Thoreau, Civil Disobedience a) There is no reason that democratic outcomes are just outcomes b) Individualism collective government action is bad because it lets people escape the responsibility of thinking about their own conduct c) Majority rules because it is the strongest, not because it s just (use conscience) II. Gutmann, How Liberal is Democracy a) Conflict between those committed to democracy and those committed to egalitarianism b) Tension between civil/political rights and social/economic rights c) Gutmann thinks this tension may be exaggerated in order to have a functioning democracy you need to have participation, in order to have participation you need a certain level of subsistence, thus a commitment to democracy necessarily involves some level of commitment to egalitarian principles d) Requirements of democracy i) Nondiscrimination legislation must be general not singing out groups or individuals ii) Nonrepression everyone needs to be able to participate e) 3 arguments for democracy that Gutmann doesn t buy i) Moral skepticism skeptical about whether morals are just tastes (self-defeating argument, if everything is just a taste then wanting democracy is just a taste and not convincing) ii) Democratic experience value in deciding things for ourselves, choices, valuable part of the lives of democratic citizens (permits us to say that democratic majorities have the right to rule unjustly; Gutmann admits there is a good here, but is it really worth it if people can t eat because of democracy?) iii) Tradition but judicial review and rights protection are part of our traditions too, so what does tradition even mean with regard to democracy? III. Bork, Neutral Principles and Some First Amendment Problems a) When should the minority coerce the majority? b) If it s in the Constitution, we re going to protect it whether the majority likes it or not c) Madisonian system in wide areas of life, we presume that majority rules, but there are some areas of life where individual freedom should rule d) The SCOTUS s power is legit only if it has a valid Constitutional theory of the respective spheres of majority and minority freedom; if it doesn t but merely imposes its own value choices, or if it just pretends to have such a theory, it violates the postulates of the Madisonian system which alone justifies its power IV. Lawrence v. Texas a) GAY. BUTTSEX. b) Prior cases i) Bowers v. Harwick (1986) upheld sodomy law in GA; SCOTUS said no fundamental right to gay sex (no tradition/historical foundation so best left to political process) ii) Planned Parenthood of Southeastern PA v. Casey (1992) confirmed that tradition affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, childrearing, education, etc. iii) Romer v. Evans (1996) disapproval of homosexuals as a class of people was not a rational justification, assholes c) Kennedy says Bowers asked the wrong question not is there a constitutional right to sodomy, but is there a constitutional right for 2 adults to engage in consensual sexual activity in the privacy of their own homes? d) Lots of precedential support for the right to privacy and autonomy (as opposed to gay sex) Bowers becomes exception to rule of right to privacy I.


GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE e) Dissent majority is allowed to deem things immoral; gay buttsex ain t a right, bitches (question for Scalia is still whether there is a right to sodomy)

I. Utilitarianism and Kantianism help us understand the underpinnings of the system we have created II. UTILITARIANISM do that which maximizes the general welfare; an act is right if it does so a) UT provides some theoretical political basis for democracy; democracy may roughly approximate utilitarian outcomes b) Advantages treats everyone equally; agnostic as to moral value of desires c) Disadvantages/difficulties i) Must choose act or rule utilitarianism (1) Act standards (benefit utility maximizing) (2) Rule (consistency, mangble, efficiency, notice, equality; BUT can be rule fetishizing) ii) Must choose total or average welfare iii) Whose utility counts (Americans, non-citizens, nonresidents, residents, foreigners, detainees, animals, etc)? iv) How do you measure utility? v) How do you compare people s utilities? Posner s answer market allows people to trade and thereby reflects the intensity of their preferences vi) Should we be agnostic to all types of pleasures? vii) Moral monstrousness/instrumentalism (Posner) you can use people as a means toward the end of maximum welfare in ways that are morally reprehensible III. KANTIANISM KT measures rightness based on moral rightness whether or not the majority agrees with it a) Don t use people as means to an end see people as ends in and of themselves b) Provides some justification for why we place certain values about the dem. process c) Rights set of principles IDed as right because we generate them from principles that are uniquely human (i.e. reason) i) Put some rights in the courts specifically because the dem. process might not protect them d) The rightness of an act is not necessarily justified by its consequences in terms of maximizing general welfare; consequences are relevant but not determinative e) Categorical imperative Kantian theory seeks to generate certain moral principles from basic principles about who we are; what is distinctly human (i.e. reason), these principles are categorical imperatives (golden rule) f) Rawls (Theory of Justice) original position/veil of ignorance; to help us understand autonomous rational choices i) Justice as Fairness joins principles of individual rights vs. total social welfare by saying that principles of justice are those that people would choose in original position (1) Equal liberty we all want to be as free as possible without impeding on the freedom of others (2) Distribution inequality is ok only if it doesn t disadvantage the least advantaged g) Posner (Utilitarianism, Economics, and Legal Theory) i) Moral squeamishness; most Kantians try to avoid fanaticism by carving out exceptions to the categorical duties they impose (torture is wrong even if he was happiness maximizing on balance, but then admit that if the entire human race could be saved by toruting somebody that would be wrong); no logical stopping point so depending on where you draw the line, the Kantian either shades into utilitarianism or fanaticism (Rawls demonstrates Kantianism shading into utilitarianism) ii) Moral arrogance who has the right to say that the community should be bound to a position that the majority of the community rejects? IV. Smart, An Outline of Utilitarian Ethics a) Act U. Rightness or wrongness of an act is to be judged by consequences (good or bad) of action itself


GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE b) Rule U. the rightness or wrongness of an action is to be judged by the goodness and badness of the consequences of a rule that everyone should perform the action in like circumstances i) Actual rule ii) Possible rule (Kant) if act only on that maxim which you as a humane and benevolent person would like to see established as universal law V. Krauthammer, The Truth About Torture a) Utilitarian concept of the permissibility of torture b) Two situations where torture is permissible/required i) Ticking time-bomb scenario ii) Khalid Sheikh Mohammed c) Why Krauthammer is a dick i) Uncertain consequences info may not be accurate or helpful ii) Xenophobia would he still take this position if CIA operative was captured by Al Qaida and the CIA operative had info about a future US attack on Al Qaida base iii) Utilitarian response that the consequences of torture may actually decrease welfare cost of permitting torture gives a lot of room for other governments to torture, becomes harder to try those tortured in courts iv) Where do you draw the line? If you are only torturing KSM for info, why not his little daughter? She might know lots of shit. Utilitarianism would tell you to waterboard the daughter UTILITARIAN JUSTIFICATIONS FOR DEMOCRACY utilitarianism calls for aggregation of utility and democracy is such a system I. First and second order preferences smoking car hypo; might accept 2nd over first because you will get more of your first order preference in the long run (Barry) a) First order pref. to smoke b) Second order to smoke only if it is approved by a majority of people on the train II. Is there a value to democracy even if you know you are going to lose? a) Society should do what advances the most people most of the time and democracy will most often ID what that is b) Democracy respects the equality of everyone s desire value in this even if in most circumstances you lose c) Liberal stability process people can agree on when they can t agree on substantive outcomes d) It depends on intensity with which you hold your first order preferences, we can imagine circumstances in which the intensity of first order preferences would lead you to conclude democratic process is not ok (abortion) III. What does it mean from the standpoint of equality to say that one is committed to democratic process? What is necessary for it to be a just and fair process? If you go with democracy for some set of utilitarian reasons, does it in fact further utilitarian outcomes? Are there reasons to oppose the dem. process even if you are a strong believer in utilitarianism? a) Beitz principle of procedural equality says each citizen has a fundamental right to an equal oppty to influence outcomes of leg. process; there are three conditions for procedural equality i) No intense minorities ii) No permanent minorities iii) No silent minorities b) Democracy might further UT in the short term but undermine UT outcomes in the long term c) Democracy is unable to take into account intensity of preferences (note one response to this is if you feel strongly you can do stuff to convince others of their position; response to THAT is intensity of preferences and ability to persuade will not be evenly matched; wealth differential) d) Democratic process doesn t accurately match up to preferences because of the two party system


Sims (1964) a) Slower growing communities advantaged. why can t we just use it to advantage some historically oppressed groups? c) Tension on one hand VRA requires southern states to take race into account when creating districts because they can t disadvantage minorities. 20% black b) Voting Rights Act southern states may not adopt redistricting plans that have discriminatory effect motive unnecessary (it was a remedial measure to help minorities) c) Districts were designed to be majority minority districts d) Court holds this presumptively violates EPC (under strict scrutiny) e) Note any districting practice that dilutes votes is only a violation of EPC if done w/discriminatory intent IV. the Senate) iii) Bottom line democracy and procedural equality may serve important values. Johnson (1995) a) Race can t be the dominant factor and subordinate all other factors considered b) But what the fuck? How do you tell if it is the predominant factor? If race is still important in our society. you have to redistrict if things are disproportionate c) Diluting votes impairs basic constitutional rights under the EPC of 14th Amendment d) Rough proportionality rule roughly equal oppty (some dilution will be inevitable and ok) II. thus giving votes in less dense counties much more weight (no elicit motive just happened) b) Holding everyone needs to have the right to vote and roughly equal oppty to influence based on population. Miller v. on other hand. 4 . court says if you use race as dominant factors you are violating EPC. but they aren t values that beat all others (other values may warrant departure) DEFINING DEMOCRACY: ONE PERSON/ONE VOTE AND PROPORTIONAL REPRESENTATION Reynolds v. unclear which they are doing h) Beitz is procedural equality necessary to democracy? It might seem desirable but there is not a necessary connection between them i) Why procedural equality? (1) One person. Shaw v. even purposeful discrimination is not enough because it is inherent in the system that parties will try and disadvantage each other. states say we have a compelling interests in following VRA.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE e) Not everyone votes dem. because of political gerrymandering b) Political gerrymandering. process reflects old people really strongly but not young or poor (silent constituencies) (don t care or disempowered/have to work) f) Permanent minorities people who will always lose g) Indeterminacy is created by the fact that people sometimes vote private desires and sometimes vote what is best for country at large. state 80% white. Reno (1993) a) Racial gerrymandering. so you need to show a long-term pattern of systemic bias that essentially undercounts votes of one party c) Two elements of EPC cases (need both) i) Purpose/motive ii) Effect III. is this cool? O Connor was 5th vote in OK ing that. one vote (2) Respects autonomy (3) Civic participation (4) Persuading others (also respecting autonomy) ii) But Beitz says these can all be furthered without procedural equality (e. faster growing diluted discriminated against voters in counties where population had fluxed dramatically. Bandemer (1986) a) Democrats got 52% of the vote but only 43/100 seats in leg.g. don t know at this point I. what SCOTUS effectively rules is that every time you have the data (census). Davis v.

it is still legit for SCOTUS to look at the constitution and conclude that it gives SCOTUS no authority to intervene and mandate things for school funding systems II.) PRECONDITIONS FOR DEMOCRACY: CAMPAIGN FINANCE AND EQUAL ACCESS San Antonio Ind. nor does it apply to all cases of intentional creation of majority/minority districts. but you went too far with race here VI. proportional number of candidates on party list are elected. Justice. and the Family a) Inevitable tension in liberalism/liberal democracy I. v. Vera (1996) a) Strict scrutiny does not merely apply because redistricting is done with consciousness of race. Fishkin. who are held accountable to party s vision and who have an organic relationship to party s base of voters than to its funders c) Depending on percentage of votes cast for party. Rodriguez rich school. ordering of the list is an internal party issue around which different constituencies can mobilize and negotiate d) This would be better for women and minorities and would help with grassroots representation. nothing indicates the TX system falls short d) Basically. but not here VII. VRA compliance could be a defense. The Miner s Canary a) Imagining forms of representation not tied to geographic districting b) Party list system of proportional representation party runs slate of candidates committed to legislative platform.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE V. Equal Opportunity. the institutional consequences would be enormous because there would be enormous judicial oversight over society e) Laws don t affect poor because they are poor (Metro doesn t charge in order to discriminate against poor) in capitalist society pretty much everything is going to fuck the poor f) Gutmann would rule for plaintiffs i) Democracy only works if in addition to procedural equality you have substantive equality going on ii) In order for democracy to work you need minimum welfare for all and minimal disparities in wealth iii) One can accept from the standpoint of theory that Gutmann s preconditions are critical but simultaneously have serious concerns about their applicability in actual society iv) It may be that some level of judicial enforcement and centralized control is necessary to guarantee the access that is a prerequisite to meaningful participation g) Even if courts understand it is unfair for poor kids to have less education than rich kids. values legitimacy of democratic process beyond just voting (also organizing. Bush v. for SS to apply other legitimate districting principles have to be subordinated to race i) Strict scrutiny = compelling state interest + least restrictive means ii) Rational basis review (contrast SS) = legit state interest + rationally related approach (deferential) b) In this case. Guinier and Torres. Shaw v. Hunt (1996) a) Applied strict scrutiny and said the NC redistricting plan significantly based on race not supported by compelling state interest because neither race-based redistricting nor actual shape of the district were required by VRA b) In other words. they also say get with this if you said the poor was a suspect class. legislature had substantially neglected traditional criteria in favor of race c) O Connor s concurrence VRA compliance might constitute compelling interest sufficient to withstand SS. 5 . etc. School Dist. poor school a) Huge disparity in quality of education between rich and poor counties b) Court says school funding system does not discriminate against suspect class (poor people are not a suspect class) and education is not a fundamental right under the constitution c) Even if we said some identifiable quantum of education is a constitutionally protected prerequisite to meaningful exercise of first amendment rights and right to vote.

Madison i) Establishes judicial review ii) Dispute involving transfer of power. Valeo (1976) i) Restrictions on contributions are unconstitutional constraints on speech unless there is a compelling state interest ii) State interest against corruption is compelling in the case of contributions iii) No limits on expenditures because there is no compelling interest iv) Two steps to decision (1) Money = speech (2) Equalization is not possible. the Court is just another part of the liberty protecting system iii) Democracy protects the courts (contract Ely s view that courts protect democracy) 6 . would need much more government intervention and coercion iii) Liberty c) Always interconnected and in some significant tension (to have true procedural fairness. you would have to significantly limit liberty. checks and balance. that requires restrictions on liberty. federalists wanted to do whatever they could to cement power before leaving office. Court says equalization is not an ok justification for restricting corp speech/$ STRUCTURING DEMOCRACY I. The Building Work of Judicial Review i) Traditional view of judicial review understood as power to invalidate/strike down acts of Congress Black says not so. JUDICIAL REVIEW a) Marbury v. written Constitution all reflect skepticism of majoritarianism. but it seems that democracy and liberty are in conflict III. Liberty. iv) SCOTUS holds that they have no jurisdiction because statute giving them original jurisdiction in this case was unconstitutional but also holds that they have the power to compel the President v) Brilliant because it asserts judicial review but in a setting where it is disabling its own power and not requiring anybody to do anything b) Black. and the Constitution i) Why do we assume our principle commitment is to majoritarianism? The ultimate concern is mot majoritarianism/democracy but liberty/freedom from tyranny ii) Separation of powers. it is the need for a legitimizing function in our political system. etc. which is something we do value (important and necessary to democracy we all agree that there s a problem w/massive amts of $ distorting political marketplace). CAMPAIGN FINANCE a) Campaign finance illustrates Fishkin s paradox in order to achieve equality. but federalists had gotten most of the commissions out but NOT Marbury s and Jefferson says hell no. from this standpoint. and the fundamental liberty that is itself at the core of democracy = freedom of speech b) Buckley v. they created a bunch of judge and justiceships iii) Republicans repealed this shit upon taking office.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE b) We value 3 things i) Procedural fairness doesn t produce fairness when it interacts with background issues that give certain people advantages (we re not starting from a level playing field) ii) Equality any effective effort to achieve this goal runs up against liberty. Accountability. process to resolve inevitable disputes ii) Makes outcome more likely to be accepted (legal process theory) c) Brown.) d) Not only a dilemma but a paradox normally we think of democratic self government as an aspect of liberty. silencing some to let others speak ain t cool c) Citizens United corporations could be treated differently from people (contributions could be limited) until this case.

state cannot have this power over a federal bank (b) Representational democracy is a political check on federal taxes. Public understanding of the language when the Constitution was developed 3. At what level of generality do you interpret the precedents? (b) Historical interpretation = construing the Constitution in a way that gives effect to the terms of the original act of agreement (Constitution as a compact) between the people and the framers authority as consent (i) Courts as merely the passive enforcers of the democratic will that ordained and established the Constitution (ii) Different variants of historical interpretation emphasize different forms of evidence as probative of the original exercise of fundamental will 1. FEDERALISM a) Constitutional Theory and Enumerated Powers i) McCulloch v. Theories of Constitutional Interpretation (1) Different theories of constitutional interpretation appeal to different conceptions of constitutional authority (a) Doctrinal interpretation = construing Constitution in a manner that is faithful to its authority as law (i) Principle of stare decisis (ii) Implication of doctrinal interpretation is that the actual text of the Constitution is remitted to one end of a growing line of precedents and thus the text of the Constitution recedes in importance (iii) The vast majority of constitutional decisions rely primarily on doctrinal interpretation (iv) Advantages predictability. but if MD can tax a federal entity. collective intent problem whose intent governs? 7 .§ 8 powers are ends that must also imply the means to carry them out (b) The Constitution must be read as a document creating a working government consistent with what Black says about necessity of constitutions being drafted with flexibility (3) Nature of federal/state relation is federal government is supreme where fed gov has power to act (a) Power to tax = power to destroy. Law for law s sake is not enough? Nazi law? 2. stability. order (v) Problems 1. Maryland (1) Can Congress create a federal bank? If so. so significantly less of a check (representation reinforcement argument) b) Theories of Constitutional Interpretation i) Post.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE II. it is imposing costs not on its own residents but externalizing costs on to people of all states. Logical and evidentiary difficulties involved in unearthing historical intentions 2. can MD tax it? (2) Maryland argues that creation is not permissible because it is not an enumerated power or necessary and proper to carry out an enumerated power (a) Marshall reads necessary not as indispensible but as convenient . Data/info problem framer s intent is not always clear. Infrequency may stem more from intrinsic limitations of any theory of interpretation resting on the authority of consent (why should consent of predecessors have authority over us) (iv) Problems 1. Framers intent (iii) Historical interpretation is uncommon 1. Constitutional text 2.

each by itself is incomplete and incapable of sustaining the enterprise of Constitutional law. but on another level they are potentially divergent and incompatible (a) Perceived as incompatible because they are seen as flowing from incompatible conceptions of the Constitution itself (b) Post says this is flawed because it postulates a form of Constitutional authority that is external to the processes of its own interpretation (3) Post s view Constitutional authority is located in the relationship between people engaged in Constitutional interpretation and the Constitution C) COMMERCE CLAUSE i) Pre-New Deal Commerce Clause (1) Gibbons v. 6. Who had the authority to enter the compact? Framers v. Cataclysmic practical consequences women couldn t vote. What level of generality is framer s intent meant to be read at? Searchers were property invasions.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE 2.C. ratifiers? 3. what about wiretapping? 4. Why should we be bound by these 200 year old dead white men? 5. so the statute does not extend to the challenge monopoly because Congress cannot constitutionally reach manufacturer under the CC (iii) Fact that something is manufactured for export to another state does not make it an article of interstate commerce and the manufacturers intent does not determine when the product passes from the control of the state and belongs to commerce (iv) Dissent Harlan: anything like a monopoly that disturbs or unreasonable obstructs freedom in buying/selling products manufactured for sale in other states or to be 8 . Is there a national ethos. it may nevertheless be founded on the fact that people should now view it as a good Constitution and therefore one worthy of continuing support authority as ethos (i) Interpretation is ultimately accountable to contemporary concepts of value (ii) Constitutional authority flows from the whole experience of our nationhood (iii) Radical/paradoxical implication is that the Constitution explicitly loses its character as a specific document or discrete text as it becomes a living or working constitution (iv) Problems 1. buying and selling. interchange of commodities (b) Within CC power. E. but not to concerns completely within or internal to a particular state (2) Direct/Indirect Effects Test fed gov can act if regulated activity had a direct effect on interstate commerce (a) United States v. and how do you define it? (2) These three forms of interpretation dominate the practice of Constitutional adjudication. fed gov can act with respect to external/national concerns and internal concerns affecting states generally. Historicist s paradox what if the framers intent was that the framers intent shouldn t govern Constitutional interpretation probably adopted open-ended provisions on purpose (c) Responsive interpretation = even if the legitimacy of the Constitution cannot rest on prior act of consent. traffic. Sugar Trust case (1895) (i) SCOTUS affirmed the dismissal of a government civil action under the Sherman Act to set aside the acquisition of four sugar companies by a sugar company that would have given it a monopoly in the sugar market (ii) Court says commerce does not equal manufacture. Knight Co. Ogden (1824) (a) What does commerce mean? Court says navigation.

United States (1913) (i) Court upheld Mann Act prohibiting transportation of women in interstate commerce for immoral purposes (ii) Congress has power over transportation among the several states. which excluded lottery tickets from interstate commerce (ii) Rationale lottery tickets are subjects of traffic and therefore subjects of commerce. Congress has final word because Fed is supreme (4) Stream of Commerce Test some local activities could be regulated by Congress because they could be viewed as themselves in commerce or as an integral part of the stream of commerce (a) Swift & Co. the harms sought to be alleviated was primarily local (a) Champion v. states can rely on policy concerns when legislating against lotteries. which may have the quality of police regulations) (d) Hammer v. this power is complete in itself (Congress can adopt not only means necessary but convenient to exercising this power. since the fed gov has the power to regulate under CC.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE carried into other states directly affects the people of all states and only the fed gov can act to remedy this (3) Substantial Economic Effects Test emphasizes the practical physical or economic effects of the regulated intrastate activities on interstate commerce (a) Shreveport Rate Case (1914) (i) Court upheld congressional authority to regulate intrastate rail rates that discriminated against interstate RR traffic (ii) Supremacy argument if intra and interstate commerce are so related that control of one equals control of the other. v. Ames Lottery Case (1903) (i) Court upheld the Federal Lottery Act of 1895. while such congressional actions were imposed at the state line on interstate movements. fed gov should be able to legislate on policy grounds (iii) Suppressive nuisances harmful to health or morality is an important gov duty (iv) Possibility of abuse is checked by remedies and restraints inherent in representative gov (v) Dissent Fuller: only states can execute powers to suppress lotteries. United States (1911) (i) Shipment of preserved eggs was confiscated under fed act because label failed to disclose that they contained a harmful ingredient (ii) Court upheld confiscation and rejected argument that the shipment had passed out of interstate commerce before it was seized (iii) Articles that are outlaws of commerce can be seized at their end destination (c) Hoke v. Dagenhart Child Labor Case (1918) (i) SCOTUS started switching shit up (ii) Court struck down fed statute that excluded the products of child labor from interstate commerce (iii) Statute was unconstitutional for 2 reasons 9 . it is Constitutional structure argument (transforming activities into commerce just because they involve transportation takes away from state sovereignty) (b) Hipolite Egg Co. United States (1905) (i) Cows sent for sale from one state into another state are in the stream of commerce and the purchase of the cattle is a part of this commerce (ii) Commerce among the states is not a technical legal conception but a practical one drawn from the course of business (Holmes s realism) (5) National Police Regulation Congress used commerce power to deal with problems of morality and criminality.

production of every commodity intended for interstate sale or transport has some effect on IC. and prices affect interstate market. Alton RR Co. which authorized FDR to make codes of fair competition (3) Carter v. is indirect (d) Cardozo dissent: would have found solely the price provisions constitutional under CC Congress should be able to regulate price because regulations of intrastate coal sales are necessary to give adequate protection to interstate coal sales iii) Post-New Deal Commerce Power Court s stance change fucking dramatically. Exerts power over a purely local matter that fed gov has no authority over (regulating hours for child labor is purely a state power) (iv) Majority is saying the difference between the this and the preceding 3 cases is that in those cases. (1937) (a) NLRB found that D engaged in unfair labor practices and ordered D to end discrimination and coercion (b) Court upheld NLRB s power to keep D from engaging in unfair labor practices (c) Interstate commerce itself is a practical conception. (1) NLRB v. which provided minimum wage and maximum hour provisions and a tax on producers who didn t accept (b) Effect of provisions was primarily on production. but SCOTUS increasingly rejected these efforts (1) Railroad Retirement Board v. v. Jones & Laughlin Steel Corp. it s just the manner of production. which is not controlled by fed gov (v) Holmes dissent: If a statute is within the powers specifically conferred upon Congress. it is not any less constitutional because of the indirect effects (essentially. United States Sick Chicken Case (1935) (a) Court overturned convictions for violating provisions of NYC chicken statute because the law unconstitutionally delegated legislative power and the application of the act to intrastate activities exceeded the commerce power (b) Tried to regulate wages and hours of employees at slaughterhouse that didn t sell chickens outside of NY (interstate transactions ended when the chickens arrived at the slaughterhouse) (c) Not in commerce (Swift) or affecting commerce (Shreveport) (d) Majority says that this would prove too much because if the argument is hours and wages affect prices. and any effect the have on commerce.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE 1. law was not in purpose or effect a regulation of Interstate Commerce and regulations were really essentially related solely to the social welfare of the worker remote from any regulation of commerce as such (2) Schechter Poultry Corp. and production is purely local. so the issue is whether the effect is direct or indirect (c) Here the evils are local evils over which the fed gov has no legislative control. then basically Congress could regulate anything related to cost (e) Court also invalidates Federal Industrial Recovery Act of 1933. however extensive. Congress has the power to block anything they want from interstate commerce) ii) Commerce Power and the New Deal FDR and gov sought to justify ND measures under CC as based on the substantially affecting commerce rationale in Shreveport Rate Case and the in commerce rationale is Swift. the products themselves are legit. and interferences with that commerce must not ignore actual experience 10 . Carter Coal Co. the goods being shipped has some inherently evil characteristic. (1936) (a) Court invalidated the Bituminous Coal Conservation Act of 1935. whereas here. Transcends Congress s authority over commerce 2. (1935) (a) Court held that Congress lacked power to establish a compulsory retirement and pension plan for all carriers subject to the Interstate Commerce Act.

marriage. total loss as customers. crazy shit that has nothing to do with commerce) may somehow effect commerce United States v. almost anything (birth. motive/purpose doesn t matter (Congress can do what it wants) (d) Congress s power over interstate commerce extends to intrastate activities that have a substantial effect on commerce (e) Precursor to aggregate effects idea (expressly overruling Hammer v.e. Darby (1941) (a) Court upholds prohibition of interstate shipment of goods produced under substandard labor conditions in violation of fed statute (b) Court holds that statutory means adopted to suppress production of the condemned goods for interstate commerce. i. Court says Title II is properly applied here because refusing to serve black people has a close connection to interstate commerce (ii) Highly restrictive effect on blacks interstate travel. the fact that Congress dealt with a moral problem doesn t matter. Filburn (1942) (a) Court holds that a farmer s home production of wheat for home consumption can be regulated because it substantially effects interstate commerce in the aggregate (b) Effective restraints must come from political and not judicial processes Congress properly considered that wheat consumed on the farm where grown. would have a substantial effect in defeating and obstructing the regulation s purpose to stimulate trade in the wheat industry at increased prices Commerce Power and Civil Rights (a) Heart of Atlanta Motel v. they said it directly affect interstate and foreign commerce (ii) Basically just saying that loan sharking is interstate organized crime (2) (3) (4) (5) 11 . if wholly outside the scheme of regulation. is so related to commerce and so affects it as to be within the reach of the commerce power (c) As long as legislation is within federal power under the constitution. United States (1971) (i) Upheld a federal prohibition of extortionate credit transactions (loan sharking enforced by threats of violence) even where this shit is purely intrastate in character. Dagenhart) competition by a small part may effect a whole and the total effect of competition of many small producers may be great Wickard v. United States (1964) (i) Court upheld provision of Title II of Civil Rights Act defining establishments affecting commerce (as those that serve interstate travelers or those in which a substantial portion of the food served has moved in interstate commerce) as applied to a motel that wanted to keep refusing to rent rooms to black people (ii) Racial discrimination burdens interstate commerce impedes interstate travel by black people.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE (d) The effect of labor strife at D s operations on interstate commerce would be immediate and might be catastrophic because D is a huge enterprise. wages and hours. corps that organize themselves on a national scale make their relation to interstate commerce the dominant factor in their activities (e) McReynolds dissent any effect on interstate commerce by discharge of employees here would be super indirect. deterred professional and skilled people from moving into discriminatory areas Commerce Power and Crime (a) Perez v. death. McClung (1964) (i) Restaurant located 11 blocks from highway discriminated against black people. nor does the fact that the motel was of purely local character (b) Katzenbach v.

permissible for Congress to regulate economic activity at the local level. state make criminal law. see: Morrison) (iv) If it s non-econ activity. resurgence on effort to put restraint on Congress (Lopez and VAWA were easy targets for those who felt things had gone too far) (e) Line while it is permissible to aggregate commercial activities it is not for noncommercial activities 12 . Morrison (2000) (a) Fuck bitches. or made of parts that had) (iii) Congressional findings that something has substantial effects on commerce (won t always work. differences would disappear and this would fuck up accountability (g) Thomas concurrence: Substantial effects test is bullshit. their possession is the consequence of commercial activity (2) United States v. and this is what happened) (f) Kennedy concurrence: this shit is about federalism. this case should still be within the commerce power (iii) Creates legal uncertainty (i) Souter dissent: majority is reverting court back to stupid formalism abandoned 60 years ago (j) Stevens dissent: REALISM guns are articles of commerce and articles used to restrain commerce. framers could never have meant for commerce to be this broad and other express powers granted would be mere surplus (h) Breyer dissent (i) Majority goes against precedent (ii) Wrongly returns to distinctions between commercial and noncommercial transactions even if this distinction is ok. giving Congress power to regulate everything that substantially effects commerce makes other provisions in the Constitution mere surplus. this about political accountability. why can t Court regulate? They do so by aggregate effect. so stick the aim/goal provision in comprehensive economic regulation (ii) Jurisdictional hook idea what Congress actually did (just say it s illegal to possess a gun that had travelled in interstate commerce. obviously textualist argument. if fed gov took over entire areas traditionally controlled by states and unrelated to commerce. Lopez (1995) guns at school (a) Vast majority of the time.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE iv) The Modern Era cases like Heart of Atlanta and McClung make it seem like court has given up on putting any limits on federal power limits of CC regulations are within Congress s discretion is this necessarily bad? Institutional competence? Should courts just deal with individual rights? Doesn t mean federalism is gone. but not dispositive (d) This case and Lopez represent the third period in CC jurisprudence. but not noneconomic (c) This distinction is somewhat arbitrary and hard to apply. (e) So. but the political payoff for federal politicians making criminal law is great because people always support it (b) Court makes distinction here between economic and noneconomic activity. (b) A lot findings on how violence against women affects interstate commerce. but Court says these findings prove too much (can Congress regulate any crime?) (c) Findings are a thumb on the scale. can t we critique this on the same lines as the commerce/production distinction? (d) If a noneconomic activity affects commerce. The principle here is that you can only aggregate economic activities. it cannot be aggregated and you need a jurisdictional hook (v) Congress can say we won t give you fed $ unless you enact law that says no guns by schools (this is ok. get money. just that decisions shouldn t be made according to Constitutional law cases in the court (1) United States v. now what can Congress do to regulate guns at school? (i) Scalia-like argument: Court may be more likely to see validity of more general regulation.

This is not a substantial effects argument.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE (3) Gonzales v. This not a valid exercise of Congress s power under the necessary and proper clause (iii) Majority s superbroad definition of economic activity makes a mocker of Madison. are reserved to the States respectively. nor prohibited by it to the States. yo. federalism yo! This overreaching stifles an express choice by some states (CA) concerned for the lives and liberties of their people to regulate medical marijuana differently (f) Thomas dissent (i) Enumerated powers. or to the people ) i) Arguments for local power (all liberal ideals. let CA do its own shit about weed. Congress does not have the authority to displace the state s freedom to structure integral operations in areas of traditional state functions (4) Nontraditional state functions of state businesses can be regulated the court sought to draw a line around traditional state functions to carve that area out from Congress s CC power (5) BUT. Stop encroaching. (2) Court held a municipal transit authority properly subject to the minimum wage and overtime requirements of the FLSA. this looks just like Lopez and Morrison the majority definition of economic activity is way too broad and threatens to sweep all productive human activity into fed reach. (ii) States traditional police powers. significantly displacing the state s ability to structure employee/employer relationships (3) States had traditionally afforded certain services to their citizens. more along Darby lines regulation regulated to interstate commerce (Necessary and Proper Clause) (e) O Connor dissent: states are laboratories. motherfuckers. and abortion) (1) More citizen participation (2) Checks on gov tyranny (3) Promotion of experimentation and diversity ii) Arguments for fed power (1) Fed gov provides more efficient institution to do shit iii) National League of Cities v. San Antonio Metro Transit Authority (1985) (1) This shit in unmangble bitch. how the hell do you draw the traditional/nontraditional function line? iv) Garcia v. d) THE TENTH AMENDMENT TALK ABOUT WEASEL LANGUAGE! Meant to underscore concept of enumerated powers and preserve powers for the state. If you can hit this under CC. Congress should be able to regulate market and things that will undermine their ability to do so. ambiguity about just what was preserved to the states ( The powers not delegated to the United States by the Constitution. Jim Crow. interesting because usually conservatives are for states rights state power has been used to protect things like slavery. Raich (2005) (a) Congress had a rational basis for concluding that leaving home consumed marijuana outside federal control would effect price and market conditions (b) Production of weed meant for home consumption has a substantial effect on the national weed market (c) Reaffirming Wickard (d) Scalia concurrence: there is obviously a market in weed. you can hit anything. 13 . opposition to labor leg. Usery (1976) (1) Amendments to FLSA extended minimum wage and maximum hour provisions to employees of state and local governments (2) SCOTUS: these wage provisions impermissibly interfere with the traditional governmental functions of state and local bodies.

time out B. 3 incentives to make states comply (a) Monetary allowed states with disposal sites to impose surcharge on waste received from other states (b) Access incentives allowed states to increase cost of access to their sites. SEPARATION OF POWERS relation between branches of federal government and courts role in refereeing relationship between them (weird because court IS one of them) 14 . Rep. (5) States are protected by the political process because Congress is made up of people elected by the states. Reinforcement (6) Powell dissent yo. majority s rule likely to damage safeguards against tyranny provided by existence of vital state govs. state as laboratory (7) O Connor dissent fed gov has duty to respect the legitimate interests of states v) New York v. creates incentives for fed gov to aggrandize itself III. and then deny access altogether to waste generated in states that did not meet deadlines (c) Take-title sanction state that failed to prove for disposal of all internally generated wasted by a particular waste must take title to waste and become liable for all damages suffered by the waste s generated or owner (3) Court says first two are cool. this shit was a compromise among states where states bargained among themselves to achieve compromise that Congress then sanctioned vi) Printz v. gov does not sufficiently protect states because Congress is increasingly less representative of state and local interests.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE (3) Blackmun changes his vote no distinction that purports to separate out fundamental government functions can be faithful to the role of federalism in a democratic society. structure of the fed. United States (1997) (1) Court held invalid provisions of the Brady Handgun Violence Prevention Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers (2) Fed gov may neither issue directives requiring states to address particular problems nor command states officers or those of their political subdivisions to administer or enforce a fed regulatory program (3) Irrelevant that this involved compelling state executive officers instead of the state legislature (4) Purpose of the rule is to preserve states freedom to make own choices about political agenda (applicable to both legislature and executive) (5) Stevens dissent framers intended to let fed gov act thru local officials. State and local autonomy is super important for principles of democratic self government. third is not because (a) Congress cannot commandeer legislative processes of states by directly compelling them to enact and enforce a federal regulatory program (b) Take-title provision crosses the line distinguishing encouragement from coercion offers state governments a choice of either accepting ownership of the waste or regulating according to Congress s instructions which is not really a choice (4) Court avoids substantive judgments about state functions whether one views the take-title provision as lying outside Congress s enumerated powers or as infringing on core of state sovereignty reserved by the 10th Amendment it is inconsistent with federalism (5) Accountability policy argument where fed gov compels states to regulate. (4) It s weird to suggest that unelected federal judges should be drawing this line. United States (1992) (1) Court intervening in name of 10th Amendment to strike down (2) Radioactive waste act required states to dispose of radioactive waste. you can t hold state or federal officials accountable (both state and federal officials have less accountability) (6) White dissent this bill represents cooperative federalism.

but there might be some areas with concurrent authority (3) When Prez acts in face of implicit or explicit Congressional disapproval invalid unless the Prez s action is an inherent executive power vii) Jackson says this case falls into his third category because Congress actually disapproved it viii) Vinson (functionalist) dissent we were in a steel crisis. It requires just compensation. agreed with Iran to terminate proceedings in US courts. but here there was no such systematic executive power vi) Jackson concurrence (fluid functionalist approach) looks at problem in context of 3 different situations (Youngstown 1. iii) Black majority (formalist) Truman s order is asserting a policy/lawmaking function like that of the legislature. stupid) iv) Douglas concurrence (formalist) this is a taking. systematic. 2 & 3) (1) If Congress expressly or implicitly authorizes a prez s act. or Presidents who seek to take initiatives in absence of clear Congressional direction d) Youngstown Sheet & Tube Co. then this shit here was fine! Jesus fuck. Sawyer (1952) i) Truman finds that because steel production is critical to keeping troops in Korean war armed and protected. and we ain t had either of that shit here. gets Secretary of Commerce to seize that steel mill and keep it running ii) Court says oh hell no.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE a) Look at text of Constitution strong. which is not the US (it s Korea. president have dealt with national emergencies in the past by seizing (FDR aviation plants. we can t have a work stoppage without greatly undermining our ability to fight to war. robust legislative power and fairly minimalist executive power i) Art 1 legislature. that is ok unless it s unconstitutional (2) When Prez acts in Congress s silence hard cases that must be decided case by case. Congress could do what he is trying to do because it has exclusive Constitutional authority to make these kinds of decisions. Carter froze Iranian assets in the US to give people the opportunity to bring claims against Iran. Only Congress can do a taking. creates very strong legislative branch with broad range of powers ii) Art 2 executive. With or without explicit statutory authorization. a long. or Congress delegating power to agencies. somewhat weak b) Over time relative authority of two branches has changed substantially framers would be surprised to see how strong executive is now c) Questions about constitutionality of various initiatives taken by admin agencies. v. coal mines) e) Dames & Moore v. nullify attachments on Iranian property. Prez relies on his own independent exec powers. v) Frankfurter concurrence (functionalist) Congress considered giving the prez the power to seize with the Taft-Hartley Act and they decided not to. continuous history of executive power exercised with Congress s knowledge (and approval) can serve to justify prez action and can be treated as executive power vested in prez. Prez s power to issue order either had to come from Congress or the Constitution. Congress cannot legislate with regard to every possible prez action iii) The IEEPA and Hostage Act give Reagan this power 15 . he issues an executive order that national security is threatened by work stoppage. Regan (1981) i) In response to the Iran hostage crisis. Reagan took office. Constitution empowers the prez to take action as CiC in the theatre of war. and move proceedings to an arbitration tribunal via executive orders ii) When there is a history of Congressional acquiescence and no implied Congressional disapproval an executive action is likely allowed. morons!!! A steel strike would have fucked us! If prez has any power under the Constitution to meet a critical situation in the absence of express statutory authorization.

Synar (1986) i) Comptroller general head of general accounting office. Does this violate separation of powers (restraint on executive s authority to remove arguably executive officers)? (1) Appointments Clause superior officers can only be appointed by Prez. it was Congressional silence. this action falls into Jackson s Youngstown category one (Cong has implicitly approved the action) iv) Gloss of history it is routine for prez to suspend claims in order to resolve disputes with foreign countries and Congress acquiesced v) In this case. New York (1998) formalist i) Line-item veto act. Line-item veto (cancellation) takes place after the bill has become law and gets rid of only parts of it. also made him removable only by impeachment or joint resolution of Congress. AG/INS suspended deportation. ii) Court says action taken by Congress is legislative if it contains matter which is properly regarded as legislative in character and effect one house veto was legislative because it effected people s legal rights. and therefore must be implemented bicamerally followed by presentation to prez iii) Constitution enumerates situations where one house or the other may act alone. No non-executive power is given to prez.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE (1) Prez allowed to act in times of international emergency because of implicit reasons in the statutes (2) Congress can t be expected to explicitly state all the actions the prez can take (3) Thus. leg veto power is necessary and important (gloss of history Cong. allows prez to cancel three types of spending provisions. No law can take effect without concurrence of both house majority and president presentation iv) White dissent Functional realist defense of power sharing needs and times have changed and the scope of what different branches do has shifted. This act gives prez unilateral power to change the text of duly enacted statutes. which violates Art. Olsen (1988) i) President has constitutional power of appointment (and impliedly removal) of superior officers independent counsel removable only for good cause. neutral silence (Youngstown 2). House pursuant to one-house legislative veto resolved that deportation should not be suspended. Congress is permitted to delegate appointments of inferior officers to others w/in the exec or judiciary and can set standards for removal of independent agency officer 16 . subject to prez veto ii) Congress cannot reserve for itself power of removal of executive officers except by impeachment because this could affect execution of the laws through a measure short of bicameralism and presentment iii) Congress can t participate in execution of its laws i) Morrison v. I Section 7. ii) Scalia dissent in cancelling this shit. whenever prez cancels item of spending he is rejecting the policy judgment made by congress and relying on his own judgment. Graham Rudman Hollings Act allowed CG to determine required budget reductions and advise prez (executive function). Can be reason as implict approval (Youngstown 1). no encroachment on Congress s power (Congress can say the line-item veto doesn t apply to this act). or implicit disapproval (Youngstown 3) f) INS v. not too much power given h) Bowsher v. Chadha (1983) formalist i) Indian student born in Kenya overstayed in visa IN OHIO! Was thus deportable. prez is simply executing a law enacted by Congress (Congress created this power). This is formalism at its worst. has been functionally required to delegate action and presidents have approved it) g) Clinton v. and this is not one of them.

here the detainees had absolutely no process (d) Changed understanding of HC statute (decisive factor) in Eisentrager they understood HC to mean you could only seek review by a court in the jurisdiction in which you were i) 17 . and they say they are not fighting the US. military jurisdiction was permissible even if suspect was a US citizen if he was also an enemy (c) Johnson v. we have jurisdiction and control (b) Status unlike in precedent cases. and Congress has not attempted to assert authority itself (just limiting executive). Bowsher) i) Lawmaking is the scariest and greatest of fed powers. the Germans had a complete process and were seeking review. j) Mistretta v.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE ii) Court says no even though she is engaged in purely executive functions. there is a good policy reason for this because prez cannot have unlimited removal power over someone appointed to investigate her iii) Court is adopting a flexible. Clinton. Congress has provided an intelligible principle for this delegation of authority iii) No separation of powers problems with giving judges this kind of job concerns of encroachment and aggrandizement are not relevant (close enough to what judges do every day) iv) Commission is not a big enough deal that the fact that president can remove members of the commission (whereas judicial tenure is for life) will taint judicial independence k) Why functionalism? (Mistretta. all-things-considered approach iv) Scalia (formalist) dissent Oh hell no. she is not a superior officer. AND THE EXECUTIVE BRANCH Bush admin position on detainees (1) CiC power gives prez inherent uncheckable authority to engage the enemy in a conflict (2) Neither Congress nor court can check prez detention and interrogation policies (3) Originally this was true with respect to both citizens and non-citizens ii) Rasul v. United States (1989) i) Sentencing commission created as an independent agency within the judicial branch to rationalize the previously inconsistent sentencing process ii) Court ruled sentencing commission was not an unconstitutional delegation of legislative function to the judiciary. so it really has to be constrained by specific constitutional procedures designed by the framers M) EMERGENCY POWER. Eisentrager habeas corpus is not available to enemy combatants who are convicted in military tribunals (3) Court says Guantanamo detainees DO have right to seek habeas in US courts (4) Reasoning (a) Place US control over Guantanamo soil. Morrison) i) Admin state kind of breaks down rigid separations between 3 branches ii) Separation of powers is just part of the structure of federalism. Bush (2004) (1) Habeas petition from Guantanamo detainees claiming they were not enemy combatants (2) Three cases Bush used to support his position that the courts cannot intervene (a) Distinguished Ex parte Milligan couldn t try a US citizen in military court for assisting the South during the civil war as long as civilian courts were available. This is Congress asserting control over a purely executive function. framers may have even intended it that way so that there could be flexibility as gov changes to meet different needs l) Why formalism? (Chadha. but this case involved a US citizen not an enemy combatant (b) Ex parte Quirin said German infiltrators (disguised as civilians) did not have to be tried in civilian court because they were clearly enemy belligerents. they are at least entitled to habeas to determine their status (c) Process in the Eisentrager case. we aren t at war with any country so it s not easy to ID enemy combatants. WAR.

decision is subject to change by Congress (which happened) iii) Hamdi v. (c) Scalia even if you are in category 1 with explicit authorization it s not enough to detain Hamdi because he is a citizen. either revoke habeas or try them in civilian court iv) Boumediene v. while Gitmo detainees disputed their status as such (can t deny habeas based on status because it hasn t been established that they are enemy aliens) 3. the framers expressly wrote treason into the constitution. citizens. the court rejects a brightline sovereignty rule but employees instead a multifactor fact-based inquiry that looks at three things to decide whether there is a constitutional right to habeas at Gitmo (i) Citizenship/status/adequacy of process 1. and 2) meaningful oppty to rebut them before a neutral trier of fact (Hamdi denied part 2 possible that standards could be met by a military tribunal) (4) Court: Although AUMF substantively gives president authority to detain. enemy combatant)? Is preventive detention constitutional? (2) What Youngstown category is the prez acting in? (a) O Connor (plurality) AUMF puts prez in category one (he has the authority to use military force against enemy approval of what he is doing) (b) Souter and Ginsberg essentially category 3. taking away habeas would take away all other rights. There is a treason and a suspension clause in the constitution which shows that the framers contemplated the question of what to do with citizens who are aiding the enemy in wartime. in 1960s this was reinterpreted to provide 2 basis on which Court can exercise HC jurisdiction: 1) a court in jurisdiction where defendant is detained. there is a constitutional right of habeas at Gitmo. of powers note. Germany s laws also applied so there could be a conflict (why there is generally a presumption against extraterritorial application of law) no problem here because we have exclusive control and jurisdiction by terms of agreement with Cuba 18 . c) enemy aliens 2.S. and on a sep. and second the jurisdiction where the executive officer with authority over the detention resides (5) Since review was statutory (review under HC statute). which provided 2 ways to deal with this and it s not ok for Congress to adopt a 3rd way (3) What are the processes by which government assesses whether or not this individual comes under the category of those who can be detained? (a) Citizen constitutional guarantee under due process is 1) notice of the charges against you. Rumsfeld (2004) (1) Can the president detain a citizen accused of fighting for the enemy (i. Status detainees in Eisentrager were concededly enemy aliens. provided for appellate review so court of appeals could decide only whether or not the tribunal applied the correct standard of proof (in determining someone s status) (2) Question 1: is there a constitutional right to habeas at Gitmo? (Answer yes.. In order to ensure that right is not manipulated away by political branches. Bush (2008) (1) Military Commissions Act eliminated habeas review for enemy combatants.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE detained. so it has to be a judicial question. Citizenship a) U. Gitmo detainees had inadequate tribunal process (ii) Site in Eisentrager. b) non-citizens who are not the enemy. and one that can t be controlled by political branches) (a) Habeas is a constitutional constraint founded in the judiciary on the power of the political branches to detain. because the Non-Detention Act said no preventive detention of a citizen in the US.e. the procedural requirements of due process require citizens have access to habeas (5) Scalia dissent not far enough. Process detainees in Eisentrager had a full trial.

and the initial process of the tribunal is not adequate to protect them) (4) The Four Horsemen of the Apocalypse want to say tribunal procedures are enough RIGHTS IN A UTILITARIAN DEMOCRACY I. there has to be judicial review. (standards are too hard) ii) If all you are doing is trying to weigh interests at stake. open-ended terms. Choice and Consequence problems with precommitment i) Collective/identity problem we are fucking precommitted to shit by other people. it is a cold review (detainees can t put forward factual defense that they are not who the government says they are. PRECOMMITMENT AND REPRESENTATION REINFORCEMENT a) Schelling. and our decision at time 1 is wrong? iii) What is so sacred about the particular Bill of Rights we have adopted? What if circumstances change? iv) How do you both precommit to something and simultaneously recognize when circumstances change.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE (iii) Practical obstacles it will always been inconvenient to have to justify ones actions. consider all interests at stake. American Constitutional Law precommitting pigeons. society should only be able to regulate self-regarding conduct when and to the extent that it has an effect on others i) Three versions of utilitarian justifications for rights (1) Freedom itself is measured by utility (2) Attempts to regulate self-regarding conduct are illegitimate (waste of resources) (3) Individuals are pretty good at knowing what is good for themselves but not good at judging others utility b) Aleinikoff. Dead old white guys. which seems like they recognized that evolution would happen and courts would take on the role of dealing with this b) Tribe. the practical obstacles for Gitmo are not huge (it wouldn t that hard to give habeas this isn t dispositive) (3) Question 2: if so. why not have Congress do this? Institutional competence iii) Standards raise the question of why we have a Constitution at all. C) REPRESENTATION REINFORCEMENT i) Argument that if a utilitarian believes in democracy. the framers wrote a bunch of shit in the Constitution in broad. RULE UTILITARIANISM a) Mill. is appellate review enough? (a) Habeas doctrine holds that where there is HC. precommitment no longer makes sense? (1) Response: basically. we are about substance and not form (b) Here. appellate review is not enough. On Liberty the principle that justifies a rule utilitarian preference for rights is that the collective doesn t have the legitimate role of regulating self-offending conduct. what the fuck ii) What if our decision at time 2 is the right decision. but it can come in the form of adequate substitutes. then democracy itself entails certain obligations that much be enforced against democracy in order to keep it going ii) Constitutional rights make sense as constraints on democracy in order to ensure that the democratic process is not perverted 19 . Constitutional Law in Age of Balancing defending importance of a Constitutional jurisprudence of rules as opposed to standards i) Hard to quantify values. but in this case. weigh them against each other. etc. the fact that we have a Constitution indicates a decision that we want to be bound by rules II.

g. Greenwood (1988) TRASH i) Officer suspected D of trafficking drugs. even in an area accessible to the public. (1) Per se presumption of unreasonableness for people s homes (subjective expectation. but what is most important for RR theory and what is most relevant for crim justice is protecting equality iv) Need to protect process rights of discrete and insular minorities (of particular interest for this course those accused of crimes) THE FOURTH AMENDMENT AS A UTILITARIAN RIGHT I. e. is constitutionally protected. it would have been constitutional if they had gotten a warrant. so a person in a phone booth may rely on 4th Amendment protection iii) Popo act of electronically listening/recording D s conversations violated privacy on which D justifiably relied while using phone booth and constituted a search and seizure within 4th Amendment meaning of the words iv) Because popo surveillance was narrowly circumscribed. no general right to privacy is created by the 4th Amendment d) California v. United States (1967) i) Popo attached electronic listening/recording device to outside of public phone booth and recorded D s conversations convicted D of transmitted wagering info in violation of federal statute ii) Court holds that what a person seeks to keep private. and normative justification for privacy in home) v) Judgment for Deez Nuts. abortion. etc. practicable to get a warrant. process. which D left outside on the curb ii) Warrantless search/seizures violate 4th Amendment only if D manifests a subjective expectation of privacy that society accepts as objectively reasonable 20 .GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE iii) Under this view the court is most legit when it is protecting process rights. Watson (1976) i) Postal inspector arrested D without warrant on info from reliable informant that D was dealing stolen credit cards (Congress gave postal inspectors power to arrest) ii) Common law allowed officers to make warrantless arrests when D committed a felony or misdemeanor in officer s presence and when D committed a felony not in officer s presence if there were reasonable grounds to arrest iii) Common law balance survived substantially intact and appeared in almost all states through express statutory authorization iv) Court won t go against the judgment of the nation and congress and therefore holds that officers can make warrantless arrests on the basis of probable cause (no matter if exigent circumstances. objective expectation. it is least legit when it is protecting rights that don t have to do with protecting the dem. suspect was about the flee. there were exigent circumstances so the arrest was already valid to exigent circumstances to warrant requirement c) Katz v. which Court holds to be a constitutional precondition of this kind of surveillance.) v) Judgment for government vi) Powell concurrence: although potential conflict between requirements for searches and seizures (searches warrant/exigent circs. seizures probable cause). logic sometimes must defer to history and experience vii) Marshall dissent majority went too far here. vi) Black dissent: framers knew about eavesdropping and would have dealt with it expressly if they wanted to prevent government from using it to get evidence. but popo ignored the procedure of antecedent justification that is central to 4th Amendment. PRECOMMITMENT a) Loose precommitment only against unreasonable searches/seizures (not precommitment to privacy absolutely) b) United States v. and asked Ds trash collector to give her D s trash.

v) Judgment for government. probable cause to believe turntables were stolen was required (which he didn t have) iv) Judgment for Deez Nuts v) O Connor dissent this was a cursory inspection. snoops. iv) Person has no legit expectation of privacy in info he voluntarily turns over to 3rd parties. ii) Court holds that obtaining info by sense enhancing technology that couldn t be obtained otherwise without physical intrusion into a constitutionally protected area is a search at least where technology is not in general public use (1) Search of interior of homes = prototypical litigated area of protected privacy. which is somewhere in between a full blown search vi) Powell dissent what the fuck could this officer have done? Ok. United States (2001) i) Popo used thermal imaging scanner to see if there were abnormal amounts of heat coming from D s house when these suspected D of growing weed. BOGUS. or also because officer had power to search objects in plain view. officer was advised they were taken in an armed robbery. institutional competence rule: we should let legislatures grapple with these emerging technological issues II. ready criterion of minimal expectation of privacy that exists and that is recognized as objectively reasonable (2) Note that this doesn t turn on the general use of technology as much as sacredness of home (society would agree there s an objectively reasonable expectation of privacy) iii) Popo conducted unreasonable warrantless search using the thermal imaging scanner iv) Judgment for Deez Nuts v) Stevens dissent: this case involves nothing more than off the wall surveillance. Intentional act of the police. Arizona (1978) i) Undercover cop arranged to buy heroin from D but deal went bad in D s apartment after a police ambush (of sorts). an officer picked up two stereo turn tables to get their serial numbers. iii) AZ SC tried to establish a new exception for warrantless searches of homicide scenes iv) SCOTUS SAY HELL NAH. judgment for Deez Nuts. separate and apart from the search that was the lawful objective of the officers entry iii) Court holds that probable cause is required for in-home searches and seizures. not a 3rd party (relies on Katz). b) Mincey v. Popo can make a protective sweep or search incident to arrest and seize evidence in plain view. but moving the equipment = search. and trash collector). ii) Popo searched D s apartment exhaustively for next four days without a warrant. Hicks (1987) i) After bullet was fired through the floor of D s apartment. but warrantless searches must be strictly circumscribed by the exigencies that justify their initiation v) Court holds warrantless search was not constitutionally permissible simply because homicide had recently occurred there. e) Kyllo v.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE iii) Court holds that because D deposited trash in an area particularly suited to public inspection and consumption (available to animals. whether legal authority to move the turn tables was because officer had power to seize them. you could see the snow melting). so he seized them ii) Recording the serial numbers seizure. the heat is coming off the outside of the house (if there was snow. vi) Brennan dissent: D still had a reasonable expectation that his trash would be private when he put in in an opaque bag that he only intended to be put into the hands of the trash collector and deposited in the landfill. 21 . RULE UTILITARIANISM a) Arizona v. the cop injured D and D shot and killed the cop. D had no reasonable expectation of privacy in it. Society would agree that this should be private.

and cop IDs himself and makes reasonable inquiries and nothing serves to dispel his reasonable fear for his/others safety. who then had to be tested. which made sense. Public school system has got to be able to deal with this somehow. vii) O Connor s dissent: this program is not reasonable it is capricious and perverse. a magistrate would not have been able to issue one. and therefore popo have greater authority to do searches and seizures than a judge has to authorize them. v) Judgment for government. but there was no probable cause to believe that a crime was being committed.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE c) Terry v. taken together with rational inferences from those facts. random drug testing was OK for customs agents without individualized suspicion. Von Raab. Earls (2002) i) OK school policy required all students to consent to drug testing in order to participate in any extracurricular activity. Vernonia School Dist. vi) Breyer concurrence: We have a huge drug problem. and this has not reduced teenage drug use. regardless of whether he has probable cause to arrest for a crime v) Holding/new rule: if a cop observes unusual conduct that leads him reasonably to conclude in light of his experience. Here it s anyone who wants to go to college. court notes that a stop-and-frisk = search and seizure. patted him down. thus testing students who participate in extracurriculars is a constitutional and reasonably effective means of addressing the school district s legit concerns in preventing. basically. 47J v. in Skinner v. which ain t right d) Board of Education of Indiana School Dist. iii) Court uses balancing test to assess reasonableness of popo s conduct. vi) Harlan concurrence: right to frisk depends upon the reasonableness of a forcible stop to investigate a suspected crime. reasonably warrant the intrusion iv) Facts are judged against objective standard (simple good faith of cop is not enough). that suspects may be armed and dangerous. Railway Labor Executives Association upheld random drug and alcohol testing of railroad employees based on 22 . the cop is entitled for the protection of himself and others to conduct a carefully limited search of outer clothing in an attempt to discover weapons. government s need to discover latent/hidden conditions (or prevent their development) is sufficiently compelling to justify intrusion on privacy entailed by conducting such searches without any individualized suspicion ii) Search without probable cause may be reasonable when special needs beyond normal need for law enforcement make the warrant and probable cause requirement impracticable. balancing need to search/seize against invasion entailed: popo must point to specific and articulable facts. and found a gun. 92 v. iii) Court holds that 4th Amendment does not require a finding of individualized suspicion in this case. it was reasonable to enact this particular drug testing policy. In Treasury Employees v. Had a warrant been sought on this evidence. safety interest furthered by drug testing is undoubtedly substantial for all children. Invasion of students privacy is not significant because the urine sample collection is minimally intrusive and the uses of the test results are limited iv) Given nationwide epidemic of drug use and evidence of increased drug use in this school district. Such a search is reasonable under the 4th Amendment and any weapons seized may be properly introduced in evidence against D. It targets students least likely to be at risk for illicit drug use. right to frisk must be immediate and automatic if the reason for the stop is an articulable suspicion of a crime of violence vii) Douglas dissent: This was a search and seizure. No. and detecting drug use. ii) First. Ohio (1967) i) Popo observed Ds walking back and forth past the store and peering into the window (reconnaissance) and suspected Ds of casing a stickup job. he spun D around. in certain circumstances. Gov has tried to reduce the supply. deterring. which. that criminal activity may be afoot. Acton involved a huge drug issue sparked by the athletes themselves. Popo approached Ds and went he didn t get response/respect he was looking for. popo must have reason to believe he is dealing with an armed and dangerous individual.

warrantless. and suspicionless searches must apply to questions concerning what means popo may use to pursue a given purpose iv) Judgment for Deez Nuts. Immediate objective was the generate evidence for law enforcement purposes. REPRESENTATION REINFORCEMENT a) Michigan Department of Police v.e. Typical patient has reasonable expectation of privacy that results of diagnostic tests in a hospital will not be shared with nonmedical personnel without consent (2) Special need here was not divorced from state s general interest in law enforcement because policy was designed to obtain evidence of criminal conduct by the tested patients that would be turned over to the police and could be admissible in subsequent criminal prosecutions. and effectiveness here was more than in Martinez-Fuerte. c) Zurcher v. and the subjective intrusion (fear) is less in checkpoint stops than in roving patrol stops iii) Court holds that Brown v. because patients here may have misunderstood the purpose of the test or the potential use of the test results. TX which balances states interest in preventing accidents caused by drunk drivers. and there were no protections against dissemination of results to third parties. (1) State has huge interest in drunk driving problem (2) Effectiveness of MI s program can be shown by empirical data and expert witness testimony. Police have extremely broad discretion in determining the location and time. which is too much of a risk that they will lead to discrimination. 4th Amendment s general prohibition against nonconsensual. These are temporary checkpoints. but random stops and temporary checkpoints rely on the element of surprise. stopping cars to check if driver has drugs) is constitutionally different from drunk driving checkpoint b/c state does not have compelling interest in preventing accidents b/c having drugs doesn t make you more likely to crash (not high while driving) vi) Stevens dissent: permanent checkpoints give motorists the oppty to avoid or prepare. Sitz (1990) i) MI established highway sobriety checkpoint system which was governed by guidelines created by advisory committee ii) Court uses balancing test in Brown v. so it is consistent with 4th Amendment iv) Judgment for government v) Note drug checkpoint (i. hospitals set up drug screens of urine samples from maternity patients and later adopted formal policy in conjunction with local police to turn over positive results ii) Court uses balancing test weighing intrusion on individuals interest in privacy against the special needs that supported the program (1) Invasion of privacy here far more substantial than in past special needs cases. TX factors all weigh in favor of the MI checkpoint program. the effectiveness of sobriety checkpoints in achieving that goal. police got search warrant for the newspaper s offices but found no evidence 23 .. iii) Court holds that while drug abuse is a serious problem.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE industry-wide evidence of problems these cases were upheld to avoid risks to the lives and limbs of others rather than predominantly in response to health risks to users invariably present in any case of drug use III. and the level of intrusion on individuals privacy caused by the checkpoints. and data suggests it s not even more effective than less intrusive measures b) Ferguson v. which was random stops to check for illegal aliens (3) Objective intrusion on motorists is slight. Stanford Daily (1978) i) Popo injured by demonstrators and newspaper staff member indicated that he may have photographed the assailants. City of Charleston (2001) i) To test for cocaine use.

Basically adopting Murphy s dissent in Wolf. II. and it s the court s job to assess whether a right is fundamental or not (and if it is. You need the exclusionary rule to give effect to the 4th Amendment III. is it implicit in the concept of ordered liberty. good faith exception to the exclusionary rule b) Court says we should only apply exclusionary rule where deterrence is necessary (not in the case of an honest mistake by a magistrate based on the idea that magistrates. apply it to the states). (1) This has support doctrinally. and can you imagine a fair system that doesn t protect it? iii) Selective incorporation (Duncan majority) is this right fundamental to the AMERICAN system of justice? Leads to virtual full incorporation. there is no sanction at all. internal regulation. since presence in the Bill of Rights is pretty strong evidence. or evidence of a crime will be found. Louisiana (1968) a) Incorporates the right to a jury trial to the states b) Three approaches i) Total incorporation (Black/Douglas) should resist freeing justices from constraints of text. whether or not occupied by a third party. United States v. and textually (less) (2) Once Court adopts selective incorporation. instrumentalities. criminal prosecution) had proven not to work b) Right implies the remedy. search of the newspaper s offices is totally ok. many because other approaches (civil suits. 24 . Wolf v. or where the warrant is clearly inadequate to any reasonable person I. historically. this case incorporates the rights of the amendment against the states but not the specific remedy for violations of those rights b) Murphy dissent if there is no exclusion. iv) Judgment for government. test is this right necessary to a fair result. the framers of the 14th Amendment intended for it to apply the whole Bill of Rights to the states (because of due process clause and privileges and immunities clause) (questions why didn t they just say that. Ohio (1961) a) Reverses Wolf. v) Stevens dissent subpoena would have been fine. Leon (1984) a) Right and remedy again divided up. No reason to get rid of warrant requirements in favor of subpoena duces tecum. but exclusionary rule is not. where there is probable cause to believe that fruits. iii) If police get a warrant. IV. like the legislature. if total incorporation is really what the framers meant. MD or VA could give more rights to s. Colorado (1949) a) 4th Amendment is incorporated.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE ii) Court upholds warrant and says valid warrants may be issued to search any property. Half the states had adopted the exclusionary rule. No need to bust in there is no evidence that the newspaper is doing anything illegal or is likely to conceal or destroy evidence vi) Stewart dissent newspapers won t be able to promise confidentiality to their informants INSTITUTIONAL CONCERNS: INCORPORATION AND THE EXCLUSIONARY RULE Duncan v. Mapp v. Fourth Amendment has already struck a balance between privacy and public need and courts can t revise it to strike a new balance. does crim have the same rights in MD and VA? No fed just sets the floor. don t need to be deterred) c) Exceptions would be where an officer knowingly or recklessly presented false evidence to magistrate to obtain a warrant. Preconditions for warrant should afford sufficient protections against harms threatened by searching newspaper offices. differs from selective incorporation because fundamental fairness is not limited to the Bill of Rights. how come only 2 justices [and none from the time of the 14th Amendment] have adopted it?) ii) Fundamental fairness (Frankfurter/Harlan) due process means that people are entitled to certain fundamental rights.

it is not the exclusionary rule that loses the evidence but the 4th Amendment) V. The Virtues and Vices of the Exclusionary Rule a) ER is a better and more carefully calibrated way to deter 4th Amendment violations than any other civil damages remedy b) The good thing about the ER is that it is restitutionary. but that the interests designed to be served by the knock and announce rule are not connected to protecting the privacy of the space searched (attenuation between violation and exclusion) (point of the knock and announce rule is not to deter police from violating privacy because they are going to have access to the space anyway) d) Scalia says civil remedies are sufficient here e) Breyer dissent neither Scalia nor government could cite a single case in which someone had succeeded in getting a damage award through any of these civil avenues f) Kennedy concurrence still believes in ER. 4th amendment plainly works to disable government in some ways. Hudson v. Fourth Amendment Principles a) Exclusionary rule as a remedy is a really perverse remedy because it rewards guilty people. in that Scalia isn t claiming the evidence is too attenuated in time or circumstance. takes away exactly what police and state gained (no more and no less) c) The symbolic value of showing people the costs of the 4th Amendment d) There might be overdeterrence e) Virtue judicial process is tainted if courts accept illegally retrieved evidence (ER maintains judicial integrity) f) Vice there is public sentiment that something is wrong with system when an obviously guilty person gets off EQUALITY CONCERNS: THE FOURTH AMENDMENT AND EQUAL PROTECTION I. Stuntz. this means some incriminating evidence will go undetected (this is the price we pay for freedom and privacy. but naming/blaming/claiming issue might not be able to adequately adjust civil damages scheme to adequately deal with this issue) c) We should allow the fruits of an illegal search and the fruits of an illegal arrest d) Separate out guilt/innocence from remedial mechanism to deal with violations of 4th Amendment VII. Michigan (2006) a) Warrant improperly executed due to officer violating knock and announce rule b) This goes beyond Leon and other noncriminal impeachment and deterrence situations because it involves the core of the ER exclusion of improperly obtained evidence in a criminal proceeding.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE d) Illegally obtained evidence can still be used for immigration/parole/testimony impeachment purposes (inability to use affirmatively against defendants is enough deterrence) e) In reality this does weaken the deterrent effect of the ER because if you know they are a non-national or on parole. Drayton (2002) a) Cocaine bust in a bus. departure from precedent on ER c) Novel interpretation of attenuation theory. b) Issue was whether D was seized as a result of being confined on the bus (valid consent that follows an illegal seizure does not make evidence admissible) c) This was not a seizure a reasonable person would have felt free to terminate the encounter 25 . just not in this context VI. gives substantial remedy to guilty people and no remedy to innocent people b) We should reform the civil damages system in order to better deal with this (aren t there still barriers to access? Amar would say provide attys at state expense or increase penalty. Amar. you can just go ahead and fuck them in the ass f) Brennan dissent deterrence theory misguided and unworkable. United States v.

we are not all similarly situated. express or implied (the subject s knowledge of a right to refuse is not a prerequisite but a factor to be taken into account) e) Marshall dissent Court is helping police capitalize on ignorance of citizens so as to accomplish by subterfuge what police could not achieve by relying only on knowing relinquishment of constitutional rights IV. Bustamonte (1973) a) Dudes in car (2:40 AM). GA DP unconstitutional because it was completely arbitrary as to who was going to get it. and the guy consented to a search which revealed stolen checks b) When is consent voluntarily given? c) Totality test in determining the meaning of a voluntary consent.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE d) Souter dissent not prepared to say that all bus interrogations/searches would not be okay. but this one was not okay. then make a U-Turn. Driver had no license. 2) this allows police to approach anyone without individualized suspicion and as long as they act in ways that would make a reasonable person feel free to terminate. Whren v. United States (1996) a) Dudes in car. court says not going to do this balancing shit. popo asked who else had ID. we re doing the could have test. but police actually approach those whom they suspect (racial profiling) unconstitutional because it allows police to act on suspicions that would not be recognized by law f) This reasonable person standard accords with no one s actual behavior in a citizen-police encounter II. b) This was not a pretextual stop because officers had probable cause to believe that Ds had violated traffic laws. you deal with two competing concerns i) Legitimate need for such searches ii) Assuring the absence of coercion d) Narrow holding only that when the subject of a search is not in custody and the state attempts to justify a search on basis of his consent. the making of a traffic stop out of uniform is not such an extreme practice that we need to do any kind of balancing test c) Ds argue for a balancing test that asks not whether an officer COULD make the stop. McCleskey v. plainclothes officers in unmarked car see them sitting suspiciously at stop sign for too long. because these narrowed discretion as to who gets axed (aggravating and mitigating circumstances) d) Woodson state scheme providing for mandatory DP unconstitutional because it didn t give jury the discretion to weigh factors and make a determination. statute provided no guidance for the imposition (left it to the jury) c) Gregg v. one guy produced a license and said that the car was his brother s. which just asks whether there was probable cause to make stop d) Scalia says they should be looking to the 14th Amendment for EPC protection here III. they are cool. although plainclothes officers are not supposed to make traffic stops. which deprives an individual of an independent assessment as to whether he is going to fry) 26 . Ds were pinned in by officers and it was reasonable to assume that no passenger was getting off the bus e) Cole. GA DP not unconstitutional if there were sufficient statutory guidelines. Schneckloth v. Policing Race and Class: reasonable person standard has a disparate impact in police citizen encounters because 1) Drayton may feel a lot less free to terminate than Cole would. police stopped because headlight was out. pull them over for traffic violations and found the crack. the 4th and 14th Amendments require that the state demonstrate that the consent was in fact voluntarily given and not the result of coercion. but whether a reasonable officer under these circumstances would have. crack in laps. Kemp (1987) a) Whether a complex statistical study that indicates a risk that racial considerations enter into capital sentencing determination proves that D s death penalty is unconstitutional under 8th or 14th Amendments b) Furman v.

they don t answer and go to jail impeachment. but here the problem that the study shows is too bad for the court to deal with h) SCOTUS presumes system is OK.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE e) Procedure in this case in constitutional because the procedures were followed and the jury made a determination that said that D should die. Shift to Non-Utilitarian Rights right not to have your confession coerced is easier to explain in nonutilitarian terms. dicks. or 3) was counsel waived d) Disadvantages i) Doesn t map onto our concerns (coercion not at issue) ii) Cost in terms of loss of confessions iii) Court limits this to cases after indictment. if they answer falsely they go to jail contempt) e) Autonomy and free will (what it is to be human Kant) Timeline a) 1936-64 court looked at this problem through the lens of SDP (Ashcraft) b) 1964-66 superimposed 6th Amendment right to counsel on this lens c) 1966-present superimposed 5th Amendment right against self incrimination over previous approaches (using them all by the end) Ashcraft v. III. not discriminatory purpose (D needed to show the decision makers in his case acted with discriminatory purpose) g) Fact that leg lets law remain in place knowing consequences is not enough to show discriminatory intent. if they answer truthfully they go to jail self incrimination. V. United States (1964) a) Drug trafficker indicted with co-defendant. Nope. FBI listened in to car conversation and wanted to use that evidence against D b) Court holds that from the time of arraignment until beginning of trial. Ds are entitled to counsel. why do we have these rights? a) Reliability (utilitarian) b) Integrity of the process c) Accusatorial vs. just 1) was a lawyer present. statistics are used in other contexts to show proof of discriminatory intent and denial of equality through discriminatory effects. because leg would have had to keep DP in place because it was worse for black people. 27 . Arizona (1966) II.3x more likely to get the DP if you kill a white person court says this study shows only discriminatory effects. Not happening. Tennesee (1944) a) 36 hour interrogation b) Court says this is fucking coercion. IV. c) 36 hours is inherently coercive court is moving away from individualized approach to a more categorical rule based one d) Jackson s dissent should be asking whether the individual in these circumstances had his will overborne Massiah v. individual free will) of the first approach. inquisitorial system differences (ours is accusatorial) d) Cruel trilemma (if they are guilty. you are 4. so here Court says D was denied 6th Amendment protections because the police had deliberately elicited statements from him after he had been indicted in the absence of counsel c) One advantage of this approach is you don t have to ask hard questions (voluntariness. Court only needs to intervene where people act in overtly impermissible ways i) Dissent fear of too much justice NON-UTILITARIAN RIGHTS AND PROBLEM OF COERCED CONFESSIONS I. coercion. who agreed to cooperate with FBI. police can easily get around by just doing interrogations prior to indictment iv) Easier to administer but also easy to get around and may be overinclusive leads to third approach Miranda v. Sorry. f) Even after controlling for all variables.

decision not predicated on the facts. substituting formalism for justice. which leaves it open for Congress to change the rules. Martinez said he would tell everything if he could get some treatment. United States v. laziness. this shit is basically torture f) Souter concurrence Martinez cannot make the showing necessary to expand protections of privilege against compelled self-incrim to the point of civil liability g) Ginsburg concurrence/dissent would hold that self-incrim clause applies at time and place police use severe compulsion to extract a statement from a suspect (this was not cool) h) Note: Send it back to 9th Circuit says this does violate DP and allows the claim to proceed VII. Chavez v. Martinez (2003) a) Martinez was shot repeatedly. but here.C. but rather Warren s clerk s popo manual research d) Also lots of support for Miranda i) Legislature isn t going to give criminal suspects any rights ii) Needed to give meaning to constitutional rights iii) Custodial interrogations are inherently coercive iv) Want to apply right against self incrim not just to legal coercion but constructive coercion v) Cole thinks Miranda is an outlier from standpoint of equality concerns. court holds § 3501 unconstitutional because d) Change Miranda applies to state courts so it must be constitutionally required because fed court system can only impose stuff on state courts when it is constitutionally compelled. Dickerson (2000) a) 18 U. motherfuckers e) Government claims § 3501 is an equally effective substitute for Miranda f) Court says no. stare decisis. get over it h) Scalia dissent I am a dick. here they are trying to level the playing field popo didn t create this inequality but they shouldn t be allowed to exploit it vi) Fruit of poisonous tree doctrine doesn t apply to Miranda violations (unlike coerced confessions) Miranda is a condom. this is not equally effective (we wouldn t have needed Miranda in the first place if voluntariness was sufficient) g) Everybody is cool with Miranda. Chavez escorted him to the hospital. but they kept trying to get him to say things before treatment at some point he admitted he had taken a pistol from a holster and pointed it at the cop b) Civil rights claim for violation of 5th Amendment right against self-incrim and 14th Amendment Due Process c) Thomas plurality no constitutional 5th Amendment violation because he was never prosecuted for a crime let alone compelled to be a witness against himself d) Kennedy concurrence/dissent tactics were sufficiently coercive that they violate Due Process irrespective of whether they were used in court conscience shocking (sort of like torture) e) Stevens dissent yo.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE A) POPO IS FUCKED NOW. Congress cannot legislatively supersede constitutional rules yo. WHAT POPO GON DO? b) Prosecution may not use statements stemming from custodial interrogation of D unless it uses procedural safeguards effective to secure the privilege against self-incrimination c) This is controversial as shoddy judicial work. not a constitutional right VI.S. 28 . § 3501 i) Confessions are admissible if they are voluntary and courts should look at the totality of the circumstances to determine whether a statement is voluntary ii) Factors for test (totality) (1) Time between arrest and arraignment (2) Whether D knew what he was charged with (3) Whether counsel was present b) Issue in Dickerson is § 3501 constitutional? c) Court has said (in the past) that Miranda is not constitutionally required.

V. Brady Griffin v. you can t give rich people an A+ appeal and poor people a Dappeal d) Harlan dissent . it s a DP & EPC claim (right to counsel only applies to trial) b) DP this is not a DP violation because DP does not require an appeal. This isn t a right to counsel claim. Gideon v.State does not have the obligation to ensure that poor people have equal oppty to exercise constitutional or statutory rights Ross v. Moffitt (1974) a) What happens at the next level of appeal? Right to counsel ends after first appeal. IV.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE MAKING RIGHTS MEANINGFUL: THE RIGHT TO COUNSEL I. Broken Promises i) We need to change the norm for the quality of these lawyers. instead applies standard that says counsel is ineffective only where D can prove: i) deficient performance (1) Objective standard of reasonableness measured against prevailing professional norms and practices (2) Strong presumption that counsel s conduct was reasonable ii) that prejudiced the outcome of trial (1) Must show outcome would have been different (2) Burden on D to show prejudice keep in mind that the where the burden is placed is often dispositive Materials on Ineffective Assistance a) Instances in which representation was not constitutionally ineffective i) Drunk ii) Asleep iii) Allowed D to wear same clothes at trial that perp wore during assault iv) Alcoholic lawyer drank constantly and was arrested for DUI on his way into court in the morning b) 80% of counsel are appointed because court didn t find these to be constitutionally ineffective. California (1963) a) Ds wanted counsel for their appeal. DP does not require right to counsel for appeal to state supreme court b) This level of appeal serves a different function and the EPC doesn t guarantee total equality Strickland v. Wainwright (1963) a) Everyone facing criminal charges has a right to a lawyer provided by the state if he or she cannot afford one (incorporating right to counsel against the states) b) Counsel is a fundamental right essential to a fair trial. court said you can t bar an appeal because a poor person can t pay for it Douglas v. 80% of crim defendants are indigent c) Notion that everyone is equal before the law can only be ensured if the poor have counsel d) Overturns Betts v. Illinois (1956) D required to pay for transcript to appeal.circular ii) No evidence that norm is actually satisfactory II. III. doesn t violate your DP right if it gives you an appeal and just requires you to file it yourself c) EPC Once you do provide the appeal. VI. states have no incentive to put resources into public defenders c) You can make more money working at BK than you can representing people facing 20 to life d) Cole. Washington (1984) a) SCOTUS rejects checklist of stuff a minimally competent lawyer should have to do. CA said no. necessity not luxury. 29 . but the norm is defined by what the states pay .

Messer v. He objected to no evidence.GRACE & KELLYN S KICK-ASS-AND-TAKE-NAMES DEMCO OUTLINE iii) Test does more in suggesting norm is effective than actually trying to determine what an effective lawyering job is VII. Marshall is like This guy had the worst lawyer ever. offered no arguments. didn t ask any questions. defendant's mother. Kemp (1986) This is just a denial of cert and the dissent of the denial of cert. He indicated that he couldn't think of any reason not to give his client the death penalty by the way he approached it. called one witness. 30 . Marshall s point is that the Strickland test is fucked up because part 2 allows an attorney to do fucking anything. he asked about the death penalty. after instructing her not to mention the death penalty on the stand. who.

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