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Introduction to American Law (Fall 2022)

Prof. Kendall Thomas

MODULE 1: INTRODUCING U.S. LEGAL INSTITUTIONS AND THE LANGUAGE OF THE COMMON LAW (W, 08/17)

• Orin Kerr, “How to Read a Legal Opinion: A Guide for New Law Students”
• Klonoff, Introduction to the U.S. Legal System, pp. 1-12 (“A. The Common Law System”), 26-33 (“D. Trial
by Jury”), 54-61 (“G. Legal Education in the United States”)
• Karl Llewellyn, “This Case System: What to Do with the Cases” (1929-30), from The Bramble Brush
• Arthur W. Murphy, “An Analysis of Holding and Dictum” (1948)

MODULE 2: GUNS: A CASE STUDY IN U.S. LAW, POLITICS, AND CULTURE (R, 08/18; F, 08/19)

• Soto v. Bushmaster Firearms Int’l LLC (Conn. 2019)

• United States v. Lopez (1995)
• District of Columbia v. Heller (2008)
• Klonoff, Introduction to the U.S. Legal System, pp. 33-37 (“E. Judicial Review and Judicial Decisions”); pp.
37-54 (“F. The U.S. Supreme Court”)
• Winker, “Big Guns and Little Guns at the Supreme Court,” excerpts from Gun Fight
• Follman et al., “The True Cost of Gun Violence” in Mother Jones, Apr. 15, 2015

MODULE 3: PROPERTY LAW (F, 08/19; M, 08/22)

• James Madison, The Federalist No. 10 (Nov. 23, 1787)

• Johnson and Graham’s Lessee v. William M’Intosh (1823)
• Dred Scott v. Sandford (1856)
• Ass’n for Molecular Pathology v. Myriad Genetics, Inc. (2013)
• Ward Farnworth, “Baselines” in The Legal Analyst (2007)
• A. Robert W. Gordon, “A Note on the Concept of ‘Ideology’” in Legal Thought and Legal Practice . . .

MODULE 4: CONTRACT LAW (T, 08/23)

• Dementas v. Tallas (Utah App. 1988)

• Wolf v. Marlton Corp. (N.J. Super. 1959)
• Lochner v. New York (1905)
• Keywords Lecture IV: “Rules v. Standards”

MODULE 5: TORTS (W, 08/24; R, 08/25)

• United States v. Carroll Towing Co. (2d Cir. 1947)

• Ryan v. New York Cent. R.R. Co. (N.Y. 1866)
• Oliver Wendell Holmes, The Common Law, pp. 76-78 (1881)
• Richard Posner, excerpt from A Theory of Negligence, 1 J. Legal Stud. 29, 32-33 (1972)
• Ward Farnsworth, “The Coase Theorem” from The Legal Analyst (2007)
• Weissbordg et al. eds., “The Calculus of Risk Applied . . .” in The Common Law of Torts (2010)

MODULE 6: CIVIL PROCEDURE (F, 08/26)

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(you are only responsible for content discussed in A Civil Action and the accompanying TA discussion)

MODULE 7: CORPORATE LAW (M, 08/29)

• Burwell v. Hobby Lobby Stores, Inc. (2014)

• Dodge v. Ford Motor Co. (Mich. 1919)

MODULE 8: CRIMINAL LAW (T, 08/30)

• McCleskey v. Kemp (1987)

• Roper v. Simmons (2005)

MODULE 9: CONSTITUTIONAL LAW – SUBSTANTIVE DUE PROCESS (W, 08/31)

• Griswold v. Connecticut (1965)

• Planned Parenthood of Southeastern Pa. v. Casey (1993)
• Dobbs v. Jackson Women’s Health Org. (2022)

MODULE 10: CONSTITUTIONAL LAW – EQUAL PROTECTION (R, 09/01; F, 09/02)

• Plessy v. Ferguson (1896)

• Brown v. Bd. of Education of Topeka (1954)
• Loving v. Virginia (1967)
• United States v. Virginia (1996)

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MODULE 1: INTRODUCING U.S. LEGAL INSTITUTIONS AND THE LANGUAGE OF THE COMMON LAW (W, 08/17)

stare decisis et non quieta movere: “to adhere to precedents, and not to unsettle things which are established”; “to
stand by things decided”/“let the decision stand” -> doctrine of precedent
- horizontal stare decisis: a court adheres to its own precedent
- vertical stare decisis: a lower court adheres to a previous decision reached by a higher court
- reduce institutional, informational, and financial costs of litigation
- Stare decisis “promotes consistent development of legal principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the judicial process.” Kimble v. Marvel Enters., 135 S. Ct. 2401
(2015).
- some scholars: stare decisis is harder to justify wrt secret opinions (e.g., nat sec decisions)

ratio decidendi/rationes decidendi: “the reason for the decision”; the legal, moral, political, and social principles on
which a court’s decision rests (which are not always identified, or framed as legal rationales)
- how to identify:
(1) distinguish material facts from immaterial facts
(2) discover the precedents applied to identify the court’s approach
(3) restrict analysis to the majority opinions
(4) read subsequent decisions that offer characterizations of the ratio decidendi
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obiter dictum: a remark made in passing; issues that are not discussed based on the necessity to decide the case but
rather for perceived thoroughness of legal analysis; not binding authority

• Orin Kerr, “How to Read a Legal Opinion: A Guide for New Law Students”

- 1066: William the Conqueror conquered England (Old English-speaking) with the Normans (French-speaking)
- constitutional rules > statutory rules > common law rules

• Klonoff, Introduction to the U.S. Legal System, pp. 1-12 (“A. The Common Law System”), 26-33 (“D. Trial
by Jury”), 54-61 (“G. Legal Education in the United States”)

A. The Common Law System

- legal tradition (historical attitudes) is not the same as legal system (operating set of institutions, procedures, and rules)

civil law tradition: dating back to 450 B.C. (Twelve Tablets of Ancient Rome for dispute resolution)
- 6th c. A.D.: Justinian of Constantinople commissioned the Corpus Juris Civile (Roman law)
- Enlightenment (11th-15th c.): rediscovery and study of Corpus Juris Civile in Bologna and other places
- study of Roman law + Cannon law = basis of early European law
- 1804: Napolean’s codification of private law = first national, systematic and rational codification
- written in accessible language (a model for many civil law jurisdictions)
- 1900: Germany’s Civil Code
- more complex than France’s; represents an ideal
- source of civil law = parliamentary legislation (Const. > codes > exec decrees > regs > local ordinances > custom)
- theoretically, codes provide a comprehensive legal regime * state general principles
- civilian jurisdictions are monist wrt intl law (automatically becomes part of domestic law); sometimes, national law can
be invalid if its conflicts with a ratified intl treaty or convention
- settled lines of cases have recently become considered to have authority to ensure consistency in application of codes
- doctrine and commentaries are important authority
- civilian courts are gen more specialized than common law courts (e.g., Labor Courts, Commercial Courts. . .)
- private law and criminal matters -> appellate -> Court of Cassation (either affirm or V&R to appellate court)
- no supreme administrative/const. court of last resort, but a govt body (e.g., France’s Conseil d’état, or a
Constitutional Council, reflecting trad civilian view that judges cannot quash legislation)
- sitting judge questions witnesses/experts & calls witness; investigating judges have broad powers to inquire
- some civilian systems: lay judges are coupled with professional judges to create a mixed jury

common law tradition: 1066 onward (“corps of loyal adjudicators” to resolve local-level disputes & make law)
- more serious matters = refer to the King for adjudication; juries rep local interests
- 1701: Act of Settlement created independent judiciary -> Blackstone pub Commentaries on the Laws of England
- codes can incorporate prior case law, address a particular issue, or bring uniformity
- standard operating procedures (SOPs) reflect both statutory and case law & guide police, public servants, etc.
- intl law is only persuasive authority until “domesticated” into national leg
- no such distinction in U.S., but solicitor = qualified legal practitioner who can advise on legal actions, while barrister =
courtroom advocate

D. Trial by Jury

- historical background = grand/presentment jury started by Frankish conquerors to discover the King’s rights
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- Today: grand jury indictment = determination that sufficient evid exists to warrant taking df to trial, incl evid
obtained illegally. Lawn v. United States (1958)
- after abolishment of law/equity distinction in 1938, the 7th Amt.’s contemplation of federal civil cases that do not incl
a right to jury trial expanded
- but if the suit seeks only equitable relief, then there is almost surely no right to a jury trial
- S. Ct. has incorporated 14th Amt.’s right to criminal trial for “serious” offenses (gen. > 6 mos.’ imprisonment).
Duncan v. Louisiana (1968).
- summary judgments and directed verdicts (constitutionally forbidden for criminal cases) protect ag irrational juries
- posttrial mechanisms: judgment notwithstanding the verdict, grant a new trial, additur (ordering new trial
unless losing party agrees to increase amount of damages awarded by the jury), remitter (ordering new trial unless
winning party agrees to decrease amount of damages awarded by the jury), appellate review to overturn verdict contrary
to the great weight of evid (constitutionally forbidden for criminal cases)
- juries interpret law by applying instructions to specific facts (e.g., how a “reasonable” person would have behaved)

G. Legal Education in the United States

• Karl Llewellyn, “This Case System: What to Do with the Cases” (1929-30), from The Bramble Brush

- “[N]o rule can be the ratio decidendi from which the actual judgment does not follow. . . [The] holding is the
decision, and the court speaks ex cathedra only as to the dispute decided, and only as to the decision it has made.”
- i.e., holding = the court’s statement of the law as an answer to the issue presented
- i.e., rule = results of similar holdings that will be applied to future cases
- but there can be a distinction btw the ratio decidendi (court’s own version of the rule) and the “true rule” (rule as
made to stand for by another later court)

• Arthur W. Murphy, “An Analysis of Holding and Dictum” (1948)

- announcement of holding = prediction under certain future factual situations the court will consider this decision
governing, the answer awaiting adjudication of future related controversies

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MODULE 2: GUNS: A CASE STUDY IN U.S. LAW, POLITICS, AND CULTURE (R, 08/18; F, 08/19)

• Soto v. Bushmaster Firearms Int’l LLC, 331 Conn. 53, 202 A.3d 262 (2019), §§ 2-3

Facts: Df Bushmaster and related companies manufactured the XM15-E2S rifle. Camfour and related companies
distributed and resold to Riverview and related companies. Riverview sold the rifle to Nancy Lanza, whose son Adam
used it to kill 20 children and six staff members and wound two staff members at Sandy Hook Elementary School.

Procedure: The estates of nine victims, pls, sued dfs pursuant to General Statutes § 52-555 (Conn.’s wrongful-death
statute) for, among other claims, violating the Connecticut Unfair Trade Practices Act (CUTPA) alleging that dfs
advertised and marketed the XM15-E2S in an “unethical, oppressive, immoral, and unscrupulous manner” that
emphasized the militaristic and assaultive qualities of the rifle and its suitability for “offensive combat missions.” They
sought damages and unspecified injunctive relief. Dfs emphasize that the federal Protection of Lawful Commerce in
Arms Act (PLCAA), 15 U.S.C. §§ 7901-7903, immunizes firearms manufacturers, distributors, and dealers from civil
liability for crimes committed by third parties using their opinions. The trial court granted dfs’ motion to strike the
wrongful-marketing allegations. Pls appeal.
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Issue (as relevant here): Is an individual or business that makes or sells a military-grade firearm which an adolescent
civilian then uses to kill and maim others immune from negligent entrustment state tort law claims for injury and death
caused by that firearm?

Held (as relevant here) (Palmer, J.): (I) Under Connecticut law, a cause of action in negligent entrustment requires that
(1) the defendant has entrusted a potentially dangerous instrumentality to a third person (2) whom the entrustor knows
or should know intends or is likely to use the instrumentality in a manner that involves unreasonable risk of physical
harm, and (3) such use does in fact cause harm to the entrustee or others.

(II) Under Connecticut law, the next of kin of minor decedents may state a claim against a gun manufacturer whose
product a mass shooter used for violating the Connecticut Unfair Trade Practices Act (CUTPA)’s prohibition against
marketing military-style assault rifles for criminal purposes.

Discussion: (I) The tort of negligent entrustment creates liability whenever the df actively, negligently, and foreseeably
paves the way for a truly reckless individual to impose serious risks of injury on the public. It applies only when the
entrustor believes or has specific reason to believe that the direct entrustee is likely to use a dangerous instrumentality
in an injurious manner. This tort has existed since Dixon v. Bell (Eng. 1816) (a df who sends a preadolescent girl to
retrieve a loaded gun, who then accidentally shoots pl’s son, is liable for negligent entrustment). Rest. (2d) Torts § 308
(on negligent entrustment) agrees and imposes an unreasonable risk requirement. We do not determine whether an
action of negligent entrustment lies when the direct entrustee shares the dangerous instrumentality with a specific third
party who is incompetent to use it safely because the pls do not allege that any df possessed any knowledge or had any
specific reason to believe that (a) Lanza’s mother would share the XM15-E2S with her son or that (b) he was especially
likely to operate it injuriously.

(II) If one accepts the premise that Congress did not intend to immunize firearm suppliers who engage in “truly
unethical and irresponsible marketing practices promoting criminal conduct” (and here the court does accept that
premise), then CUTPA qualifies as a statute upon which plaintiffs may state a wrongful marketing claim. The jury must
decide whether the promotional schemes alleged can (1) rise to the level of illegality and (2) whether fault for the
school shooting must be ascribed to such illegality.

Notes

- the three major bases of tort liability: (1) intentional torts, (2) negligence/fault, (3) strict liability
- components of negligence: (1) duty, (2) breach, (3) cause in fact, (4) proximate cause, (5) injury, (6) damages

• United States v. Lopez, 514 U.S. 549 (1995)

th
Facts: Resp, then a 12 -grade student, carried a concealed handgun into his high school and was charged with the Gun-
Free School Zones Act of 1990 (GFSZA), a criminal statute which (in its iteration then) forbids “any individual
knowingly to possess a firearm at a place that [he] knows . . . is a school zone.” 18 U.S.C. § 922(q)(1)(A).

Procedure: The District Ct. denied resp’s motion to dismiss the indictment, holding that the § 922(q) is a
constitutional exercise of Congress’ power to regulate activities in and affecting commerce. The Ct. of Appeals
reversed, holding the opposite. At the S. Ct., the govt argues that Congress could have rationally concluded that §
922(q) substantially affects interstate commerce bc possession of a firearm in school zone affects the national economy
because (a) the costs of violent crime spread throughout the population; (b) violent crime reduces the willingness of
individuals to travel to areas within the country that are perceived to be unsafe; and (c) the presence of guns in schools
threatens the learning environment, handicapping education and resulting in a less productive citizenry.
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Held (Rehnquist, C.J., 5-4): Congress does not have authority under the Commerce Clause to criminalize the knowing
possession of a firearm at a place that an individual knows or has reasonable cause to believe is a school zone, because
such possession in local school zones is not economic activity that substantially affects interstate commerce.

Discussion: Federal powers are “few and defined” while state powers are “numerous and indefinite.” The Federalist
No. 45. There are three categories of activity that Congress may regulate: (1) the channels of interstate commerce, (2)
the instrumentalities of interstate commerce, including where “the threat may come only from intrastate activities,” and
(3) activities that substantially affect interstate commerce.”

Two considerations counsel ag finding that category (3) above applies here. (a) § 922(q) does not regulate intrastate
activity that might, through repetition elsewhere, have a substantial effect on interstate commerce or constitutes an
essential part of a larger regulation of economic activity in which the regulatory scheme could be undercut unless the
intrastate activity were regulated. (b) § 922(q) contains no jurisdictional element that ensures that the regulated activity
has a nexus with interstate commerce. Under the govt’s theory, it is difficult to perceive any limit on federal power,
even in traditional state areas like criminal law and education. To “pile inference upon inference” in order to find such
a nexus would convert congressional Commerce Clause authority to a gen police power of the sort only held by states.

Concurrence (Kennedy, J.): If the boundary btw federal and state authority blurs, then political responsibility would
become illusory and unaccountable. Because it is well established that education is a trad state concern, we have a
“particular duty” to ensure the federal-state balance. States are well equipped to regulate this issue.

Concurrence (Thomas, J.): At the time of ratification, “commerce” consisted of selling, buying, bartering, and possibly
transporting, in contradistinction to manufacturing and agriculture. The substantial effects test would make much of
the Commerce Clause surplusage because of the aggregation principle: almost any activity can affect interstate
commerce in the aggregate but not affect it when taken in isolation.

Dissent (Stevens, J.): The possession of guns is the direct or indirect consequence of commercial activity.

Dissent (Souter, J.): The correct standard of review of leg judgments is rational basis, in accordance with the principle
of judicial restraint. FCC v. Beach Comms., Inc. (1993).

Dissent (Breyer, J.): [noting empirical data] Under the substantial effects test, Congress could have rationally thought
that guns in schools significantly undermined the quality of education, which affected interstate and foreign commerce.
The question is not whether we think there is a rational relationship, but whether the leg and exec branches did. In
Katzenbach v. McClung (1964), we held that the Commerce Clause authorized a fed statute that prohibited racial
discrimination at local restaurants. In Perez v. United States (1971), we held that the Commerce Clause authorized a
fed statute that makes it a crime to engage in extortionate credit transactions (“loan sharking”) at the local level.

Notes

three common threads: (1) common law constitutionalism, (2) categorical legal method, (3) common law baselines

“Legal thought [is], in essence, [processes] of [characterization and categorization.] . . . [Characterizing and
categorizing] phenomena determine how they will be treated by the legal system. . . A realistic approach would,
however. . . [recognize] that to classify is to disturb. It is to build emphases, to create stresses, which obscure some of
the data under observation and give fictitious values to others.” – Duncan Kennedy

th st
- this is a case in which the court is using 19 -century understandings of law to resolve a 21 -century problem, striking
down economic legislation for the first time in 60 years
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- pointing attention to the counter-majoritarian difficulty (Alexander Bickel, The Least Dangerous Branch)
- majority’s baseline = federalism; dissent’s baseline = separation of powers
- De novo review is typically applied to matters of law, granting the lower court(s) no deference.
- Following the Great Depression, the Supreme Court determined that rational basis review applies to economic
issues. A bloc of justices blocked fed leg to deal with it. See United States v. Carolene Prods. Co. (1938).

• District of Columbia v. Heller, 554 U.S. 570 (2008)

Facts: D.C. generally prohibits the possession of handguns, other than when the chief of police issues a 1-year license.
Lawfully owned firearms must be kept “unloaded and disassembled or bound by a trigger lock or similar device”
unless they are located in a place of business or are being used for lawful recreational purposes.

Procedure: Resp, denied a registration certificate for a handgun he wished to keep at home, sued in federal district
court on Second Amt. grounds to enjoin the District from enforcing its licensing req insofar as it prohibits (1) the
carrying of a firearm in the home without a license, and (2) the storage of a firearm with a trigger-lock req. Before this
court, petitioner claims that the Second Amt. only protects the right to possess and carry a firearm in connection with
militia service, whereas resp claims that it protects an individual right unconnected with service in a militia and to use it
for traditionally lawful purposes, such as self-defense within the home.

Held (Scalia, J., 5-4): Subject to certain safety limitations, the Second Amendment creates an individual right to keep
and bear arms for traditionally lawful purposes, including self-defense in the home.

Discussion: We must interpret the Constitution in their “normal and ordinary” as distinguished from “technical”
meaning. The operative clause is “right of the people.” In the clause’s other two appearances—the First and Fourth
Amendments—it refers to individual rather than collective rights. Where “the people” is used in contexts other than
rights (preamble; Art. I, § 2, Tenth Amt.), the provisions deal with the exercise or reservation of powers, not rights.
th
This creates a presumption that the Second Amt. right is “exercised individually.” 18 -century definitions of “arms”
extend beyond instruments specifically designed for military use. Moreover, the operative clause codifies a preexisting
right (“. . . shall not be infringed”). Historical docs and state analogues suggest that the likely meaning of the Second
Amt. is the securing of an individual right to bear arms for self-defense. The post-Civil War Congress understood the
Second Amt. similarly. United States v. Miller (1939) does not foreclose this decision bc that case held that certain
types of weapons, such as the sawed-off handguns at issue there, were ineligible for Second Amt. protection.

Dissent (Stevens, J.): Miller stands for the proposition that we will protect the right to keep and bear arms for certain
military purposes, not that we will not curtail the legislature’s power to regulate the nonmilitary ownership and use of
weapons. Three considerations counsel my position: (1) the introductory language defining the Amt.’s focus; (2) the
class of persons encompassed; and (3) the unitary nature of the right protected. The words “the rights of the people”
contemplates collective action, consistent with other provisions in the Bill of Rights. The word “keep” does not convey
the meaning of private nonmilitary ownership. The majority’s reliance on the codification of a previous right is
misguided because service in a state militia was also a preexisting right.

Dissent (Breyer, J.): In addition to Steven, J.’s analysis, the majority is also wrong because the D.C. law is consistent
with the Second Amendment even the latter protects a separate interest in individual self-defense, because it is a
legitimate legislative responsive to the presence of handguns in a high-crime urban area.

Notes

- two modalities of originalist interpretation: (1) original intent, (2) original understanding
- originalism often overlaps with textualism but does not necessarily
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- in another portion of Breyer, J.’s dissent, he advocates for an interest-balancing inquiry whereby the Court would
seek to determine whether a statute burdens an interest protected by the Second Amt. in a way that is disproportionate
too its effects on important govt objectives

“All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation,
are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of
particular discussions and adjudications. Besides the obscurity arising from the complexity of objects and the
imperfection of the human faculties, the medium through which the conceptions of men are conveyed to each other
adds a fresh embarrassment . . . The use of words is to express ideas. Perspicuity, therefore, requires not only that the
ideas should be distinctly formed, but that they should be expressed by words distinctly and exclusively appropriate to
them. But no language is so copious as to supply words and phrases for every complex idea, or so correct as not to
include many equivocally denoting different ideas.” – James Madison, The Federalist No. 37

• Klonoff, Introduction to the U.S. Legal System, pp. 33-37 (“E. Judicial Review and Judicial Decisions”); pp.
37-54 (“F. The U.S. Supreme Court”)

- the NRA only started to fixate on the Second Amt. in 1977

• Winker, “Big Guns and Little Guns at the Supreme Court, ” excerpts from Gun Fight

thesis: the individual right to have guns for self-defense and improvement to gun safety are not mutually exclusive ideas
- the Founding Fathers req many gun owners to register, barred large portions of the pop from possessing firearms,
and conditioned the right of ownership on political leanings
- 43 states protect the right of individuals to bear arms in their state constitutions, neutralizing the Second Amt.

• Follman et al., “The True Cost of Gun Violence” in Mother Jones, Apr. 15, 2015

- the total cost of gun violence per year is approx $229bn (approx 87% of which = borne by taxpayers)
- (comp w/ Medicaid spending: $251bn; $88bn more than the budget for education)
- 11K Americans are murdered with a firearm daily, and more than 20K commit suicide using one
- since 1999 Columbine High School shooting, the fed govt has spent $811mn to help w/ school security

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MODULE 3: PROPERTY LAW (F, 08/19; M, 08/22)

pure question of law: can be decided without reference to the facts of the case -> de novo review
pure question of fact: if the jury was properly instructed and if the record contains some modicum of competent evid
supporting the jury’s decision, the appellate court must allow the jury’s decision to stand -> clearly erroneous standard
- if the determination of a question of law of the trial judge is approved by the state’s highest appellate court, then the
effect will be the same as if the state legislature has enacted a controlling law, and stare decisis/deference applies
mixed questions of law and fact: case by case determination of whether factual or legal questions predominate

• James Madison, The Federalist No. 10 (Nov. 23, 1787)

- a well-constructed union has a “tendency to break and control the violence of faction”
- liberty feeds faction, but liberty cannot be abolished
- the two ways to dismantle factions are (1) to “remov[e] its causes” and (2) to “contro[l] its effects”
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- property rights originate from “[the] diversity in the faculties of men”; property ownership results in a “division of the
society into different interests and parties”

“But the most common and durable source of factions has been the various and unequal distribution of property . . .
The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the
spirit of party and faction in the necessary and ordinary operations of the government.”

• Johnson and Graham’s Lessee v. William M’Intosh, 21 U.S. 8 Wheat. 543 (1823)

Facts: In 1773, Johnson purchased land in Illinois from the Piankeshaw Indian tribes. Later, after the Declaration of
Independence, M’Intosh obtained the rights to the same from the U.S. fed govt.

Procedure: Pls, lessees of Graham (Johnson’s descendant), inherited the land and brought suit ag M’Intosh asking the
court to declare that the df’s claim was invalid. Pls argued that their claim was more legitimate (1) bc Johnson had
purchased the land earlier and (2) bc their title came directly from the Indians who owned the land. The Illinois
District Court held for df, stating that the Indians never “owned” the land and therefore did not have right to sell it.

Held (Marshall, J.): “The absolute ultimate title has been considered as acquired by discovery, subject only to the
Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring.” Affirmed.

Discussion: The tribes were in “rightful possession” of the land they sold. Therefore, the question is whether the
Indians have the “power” of giving title which can be sustained in U.S. courts. The principle governing the right of
acquisition is that “discovery gave title to the government by whose subjects or by whose authority it was made against
all other European governments, which title might be consummated by possession” (i.e., discovery leads to the right to
obtain title). The relationship btw the discoverer and the natives were to be regulated amongst themselves. Indians may
“retain possession” to land and “use it according to their discretion,” but “their right to complete sovereignty as
independent nations were necessarily diminished.” Europeans asserted “ultimate dominion” and exercised “a power to
grant the soil while yet in possession of the natives.” After the American Revolution, the land came under American
rule and thus the transfer to Johnson became invalid under American law.

• Dred Scott v. Sandford, 60 U.S. 39 (1856)

Facts: Before 1838, Scott served Emerson as a slave and accompanied him to a “free” state (Illinois) and territory (later
Minnesota) and later returned to the slave state of Missouri with him.

Procedure: In 1846, Scott and wife (who married in Minnesota) filed for battery and false imprisonment ag new
putative owner Sanford (misspelled in record). They claimed that the time the Scotts spent on “free” soil had made
them free persons, on the basis of the common law doctrine that presence on free soil was considered emancipation
regardless of the owners’ intent. The trial court held for pls, and the Supreme Court of Missouri reversed, holding that
slave status “reattached” upon return. Pls filed in fed court, arguing their diversity of citizenship from Emerson. The
local circuit court held for dfs and pls appealed.

Held (Taney, J.): Persons of African descent brought to the United States and held as slaves, and their descendants,
are not considered citizens of the United States and therefore are not entitled to rights and protections thereunder.

Discussion: The question is whether slaves who were “imported” into the U.S. & sold and held as slaves are citizens in
the constitutional sense. The words “people of the United States” and “citizen” describe the political body which holds
power and conduct the govt. At the time the Const. was drafted, slaves were considered as a “subordinate and inferior
class of beings, who had been subjugated by the dominant race, and . . . had no rights of privileges but such as those
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who held the power and the Government might choose to grant them.” We are powerless to decide upon the justice
or injustice of laws. A state may confer on an individual the character of citizen, but this does not change the const.
analysis. At the time of the Decl of Indp, “negros” were articles of commerce. Despite the words “all men are created
equal,” the prevailing negative view of African Americans at the time of drafting meant that the Framers could not have
intended those words to apply to them.

• Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013)

Facts: Under 35 U.S.C. § 101, “Whoever invents or discovers any new and useful . . . composition of matter, or any
new and useful improvement thereof, may obtain a patent therefore.” The human genome consists of approx 22K
genes within 23 chromosomes. Each gene is encoded as DNA. Each “crossbar” in the DNA helix consists of two
chemically joined nucleotides. Only some DNA nucleotides code for amino acids (which are used to build proteins):
these are called exons; non-coding nucleotides are called introns. The natural creation of the exons-only strand of
DNA used during the protein-building process, called the messenger ribonucleic acid (mRNA), can be created in a
lab. This synthetic product is called complementary DNA (cDNA). Df company discovered the exact location and
sequence of the BRCA1 and 2 genes on chromosomes 17 (approx 80mn nucleotides) and 13 (approx 114mn
nucleotides), the mutation of which sig increase a woman’s chance of breast cancer. This information allowed df to
determine their typical nucleotide sequence and develop medical tests useful for detecting mutations in a patient’s
BRCA1 and 2 genes in order to det whether they have an increased risk of breast cancer. Df obtained a number of
patents, incl one that gave it the exclusive right to isolate the genes, and one that gave it the right to synthetically create
the genes from messenger ribonucleic acid (mRNA) into a creation called complementary DNA (cDNA).

Procedure: Pl Dr. Ostrer, then a researcher at NYU, routinely sent his patients’ DNA samples to the Univ. of
Pennsylvania’s Genetic Diagnostic Laboratory for testing. Pl joined with patients, advocacy groups, and other doctors
to seek a decl that df’s patents are invalid. The district court granted SJ for pl, the Fed. Cir. reversed, and this court
granted cert and V&R. On remand, the Fed. Cir. affirmed in part and reversed in part, agreeing that only Ostrer had
standing and that both isolated DNA and cDNA were patent eligible.

Held (Thomas, J.): A naturally occurring DNA segment (a specific gene or sequence of nucleotides) is not patentable
as an inventive act merely because it has been isolated from the rest of the chromosome.

Discussion: Naturally occurring things may not be patentable even if the discovery were groundbreaking because
“[patentable things] are the basic tools of scientific and technological work” that individuals use to create and innovate.
Mayo Collab. Sers. v. Prometheus Labs., Inc. (2012) (noting that “[laws] of nature, natural phenomena, and abstract
ideas are not patentable”). Df’s isolation of the genes is not “new . . . composition of matter.” But cDNA is created in a
lab and therefore not naturally occurring. cDNA is patentable, “except insofar as very short series of DNA may have
no intervening introns to remove when creating cDNA.”

Concurrence (Scalia, J.): I am unable to confirm the scientific details. But “the portion of the DNA isolated from its
natural state sought to be patented is identical to that portion of the DNA in its natural state.” That suffices.

• Ward Farnworth, “Baselines” in The Legal Analyst (2007)

- the Shelley v. Kramer situation raises the question: where does the principle “govt inaction is govt action” stop? what
is the “inaction” is when a radio station fires a host for making politically offensive statements on air?

• Robert W. Gordon, “A Note on the Concept of ‘Ideology’” in Legal Thought and Legal Practice . . .
 11

- all legal practitioners are engaged in trying to “explain and rationalize what they see happening in the world in terms
of some general normative conceptions”; no legal act is neutral
- every legal act has a specific purpose and conseq apart from its role in the construction of an ideological framework
- the framework is ideological because it’s a set of assertions, args, and implicit assumptions about power and right

///

MODULE 4: CONTRACT LAW (T, 08/23)

• Dementas v. Estate of Tallas, 764 P.2d 628 (Utah App. 1988)

Facts: Dementas rendered assistance to Tallas. Before his death, Tallas dictated a memorandum to Dementas stating
that he owed Dementas $50K for his help over the years and that he would change his will so as to make Dementas an
“heir for the sum of $50,000.” Tallas notarized the document and delivered them to Dementas.

Procedure: After Tallas died without changing the will, Dementas timely filed a claim for $50K with Tallas’ estate. The
lower court found the memorandum as unenforceable for lack of consideration.

Held (Orme, J.): A purported contract expressing a promise to pay for past services rendered gratuitously is
unenforceable for lack of consideration.

Discussion: A generally accepted definition of consideration is that a legal detriment has been bargained for and
exchanged for a promise. Miller v. Miller (Wyo. 1983). A mere promise creates no legal duty. Corbin on Contracts §
110. A returned promise, on the other hand, must be bargained for. Rest. (2d) Contracts § 71. To det whether there is
consideration, one focuses on whether there is any detriment, not whether such detriment embodies fair market value.
Dementas’ services were past consideration, which are the legal equivalent of no consideration; in other words, there
was no bargain. Corbin on Contracts § 210; County of Clark v. Bonanza (Nev. 1980). We refuse to embrace a “moral
obligation” concept as other courts have done, because “that would practically erode to the vanishing point the
necessity for finding a consideration.” And even if the concept were to be applied, it is irrelevant here, because the trial
court found that Dementas rendered the services with the expectation of not being compensated.

• Wolf v. Marlton Corp., 154 A.2d 625 (N.J. Super. 1959)

Facts: Pls, husband and wife, made a deposit of $2,450 under a contract to purchase a house to be built for them by df
corp. Df completed the “closing in” of the house, notifying pls’ atty of that fact at least four times between July and
Sept 1957. Pls experienced marital difficulties in summer 1957 and instructed their atty that they would like to get out
of the agreement, which stated that after the “closing in,” pls must pay an additional $2,450. The contract further
provided that “[should] Buyer fail to make payment . . . as herein provided, the sum or sums paid on account may be
retained by Seller either on account of the purchase price or as compensation for the charges and expenses which
Seller has sustained, as Seller may elect, in which latter case this contract shall become null and void . . .” Pls’ atty told
df’s sales agent that if they had to purchase the home, they would arrange a subsequent resale with “a purchaser who
would be undesirable in our tract,” and made additional verbal threats toward df’s president that he would ruin df’s
president’s building career. Df sold to a third party the home which had been intended for the pls.

Procedure: In order to recover the deposit, pls sued in Camden County Ct., which held for pls. On appeal, pls argued
that a threat to do what one has a legal right to do does not constitute duress. Smith v. White (N.J. 1940).
 12

Held (Freund, J.A.D.): When a contracting party for purely malicious and unconscionable motives makes an
otherwise legal threat specially selected to injure the other party’s business, such conduct is wrongful under the law of
duress. Remanded.

Discussion: Whether duress existed in a transaction is generally a matter of fact, but what in given circumstances will
constitute duress is a matter of law, so we may reach this question. If one party makes it impossible for the other to
carry out the terms of the contract, the latter may regard the contract as breached and recover damages. Tanenbaum v.
Francisco (N.J. 1933). Duress is tested by the state of mind induced thereby in the victim, not by the nature of the
threat itself. Rubenstein v. Rubenstein (N.J. 1956). However, not all threats are illegal; there is no doctrine forbidding
sb from “taking advantage of the adversity of another to drive a hard bargain.” Id. (citing 5 Williston, Contracts, §§
1606-07. Pls’ premise is wrong because a “moral or equitable” threat may be legally wrongful even though the act
threatened is legal. The trial judge should exercise discretion in factual determinations, including the actual amount by
which df was damaged by reason of pl’s breach.

• Lochner v. New York, 198 U.S. 45 (1905)

Facts and procedure: Df Lochner was charged with requiring and permitting a baker to work more than 60 hours in
one week in violation of New York state law.

Held (Peckham, J.): A state may not, consistent with the Fourteenth Amendment’s Due Process Clause, regulate the
working hours mutually agreed upon between an employer and employee.

Discussion: The Fourteenth Amendment protects the general right to make a contract. Allegeyer v. Louisiana (1897).
Yet the same amendment is also designed to not interfere with state police powers, incl powers to regulate the “safety,
health, morals and general welfare” of the public (citing cases). However, this law falls outside these parameters. It
does not matter that there is a “remote” connection to public health; rather “[the] act must have a more direct relation,
as a means to an end, and the end itself must be appropriate and legitimate before an act can be held to be valid which
interferes with the general right of an individual to be free in his person and in his power to contract in relation to his
own labor.” Whether a law violates the Constitution is determined from the natural operative effect of these statutes,
not from their proclaimed purpose (citing cases).

Dissent (Harlan, J.): The statute only applies to bakers and confectioners, who unlike other professionals constantly
breathe unhealthy air. There is much scientific evidence to support this.

Dissent (Holmes, J.): The decision is based on an economic theory which a large part of the country does not
entertain, and which contradicts other Due Process decisions of this court (citing cases).

///

MODULE 5: TORTS (W, 08/24; R, 08/25)

- Richard Posner’s view: common law (incl torts) understood as a system of rules for people to behave efficiently
- e.g., reasonable care is to be understood in terms of the intuition behind the Hand Formula (see below)
- anti-Posner view/anti “law and economics” critique (e.g., Prof. Benjamin Zipursky): no room for morality; Posner’s
“overcoming law” account leaves no room for law at all
- eggshell plaintiff rule: the unexpected fragility of (in other words, the unexpected large damages suffered by) pl does
not limit df’s damages, even if the df’s conduct would product a lesser injury in a typical pl
 13

• United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)

Facts: Pl Connors Co. owned a barge called the Anna C which carried flour owned by pl United States. Connors hired
df Carroll Towing to tow the barge with its tugboat, which Carroll chartered to df Grace Line. Connors’ employee,
tasked with watching the barge, had gone ashore. Carroll’s tugboat (operated by Grace Line) attempted to move the
Anna C to another dock, but this set all the other boats loose. The boats floated downstream, and the Anna C sank.

Procedure: Connors brought suit ag Carroll and Grace for damage from the loss of the boat, and the United States
brought suit against Carroll for loss of the flour. At trial, Carroll and Grace defended on the ground that Connors was
contributorily negligent because its employee was absent. The trial judge found Carroll, but not Grace, responsible for
one-half the damages to the Anna C and the entire loss of the flour. Carroll appeals.

Held (Hand, C.J.): “[If] the probability be called P; the injury, L; and the burden, B; liability depends upon whether B
is less than L multiplied by P.” (“Hand Formula”)

Discussion: Grace Line is liable at least in part [due to technical aspects of the tugboat operator’s decision]. If
Connors’ employee had been onboard, he could have called for help from the tugboats when the barge broke free and
possibly avoided damage. The likelihood of a barge breaking free is high, especially in instances of severe weather.
Liability is apportioned as follows: half each of “collision damages” to Grace and Carroll, and one-third each of
“sinking damages” to Grace, Carroll, and Conners.

• Ryan v. New York Cent. R.R. Co., 35 N.Y. 210 (1866)

Facts: Df railroad company, by careless management of one of its engines, set fire to its woodshed and a large quantity
of wood therein. Pl’s house, situated 130 ft away, took fire from the heat and sparks and burned down.

Procedure: Pl brought suit to recover the building’s value. The circuit judge dismissed, and the fifth district affirmed.

Held (Hunt, J.): A person is only liable for the proximate results of their own acts.

Discussion: In Vandenvurgh v. Truax, the df chased his slave boy with a pickaxe. In order to avoid being thus stricken,
the boy ran behind pl’s store counter and knocked out a faucet from a cask of wine, spilling a portion of the liquor.
The court granted recovery on the theory that the consequences “naturally and directly” resulted from the actions of
df. Although the application is inconsistent with this case, the principle is sound. The key is that (1) there is an initial
volitional act which is unlawful or improper, and (2) the result was “deemed by the court” to be the inevitable
consequence of the original act. Moreover, pl’s theory of liability has never succeeded in U.S. courts; to allow
unlimited liability would be the “destruction of all civilized society.”

• Oliver Wendell Holmes, The Common Law, pp. 76-78 (1881)

- general principle: loss of accident must lie where it falls

- action generally tends toward the public good, so it is poor policy to throw the hazard upon the actor

• Richard Posner, excerpt from A Theory of Negligence, 1 J. Legal Stud. 29, 32-33 (1972)

- when the cost of accidents is less than the cost of prevention, a rational enterprise will pay tort judgment rather than
to incur the larger cost of avoiding liability
 14

• Ward Farnsworth, “The Coase Theorem” from The Legal Analyst (2007)

Coase theorem: If there were no transaction costs, rights naturally flow into the hands of whoever will pay the most for
them. (Stigler’s statement: “Under perfect competition, private and social costs will be equal.”)

- an accident where the df is negligent can be reimagined as a breach of a hypothetical contract the two sides would
have made if they had seen the chance that the accident would come
- proposal: the law supplies default terms for contracts so that parties will negotiate over the allocation of costs

• Weissbordg et al. eds., “The Calculus of Risk Applied . . .” in The Common Law of Torts (2010)

Grimshaw v. Ford Motor Co. (Cal. App. 1981): after a “flaming death” suffered by pls in the course of their use of a
Ford vehicle, dfs produced an internal report by two Ford employees (the “Grush-Saunby report”) that showed a
calculation between the cost of correcting a design defect and paying tort damages; the jury found malice (required,
under Calif. law, to impose punitive damages) and awarded $125mn; the appellate court reduced it to $3.5mn.

///

MODULE 7: CORPORATE LAW (M, 08/29)

• Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)

Facts: Three closely held corporations wished not to provide health-insurance coverage for methods of contraception,
required by the Patient Protection and Affordable Care Act (ACA), that violate the sincerely held religious beliefs of
their owners. The ACA imposes a $100 per day per “affected individual” penalty. The Religious Freedom Restoration
Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if
the burden results from a rule of general applicability” unless the Government “demonstrates that application of the
burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means
of furthering that compelling governmental interest.”

Held (Alito, J.): A closely held corporation is a “person” within the meaning of RFRA. A regulation that requires a
corporation to provide health-insurance coverage for contraception substantially burdens its practice of religion without
being the least restrictive means of furthering a compelling government interest.

Discussion: To hold otherwise would put merchants to the difficult choice of giving up the right to seek protection of
their religious liberty or forego the benefits of incorporation. Unless context indicates otherwise, the Dictionary Act
includes corporations under the def of “person.” Nothing in RFRA suggests a congressional intent to depart from the
Dictionary Act, and in any case this court has entertained RFRA claims brought by nonprofit corporations. The court
assumes that the interest in guaranteeing cost-free access to certain contraceptive methods is compelling within the
meaning of RFRA. But it is not the least restrictive means of doing so. There are other ways for DHHS to provide
access to contraceptives to women, such as for the government to provide it directly.

Dissent (Ginsburg, J.): The relevant portion of the ACA was passed over the objection of legislators who introduced a
“conscience amendment” enabling any employer or insurance provider to deny coverage based on asserted “religious
beliefs or moral convictions.” Legislative history indicates that a prevailing senator thought that passage of the
amendment would “[put] the personal opinion of employers and insurers over the practice of medicine.” The majority
is wrong to hold that context does not displace the Dictionary Act definition of “person.” The majority miscites
Braunfeld v. Brown (1961) for the proposition that a sole proprietorship, and therefore all business entities, may assert
a free-exercise claim because in a sole proprietorship the owner and business are the same. In any case, in Braunfeld
 15

the claims were rejected on the merits. The regulation is not a substantial burden because it requires affected
corporations to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive
health plans. The majority’s proposed solution imposes additional logistical and administrative obstacles, which defeats
the purpose of the ACA; it opens a slippery slope to other “sincerely held” objections. In United States v. Lee (1982),
this court held that a sole proprietor farmer who claims that withholding Social Security taxes or paying the employer’s
share of such taxes violated his sincerely held Amish faith was not unconstitutionally burdened by the Social Security
system, writing that “[when] followers of a particular sect enter into commercial activity as a matter of choice, the limits
they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes
which are binding on others in that activity.” I would confine religious exemptions to organization formed for a
religious purpose and not engaged substantially in the exchange of g/s for money beyond nominal amounts.

• Dodge v. Ford Motor Co., 170 N.W. 668 (Mich. 1919)

Facts: Df corp continually lowered the price of its cars yet increased its profits over the first ten years of its existence.
On top of annual dividends of $120K, Ford paid $10mn or more in special dividends in 1913-15. In 1916, Henry
Ford, df’s majority shareholder and president, announced that there would be no more special dividends and that all
future profits would be invested in lowering the price of Ford products and growing the company, specifically by
increasing employment and building a smelting plant. The board ratified the decision.

Procedure: Pls, two brothers who held 10% of Ford’s shares, sued to reinstate the special dividends and to enjoin the
building of the smelting plant. The lower court order payment and enjoined building of the plant.

Held (Ostrander, C.J.): A corporation may not (1) take actions that harm its shareholders or (2) remain motivated
solely by humanitarian rather than business concerns. Affirmed as to the trial court’s determination of the amount to
be distributed to stockholders; reversed as to the enjoinment of Ford’s proposed business expansions.

Discussion: A business corporation is primarily organized for the profit of its shareholders. It is generally true that
courts cannot interfere with the board’s management of profits. The directors may apply profits in payment of floating
or funded debts; in developing business; or doing other things, so long as they do not violate the charter. But the
directors cannot arbitrarily withhold the company’s profits or apply them to unauthorized uses.

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MODULE 8: CRIMINAL LAW (T, 08/30)

• McCleskey v. Kemp (1987)

Facts: Df McCleskey, a Black man, was convicted of two counts of armed robbery (of a furniture store) and one count
of murder (of a white police officer) in Georgia superior court.

Procedure: Upon arrest for an unrelated offense, df confessed that he had participated in the furniture store robbery
but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the two bullets
that struck the police officer was fired from a .38 caliber Rossi revolver, and that two witnesses heard df admit to the
shooting. The jury convicted df of murder. Under Georgia law, the jury could not consider imposing the death penalty
unless it found beyond a reasonable doubt that the murder was accompanied by a statutory aggravating circumstance.
Df offered no mitigating evidence, the jury recommended that df be sentenced to death, and the court so sentenced.
ON appeal, df claims that the Georgia capital punishment statute violates Fourteenth Amendment Equal Protection
because persons who murder whites are more likely to be sentenced to death than persons who murder Blacks, a
conclusion reached by the influential Baldus Study.
 16

Held (Powell, J.): A complex statistical study that indicates a risk that racial considerations enter into capital sentencing
determinations does not prove that a Black defendant’s capital sentence is unconstitutional under the Eighth or
Fourteenth Amendment.

Discussion: A criminal df must prove that purposeful discrimination “had a discriminatory effect” on him. Wayte v.
United States (1985). But each jury is unique in its composition and takes up “unnumerable factors that vary according
to the characteristics of the individual defendant and the facts of the particular capital offense.” Inferences drawn from
a study are not comparable to inferences drawn from a particular jury. As to whether the Baldus Study has conclusively
demonstrated that application of the death sentence to Black defendants violates the Eighth Amendment, this court
declines to “assume that what is unexplained is invidious.”

Dissent (Brennan, J.): According to the Baldus Study, over half of dfs in white-victim crimes in Georgia would not have
been sentenced to die if their victims had been Black. Georgia’s history expressly differentiates between crimes
committed by and against Blacks and whites. When confronted with evid that race more than likely played a
discriminatory role in capital sentencing, it is wrongful to defer to judicial discretion because that very discretion is
subject to the possibility of discrimination.

• Roper v. Simmons (2005)

Facts: At the age of 17, df Simmons committed murder by breaking and entering, typing up a victim with electrical
wires, and throwing her over a bridge.

Procedure: In the trial court, during closing args. the trial judge instructed the jurors that they could consider age as a
mitigating factor. Df challenged his conviction on the ground that the application of the death penalty to a minor is
unconstitutional and not supported by international law. The Missouri Supreme Court reversed and resentenced df to
life without parole. The prosecution appealed.

Held (Kennedy, J.): The Eighth Amendment prohibits the imposition of the death penalty on juvenile offenders.

Discussion: The Fourteenth Amendment incorporates the Eighth Amendment to apply to states. Furman v. Georgia
(1972). Stanford v. Kentucky (1989), upholding the constitutionality of the death penalty as applied to 16- and 17-year-
olds, is overturned. Since that decision, the rest of the world has converged around the opinion that such punishment
is cruel and unusual. Only six states have executed minors following Stanford. Three differences separate juveniles and
adults: (1) underdeveloped maturity and sense of responsibility; (2) higher susceptibility to outside negative influence;
and (3) a more transitory personality and character. These factors counsel that juveniles have a diminished culpability:
penological justifications for execution apply to them with lesser force than to adults. A line drawn at 18 is subject to
the usual criticisms of categorical rules, but a line must be drawn, and most states have coalesced around 18 as the
suitable spot. Furthermore, since Trop v. Dulles (1958), this court has repeatedly referred to international law and
foreign authorities to interpret sentences against the Eight Amendment’s prohibition of cruel and unusual
punishments. Art. 37 of the UN Convention explicitly prohibits this practice. Only eight countries have executed
minors since 1990. Since then, each of these countries has either abolished execution of minors or made public
disavowal of the practice.

Dissent (Scalia, J.): That juvenile murderers are less culpable than their older counterparts is reflected in mere dicta,
not a holding. Even if international law is persuasive in expounding the meaning of the domestic constitution, that is
not the case here: the U.S. has not ratified the UN Convention. And this court has not looked to foreign law to
expound other constitutional provisions.
 17

///

MODULE 9: CONSTITUTIONAL LAW – SUBSTANTIVE DUE PROCESS (W, 08/31)

compare (statutory) procedural due process (e.g., right to an evidentiary hearing, right to confront witnesses, right to a
judicial opinion and explication of reasoning)

with substantive due process, i.e., fundamental rights implied from the Fifth Amendment (“no person . . .”) and
Fourteenth Amendment Due Process (“no state shall deprive . . .”) clauses

• Griswold v. Connecticut, 381 U.S. 479 (1965)

Facts: Griswold, executive director of the PP League of Connecticut, and a physician gave information, instruction, and
medical advice to married persons as to the means of preventing conception.

Procedure: Df-appellants challenge the constitutionality of a Conn. statute which imposes criminal liability on anyone
who prevents conception.

Held (Douglas, J.): An implied right of privacy exists within the Bill of Rights that prohibits a state from preventing
married persons from using contraception.

Discussion: Dfs have standing as a result of the imposition of criminal liability. The Bill of Rights have “penumbras,”
[as suggested by First Amendment, privacy, and right of association cases] which create “zones of privacy” [as found in
the First, Third, Fourth, Fifth, and Ninth Amts.].

• Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1993)

Procedure: Pls challenge five provisions in the Pennsylvania Abortion Control Act of 1982: (1) informed consent (a
person desiring an abortion must be provided with “certain information” at least 24 hours beforehand; (2) (for minors)
parental consent (with a judicial bypass option if parental consent cannot be obtained); (3) spousal notification; (4)
(medical emergency exception); and (5) reporting requirements.

Held (O’Connor, Kennedy, and Souter, JJ.): A State may not impose an undue burden on, that is, to place a
substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.

Discussion: There are three noncontradictory parts to the essential holding of Roe: (1) the woman’s right to have an
abortion before viability outweighs the State’s interest in obstructing it; (2) the State may restrict abortions after viability
if the law contains exceptions for pregnancies which endanger the woman’s life or health; (3) the State has legitimate
interests from the outset of the pregnancy in protecting the woman and the life of the fetus. Stare decisis is not an
“inexorable command,” but subject to pragmatic consideration of factors such as (1) workability; (2) reliance interests;
(3) the development of related areas of law; and (4) whether the precedent’s factual predicates have so far changed that
its ruling has become irrelevant or unjustifiable. This is not the case. All judicial line-drawing can seem arbitrary.
Drawing the line at fetal viability follows stare decisis, and because the State’s interest outweighs that of the woman
because the “independent existence of the second reason can in reason and all fairness be the object of state
projection.” We reject Roe’s trimester framework as being rigid, unnecessary, and sometimes contradictory of the
State’s permissible exercise of its powers, such as the power to expose women to materials counseling against abortion
as early as in the first trimester.
 18

Concurring in the judgment in part and dissenting in part (Scalia, J.): Stare decisis should not be an act of “keep-what-
you-want-and-throw-away-the-rest.” The decision whether to overrule should not be strongly influenced, as the majority
suggests it should, by public opinion. This court should not stay involved in the abortion debate.

• Dobbs v. Jackson Women’s Health Org., 597 U.S. _ (2022)

th
Procedure: Pl challenged a Mississippi law that generally prohibits an abortion after the 15 week of pregnancy, several
weeks before the point at which a fetus is regarded is viable. The State argues that this court should overrule Roe and
Casey and allow each State to regulate abortion as its citizens wish.

Held (Alito, J.): The Constitution, including the Due Process Clause, does not contain any provision which protects
the right to abortion because it is not “deeply rooted in this Nation’s history and tradition [and] implicit in the concept
of ordered liberty.” Abortion restrictions are now to be examined under rational basis review.

Dissent (Breyer, Sotomayor, and Kagan, JJ.): The court pays lip service to stare decisis. Casey is a precedent about
precedent which also recognizes a woman’s autonomy. As evident in others of this majority’s decisions, the majority
refuses to engage in interest-balancing. This decision erases a woman’s interest in bodily autonomy and erroneously
recognizes the interest of the State (or federal government) only.

///

MODULE 10: CONSTITUTIONAL LAW – EQUAL PROTECTION (R, 09/01; F, 09/02)

• Plessy v. Ferguson (1896)

Held: A law mandating racial separation of rail passengers does not violate the Thirteenth Amendment or the
Fourteenth Amendment Equal Protection Clause.

Discussion: A statute which “implies merely a legal distinction between the white and colored races” does not destroy
the races’ legal equality or re-establish a previous state of involuntary servitude. The establishment of separate schools
for white and Black children has been held as a valid exercise of legislative power. Df mistakenly beliefs that enforced
racial separation “stamps the colored race with a badge of inferiority.”

Dissent (Harlan, J.): The Constitution does not permit any public authority to know of the race of those entitled to be
protected in the enjoyment of civil rights common to all citizens. The Thirteenth Amt. prevents the “imposition of any
burdens or disabilities that constitute badges of slavery or servitude” (citing cases).

• Brown v. Bd. of Education of Topeka (1954)

Held (Warren, J.): Racial segregation of schools violates the Fourteenth Amendment Equal Protection Clause.

Discussion: This court may not merely examine whether “tangible” factors are equal among segregated schools, but
also the effect of segregation itself on public education. Education is the most important function of state and local
govts. The forced separation of races imparts a “sense of inferiority” and affects the “educational and mental
development” of Black children. Plessy is overturned to the extent that its “language” contradicts this conclusion. This
disposition makes unnecessary any discussion on segregation also violates Fourteenth Amendment Due Process.
 19

• Loving v. Virginia (1967)

Held (Warren, J.): A state statute criminalizing marriages between a white person and a minority (“antimiscegenation
statute”) violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

Discussion: Prior Virginia cases supporting the validity of these laws express endorsement of the doctrine of white
supremacy. While marriage is a social relation subject to a state’s police power, Maynard v. Hill (1888), such powers
are not unlimited notwithstanding the commands of the Fourteenth Amendment. Virginia advances an “equal
application theory”: there is no Equal Protection violation if Blacks and whites are punished equally. Virginia also
claims that if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial
classifications, then the court should defer the issue to state legislatures in adopting its policy of forbidding interracial
marriages under the rational basis test. These args are incorrect. This court has held that racial classifications be
subjected to “the most rigid scrutiny”: if they are to be upheld, they must be shown to be necessary to the
accomplishment of some permissible state objective independent of “invidious discrimination.” Korematsu v. United
States (1943). The antimiscegenation statute also deprives biracial couples of liberty without due process of law,
specifically the freedom to marry – a “basic civil [right].” Skinner v. Oklahoma (1942).

• United States v. Virginia (1996)

Facts: The Virginia Military Institute (VMI) is the sole single-sex school among Virginia’s public institutions of higher
learning. Its goal is to produce “citizen-soldiers” using an “adversative method” which instills physical and mental
discipline at the expense of physical rigor, absolute equality of treatment, absence of privacy, minute regulation of
behavior, and indoctrination in desirable values.

Procedure: The United States sued VMI and Virginia, alleging that VMI’s exclusively male admission policy violated
the Fourteenth Amendment Equal Protection Clause. The Fourth Circuit held for pl. In response, Virginia proposed
a parallel program for women: Virginia Women’s Institute for Leadership (VWIL). VWIL staff are less prestigious
and less compensated than their VMI counterparts. It uses a “cooperative method” which “reinforces self-esteem.”
The District Court found that the proposal satisfied the Constitution’s equal protection requirement and the Fourth
Circuit affirmed, applying a rational basis standard to Virginia’s plan and holding that the provision of single-gender
educational options was a legitimate objective. The Fourth Circuit also applied a new “substantively comparable
benefits” standard in recognizing that its analysis risked failing equal protection scrutiny and held that under the new
standard VMI and VWIL were substantially comparable.

Held (Ginsburg, J.): Gender-based government action must be supported by an exceedingly persuasive justification for
that action to meet a heightened review standard (“intermediate scrutiny”), under which a challenged action must
“[serve] important governmental objectives and that the discriminatory means employed” are “substantially related to
the achievement of those objectives.” The Fourth Circuit’s original judgment is affirmed, and its final judgment is
reversed and remanded.

Discussion: Loving forbids “inherent differences” as a ground for race or national origin classifications. We extend that
case’s principle to prohibiting classifications that create or perpetuate “the legal, social, and economic inferiority of
women.” The adversative method is not inherently unsuitable for women, provided that there are marginal
accommodations such as separate living quarters. At least some women would want to attend VMI if they had the
opportunity and are capable of all of VMI’s individual requirements. The e. p. j. must not be hypothesized or invented
post hoc, and it must not rely on overbroad generalizations about the different talents, capacities, or preferences of
males and females. Justifications proffered in defense of categorical exclusions must describe actual state purposes, not
rationalizations for actions in fact differently grounded.
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Dissent (Scalia, J.): The Constitution does not express an opinion on the issue of whether there is a justification for
single-sex education. Strict scrutiny has been held to be reserved for “[state] classifications based on . . . classifications
affecting fundamental rights.” Clark v. Jeter (1988). I have expressed in dicta that fundamental rights must be “[limited]
to [interests] traditionally protected by our society,” Michael H. v. Gerald D. (1989), but the court has not adopted that
value. Changes in admission policies should come through democratic processes; to do otherwise would be to endorse
“politics-smuggled-into-law.” Women are not a “discrete and insular minority” which triggers a “more searching
judicial inquiry,” United States v. Carolene Products Co. (1938) (fn.4) because they are a majority of the electorate,
and they are capable of exerting political power (citing statutes protecting women’s rights). The majority disguises strict
scrutiny as intermediate scrutiny. There are four private female-only colleges in Virginia. Therefore, its choice to fund
one public male-only college reflects concentration of resources into an underserved educational firm, thereby
representing a substantial relationship to an important governmental interest.