great results, often people return to crime even if they are initially reformed (notes p. 6)

3. Incapacitation- incarceration to keep away from other members of society (for safety of society) Criticism: majority of prisoners eventually go back to society, many commit crimes in prison. (notes p. 6) MPC focuses on Deterrence/Rehabilitation

o Nonconsequentialist: Retributivism Backward looking Acts are right or wrong in themselves 1. Incapacitation- See above but less focus on safety of society more on isolating the criminal as punishment for the act 2. Retribution- Giving the what he deserves: revenge Only justification for the death sentence 3 types (see notes p 4) Criticism: form of retaliation morally blameworthy in itself o Regina v. Dudley and Stephens (p 7)- Cannibalism Case Killing did constitute a willful murder and there was no affirmative defense (Necessity may have worked today but not in this case) They were pardoned in advance only 6 months jail time o People v. Suitte (p 11)- upstanding citizen charged w/ possessing unregistered handgun, sentences to jail, Appeals, sentence affirmed Discretion in sentencing: Sentencing judges and jurors 79

Necessary to further goals of punishment and allows for individualized justice (but can lead to inconsistent sentencing) Checks on discretion: Appellate review: (but usually defer to sentencing court unless it is a gross abuse of discretion) DISSENT: There should have been no jail sentence Only theory of punishment is general deterrence

There should be a balance between the theories General deterrence not enough when all other theories fail o The Dilemma of Expressive Punishment- Should public shaming be a punishment? No b/c it imposes one view/set of morals on everyone (notes p 7) C. The Presumption of Innocence/ Proof Beyond a Reasonable Doubt o Presumption of innocents (constitutional requirement) o Prosecution has the burden of proof Burden of Production Producing evidence to support initial claim Burden of Persuasion Responsibility to persuade fact finder that the crime was committed = guilty Burden of Proof (lvl of certainty needed to convict) Beyond a reasonable doubt (highest burden) (notes p 7)

o has 2 options Case-in-Chief Defense Creating reasonable doubt about any element of the crime Affirmative Defense Admit to crime but have an excuse bears all burdens to prove defense Standard of proof = preponderance of evidence

D. Standards of Review o Standard for judges Trial Courts. (motions for directed verdicts) Could a reasonable jury find the guilty beyond reasonable doubt? (if no then directed verdict) Appellate Courts Was the evidence sufficient enough that a reasonable jury could have found guilty beyond reasonable doubt? 80

 If yes then conviction of Trial Court upheld o (Curley v. U.S. (p 40)) E. The Role of the Jury o Criminal law always have jury trials ( can waive this right if they want) o Juries not strictly obligated to follow the law Jury Nullification: (juries often dont know they have this power) Jury can acquit against the weight of evidence and there is no recourse for the prosecutor can not convict against weight of evidence b/c appeal/judge can set verdict aside (undermines) Rule of law: the rule of law should apply equally to everyone

Pros & Cons (see notes p 9)

o People v. Williams (p 45)- After closing argument attorney told jury about nullification. 1 juror refused to deliberate or follow instructions. Judge dismissed juror, was convicted, appeals based on juror dismissal App. Court said that refusal to deliberate he failed to perform his duties under the penal code. Dismissal was appropriate argues the it undermined his right to a jury Court says jury nullification is not a jurors right Also courts should try to prevent jury nullification when it is in their power to do so o Race-Based Jury Nullification: Case-in-Chief-( Notes p. 10 | Book p. 50) o Race-Based Jury Nullification: Rebuttal- (Notes p. 10| Book p. 56) F. Statutory Interpretation o Statutes dont interpret themselves (regardless of the jurisdiction MPC/Common law) judges play important role in deciding what the law is by interpreting statutes o Steps for interpreting ambiguity: 1. Plain Language of statute 2. Cannons of statutory construction Lists/ definitions of terms Statutory structure (consider whole thing) Grammar & Syntax Amendments 3. Legislative history/intent 81

4.

Rule of Leniency (Doctrine of last resort) All doubts when reading a criminal statute should be resolved in favor of the consistent with liberty interest/presum. of innocents If a statute is ambiguous it fails the rule of law & void for vagueness Against due process/does not give adequate notice

o U.S. v. Dauray (60) - convicted of possessing child porn, statute ambiguity about whether pictures fall under statute. Court goes through all the steps and still finds the statute ambiguous invokes the rule of leniency s conviction reversed DISSENT: Statute not ambiguous plain meaning = enough

Crimes: o Two kinds of Crimes/Social Harms (notes 20) 1. Results Crimes Law specifically bars a certain result Murder, result =death 2. Conduct Crimes Laws that bar specific conduct even without harm Drunk driving/ using drugs o Crimes have 4 basic elements: Actus Reus- The Act Mens Rea- The Mental State (common law Specific v. General Intent crimes p Causation- Act causes a social harm Direct & Proximate Concurrence- concurrence between Mens Rea & Actus Reus Temporal & Motivational

o Both the Actus Reus requirement and Mens Rea requirement must have some relation to social harm (results/conduct) for it to be a crime (notes 20) o Social Harm = destruction of, injury to, or endangerment of, some socially valuable interest (Dressler) THE ACTUS REUS REQUIREMENT Introduction o Concept related to Actus Reus 82

1. Person can only convicted on actions not thoughts 2. Act must be committed by the not compelled by the government 3. Act must be voluntary 4. No liability to failure to act unless there is a legal duty to act 5. Status Crimes are unconstitutional o MPC Definition 2.01- A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act which he is physically capable. o Common Law: Voluntary act that results in social harm A. Acting v. Thinking: Proscription Against Thought Crimes o Generally no punishment for thoughts (b/c of 1st amendment) It wouldnt give people chance to avoid bad acts Could encourage invasive government monitoring May decrease value of personal autonomy Thoughts cant be proven w/out an outward action o There is a continuum between fantasy and completed social harm (where is the line drawn/ where does thought it become a crime?) Jailed on Precipice of Crime- wrote about abusing fictitious children in a journal convicted served jail time later conviction

overturned via free speech (notes 12 | book 141) o Hate Crimes: Some think that increased sentences for crimes motivated by bias = criminalizing bad thoughts Wisconsin v. Mitchell (p 143)- beat up white guy solely based on race, convicted to and increased sentence. Different From Dalton: Actual social harm Statute intended to prevent harm caused

act/though was directly connected to social harm B. Acting on Ones Own v. Acting Under State Compulsion: Situational Offenses o The government can not compel you to do something then punish you for it o Martin v. State- Police arrest a drunken man in his home bring him on the highway and charged him for public drunkenness C. Acting Voluntarily v. Acting Involuntarily: The Unconsciousness Defense

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o A person can not be convicted of a crime unless he/she commits a voluntary act that causes social harm (involuntary acts will not be deterred by punishment) o Voluntary Common Law : Movement of the body that is willed or intended by the actor MPC 2.01- not voluntary acts: reflex or convulsion, a bodily movement that otherwise is not the product of the effort of determination of the actor, either conscious or habitual Habitual acts = voluntary even if actor doesnt realize they are doing it o State v. Decina(p 148)- Epileptic fit while driving, If knew there was a potential that he could commit a crime due to involuntary actions but runs the risk anyways (i.e got into the car knowing he had epilepsy) he could be liable. Was act getting in the car or actually hitting girls If he didnt know he had epilepsy/was medicated for it may have had different result DISSENT: act defined to broadly everyone w/ health condition who

drives would be liable every time they drove o Interpretive Construction in the Substantive Criminal Law- Opening the time frame? (see notes p 15| Book p. 153) A part of the act must always be voluntary usually broadens | usually narrows time frame/act o Epileptic Convicted of Assault Cleared-(book p. 154) D. Acting v. Failing to Act: Liability for Omissions Generally no liability for failure to act Unless there was a legal duty to act AND 1. was physically capable of acting. 2. knew of need for action MPC 2.01(3) liability for commission of an offense may not be based on an omission unaccompanied by action unless: A) the omission is expressly made sufficient by the law defining the offense; or B) a duty to perform the omitted act is otherwise imposed by law 84

5 situations when there is a duty to act 1. Special Relationships Parent/child Husband/wife Master/servant Captain/seamen Employee/Employer (not clear) 2. Contract Contract creates special duty (lifeguard) 3. Statutory Duty

4. created the risk of harm 5. voluntary assumption of care 1. Establishing the Duty to Act People v. Beardsley (p 156)- women and man fooling around (not married) women o.d. on morphine and eventually dies Just because women was in the mans house he was not her protector there was no legal duty owed by him to her even if there may have been a moral duty owed no liable for death Commonwealth v. Howard (p 161)- Mothers boyfriend beat 5 year old daughter girl fell and was knocked out next day realized she was dead Mother liable for childs death Parent/child relationship legal duty to protect child Mothers failure= direct cause of death & was reckless and grossly negligent Commonwealth v. Pastinikas (p. 162)- husband and wife oral K to care of 92 year old man (provide him food shelter, medical care etc.) stuck him in a closed porch in a rural area actively concealed

whereabouts of man stole his money from bank account. Man died of dehydration/starvation The oral K imposed a legal duty to care for man Failure to act=direct cause of death Criminally liable Failure to perform under K not enough by itself to find liability must also have all other elements especially mens rea here 2. No Duty to Rescue Rule /the Debate Over Good Samaritan Statutes 85

No duty to act unless there is a legal duty. Should laws create more liability for omission to encourage people to help each other Good Samaritan Laws Two Kinds 1. Protects an actor from liability if they try help 2. Imposing liability for failure to report a crime/failure to render aid Iverson Case/David Cash- Two friends in Las Vegas, 1 lured 7 year old into bathroom rapes and kills her Cash saw/knew what was happening did nothing to prevent willfully blind of death, but after it

happened he was told that girl was murdered failed to report it. He was found not liable for anything Example of when no duty to act breaks down The Right to be Apathetic(book p 166)- good Samaritan law gaining ground to protect certain classes of people like children Two Forms of Justice (book p 168)- should have good Samaritan law b/c it would create a legal duty and encourage people to help each other out in times of need. 3. Sample Good Samaritan Statutes (book p. 169) Policy Pros: Cons:

Not overly imposing on people Promotes public safety Might prevent crimes Decreases personal autonomy (goes against general rule) Hard to enforce Possible exposure to liability (if law doesnt protect you) Not job of law to make people virtuous

E. Acting v. Having a Status: Status Crimes o Status crimes unconstitutional 14th and 8th amendment (equal protection & cruel and unusual punishment) People should only be punished for acts not identity (state person cant change) Punishment for identity is by definition cruel and unusual punishment

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o Robinson v. California (p 171 notes 18)- CA law that punishes people for being addicts (to narcotics) is unconstitutional b/c violates 8th 14th amend. States can not criminalize drug addiction! Recognizes status of being an addict Assumption that drug use is involuntary if someone is an addict Counter: Voluntary action of using drugs at some point continue using them to feed addiction Also punished for something not an act Act= using drugs being addict not the same can punish for use not status (punishing use ok)

o May not have used drugs in CA o Would be criminally liable until completely not an addict DISSENT: not cruel and unusual punishment (rehabilitation) thought the drug use was voluntary (see notes 19 book 173) o Big issue in Robinson is that there was voluntary acts that lead to status may have gone either way not clear cut b/c status not inherent like race o Powell v. Texas (p 174 notes 19)- (alcoholic) guilty of being Drunk in a public place. Cant punish for being alcoholic but statute here const. *possibly would have come out differently if was homeless and had no choice but to be in public Court thinks act of drinking and act of being in public both voluntary acts statute punishing him for vol action not status so constitutional Murderers have compulsion to kill still can punish them doesnt matter that alcoholics have compulsion to drink and be in public DISSENT: think drinking not voluntary punishing him for being alcoholic (like Robinson Maj) both elements of crime must be vol. here only being in pub vol therefore elements not met CONCURANCE: even if only one element is voluntary that is enough

being in public voluntary not punishing him for status o Jones v. City of LA (p 181, notes 20) - Homeless people charged under statute criminalizing sitting sleeping or lying on public street (statue= unconstitutional b/c punishing them for status) People have to sleep, this population has nowhere else to sleep (not enough beds in homeless shelter) so their act of sleeping on the street

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was involuntary therefore it is unconstitutional cruel and unusual punishment DISSENT: there is not status the law is punishing conduct not status Not job of state to provide shelter for homeless

THE MENS REA REQUIREMENT Introduction o Mental state required for the crime o MPC 2.02 1. Purposefully Conscious object to engage in conduct and/or bring about result

is aware of attendant circumstances or belives/hopes they exist (epileptic case) 2. Knowingly is aware that conduct is of a certain nature or will have certain result 3. Recklessly Consciously disregards a substantial an unjustifiable risk that material element exists or result from his conduct Gross deviation from standard of care by reasonable person in US v. Yermian

s situation Realization of the risks is not enough must know that injury might occur 4. Negligently Same as reckless but should have known of the unjustifiable risk as opposed to disregarding risk .

o Common Law: (willfully, maliciously, corruptly, intentionally, knowingly,) it is s conscious object to do the act, or cause the result. Specific Intent Crimes General Intent Crimes o If no specific intent is needed the default is Recklessness A. The Historical Development of Mens Rea

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o Regina v. Cunningham (p 190)- lived next door to mother in law, decided to steel gas meter ripped it off the wall, did not turn gas off, mother in law partially asphyxiated/life endangered Statute said with malice T Court defined w/ malice to mean Wicked, something which he has no business to do App. Court said that Malice meant Intent to do the harm that is caused OR The recklessness Whether acted with malice/recklessness was a question for the jury. Not clear that he knew ripping gas meter off would cause harm

B. Problems of Statutory Interpretation o Look to see if mens rea attaches to every element of crime or only some o Does mens rea attach to jurisdictional elements? o MPC 2.02(4) Unless within the statute it is clear that the mental state is NOT supposed to apply to some material element, it will apply to all material elmts. o U.S. v. Yermian (p 192)- knowingly lied on a job application about his criminal/work history. Work app. Said it was a crime to make false statements within the jurisdiction of a federal agency. claims knew statements were false but didnt know he was making them to fed agency Did need to know making false statement And know that statements were to fed agency.

The mens rea only applied to making false statements convicted DISSENT: Statute Ambiguous should use rule of leniency (if MPC would have come out different maybe) o Holloway v. U.S (p 196).- (car jackers case) Can not use the fact that intent to harm someone was conditional on the victims behavior. If there was a conditional intent to harm at the moment the act happened then that is enough to meet the intent requirement MPC 2.02(6)- When a particular purpose is an element of an offense the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense C. Intent o Common law Intent defined in two ways: 89

1. It is the persons conscious object or purpose to engage in behavior/cause a certain result MPC Purposefully 2. Knows to a virtual certainty actions will cause particular social harm MPC Knowingly o Inferring Intent: Often hard to prove Intent, legal shortcuts that allow you to infer intent Natural and Probable Consequences Doctrine: State v. Fugate (p 203)- where the natural and probable consequences of a wrongful act is to produce death, such intent may be deduced from all the surrounding circumstances, including the instrument used to produce death, and the manner of inflicting the wound killed a man in garage only direct evidence as to intent was testimony that he had no intent, intent inferred convicted Deadly Weapon Rule: The jury may infer intent to kill if the intentionally used a deadly weapon aimed at a vital part of the human body What is a deadly weapon (different jdx diff approaches) 1. Anything made designed or adapted for inflicting death or bodily injury 2. Anything likely to cause death or grievous bodily injury 3. MPC: animate or inanimate substance as used, or intended to be used, is capable of causing death or serious bodily injury

D. Knowledge o Inferring positive knowledge from circumstantial evidence. o Willful Blindness Doctrine: is not actually aware, but his/her ignorance is solely and entirely the result of his having made a conscious effort to avoid the truth (99% sure but failed to actually confirm truth) Should be aware is not enough! Really can only be applied were it can almost be said was actually aware 90

MPC 2.02(7)- such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist

o U.S. v. Jewell (p 204)- had 100lbs of maraj. In car he was driving, didnt require positive knowledge willful blindness was enough to infer knowledge E. Special Problems of Intent 1. Transferring Intent Generally the intent to do X can not be used for intent to cause y even if Y was caused by person Regina v. Pembliton- threw rock intending to hit person hit and broke window no liability for broken window because intent to hit someone is different than intent to hit window But we dont want to reward bad aim so transferred intent in cases of unintentional killing People v. Scott (notes 24)- Intent to kill person A transfers to the killing of person B Can not use up transferred intent if intent to kill multiple people and you kill multiple people can use transferred intent multiple times

** Transferred intent CAN NOT multiply. If you intend to shoot one person but kill two can not get intent to transfer murder for one unintentional for the other b/c policy got them for 1 murder. See notes 25 for hypos 2. The Specific Intent/General Intent Distinction (Common Law NOT MPC) Specific Intent Crimes: Historically: description of the crime itself required a specific mental state/intent Now: Intent to do some further act or achieve some additional consequences beyond the actus reus Burden of Proof is high in specific intent crimes General Intent Crimes: Historically: Stature did not contain a specific intent Now: intended to commit the act that causes the harm but need not intend the consequences of the action Default in Common Law 91

Important to determine if certain defenses may succeed People v. Atkins (book 215| notes 26)- vol. intoxication may have been a defense if the statute was specific intent. Since it was general intent and the person intended to burn something that was enough.

F. Strict Liability Crimes o Do not require mens rea for these crimes (may determine what defenses are available o MPC 2.02(4)(5)- no strict liability UNLESS it is a minor offense that only has a fine (parking tickets, NOTHING with jail time) o Common Law Morissette v. U.S. (p 220| notes 27)- guy accidentally steals from gov. Could be strict liability if: Violation of health, safety and welfare regulations (to protect public) No mens rea specified in statue If the statute punishes for a omission If there is risk of injury conduct not actual harm Small stigma/light penalty (i.e. generally not felonies) MISTAKE & IGNORANCE Introduction o Mistakes can sometimes be used to negate the mens rea requirement o Only looks at the belief of and what is required by statute If even w/o mistake had required mental state then mistake isnt a defense/excuse o Common Law Mistakes in Specific Intent Crimes: must be good faith doesnt matter if it is reasonable Also must go to negating intent General Intent Crimes Must be good faith AND reasonable mistake Moral & Legal wrong Doctrine o MPC: mistake is a defense if it negates mental state 92 i.e. speeding drunk driving newly created crime is in position to prevent harm and reasonable to expect this

Has low similar to legal wrong if mistake but w/o mistake still committing crime will be guilty of the charged offense BUT can only be punished at the penalty set for the other lessor crime not crime charged.

A. Mistake of Fact o People v. Navarro (p 236| notes 29)- Took beams from construction site thought they were abandoned and he had permission to take them he didnt Specific intent crime Said the mistake didnt have to be reasonable just that was in good faith and tied directly to intent element acquitted (MPC jurisdiction) o The Moral and Legal Wrong Doctrine: Bell v. State (p 238|notes 30) pimping out three girls 1 underage didnt know (Promoting prostitution is illegal regardless of victs age) Moral Wrong Doctrine: even if the mistake is reasonable, if the facts were as the actor believed them to be and the actors conduct demonstrated bad character, then the actor, by committing a morally wrong act, assumes the risk that the facts are not as believes them to be Mistake is not a defense if you are doing something morally wrong even w/o mistake Legal Wrong : same as above but substitute illegal for morally wrong

B. Mistake of Law Generally ignorance of the law is not an excuse/defense Three exceptions to the general rule: 1. Official Interpretation of the Law (Entrapment by Estopple) A person reasonable relies on an official interpretation of the law that turns out to be false Official Interpretations It must be contained in: o Statute later to be determined invalid o A judicial decision of the highest court in jxd o An official but erroneous interpretation of law secured from a public official w/ the responsibility for interpreting 93

People v. Marrero (p 243| notes 31)- (peace officer) arrested for carrying handgun in public, claimed he thought he could carry a loaded handgun under statute

misinterpreted the statute itself, it was not based on an official interpretation Policy considerations: if allowed someone to use mistake when they personally read law wrong slippery slope everyone saying they read law wrong DISSENT: should have allowed mistake, legislative intent 2. Ignorance or Mistake That Negates the Mens Rea Requires that knowledge of the law is element of crime, not knowing it is a crime negates elements of crime Only with complicated laws IRS Bryan v. U.S. (p 262 notes 32) - selling guns illegally in NY knew his conduct was unlawful even if he didnt know he needed a license to sell them Says that only time this works is in laws that are highly technical so that someone wouldnt know they were breaking the law inherently

3. Fair Notice and Due Process (The Lambert Exception) Presumption that people know what the law is Extremely rare to use May come up if it created duty to act and person failed to act CAUSATION & CONCURRANCE A. Causation Actually part of the Actus reus requirement Links act to the social harm Must have BOTH Actual and Proximate Cause Violation was an omission/ offense was passive Duty is based on status

See Notes 37-38 for flow chart 1. Actual (but for) Causation Both MPC and Common law same test But for the s act or omission, would the social harm have occurred when it did? 94

If the answer is no the = Actual cause Problems with the But for test (multiple actors causing multiple harms) USE: Substantial Factor Test: (Minority jurisdictions) o Applies when there are concurrent sufficient causes o If conduct was a substantial factor leading to social harm even if it is not a but for cause o Allows Prosecutor not to know when caused actual social harm Modified But For Test (Majority of jurisdiction) o But for the s act or omission, would the social harm have occurred when AND HOW it did?

2. Proximate Causation (if there in no but for dont move to this) Whether it is fair to hold criminally liable is a proximate cause if the bad result s a natural and probable consequence of actions Generally if is actual cause then =liable unless there is an intervening cause that relieves them of liability MPC 2.03(2-4) Purposefully/knowingly- the result was not to remote Reckless/negligent- foreseeability Intervening cause analysis Intervening cause is Acts or events that come after the conduct but before the social harm that contribute in some way to the social harm Two types: o Dependent/Responsive: Proximate cause will be found despite the dependent intervening cause unless this intervening cause is extremely bazaar or unusual o Independent/Coincidental: Proximate cause will not be found despite an independent or coincidental cause unless this intervening cause is foreseeable 95

Commonwealth v. Rementer (p 282| Notes 36)- Girlfriend run over by can when running away from her abusive boyfriend ( guilty) Found beating girlfriend =actual cause Being hit by can was intervening act Found = proximate cause b/c not bizaar that cars drive on road and if someone beating not bizaar that

person would run dependent intervening act State v. Govan (p 289)- shot g/d 5 years later she dies of pneumonia There was actual causation but no proximate causation ** YEAR + DAY RULE- can not find causation if more than a year and a day have passed between action and social harm Henderson v. Kibbe (p 291)- Kidnaps robs person leaves them on side of road in middle of night in the cold Found actual cause Found proximate cause Independent Intervening cause truck hitting victim But foreseeable (also victim could have frozen to death) Other Doctrines for Proximate Cause (notes 39) De Miinimus Contribution- if act contributed minimally to the social harm. (ex guy trys to shoot wife she leave him falls off a horse and is injured) Intended Consequences Doctrine: if commits a voluntary act with the intent to bring about a certain result and that intended result occurs there is actual and proximate cause even if the result came about in a different manner that intended Omissions: An intervening cause that is an omission will almost never excuse conduct

B. Concurrence o Links the Actus Reus to the Mens Rea You must have BOTH Temporal Concurrence: must have the mens rea at same time they are committing the act Motivational Concurrence:

The mens rea must have motivated the action Again narrowing/broadening the time frame can make a difference 96

o Thabo Meli v. Reginam (p 295)- lured victim to house intending to kill him knocked him out thought he was dead pushed body over cliff fall killed him Was there concurrence b/c at time body was pushed over cliff no longer motivated to kill him Court lumps all the acts together b/c there was intent to kill and they did kill him since all the acts taken together there was concurrence o State v. Rose (p. 297| notes 40) - negligently hit pedestrian, pedestrian dragged under car tried to establish alibi Not clear if victim died from bing hit or the dragging Hitting no mens rea no temporal concurrence Dragging no mens rea only reckless

acquitted

CRIMINAL HOMICIDE A. B. C. Introduction Definitional Issues Categorizing Homicides Degrees of Murder (1st Degree v. 2nd Degree Murder) o State v. Browno State v. Binghamo Gilbert v. State-

D. The Doctrine of Provocation (Voluntary Manslaughter) 1. The Early Common Laws Approch People v. Ambro2. The Modern Reasonable Person Test People v. Berry Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill Provoked Reason in Men and Women3. Who is The Reasonable Person? Homophobia in Manslaughter: The Homosexual Advance as Insufficient Provocation When Heterosexual Men Kill Homosexual Men Commonwealth v. Carr4. The Model Penal Codes Extreme Emotional Disturbance Test (dont think we read this didnt finish outlining it) 97

E. Depraved Heart Murder o Commonwealth v. Maloneo People v. KnollerF. Involuntary Manslaughter o Commonwealth v. Welanskyo State v. Williamso Indian Child Welfare Act of 1978G. The Felony Murder Rule o People v. Stamp1. The Inherently Dangerous Felony Limitation People v. James Hines v. State2. Res Gestae Requirement People v. Bodely King v. Commonwealth3. The Merger Doctrine People v. Smith4. Third Party Killings: The Agency Rule State v. CanolaH. The Misdemeanor Manslaughter Doctrine o Todd v. StateFORCIBLE RAPE Introduction o Defined: the carnal knowledge of a women, not the s wife, forcibly against her will usually treated as a general intent crime Originally men could had no protection under forcible rape laws Not the case now Originally only included vaginal intercourse nothing else Originally seen as a crime against womens honor Now a crime against someones sexual autonomy Traditionally: married excuse to reap not the case now separate laws to protect spouse or struck that language from statute o Law not well settle depends on jdx o See policy book p 409| notes p 68, 70 98

o EMEMENTS: 1. Engages in vaginal intercourse by 2. Force or threat of force 3. Against her will and 4. Without her consent A. Forcible Rape 1. The Element of Force of Threat of Force Traditional requirement Used to require proof the women resisted to her utmost for this element to me met Now it is a continuum as to how much force is enough Some stick to the tradition some have essentially abolished it SUMMARY OF CASES NOTES 70 Rusk v. State (p. 410|notes 69)-victim went to bar with friend drove home he took her inside and raped her Maryland= traditional elements of rape Force requires some evidence of resistance that was overcome by force or threat of force If there is no evidence must show that force prevented her from acting and the fear was reasonable to prevent her from acting Court says evidence of neither Rape conviction reversed ** must show resistance of some sort DISSENT: Notes 69

State v. Alston (p. 419| notes 68)- & vic. Abusive relationship college kids goes with him he allegedly raped her doesnt really use force/threats, later has consensual sex w/ him, acquitted **resistence not required constructive force enough North Carolina = traditional elements Two Ways to show force Actual force through evidence of force Constructive force: seems like threats are enough o A threat of force that induces reasonable fear of harm in the victim

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o It is enough if the totality of the circumstances give rise to a reasonable inference that the purpose of the threat was to force the victim to submit to sexual intercourse Court said threats of force must be related to the sexual act here threats not sufficiently related Commonwealth v. Berkowitz (p. 424|notes 68) Vic. Waiting for boyfriend goes into room or roommate fools allege rapes her, not clear that lack of consent ( aquitted) Pennsylvania Elements Sexual intercourse (vaginal) With another not spouse Forcible compulsion or threat of forcible compulsion that is enough to prevent resistance by a person of reasonable resolution Distinction between Lack of consent v Against Will Lack of consent vic. Said or indicated no Against will, person decided not to but it happened anyway (didnt manifest no kinda thing, just internal

decision) Reluctant ant submission: against will but ends up accepting it Because al one element force and consent must show that force or threat of force is why the consent/against will happened

State of New Jersey in the Interest of M.T.S. (p 434|71) date rape girl was asleep found on top of her in morning Essentially does away with force requirement. Whatever force is necessary to achieve penetration= enough force for rape (contemporary idea about force element) New Jersey Elements 100 Sexual penetration W/ another person With physical force of coercion

 MPC 2. What Counts (or Should Count) as Consent? Act or attitude expressing that the person wants to have sex Must be present at time of penetration Since rape=general intent crime only honest and reasonable belief that there was consent is enough But if evidence of resistance possibly mistake wont fly Minority of states dont allow mistake for non consent period In re John Z (p. 443| notes 72) - Person can withdraw consent after penetration before completion of act. This nullifies prior consent. Elements of Rape in CA Sexual intercourse Against will w/ force or threat of force o Same as MTS enough force to complete act=enough Consent at penetration is not enough person has right to withdraw consent and being forced to complete it = rape

DISSENT: persistent not enough for force, not clear she withdrew consent The Antioch College Sexual Offense Prevention Policy Must have verbal confirmation for consent or withdrawal of consent She didnt say no is not a defense Policy does no mean yes (book p 442)

DEFENSES

Introduction A. Justification Defenses 1. Self-Defense People v. Goetz State v. Simon Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom State v. Stewart101

Juries and Expert Evidence: Social Framework TestimonyState v. WanrowJenkins v. StateIs Self-Defense Law Vigilante Justice? Tray Von Killing & George Zimmerman-

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Outline Property

Sarah Garrott

THE CONCEPT OF PROPERTY A. WHY RECOGNIZE PROPERTY? Five Theories of Property 1. Protect First Possession (First-in-time approach) The first to take possession or to occupy is the owner Applies when: bountiful resources & few people Benefit: bright line rule 2. Encourage Labor (Locke) Person is entitles to the property produced through his/her own labor If resource are limited: must leave enough as and as good for others Applied in: frontier times now maybe applies to intellectual prop rights 3. Maximize Social Happiness (Bentham) We protect property rights to maximize the overall happiness of society (economic efficiency) Utilitarian- benefits to many> benefits to few No natural right to exclusive property ownership unless it serves society as a whole no exclusive property rights Applies: when all valuable resources are owned 4. Ensure Democracy (Civic Republican Theory) If people have their own property rights they have a higher interest/stake in democracy more likely vote autonomously Independent political judgment vital for true democracy Opposing idea: sponsors/landed gentry controlling votes of those who live on their land 5. Facilitate Personal Development (Personhood Theory) (Hegel Kant) Certain property becomes inextricably linked to certain people, without persistent/exclusive ownership a person can not fulfill their potential/fully live their life. $/the price of replacement of the property will not restore the status quo Personhood property claim > competing non-personhood property claim EX: Tenant > Landlord

 Ways to Acquire Property 1. Capture Pierson v. Post- 1st possession approach (p. 8) Who owns the fox? Hunting/public land, Pursuer (Post) v. shooter/actual possessor (Pierson) Only concerns wild animals (not domesticated) on un-owned land Majority: Pursuit alone is not enough Pierson gets fox (formalistic/follows ancient authorities) For possession must have: 1. Intention to Capture & 2. Bring it under their certain control & 3. Deprive it of its natural liberty Dissent: Should follow modern hunting custom For possession must have: 1. Pursuit/Intention to capture 2. Reasonable prospect of capture court is trying to promote 2. Creation White v. Samsung Electronics America Personhood theory/labor theory (p.15) Vanna White Robot Ad claims ad infringed on her right to publicity (right is personhood theory) Majority: Celebrities invest time and effort into cultivating their persona and they have a right to control (exclude others from using/profiting from it) and profit from it. (right acquired through labor theory) Dissent: Both private property and public domain important, must balance the competing interest of the two. Majority is overprotecting celebritys interest at cost of public domain

B. WHAT IS PROPERTY? o Primarily governed by state law (some fed laws about some forms of property o The governance of human relations concerning things 104

o Not about ownership of things People own certain legally enforceable rights in things but not the thing itself o Property is a group/bundle of rights (bundle of sticks) o Property rights are relative not absolute o Amount of rights: differs between property and jurisdictions/ limits the way people can use their property 1. Right To Transfer (alienability) Almost all property has this right Public Policy reasons sometimes limit: 1. Who can transfer property Johnson v. MIntosh (p 28) bought land from Indians granted same land from US government Can Native Americans transfer land to an individual? (no) Native Americans cant transfer land to anyone but the government entitled to land Legal Positivism doesnt always recognize certain possessor (like N.A. in this case) gov. = first possessor of the land

Acquisition can = dispossession 2. What property can be transferred Moore v. Regents of the University of California (p 36) Can you sell human tissue? o Can transfer certain kinds of tissue: Blood/plasma/eggs/sperm had cancer, as treatment removed certain body tissues. used tissue/created cell line/ patented and sold cell line claims Conversion of tissue ( looses) ** dealings with human tissue is so heavily regulated by statute, whatever miniscule rights people have in body tissue can not be considered property rights.

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Dissent: retained right to transfer calls to researchers for profit

Accession- If A uses Bs prop. to create something new. A owns the creation but must compensate B for values of Bs property before it was used for creation 3. How property can be transferred 2. Right to Exclude One of the most important right in the bundle Without this right no such thing as exclusive possession For land right to exclude enforced by Trespass Doctrine Not a Trespass if privilege: Consent/Necessity Consent (Jacque v. Steenberg Homes -p 49) owned private land wanted to cross private land, refused to give consent, crossed land anyways (caused no harm to land) Court awarded huge punitive damages, demonstrates the importance of the right to exclude ) Necessity State v. Shack (p 57) Farmer denies access to his land to lawyer and medical worker. Lawyer and Medical worker go on land anyway to help migrant farm workers living on farmers land. ** Property rights serve human values, they are recognized to that end and limited by it. Title to real property cannot include dominion over the destiny of the persons (migrant workers)the owner permits to come upon property. Balance individual rights with property rights In this case human need outweighed Farmers right to exclude

3. Right to Use Landower has absolute right to use his property in any way- Unless the use unreasonably impairs the use and enjoyment of another in their own land Use can be limited if it interferes with other peoples use and enjoyment of their land Ex: Nuisance Doctrine, Spite Fence 106

Spite Fence Sundowner v. King (p 69) Built a spite fence claimed it was a sign, sign interfered with s use of his property **Can not use his property for the sole purpose of annoying the neighbor (Utilitarian argument- if s use of property has less social value than s uninhibited use of his property than can not do it) Two Main considerations:

Is there intent to injure the neighbor Is structure totally useless won Private Nuisance 1. Intentional 2. Nontrespassory 3. Unreasonable, and (most difficult element) Gravity of harm> utility of conduct 4. Substantial interference with 5. The use and enjoyment of s land This doctrine much broader than Spite Fence Prah v. Maretti (p 73) calims s building will block light/interfere with s solar panels Majority: nuisance doctrine does apply increase regulation in favor of general welfare Societys interest in access to light as an energy source > Societys interest in encouraging land development o (If society doesnt have an interest in what is claiming is interfering with likely nuisance wont apply Ex: building blocks s view) Dissent: right to use should be vigorously enforced. Development>access to light to lazy to protect investment

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OWNING REAL PROPERTY o Real Property= property rights in land and things directly connected to land A. ADVERSE POSSESSION Acquiring title to someone elses land through open, hostile possession and use of the land Most controversial doctrine in Property law Justifications for Adverse Possession Correcting title defects/errors Encouraging the productive use of land/ economic development Protecting personhood relationship w/ land Adverse possessors state of mind Most jurisdictions state of mind = irrelevant Some require god or bad faith adverse possession Adverse possession in OR 10 years (allows tacking) Only recognize good faith adverse possession claims o Finding out that it is not your property any time before 10 years is up kills claim Elements of Adverse Possession Possession must be: 1. Actual must use the land in the same manner an owner would 2. Exclusive Land can not be shared with owner or public 3. Open and notorious Possession must be visible and obvious 4. Adverse and hostile Possession can not be authorized by owner 5. Continuous for the required period Possession must be as continuous as a reasonable owners would be

Required period set by statute 10-20 yrs Gurwit v. Kannatzer (p 101) believed in good faith they owned land, but part of their land was owned by someone else

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paid taxes on land, posted no hunting signs, cleaned up land, occasionally gave people permission to cut wood on land. **Met all the factors for adverse possession even though they were not physically on the property at all times they use was

the same as a reasonable owners acquired possession Van Valkenburgh v. Lutz (p 107) For 30 years used land for access his other lots, farming, built a shack for his brother, didnt pay taxes on land. Adverse possession statute required land to be enclosed by fence, or structure or usually possessed ** not enough of the land was cultivated, land not enclosed by

fence, not clear the land was improved no possession by adverse possession Dissent- there was enough evidence to support adverse possession claim Proving Adverse Possession Claims arise in two ways Adverse possessor brings quiet title affirmative claim (Gurwit) Adverse possessor raises it as a defense to ejectment (Lutz) Theoretically- Adverse possessor automatically gets title when statutory period end is all if all elements are met Practically- person doesnt acquire land through adverse possession until court determines that it is theirs If court determines adverse possession it creates a new title and the old title is void Tacking- adverse possession periods of two or more successive occupants may be added together to meet the statutory period Most states allow tacking only if the successive occupants are in Privity Privity- one occupant transfers right to successor (like by deed or will) designed to discourage trespassing Howard v. Kunto (p 127) Beachfront property, everyones deed is off by 50 Whether adverse possessor can use tacking if the deed is not for the land you are occupying? Court said yes can use tacking 109

**For privity of estate in tacking only need to show some reasonable connection between successive occupants of the real property

There is a big diff between and ordinary trespasser Procedural Issues Disabilities If proper owner has a disability that prevents them from suing adverse possessor w/in the statutory period, the statutory period will be extended. o Imprisonment o Minority (child) o Lack of mental capacity Sometimes only disability that exists at beginning of A.P. will extend statutory period.

Usually provide the owner with limited period of time after disability ends to sue Identity of the Parties Adverse possessor can only acquire the rights the possessor had. I.E. A has a life estate and B adversely possessed As land. B only has life estate. After life estate over C still owns land. Cs rights not effected by Bs adverse possession.

B. THE VERTICAL DIMENSION OF OWNERSHIP Clearly some airspace and subsurface rights but how far do they extend? Traditionally- up to the heavens and down to the center of the earth Modern- not clear, but less than traditional view 1. Airspace Rights US v. Causby (p 136) live next to airport, WWII planes flying at low elevation over property. Noise from planes= no sleep, prop value decreased, shut down chicken farm **the landowner owns at least as much of the airspace above his land as he can occupy or use in connection with the land. Three Zones of Airspace 1. up to the top of the tallest tree 110

 owner = exclusive rights 2. Beyond top of tallest tree Owner has limited rights such as access to light and air 3. Above zone 1 & 2 Owner has no rights Other approaches Owner holds title to airspace up to 500 ft (min alt of aircraft) Traditional view up to heaven but planes have permanent easement 2. Subsurface Rights Chance v. BP Chemicals, Inc. (p 143) Injecting waste into subsurface 2k under surface, waste possibly migrated laterally under the surface of s land ( won) ** subsurface rights include the right to exclude invasions that actually interfere with owners reasonable and foreseeable use of the subsurface property

C. WATER LAW Water is vital for productive use of land Scarce in west plentiful in east Approaches to Surface water 1. Riparian System: assigns rights to owners whose land adjoins a watercourse (eastern states) 2. Prior Appropriation System: Rights are allocated to the 1st person to divert water for a beneficial use regardless of location of their land (western states) 3. Permit System Requires permit, allows government to regulate the diversion of water Approaches to Groundwater 1. Reasonable Use: (Modern Majority Rule) May use groundwater only for reasonable use on overlaying land 2. Right of Capture: (Traditional Rule)

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Owner can remove as much groundwater as he wished regardless of harm to neighbors Benefits: Bright line rule administrative ease Encourages people to invest in accessing water Detriments:

Encourages exploitation and waste of natural resources (like overhunting buffalo) Sipriano v. Great Spring Waters of America (p152) Bottled Water Co. using groundwater. At time still right of capture advocated that reasonable use should be the rule Court says rule of capture is ok See benefits above Job of legislature to regulate this are not the court o Concurrence and Priest think this is bad argument

OWNING PERSONAL PROPERTY o Personal Property= property rights in movable items A. FINDERS GO BACK AND ADD NOTES FROM SEC 9 There are 4 catagories of found Items 1. Lost Property Owner unintentionally & involuntarily parts with it Generally go to finder unless in owner occupied residence See Hannah v. Peel & Armory v. Delamirie Below 2. Mislaid Property Owner voluntarily & knowingly places it somewhere, but unintentionally forgets it Generally item belongs to owner of locus in quo not the finder McAvoy v. Medina (p 185)

barber finder/customer. finds pocketbook gives it to no one claims, asks for $ Pocketbook = mislaid gets pocketbook
Distinguishes from Bridges (see blow) says difference is here item mislaid not lost 112

in a better position to safeguard it for true owner Benjamin v. Lindner Aviation (p 190) Airplane owned by bank, sent in for inspection, Inspector found $1800 inside plane paneling all 3 parties claim $ Court decides $= mislaid $ goes to bank who owned plane does not get finders fee only finders fee if it was lost not mislaid

Dissent: $ = just as likely abandoned 3. Abandoned Property Owner knowingly relinquishes all right/title/interest in the property Generally go to finder unless in owner occupied residence Haslem v. Lockwood (p 187) employed people to gather manure into piles, left it overnight, came and took it. Court determined manure = abandoned Technically Manure belongs to landowner but not before the court

gets manure, labored for it must give 24 hours to remove it before it is considered abandoned 4. Treasure Trove (almost never happens) Owner concealed it in a hidden location long ago Generally limited to gold/silver/coins etc. Finder > landowner even if found/embedded in landowners land Armory v. Delamirie (p 174) Chimney sweep finds jewel takes it to jeweler to be appraised, refuses to return jewel, seeks compensation ( got highest poss. value 4 jewel) All court looks at is who between the parties has superior claim original owner doesnt matter *The finder has superior rights against the world EXCEPT for the Original Owner of the jewel

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** REAL RULE: The finder of the jewel has superior rights EXCEPT for the Prior Possessor Hypo: If Court settle dispute then Original Owner/Prior Possessor comes forward: three options 1. chimney sweep must pay original owner/prior possessor because jewel was converted 2. If rightful owner wasnt the jewel back not going to happen 3. If there is bad faith like in this case possible allow the original owner/prior possessor to get payment from jeweler (so must pay for it twice)

Hannah v. Peel (p 177) Dispute between finder and owner of real property where item was found Solider stationed in house finds broach, house owner later tries to claim it even though never occupied house (Bridges v. Hawkesworth -p178) Customer finds bag of banknotes on floor of shop If shop completely open to public: o Finder > Owner If shop owner intended to exclude others: o Shop Owner > Finder

Shop open to public finder gets item (South Staffordshire Water Co v. Sharman p 179) Pool Cleaner found two rings embedded in bottom of pool (owner gets item) *If an item is embedded in the land then the item belongs to owner of the land not the finder of the item

(not open to public owner right to exclude) (Elwes v. Brigg Gas Co. p 182) leesee working on land found boat embedded in land *If an item is embedded in the land then the item belongs to owner of the land not the finder of the item

lessor of land gets boat not finder Court considers broach lost and compares to Bridges (even though house not technically open to public) finder gets broach 114

Public policy dictated outcome (Finder gets o never occupied house o meritorious behavior turning broach over to police etc. (if employee finds during employment item goes to employer) Bailments Create temporary possessory interest A finder is a bailee with a duty to care for found item 3 kinds 1. Primary benefit of bailee (receiver) o Duty of extraordinary care o Ex: Can I borrow your movie? 2. Benefit to both bailee & bailor o Duty of reasonable care 3. For the primary benefit of the Bailor o Duty not to damage through gross negligence or in bad faith o Ex: Can you watch my stuff for a sec?

B. GIFTS 1. Inter Vivos Gift Gifts between living people Elements 1. Donative Intent 2. Delivery Manual delivery o physical transfer of actual item (best form) Constructive delivery o transfers item that provides access to gift but not gift itself Symbolic delivery o transfers object that symbolizes the gift

Constructive/symbolic only used if manual not available 3. Acceptance usually assumed for valuable items Not revocable after elements are met 115

Checks not a gift until they are cashed Gruen v. Gruen (p 211) Father gifted son painting on condition that father keep it until he died. Father dead claim by son & by wife who got painting implicitly in will Court said that father gifted son future interest in painting and created a life estate for himself Dilivery was symbolic = letter explaining gift son gets painting when father dies gifts generally not revocable after all elements met Exceptions: Gifts Causa Mortis Engagement rings revocable before marriage but not after marriage o Albinger v. Harris (p 220) gave engagement ring, engagement breaks off keeps ring sues for ring Heart Balm Statutes- prevent from suing for anything arising out of broken engagement Disproportionately effect women engagement rings in MT same as any other gift (minority view) Dissent: no they are conditional on marriage

2. Gifts Causa Mortis Gift by living person in contemplation of death Elements 1. Donative Intent 2. Delivery 3. Acceptance 4. Donors contemplation of imminent death Unlike inter vivos gifts revocable Can be revoked at any time before givers death Often if person doesnt die (from contemplated harm) gift automatically void/revoked 116

Courts disfavor this because it allows fraud limited enforcement Brind v. International Trust Co. (p 227) Women getting risky surgery, leaves jewelry to friends as a gift causa mortis. Didnt die from surgery died from tumor Not valid gift, b/c giver did not die from harm contemplated i.e. surgery Gift was automatically revoked when she recovered from surgery Some jurisdictions dont require person to die of anticipated harm so long as Death occurs in same approximate. timeframe &cause of death related to anticipated peril

INTELLECTUAL PROPERTY Protect the creation of the human mind first-in-time theory of property Growing Field Governed by federal law Intellectual property in non-rivalrous (i.e. it can be possessed by many of people at the same time/it is in the public domain) The key right that is protected by intellectual property law is right to exclude Because if we want to incentivize people into creating original works, we must give them the legal tools to protect their work so they can recoup their investment. Without these protections people will not create original works

A. COPYRIGHTS 1. Copyright Basics Copyrights protect original works such as books, essays articles drawings sculptures, photos, plays computer programs, songs, movies, other audio visual works To promote the progress of science (knowledge) and the useful arts (technologies and useful discoveries), by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries - Article 1 8 clause 8 (Governed only by fed. law) Utilitarian approach Protects the authors right to exclude 117

The copyright term was the authors life + 50 years In 1998 the Copyright Term Extension Act extended the copyright term to the authors life + 70 years (Modern rule) Eldred v. Ashcroft (p 243) wanted the CTEA to be found unconstitutional argued for the CTEA. argued that if the point of copyright was to incentivize people to create works the extension would only incentivize new works not the ones already created to the extension as applied to existing works was unconstitutional. Court: upholds the CTEA as constitutional Dissent: (utilitarian reasoning) copyright clause exists not to provide special private benefit but to stimulate artistic creativity for the public good o Majority goes to far to protect author at expense of the public Internet has changed importance of the public domain for the consumer. Before internet most consumers still had to pay for works in the public domain but now can get them free on the internet. Copyright does not bar independent creation Two people make same thing w/o knowledge of the other Copyright protects the manner in which the idea is expressed not the idea itself 3 Requirements for a valid 1. Originality** Work is independently created, must possess a minimal degree of creativity Most important requirement Works that are not considered original Facts, discoveries, systems, theories, methods of operation etc. Feist Publications v. Rural Telephone Services (p 249) How original does work have to be to satisfy the originality requirement?

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Two telephone book companies copied part of s phonebook ** facts are not copyrightable but compilations of facts can be because minimal creativity in choosing which facts to include/arraignment a. but only protects what is original to owner so in this case the arrangement of facts not the facts themselves ** does not protect sweat of brow work exerted to collect the facts

wins telephone book does not meet creativity requirement for factual compilation 2. Work of Authorship Categories recognized (not exhaustive) 1. Literary works/computer programs 2. Musical works 3. Dramatic works 4. Pantomimes/ choreographic works 5. Pictorial/graphic/sculptural works 6. Motion pictures/audiovisual works 7. Sound Recordings 8. Architectural works Not recognized 1. Useful items 2. Fashion (pattern on cloth not cloths themselves) 3. Fixation (Fixed in a tangible medium of expression) Embodied in some physical form capable of being perceived, reproduced or communicated for a period of

more than transitory duration Registration and notice are not required Owners can register their copyright w/ fed. Copyright office but not mandatory o Must register if bringing infringement claim Owners used to have to give notice that the work was copyrighted dont have to do it now

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So long as 3 requirements met there is a copyright immediately, with no further effort by owner

2. Infringement For prima facie case of infringement: owns a valid Actual Copying Direct Evidence or Circumstantial Evidence o Access (reasonable opportunity to view/copy) o Probative Similarity

Improper Appropriation (substantially similar) infringement strict liability b/c knowledge and intent irrelevant Selle v. Gibb (Bee Gees) (p 265) claims Bee Gees copied his song. No evidence of direct copying To prove access claims it is more likely than not that there copying than that came up with it on own o Court says that this is not enough (both could have copied someone else

failed to make Prima Facie case Most important defense to infringement is Fair Use Doctrine Allows minor use of work where the use doesnt materially effect the rights of the owner Fair use of work for purpose of... infringement o Criticism/Comment/(Parody) o News Reporting o Teaching/Scholarship/Research Fair Use Factors 1. The purpose and character of use For profit/non-profit 2. The nature of the work Fair use applies more easily to factual work that fantasy (Harper) 3. The amount & substantiality of the portion used in relation to the work as a whole 120

4. The effect of the use on the potential market value of the work All factors concern productive use Harper & Row, Publishers v. Nation Enterprises(p 257) o Book about Watergate, unpublished already exclusive right to publish excerpts to Time o published quotes from unpublished book = clear infringement but: claimed fair use doctrine o Factors: 1. Scooping, commercial, bad faith 2. Work =factual, unpublished 3. Amount small 13%, but very substantial selling point of book 4. Potential and actual harm (lost $ from Times contract) B. PATENTS 1. Patent Basics Protects new inventions & discoveries or useful improvements to existing inventions or discoveries Protection promotes progress of useful arts Also protects inventors right to exclude, make, use, offer for sale, and import (much broader protection than ) Exclusively federal law *inventor must file a patent application (w/ the Patent Trademark Office) and have it approved before obtaining patent rights (unlike ) Patent term = 20 years from the date the application was filed Just because patent issued does not necessarily mean the patent is valid (must meet all the elements etc) Elements of a valid Patent: 1. Patentable subject matter 4 categories of patentable material o Processes o Machines o Manufacture o Composition of Matter 121

 2. Utility

Genetically modified animals Man-made Microorg (see Diamond) Human genes (purified and isolated)

Patents only apply to useful inventions that have an actual benefit

Rarely at issue not hard to prove 3. *Novelty Only new/original inventions can be patented Significant hurdles to establish this element 4. **Nonobviousness an obvious invention does not qualify for protection o i.e. if person having ordinary skill at time of invention would have thought it obvious 4 criteria to establishing this element 1. scope and content of prior art 2. differences between prior art and claim 3. level of ordinary skill in the pertinent art 4. secondary considerations commercial success or failure of others

Most difficult element to establish 5. Enablement Patent application requires inventor to describe the invention is such detail as to enable any person skilled in the art to which it pertains to replicate it o People can use and change things easier this way promotes useful arts Diamond v. Chakrabarty ( p. 276)- Man-made microorganism is patentable claims it is a composition of matter and patentable claims that it is not patentable b/c natural process and legislature did not intend it to include living things Nature and physical phenomena not patentable Court finds that it is a product of human ingenuity and that it doesnt exist in nature in this form.

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Doesnt matter if it was not foreseeable or intended by congress/framers (patentability requires nonobviousness) DISSENT: Not the job for courts job for legislature must only look at legislative intent not whether it was patentable

2. Infringement Largely dependent of the Claims section of the parent application which describes the product/process Larami Corp. v. Amron (p 283)- literal v. doctrine of equivalent infringement (super-soaker won not infringing change=improvement) Literal infringement v. Doctrine of equivalent infringement Literal infringement: products exactly the same o (rejected this claim ) Doctrine of equivalent infringement: patent owner must show that infringing product substantially the same and works in the same way o Prevents protection for trivial changes o Court rejected this claim of infringement Tank on outside not trivial: improvement

C. TRADEMARKS 1. Trademark Basics Any word name symbol (virtually anything) which is used to identify and distinguish the good sold by one person from those of another State and Federal Law Stems from unfair competition law : Protects Consumer expectations and safety w/ products Prevents confusion Protects holder from copycats & incentive to produce quality/consistent goods

Business morality Acquire trademarks from use and you are do not have to register them (however it is recommended) Protection for trademarks continues indefinitely so long as used Elements required for a valid trademark 1. Distinctiveness 2. Non-functionality

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o Doctrine of Functionality- functionality is a bar to trademark i.e. it describes the product, or products use if it is functional protected by patent law 3. First use in trade Fed. Law required Use in commerce (narrower than use in trade) Qualitex Co. v. Jacobson Products (p. 292)2. Infringement Standard = likelihood of confusion (not actual confusion) Mattel v. MCA Records (p. 299)

ESTATES & FUTURE INTERESTS A. HISTORY B. FREEHOLD ESTATES 1. Fee Simple Absolute Cole v. Steinlauf 2. Life Estates White v. Brown Woodrick v. Wood 3. Fee Tail 4. Fee Simple Defeasible 1. Fee Simple Determinable 2. Fee Simple Subject to a Condition Subsequent 3. Fee Simple Subject to an Executory Limitation Mahrenholz v. County Board of School Trustees Metropolitan Park District v. Unknown Heirs of Rigney B. FUTURE ESTATES 1. Future Interests Retained by Transferor 2. Future Interests Retained by Transferee a. Remainders b. Executory Interests C. RULES FURTHERING MARKETABILITY 1. Rule in Shelleys Case (did we read this? If no change this section just to RAP) 2. Rule Against Perpetuities 124

Jee v. Audley

CONCURENT OWNERSHIP & MARITAL PROPERTY A. CONCURRENT OWNERSHIP 1. Concurrent Estates James v. Taylor 2. Severance Tenhet v. Boswell 3. Partition Ark Land Co. v. Harper 4. Contingent Rights and Duties Esteves v. Esteves B. MARITAL PROPERTY 1. Common Law Foundation 2. Separate Property System 3. Community Property System 4. Tenancy by the Entirety Sawada v. Endo 5. Defining Marital Property Guy v. Guy 6. Unmarried Couples LEASEING REAL PROPERTY The Revolution in Residential Landlord-Tenant Law: Causes and Consequence A. CREATING THE TENANCY 1. Selecting the Tenant Neithamer v. Benneman Property Services 2. Selecting the Estate 1. Term of years Tenancy 2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance Kajo Church Square v. Walker 3. Negotiating the Lease 4. Delivering Possession Keydata Corp. v. United States 125

B. CONDITION OF THE PREMISES 1. The Challenge of Substandard Housing In re Clark 2. Constructive Eviction Fidelity Mutual Life Insurance Co. v. Kaminsky JMB Properties Urban Co. v. Paolucci 3. The Implied Warranty of Habitability Wade v. Jobe Teller v. McCoy C. TRANSFERRING THE TENANTS INTEREST Ernst v. Conditt D. ENDING THE TENANCY 1. Security Deposits 2. Eviction Hillview Associates v. Bloomquist AIMCO Properties v. Dziewisz Berg v. Wiley SELLING REAL PROPERTY A. THE PURCHASE CONTRACT 1. Statute of Frauds Hickey v. Green Remedy, Reason, and the Statute of Frauds: A Critical Economic Analysis 2. Marketable Title Lohmeyer v. Bower 3. Equitable Conversion Brush Grocery Kart v. Sure Fine Market

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