LUND UNIVERSITY FACULTY OF LAW
Version of May 22, 2015
JUFN19 INTRODUCTION TO THE LEGAL SYSTEM OF THE UNITED STATES
SPRING 2015
COURSE OUTLINE AND READING ASSIGNMENTS
WEEK 1
MARCH 23-27
CLASS 1 (2 HOURS)
Course overview and processes
Introduction to the Socratic Method
Conception of the lawyer in US legal education
A first introduction to the US legal system: Constitutional structure, sources of law, the
judicial system
READINGS:
NO READINGS ASSIGNED
CLASS 2 (2 HOURS)
Introduction to the common law and to common law legal reasoning
Case law in relation to statutory law (legislation)
The principle of stare decisis
Stare decisis in the US federal and state judicial systems: who is bound by the decisions of
which courts?
Ratio decidendi and obiter dicta
Rogers v. Tennessee
Palsgraf v. Long Island Railroad
READINGS:
1. Fletcher and Sheppard, pp. 5-10 (“Ten ‘Simple’ Facts About American Law”)
2. Fletcher and Sheppard, p. 79 (“Reading Cases”) – p. 81 (end at “Reasoning from
Statutes”)
3. Rogers v. Tennessee in Fletcher and Sheppard starting at p. 83 (paragraph beginning
“Virtually all of these arguments…) and ending at p. 102
4. Palsgraf v. Long Island Railroad (distributed as a handout)
Note: in reading Rogers and Palsgraf, please pay attention in particular to four things:
1
The facts of the case (What happened? When did this case take place, and in what court?
Who are the parties to the case? What was the outcome for the parties?).
The legal issues involved (what are the questions of law that are in dispute?) Note that the
opinion and the dissent(s) may disagree on what the legal issues are.
The holding (the legal rule that the opinion ultimately applies).
The rationale (the legal reasoning supporting the holding). Note that both the opinion and the
dissent(s) will offer rationales supporting their positions.
You may find it useful to glance through “How to write a case brief for law school: Excerpt
reproduced from Introduction to the Study of Law: Cases and Materials, Third Edition
(lexisnexis 2009) by Michael Makdisi & John Makdisi” available online at http://
www.lexisnexis.com/en-us/lawschool/pre-law/how-to-brief-a-case.page . Ignore the part
on highlighting.
WEEK 2
MARCH 30-APRIL 3
CLASS 3 (2 HOURS)
Historical and legal background to the US Constitution
Separation of powers
Checks and balances
Allocation of powers among the different branches of the federal government, and between
the federal government and the state governments
The electoral/appointment process for each of the three branches of the national government
First discussion of judicial review
Marbury v. Madison
Martin v. Hunter’s Lessee
READINGS:
1. The US Declaration of Independence (excerpt in Fletcher and Sheppard at p. 173)
2. The US Constitution (available at the start of the Casebook, in Chapter 5 of Fletcher and
Sheppard, or via an online search)
3. Stone et al. Constitutional Law, pp. 25-48
CLASS 4 (2 HOURS)
Judicial Review, continued
The federal judicial system
“Cases and controversies” restriction
McCullough v. Maryland
READINGS:
2
1. Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in
Comparative Constitutional Law, Princeton University Press 2008, pp. 18-33
2. Fletcher and Sheppard Chapter 6
WEEK 3
APRIL 6-10
CLASS 5 (3 HOURS)
Judicial review, continued
“Cases and controversies”
Standing
Jurisdiction of federal courts
Applicable laws in the various kinds of courts
Erie Railroad Co. v Tompkins
“Reasonableness”
READINGS:
3. Stone et al. Constitutional Law, pp. 82 - 84 and 106 -107 (up to “3.”)
4. Fletcher and Sheppard pp. 58 - 68 (the discussions of Due Process, Fairness and
Reasonableness)
5. Fletcher and Sheppard pp. 277-278 (the opening pages of Chapter 13, up to the
introduction of the Pennoyer case. Note: this is primarily just for orientation to some of
the core questions about coordination between states; answers as to how the system
resolves them will come through the class lecture and discussion)
6. Fletcher and Sheppard Chapter 14
CLASS 6 (2 HOURS)
The commerce clause
Wickard v. Filburn
Introduction to substantive due process
READINGS:
1. Stone et al., Constitutional Law pp. 159-172
2. Stone et al., Constitutional Law, pp. 739-741 (top) and 750-773
3. Nowak and Rotunda, Concise Hornbook, pp.245-247 (on Carolene Products) (to be
distributed; note that this is two pages from the middle of the handout; the others will be
read in Class 8)
WEEK 4
APRIL 13-17
3
CLASS 7 (2 HOURS)
INTRODUCTION TO EQUAL PROTECTION AND NON-DISCRIMINATION
The Dred Scott decision
The 13th and 14th Amendments
The Civil Rights Cases
Plessy v. Ferguson
READINGS:
1. Fletcher and Sheppard Chapter 8. Note: pause at p. 177 to read the actual Dred Scott
decision, which can be found in:
Stone et al. Constitutional Law at pp. 459-462 (with commentary)
or
online e.g. at https://supreme.justia.com/cases/federal/us/60/393/
and then finish the chapter.
2. Stone et al., Constitutional Law, pp. 462-473
Class 8 (3 hours)
Equal protection and non-discrimination, continued
Brown v. Board of Education
The Civil Rights Act of 1964
Heart of Atlanta Motel v. United States
Equal protection under the 14th Amendment (states) and the 5th Amendment (federal
government)
Readings:
1. Be prepared to continue discussing the readings from Class 7
2. Fletcher and Sheppard pp. 201-202 (the beginning of Chapter 9 – read up to the start of In
Re Griffiths)
3. Stone et al., Constitutional Law, pp. 473-489 and 198-203 (top)
4. Nowak and Rotunda, Concise Hornbook, pp.234-252 (to be distributed)
4
WEEK 5
APRIL 20-24
CLASS 9 (2 HOURS)
EQUAL PROTECTION, CONTINUED
Rational basis review
City of Clegburne v. Clegburne Learning Center
Strict scrutiny, intermediate scrutiny
“Suspect classes” that currently trigger strict scrutiny
Suspect classes that currently trigger intermediate scrutiny
Discriminatory impact
Affirmative action
Discrimination and private actors
Government involvement
READINGS:
Be prepared to continue discussing reading from Class 8
CLASS 10 (3 HOURS)
Strict scrutiny, intermediate scrutiny, rational basis
“Suspect classes” that currently trigger strict scrutiny
Suspect classes that currently trigger intermediate scrutiny
Discriminatory impact
City of Clegburne v. Clegburne Learning Center
Affirmative action
Discrimination and private actors
Government involvement
READINGS:
CLASS 11 (2 HOURS)
BRIEF INTRODUCTION TO CRIMINAL LAW IN THE US SYSTEM
Core constitutional protections in criminal contexts, especially those related to access to counsel, self-incrimination, and unreasonable search and seizure
Gideon v. Wainwright Miranda v. Arizona Mapp v. Ohio READINGS:
1. Fletcher and Sheppard Chapter 12
2. del Carmen, Criminal Procedure: Law and Practice, pp. 17-26. Extra copies, for those
who did not get them in class, are available for pick up at the reception desk.
5
3. Optional for those who are interested, and can be read before or after the class: the
famous Miranda decision, available online at https://supreme.justia.com/cases/federal/us/
384/436/case.html.
WEEK 6
APRIL 27-MAY 1
CLASS 12 (2 HOURS)
Considering Mens rea
Guest speaker (via remote technology) :
Professor Alec Walen, Rutgers University School of Law
Different definitions, conceptualizations and levels of mens rea
The Model Penal Code’s approach to mens rea
California approach to mens rea
Criminal law in a federal system
Strict liability
Felony murder rule
Regina v. Cunningham
Commonwealth v. Welansky
Commonwealth v. Malone
READINGS:
6
Extracts from Kadish, Schulhofer, Steiker and Barkow, Criminal Law and its Processes:
Cases and Materials, 9th ed. (Wolters Kluwer Press, 2012). (Distributed in hard copy)
CLASS 13 (2 HOURS)
FILM AND DISCUSSION : 12 ANGRY MEN
Note : this class will likely start on the hour, rather than at 15 minutes past, to allow time for
discussion
WEEK 7
MAY 4-8
CLASS 14 (2 HOURS)
CRIMINAL PROCEDURE
Guest speaker: Mr. Patrick McKinley
Patrick J. McKinley is the former Assistant District Attorney of Santa Barbara County,
California. He has tried over 300 criminal jury trials during his 39 years as a prosecutor.
Following his retirement he has been teaching American criminal law and procedure in
various law schools in Europe - mostly in Germany.
READINGS:
None
7
Note: Mr. McKinley will also be speaking on the evening of Tuesday, May 5. This will be
open to all. Time and place to be announced.
CLASS 15 (2 HOURS)
Criminal procedure and discretion
Guest speaker: Mr. Patrick McKinley
READINGS:
None.
CLASS 16 (2 HOURS)
Review of equal protection, substantive due process and introduction to criminal law
Brief introduction to Contracts
READINGS:
No new readings for the class session itself, but this is a good chance to review earlier
readings in case of questions re equal protection, substantive due process or the section on
criminal law that just ended. In addition, Fletcher and Sheppard pp. 68 -74 (the
discussions of Deference and Discretion) should be read at some point before the exam.
WEEK 8
MAY 11-15
CLASS 17 (2 HOURS)
Swedish and American contracts in legal and cultural perspectives
Guest speaker: Mr. Adam Green, Partner, Mannheimer Swartling law firm
READINGS:
Note: we will not discuss the readings below in class 17, but they will be interesting to
prepare in advance of that class as background for the conversation about the
differences between Swedish and American approaches to contracts. While reading, pay
8
attention especially to the role of the courts in interpreting the content and acceptability
of a contract.
We’ll discuss these readings in the normal Socratic style in class 18.
Fletcher and Sheppard chapters 19, 20 and 21, focusing on the cases mentioned below
o E.J Baehr and Another v. Penn-O-Tex Oil Corp.
o Feinberg v. The Pfeiffer Company
o Jacobs and Youngs, Inc. v. Kent
o Williams v. Walker-Thomas Furniture Co.
NEW CLASS 17 B (2 HOURS)
INTERNATIONAL LAW IN THE US LEGAL SYSTEM
Medellin v. Texas
Sosa v. Alvarez
Guest speaker: Prof. John Cerone, Fulbright Distinguished Chair
READINGS:
1. Dubinsky, Paul R. 2010. "International Law in the Legal System of the United States."
The American Journal of Comparative Law, 2010. 455. Available through the university
library at http://www.jstor.org.ludwig.lub.lu.se/stable/pdf/20744550.pdf. Read pp.
455-459
2. Stone et al., Constitutional Law, pp.349-351 (a short extract from Medellin v. Texas plus
discussion).
3. The Syllabus (summary and index) of Sosa v. Alvarez, available online at https://
supreme.justia.com/cases/federal/us/542/692/ Read the facts, then skip part 1 under the
"held" label and go directly to part 2 ( "2. Alvarez is not entitled to recover damages from
Sosa under the ATS.")
4. Those who have already studied international law are then encouraged to continue with
the Dubinsky article above, reading pp. 460- 468 and 470-472, which discuss the
implications of Medellin and Sosa for US law and then look at the question of
interpretation of international law by US courts. Those who have not yet studied
international law may find it easier to read these pages after the class discussion.
CLASS 18 (2 HOURS)
BRIEF WRAP UP OF EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS
CONTRACTS, CONTINUED
Elements of a contract (offer, acceptance, consideration)
Promissory estoppel
Unconscionability
9
E.J Baehr and Another v. Penn-O-Tex Oil Corp.
Feinberg v. The Pfeiffer Company
Jacobs and Youngs, Inc. v. Kent
Williams v. Walker-Thomas Furniture Co.
READINGS:
Fletcher and Sheppard chapters 19, 20 and 21 (see class 17)
WEEK 9
MAY 18-22
CLASS 19 (2 HOURS)
FREEDOM OF EXPRESSION
Guest speaker: Prof. Mark Gibney, Wallenburg Visiting Professor
Restrictions on content of speech
Schenck v. US
Dennis v. US
Brandenburg v. Ohio
READINGS:
Stone et al., Constitutional Law, pp. 1027-1048, 1056-1083
Class 20 (2 hours)
FREEDOM OF EXPRESSION
Guest speaker: Prof. Mark Gibney, Wallenburg Visiting Professor
Hostile reaction (including “fighting words”)
Chaplinsky v.New Hampshire
Snyder v. Phelps
Classified information
New York Times Co. v. United States
Prior restraint
Near v. Minnesota
NY Times v. Sullivan
READINGS:
Stone et al., Constitutional Law, pp. 1091-1112, 1116, 1122 bottom (vagueness) -1125,
1129-1131, 1135-1143
CLASS 21 (2 HOURS)
FREEDOM OF EXPRESSION
Guest speaker: Prof. Mark Gibney, Wallenburg Visiting Professor
10
Profanity etc
Cohen v. California
Hate speech
RAV v. City of St. Paul
Symbolic conduct
United States v. O’Brien
Roundtable comparative discussion of freedom of expression
READINGS:
Stone et al., Constitutional Law, pp. 1214 -1219 (up to number 4), 1239-1251, 1337-1343 (up
to number 3).
11
CLASS 22 (2 HOURS)
RECENT SUPREME COURT CASES I: THE AFFORDABLE CARE ACT
National Federation of Independent Business v. Sebelius
King v. Burwell
READINGS:
1. National Federation of Independent Business v. Sebelius (often referred to as the ACA
case) at http://www2.bloomberglaw.com/public/desktop/document/
Natl_Federation_of_Independent_Business_v_Sebelius_No_Nos_11393_1
This is a long case! Don’t worry about the Anti-Injunction Act discussions, but try to
work your way through the rest. If you don’t have time to read both the full decision
and King v. Burwell articles below, then just do as much as you can and move on to
the readings on King v. Burwell.
Those interested will find additional background at the SCOTUS Blog website at
http://www.scotusblog.com/case-files/cases/national-federation-of-independentbusiness-v-sebelius/
2. Stephen Wermiel, SCOTUS for law students: Interpreting statutes, SCOTUSblog (Feb.
18, 2015, 12:47 PM), http://www.scotusblog.com/2015/02/scotus-for-law-studentsinterpreting-statutes/
This is background for King v. Burwell. Those interested will find additional
background at the SCOTUS Blog website at http://www.scotusblog.com/case-files/
cases/king-v-burwell/
3. Abbe Gluck, Symposium: The grant in King – Obamacare subsidies as textualism’s big
test, SCOTUSblog (Nov. 7, 2014, 12:48 PM), http://www.scotusblog.com/2014/11/
symposium-the-grant-in-king-obamacare-subsidies-as-textualisms-big-test/
Note that this is an opinion piece — it takes one side of the argument. Read it just to
illuminate the issues.
Time permitting, we will listen to some of the oral arguments from King v. Burwell together in
class.
12
WEEK 10
MAY 25-29
CLASS 23 (2 HOURS)
RECENT SUPREME COURT CASES II: SAME-SEX MARRIAGE
Obergefell v. Hodges
READINGS:
1. First, read about the case background and legal issues at
Amy Howe, Same-sex marriage, in Plain English — Part I, SCOTUSblog (Apr. 27, 2015, 7:44
PM), http://www.scotusblog.com/2015/04/same-sex-marriage-in-plain-english-part-i/
and
Amy Howe, Same-sex marriage, in Plain English — Part II, SCOTUSblog (Apr. 27, 2015,
8:50 PM), http://www.scotusblog.com/2015/04/same-sex-marriage-in-plain-english-part-ii/
2.. Then read the lower court decision at:
http://www.ca6.uscourts.gov/opinions.pdf/14a0275p-06.pdf
As you are reading, keep an eye out for legal issues (eg, federalism) that we have
discussed earlier in the course.
Note: time permitting, we will listen to some of the oral arguments together in class:
http://www.scotusblog.com/2015/04/super-cuts-from-same-sex-marriage-arguments/
CLASS 24 (2 HOURS)
Review session for final exam
READINGS:
No readings assigned
TAKE-HOME EXAM DISTRIBUTED VIA THE CLASS WEBSITE ON FRIDAY, MAY 29.
EXAM DUE BY FRIDAY, SATURDAY JUNE 6 AT 6 PM. SUBMIT VIA EMAIL TO HANS
LIEPACK, THE COURSE ADMINISTRATOR, AT HANS.LIEPACK@JUR.LU.SE.
13