Introduction to the US Legal System
Follow-up to review session questions
1. Nebbia:
The answer given in the review session was correct. This case was not the end of the story, but
it was a core case in the transformative process.
2. Substantive due process, fundamental rights and equal protection and how they fit
together in terms of judicial review:
A very quick summary:
After the Lochner Era, the Court has applied rational basis review in general. However, under
the concept of Substantive Due Process, it will still apply stricter forms of review when rights
or freedoms that it sees as “fundamental” to the legal system are involved, or, in the case of
equal protection, when it comes to specific classes (eg, race) that the court has determined.
We did not go through in class, except in the criminal law context, the current list of what the
court has determined to be fundamental rights, but this is the theory under which, for instance,
strict or intermediate scrutiny was discussed in some of the cases that we read on freedom of
expression.
Exam-related Q and A via email
Question1:
Please would you be able to give me a little help. I think I am overthinking the question a little
and therefore getting confused about something that it probably quite simple! For the first
question [substantive question follows].
Answer to question 1:
I don’t think that I should address the substance! But I can say that the issue-spotter question
has more emphasis on identifying issues than on complex argumentation.
Question 2:
I have a question regarding the take home exam. How specific should we be when we
reference cases? Is it enough that we reference the case (X v Y for example) or should we
indicate which judge said what etc.? Do we have to point to specific parts of the judgement or
can we just reference the judgement as a whole?
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Answer to question 2:
That depends. If you are citing the case just for the black letter rule, it is enough just to
mention the case name. E.g., “The Supreme Court has the final say concerning the
constitutionality of legislation (Marbury v. Madison).”*
However, if you are applying specific arguments from the case, in order to argue for one
approach or another in a different case context, you’ll want to spell out the specific arguments
you are drawing on and specify whether they are coming from the majority opinion, a dissent
or a concurrence.
*
In an exam context, the case name is enough to identify the case. But in other contexts the
legal citation abbreviation would be included, i.e. “Marbury v. Madison, 5 U.S. 137 (1803).”
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