Jurisprudence Outline
Keeler v. Superior Court
 Looked to common law tradition to determine the intent of the framers of the statute.
 Cannot rewrite the statute under the guise of construing it” and “raises very serious questions concerning
the principle of separation of powers. Due process requires an element of "fair warning.”
 Dissent: penal statutes must be construed in accordance with “fair import of terms and effectuate justice”
rather than restrict construing to common law principles; statute included broad term "human being" and it
should promote justice, no problem with separation of powers, acting judicial role of interpretation
Jurisprudential Impact of Keeler
Separation of powers and due process clause are both restraints, case law interpreting 187, canons of interpretation
both codified and uncodified
Morality: injustice done to victim in order to follow the separation of powers, moral imperative that people know
of crimes they might be committing
Preface
Hart is interest in the facts of modern Western legal systems as a form of
o descriptive sociology (the reality of social systems of human beings as they react)
o system of analytical philosophy (conceptual roadmap of legal systems big features)
o analysis of linguistic philosophy (how do we use the language and how the systems use it)
What is Law?
Difficult, answers are usually paradoxical, legislature makes rules that are enforced by the courts
o LP say: law based upon sanction/enforcement
o problem is not all laws involve a sanction (ie-contracts), constitutional law not law but morality
o NL theory: unjust law not a law, calling a law that is not really a law unjust? law is the notion of authority
o LS theory: rules and statutes not law, merely something you can use to predict what the court will do
Hart: simple definition of law, can't give one that advances the study. Broad definition given to compare a
group of dissimilar things. Can't situate law with other rules and make a comparison (rules of chess v. social
customs). He just wants to improve the distinctive features of modern legal systems.
Chapter 2
o Hart Legal Positivism: build up Austin's theory but turn it into a better version
o Austin's Command Theory: an order backed by a threat, concept of authority already built in, problematic
choice of words, conceptualized by a situation involving gunman robbing another of his wallet, idea has a
great goal but causes confusion about the law
However, facts give it value, no morality came into the situation, man might be inherently evil consistent with the
focus on an evil man, puzzled people could be a product of a habitually obedient people exposed to a history of
sanctions.
A system is based on sanction or enforcement, but it is even bigger than that, who can mobilize brute force, the
reality of the legal system at the highest level is this power.
Problems
Problem #1: Legal System a General Order: should be classes of conduct, this is a specific direction of an order
Problem #2: "General Habit of Obedience": if orders standing they have to be adhered to over and over again
Problem # 3: Content of the Law: gets half the legal system right, misses other half
1. Duty Imposing Rules: usually criminal or penal in nature, tort law closely mimics
2. Power Conferring Rules:
 Private: usually contracts, wills
 Public: laws creating courts, providing jurisdiction including Art. I, II and III.
Austin responds by ends up calling con law not real law.
Hart responds by saying you shouldn't change your facts to adhere to a dogmatic model, ridiculous? time new one.
Austin further responds by highlighting nullity as a sanction. Power conferring rules lumped under duty imposing
Hart further responds by saying that no sanction is meant to deter anyone from anything, issues revolving around a
K. just because one is disappointed sometimes does not mean there is a sanction meant to deter certain behavior.
Austin also argues power conferring rules are fragments of laws, rules include fragments of rules, a set of rules
"antecedent" to imposing a duty.
Hart still believes that facts are being changed to fit this model and that power conferring rules don't look like
fragments as they are recognized as law. It's counter intuitive to call them fragments, model is not fitting the facts.
Problem #4: Distortion: the law must be clear, the legal system is being distorted
Problem #5: Bad Person Centerpiece: we are not only deterred by punishment, not the foundation
Problem #6: Range of Application-Idea of a Single Order Giver: model assures that one giving orders doesn't
have to adhere to the law, sovereign placing limits on the subjects
Paradoxes (with a modern parliament)
 parliament is threatening themselves
 habitually obeying themselves (numerous paradoxes)
Lots of laws apply to the sovereign body itself.
Problem #7: Mode of Origin Problem: law based upon custom doesn't appear to arise from an order by anyone
Austin responds custom is law when a court enforces it or sovereign body doesn't countermand (tacit approval)
Hart responds that there is no reason to believe that there has been approval, often there is no knowledge of such
Problem #8: Continuity/Persistence of Law: you can't have an instantaneous habit (it takes time to develop).
Requires not only a habit of obedience, but an acceptance of a rule by a social group (which says who new king is)
o The internal point of view serves as a guide for behavior EX-habit of stopping at stop signs but also
accepts a rule, normative
 that rule is a guide for behavior, ground for criticism if you break it, sociological function
Guilt exists for breaking a rule but no guilt in breaking a habit. There must be acceptance of a normative rule that
is enforced until it is repealed because it is a guide for behavior and a ground for criticism.
Problem #9: Legal Limitations on the Sovereign: Austin: no legal limits on sovereign and that he is in fact
directing the law, there can't be anyone to impose law on him, he would not be the sovereign, other the new one.
Hart says most modern systems limit political autonomy.
Austin says none of these should be considered law.
Hart responds by saying legal limits on the power of a sovereign is one of those accepted rules of normative
behavior. EX-the Bill of Rights is part of the Constitution. Model/map struggles but we accept rule to remedy.
Problem #10: Sovereign behind the legislature: CT's say maybe a legislature is another parliament and maybe
it's not really a sovereign, instead of peasants they are considered voters and maybe they are the sovereign.
Hart says problem is there are also legal restrictions on the voters (requirements to amend the constitution). The
acceptance of a rule theory doesn't have to have a sovereign.
Sovereign
subjects
SG
accept rules
sanctions
habits
(how its manifested, sociological function) IPV (these rules govern me)
-Primary Rules of Obligation (Duty-Imposing)
-Secondary Rules (Power Conferring Rules)
Hart believes the CTs were right to step away from justice and injustice but facts have been muddled and distorted
carrying improper arguments about the merits of the model. Hart's model is complex enough to clarify the rules.
Problem #11: Linguistic Problem
 Obliged: forced to do something (sanction, habits (psychological feelings))
 Obligation: normative thought (manifestation of acceptance of a rule, IPV)
Hart believes linguistic analysis
helps sharpen concepts
which helps explain facts.
For Lincoln acceptance of his rule, manifested by his IPV demands that others accept that accepted rule.
Problem #12 International Law
o Austin says there are no sanctions in international law so it’s not law.
o Hart says
 SG accepting rules is law so no need for sanctions. It is enough-a sense of obligation. If the
sovereigns that make up the international realm as a social group accept rules that include
legal limits on their sovereignty and independence-the fact there is no sanction is irrelevant
to their obligation.
 SG of nations accept the rules but don’t follow up with implementation because the more
powerful nations would rather enforce things themselves
 It’s not possible to organize sanctions among nations because of inequalities among power
of the nations. It’s in the interest of the large countries not to accept the rules of smaller
o Austin says int'l law can’t be law as subjects (nations) consider themselves each sovereigns.
o Hart says
 Unless you’re a CT then it doesn’t matter if the nations consider themselves sovereign.
There is no test to determine sovereignty-there are varying degrees of independence
Problem #13 The Lack of Secondary Rules
o Austin discounts secondary rules altogether as not truly law. Even if you think about law as a union
of primary and secondary rules not even sure that international law has secondary rules because of a
total lack of power-conferring rules to create legislatures/world courts. Idea promises must be kept
o Hart says
 The union of primary and secondary rules is a conceptualization of jurisprudence but is not
meant to be a definition of the law or legal system.
 PRO can be themselves law as long as SG accept the rules and look like law not morality.
 Hart finds no RofR in international law but he thinks it is law because of the content. It is
more of a keep your promises or custom. It is structured close enough to call it law.
Secondary Power Conferring Rules
 Rule of Recognition: helps us identify primary rules of obligation and other rules, supreme or ultimate rule.
 Rules of Change: rules about how to change the PRO and other rules that are static/unchanging
 Rules of Adjudication: application in uncertain cases, involves facts and law, resolves questions
LawRegulates its own creation rules-institutions-rule
Questions
 Is a law valid or not?

o Existence of the law is based on its validity not sanctions, habits or psychological feelings. Valid or
not based upon it adhering to the rule of recognition. EX-U.S. and its Constitution
What about the legal validity of the master/supreme R of R itself?
o Hart says this is a bad question, ok to ask is it a good or bad rule ex-Article of Confederation, we
trashed a rule of recognition by recognizing a new rule of recognition, the Constitution.
o Meter bar: we know it is a meter even though we can't demonstrate it, similar to the master rule we
can't demonstrate it, it is the rule of recognition because we say so
Classify: Thinking of the R of R as a matter of fact.
 does any social group accept the R of R? (is it valid?)
 does it exist? sometimes this answer is not obvious as a matter of law
 what rules does it allow or not allow?
 Existence
 government officials: acceptance? active acceptance, using them, conscious self awareness
 ordinary citizens: passive acceptance, adheres to PRO
 separatist movement: they may not be accepting them but obeying them because of sanctions
You can have social groups divided over the rules.
 Pathology: problem with acceptance of a R or R especially by government officials.
o EX-Civil War-violence can signal a real problem of pathology (bad as soon as shooting starts)
o EX-Nullification Crisis of 1832, tariff on imports ag states needed, SC declared act uncon and there
is disagreement over whether SC had right to do this. Jackson responds by raising an army and
Congress passed bill authorizing Jackson to send in federal troops.
Hart Addresses the Legal Skeptics
Statutes are not the law, law is what the courts say it is. They make it up.
 Maximize classifying language
o ex-statute, don't do something is minimum use of classifying language, ex-precedent
 Rules create a standard, ex-points you to an example, reasonable person standard
1. Open Texture
2. Settled Core (words and purpose)
a. ex-no vehicles in the park
i. van is SC, what is the purpose? all agree
ii. moped-open texture, no bright line
Legal Skeptics think all law is OT and is fully open to interpretation.
Hart says OT is inevitable. You can have ignorance of fact where we are unable to predict absolutely.
 To advance the aim and protect values we will need some flexibility, this is good. We will not know what a
reasonable person will do in advance. Extremely difficult if impossible to eliminate this OT
"Finality=Infallibility"
 Hart says
o it takes law to create courts and these laws predate the courts so law can't just be what the courts do
o IPV of judges, the judge is citing a law as a guide, reason or justification, judges follow the law
o finality does not mean infallibility, if the law is clear then judges can get it wrong about the SC, if
OT question then don't have a real answer and they have final say so they are infallible in some
sense, doesn't apply to the SC though
 Umpire Example
o 100 rules, the 101st rule is that there can be no appeal from the umpire, it functions to obliterate the
other rules, this procedural rule does not blot out the 1st 100 rules, the umpire could be impeached
or not adhered to, he is no substantively infallible
SC (35 to be President and 2 Senators from each state) (text and case law)
R of R
OT (2nd amendment and 1st amendment) (text)
You can use SC and OT laws to protect the Constitution and its power. For example, SC, where High Court has
final say to answer questions where they are OT. This question itself is in the OT, this is a recipe for legal
discourse, a pathology. The important ability to interpret OT is actually in the OT.
LS Say
Even when SC, still in the OT, finality equaling infallibility is not true for SC but is for law in the OT.
Hart criticizes the LS for denying SC and the legal formalists for denying OT. Hart criticizes the LS but concedes
to them on more of their views, the LS miss the fact that the vast amount of law is not OT or made up by judges.
Hart neglects to talk about interpretation and its effect upon the OT.
Hart Addresses the Natural Law Theorists
Hart wants to attack the idea that an unjust law is not a law. Wants to clarify law and morality and how
they are related.
 Justice: as we talk about it in society, social conventions, fairness is about
 equal treatment: "treat like cases alike" classes of people and conduct
 distributive (burdens and benefits)
 compensatory (compensate for harm done)
NL theorists believe morality affects our view of justice which affects the validity of the law.
Hart says our view of morality and what the law says affects our views on justice.
 standards internal to the law, set by the law
 standards external to the law, critiquing the law
Morals + Law Obligation
"thou shall not kill" and "homicide law"
Similarities
 binding
 necessary to support social life
 serious social pressure to conform
 constantly recurring situations
Fundamental Differences
 moral rules important
o legal rules often arbitrary/trivial
 moral rules take a long time to change or don't really change
o legal rules can easily change, just change the law
 moral rules say voluntary offenses are bad, takes into account all circumstances
o legal rules strict liability, no volitional defense
 moral rules act as a form of social pressure, ostracized
o legal rules social pressure can be prison
New Dimensions of Morality not Reflected in Law. Helps Us Understand They Truly Are Different
1. Aspiration: morality has aspect of aspiration, LR does not have such an aspect
2. Criticism: critiques conventional morality and law, enlightenment values equality etc. etc.
3. Private Morality: subject of morality not reflected in moral rules or legal rules
Hart addresses NL theorists by saying that there are physical laws that are descriptive but the law of murder is a
metaphysical rule that is prescripted.
ex-water freezing and a person appearing before a judge
Turning Natural Law into a Sociological Study
 minimum content of NL, tries to reinterpret it to be descriptive; he wants to change the goal to survival

he is not arguing what ought to be the aim but is interested in being descriptive of the aim (health disease,
medicine, all part of the common sense goal to survive)
 Not a coincidence: aim-survival (contingent facts about human nature) based upon
o vulnerability, relative equality, limited altruism (not angels nor devils, somewhere in between)
o limited resources, limited will and understanding
Connections between morality and law
1. Power and Authority
a. different core set of values from ruling government and the SGs can create political instability,
voluntary mass cooperation requires some sort of connection here
b. however there are plenty of states that just use coercion and get away with it (a real limit)
2. Basic Influence
a. morality of varying SGs will affect the adherence to the laws, Hart has no problem here and the
creation of them (legislatures)
3. Interpretation
a. in the OT judge's discretion can be influence by their own morality
4. Criticism
a. people criticize laws in moral terms, another way to interact with the law
5. Principles of Legality
a. rules, publish, compliance, they guide behavior, idea of fair notice, this is built into the idea of a
rule and it is a principle built on morality, it is also compatible with great evil because those laws
can be published or given notice
Hart's Clarity Argument
Legal validity turns on the R of R and is based on SG acceptance and this principle applies even to unjust laws.
Examples include Plessy v. Ferguson and Korematsu. He also mentions how can a law be unjust if you referred to
it already as a law? Denying this causes confusion, the constitutionality America's RoR is what matters.
 Problem #1
o Issues arise when we deal with unjust laws; conceals fact we can punish the Nazis/Germans, we
shouldn't hide this but instead address it weighing the effect on our principles and measure the cost
 Problem #2 Cost of Disobedience Submit? Violence?
o danger, move from law/order towards anarchy, saying unjust law not law ignores costs
o can't make that broad statement, must recognize we want revolution ex-MLK-no, colonists-yes
Introduction to Natural Law
Focus on morality; use it to make sure we have the correct kinds of law and the objective is to make our legal
system a better system from a moral standpoint. Meant to be prescriptive not descriptive.
Basis
 Divine origin: beyond the physical to the metaphysical realm; objective moral order present there so things
can be objectively wrong or right. Metaphysical rules just as important as physical, natural rules.
 The religious revelation comes through reason not through reading of a text. (self-evidence)
 Moral code then reflected in the positive law. These laws will create order and provide value pragmatically.
Hart says that the focus of natural law is on unjust law.
Finnis says how we respond to legal injustice is important, but it is a subordinate concern. The central concern of
natural law is engaging in moral analysis to guide the creation of positive law.
4 Types of Injustice in Positive Law
1. Intent: while an improperly motivated law can be compatible with justice, a ruler’s use of authority is
radically defective if he exploits and favors himself over common good or out of malice towards someone.
2. Acting outside of Authority: usurp his authority. (separation of powers and federalism)
3. Procedural (manner and form): due process of law (ex post facto law, law must pass 2 houses)
4. Substantive: catch all category; distribute resources unjustly, laws that violate basic human rights.
What does it mean for a law to be unjust? (heart attack example; Hart's overstates)
Means it is corrupted (Aquinas). A law not corrupt promotes justice and a law corrupt does not promote justice.
Effects of Injustice on Obligation
1. Sanction in the event of non-compliance
a. NL theorists say there can be a sanction under an unjust law.
2. ILO-say so SG
a. Finnis calls it the “say so”; you have the obligation because some social group said so.
b. For Finnis you must know that justice matters; law includes the prescriptive and the descriptive.
The unjust laws could be struck down in the OT.
3. Primary Moral Obligation (obligation to obey a just law)
a. We have a prima facie moral obligation to follow our legal obligation as that flows from the SG’s
say so. This moral obligation is rebutted when we have an unjust law though but it doesn’t mean we
should violate every unjust law.
4. Collateral Moral Obligation (any authority to advise to a just law to maintain peace and order)
a. We have a CMO to follow some unjust laws in order to preserve a just legal system. If a legal
system overall promotes justice then maybe particular unjust laws should be adhered to the degree
necessary to promote the justice of the overall system.
b. If everyone violates laws they consider unjust, then that will lead to civil unrest and call into
question the authority of law.
c. Example: King non-violent accept punishment, obey CMO to U.S. legal system to some degree.
Authority of Rulers
 Anarchy is bad because there is then no one to protect your natural rights. Law and order is good.
o Unanimity is impossible; we substitute the recognition of authority.
 Authority flows from the ability of a person or institution to get others to follow their rules (power to act
for the common good)(responsibility and authority flow together)
o Accept rules already in place.
o Be reasonable in recognizing authority.
 we should only recognize where authority is reasonable
 When authorities promote injustice, they do the opposite of what they are supposed to do and the
legal system loses its moral claim on our obedience.
Derivation of Positive Law from Natural Law
Deduction leads to Determination or Implementation
Our deduction that it’s better to be alive than dead leads to principle of “Don’t kill innocent people” which leads to
its determination or implementation in road rules. Ex-don’t drive drunk.
NL-PL close
homicide
NL-PL loose
rules of the road (loose connection to the rule of not taking a human life)
How PL benefits NL
1. Sanction
a. Important to Finnis; if you break the moral rule you are punished.
2. specification-details (excuses/justifications, civil penalties, other consequences)
a. better implements the natural law and makes sure it is adhered to in a way that best advances justice
3. new motive-good, abiding by law
a. obeying the law and supporting the legal system you can be good as a law abiding citizen! Hooray!
Main Features of a Legal Order
1. Sanctions (Austinian)
a. legal system a set of sanctions (morality separate from legality)
b. Finnis believes they play their part however
2. System of Rules (Hartian)
a. System of rules that regulates its own creation
b. Finnis believes paradoxes are created where the system bootstraps its own rules
i. Constitution given authority which says its supreme; supremacy clause.
ii. Articles of confederation said all states have to ratify, 9 ratified constitution; we asked the
law to be created to tell us what the law is.
iii. Our constitutional law is a closed circle and because we can’t answer every question about it
because it can’t answer every question.
Letter from a Birmingham Jail
order/peace good
Justice
Injustice
anarchy/violence bad
White clergy criticize him, espouse order/peace and idea that it will move to justice while King says walking
talking won't work. Because of justice we are violating the law but only to a certain extent
Not only is the breaking morally permissible but its required, violating=showing the highest respect to a law.
MLK is critical of the white moderates who support a negative peace, there is nothing magic about the passage of
time, must have a movement downwind.
How can this be?
Carefully and prudentially reconstitutes the law; Law's purpose is to institute justice, we can't just follow the law
Being an extremist for something good, calls himself a moderate mean, constructive for AA and justice advocates
black nationalists
black bourgeois
Declaration of Independence
Purpose of the government is to promote justice, government is fundamentally unjust, then you have the right to
alter the government so that it fulfills that purpose
1. intent: an intent to oppress the colonies
2. authority: taken away power from colonists, stomping out opposition
3. procedure: due process violations, mock trials etc.
4. substantive: civil rights violations
1.
2.
3.
4.
there are real sanctions
dispute over the ILO
king/parliament v. colonial governments
no primary moral obligation
no collateral moral obligation
John Finnis (Natural Law Theorist)
 PL is supposed to mimic NL but it’s an institutional question to decide who natural law should be reflected.
The powers that be should be working to promote law and order, working for the public good.
 SOP is the real burning question and he believes the courts should make sure the PL reflects the NL
o Robert St. George says that natural law does not tell us how to make PL conform to NL. It doesn’t
say we need separation of powers or federalism.
Descriptive and what ought to happen (normative/prescriptive) while Hart was limited (descriptive)
Incoherence of Legal Positivism
 Exclusive Legal Positivism (Looks like Hart's SC)
o wedge between what judges do and what law says
o You know what’s been posited (clear, separate from morality), problem is its different for this
posited law to resolve a case, not as valuable
 Inclusive Legal Positivism (Looks like Hart's OT)
o decisional norms of judges-----implicit public policy goal of the statute
o little more blurry what’s been posited, once you call it inclusive the value LP has from NL fades, it
is a better position but it is merely rehashed NL
Hart responds by saying he is describing the same thing in different ways, description is meant is to help explain.
Finnis is concerned this view won’t promote justice. (improvement)
There is an argument though over how much interpretation is present in PL?
 PL open
o want courts to do more
 PL closed
o courts do less, legislature do more
For Finnis this is really a SOP argument.
NL doesn’t answer the question over how much interpretation is present in PL but it tells us we need rule of
government that produce good government, leaves leeway to argue which is the best way to move forward.
-ex U.S. v. U.K., questions of prudence
Legislature has blank canvas but the law will have OT, a hole in it, despite this what the court does has to fit the
picture, in American tradition he finds the law or creates it according to intuition, we signal this action by saying it
was interpretation restricted by the language of the law.
-importance of morality in interpretation leads laws to be struck down under the Constitution
Finnis says that LP claim to discuss authority. Finnis says you can’t stop at Sanctions and ILO.
 can't say anything to those w/ real questions over the authority of those institutions then
 they’d ask is there any moral requirement to obey these laws and to what extent can I disobey them?
Hart would respond by saying it's just a model, can’t give practical political advice.
Hart’s Principles of Legality and Justice
Law has a “built in morality” rather than a legal system built on morality. (Nazi comparison comes in here)
Rules (adherence to the rules)
due process “Rule of Law”
Fuller calls this the “inner morality” of law and calls it comparable with great inequity (evil).
Idea that the process that’s due is the due process that is given.
Lon Fuller- Procedural Natural Law Theorist
For Fuller the purpose of the Rule of Law is to guide behavior to achieve a social order that we hope is just.
Government has responsibility to guide our behavior
rules then obligate the citizens.
A violation of the Inner Morality of Law erodes the obligation of the citizen.
8 Requirements of the Inner Morality of Law
1. have to establish rules
2. publish the rules
3. prospective
4. understandable
5. coherent or consistent with one another
6. capable of compliance
7. stable
8. administered congruently
For Fuller these things are aspirational and it becomes a matter of degree. He is most interest in this at a systemic
level, whether there are enough rules to govern and maintain social order, same for publication (applies to all).
Hart says this IML is compatible with great inequity ex-the Nazis.
Fuller says the IML can be separated from the EML. There is some neutrality with IML, says let's not jump to the
assumption that there were Rule of Law Nazis.
Need law to have good law based on justice requires order
 IML is a requirement to have all these good things. ex-D of I, frustrated creation of law
 Evaluation of Justice/Injustice
o adhere to IML to be able to examine the EML
 Articulation-Justice/Injustice
o less likely to do something unjust, system that adheres to IML
 Views of Persons
o people are moral agents with a choice, rules about fault/intent, occurs when they embrace the IML
with the purpose of guiding conduct
Legal Pathology
Erosion of IML (legality)
Nazi Germany, anything could happen to a dissident, not a maintenance of social order but intimidate people
Hart says the legal system is a series of p + s rules, about the puzzled person and the guide, not the bad and good
For Fuller the IML was not on par with the EML with slavery and apartheid.
Fuller cont.
Question over whether the informer laws caused arrest of the people later to be an unlawful procurement.
Prosecutors said these laws were so unjust that the procurement could not be illegal.
Disagreement over whether they should be considered law.
 Judges v. Legislature (should act with the legislature to clean up the Nazi mess)
 Retroactivity?: concern over ex-post facto laws v. not punishing
 Hart argues not to pretend it's not law but either to choose to violate principles or not
Fuller says it can reasonable be viewed as not law not because its wicked or evil, but because it doesn’t satisfy the
8 requirements. They include sweeping administrative flexibility in enforcement, alot of these were secret lawsmay not have been published, problem with vagueness. Nazi courts steamrolling over the people they don’t like.
Redbrook says LP enabled Nazism, especially the kind imported from England to Germany.
 if they had believed an unjust law was not a law problem avoided however they had been taught a law is a
law is a law, morality of law questions are reserved for philosophers.
Hart responds and is outraged
 LP who influenced Germans were liberals, proponents of tolerance of other beliefs, individual rights and
this is the German’s fault, moral questions still remain, German nationalism is to blame.
 There is no reason to believe the normal conception of NL would have been taught
Fuller says
 lawyers study law and philosophers study morality, lawyers should study positive law and natural law
which means they would examine morality, legal positivism in part is to blame
Fuller criticizes Hart’s view of SC + OT
How do we know what’s in the SC? it’s our view that of the aim/goal of the statute (basically moral). We know
what’s SC is based upon a moral evaluation of the statute, we wind up doing analysis of what law ought to be.
 ex-sleeping in the park statute
o if we ignore purpose guy nodding off in park guilty and guy w/ bedding not
 Goal: prevent homeless who will sleep in the park. We know what’s SC or OT based upon our view of the
goal, what the law is and what it ought to be becomes blurry.
Hart responds just a description. He acknowledges that morality plays a part in OT. Morality reduces clarity and
he wants to draw a fine line between law and morality which Fuller refuses to do, says it is integral at its core.
Hart v. Dworkin(NL-Adjudication)
1. IPV of Judges
 Int: adheres, easy and hard cases
 Hart: some judges admit to making stuff up, don’t believe they are finding the self evident
correct answer
2. SOP
 legislature is supposed to make laws not the judiciary
 Int: fits inside the separation of powers
 Hart: if SOP is inconsistent with the way judges decide cases then serious problem
3. Ex Post Facto
 judges making law to apply to people in front of them
 Int: not making it up based on principles
 Hart: must also be consistent with the way judges decide law, a pragmatic problem
4. Right Answers
 even in the OT there are right answers
 Int: fit/justification will both lead us to the right answer
 Hart: subjective, justification analysis produces solid moral disagreements
5. Litigants have a right to right answers
 constitutional in nature
 Int: they are vindicated in the constitution now since we aren’t making it up
 Hart: no right to right answer because there are none
6. Courts are a forum of principle
 forum of rights, not policy
 Int: we give right answers
 Hart: there are endless decisions that cite policy, Hart is describing, just look
7. Judges only have weak discretion
 to interpret the law when unclear, to look for right answers
 Int: judges restrained by fit and justification even if we get the wrong answer
8. Legal principles
 not rules, not R of R (they constrain judicial discretion)
 Hart: judges power in OT, they are in fact making the answer up
Hart responds and says this is a Semantic Distinction (just plays word games).
NO SC/OT
 instead there are easy cases where everyone agrees and there are hard cases where people may disagree
 In both you are interpreting the law, there is no making of the law
1. Fit: consistent with legal materials (there might be only a few that fit)
a. Hart: might look at text, original understanding, tradition, precedent, conservatives demand tight fit
2. Justification: law is just, “best it can be”
Example-chain novel, has to fit with decisions of the past but also make it the best it can possibly be
-a statute is a novel with missing pages while the constitution is an outline of a novel
Dworkin Judicial Philosophy thinks it is fundamentally political.
There are right answers to certain political questions then.....pervasive political questions but there is a right one
 Fit-politics
 Justification-politics
14th/DP Clause and Equal Protection Clause (Abortion)
o Conservatives: no fit in text, not in OU for finding DP right, don’t move to justification analysis
o Liberals: it fits, arguments then center on justification, politics can come into play in regards to fit
and justification
Legal Principles (Dworkin's Last Point)
Hart wants to talk about rules.
Dworkin believes in principles.
Examples
 “no one should profit from wrong,” nothing in statutes but principle overrides
 “ignorance of the law is no excuse” this is a general principle it has some weight
 “rule of lenity” a canon of construction, interpret narrowly to favor D, principle not always followed
These principles further control judicial discretion, part of the Fit analysis (can’t be derived from the R of R)
Hart responds flexible rules exist and these principles are flexible rules. In some jurisdictions these rules are
codified (traced back to the R of R) The R of R confers power on courts to recognize the rules or not, power to
adjudicate rules of adjudication. State SC-power to adopt a different rule, overrule lower courts who have adopted.
Oliver Wendell Holmes
OT big focus for him because he is an appellate judge. Does not deny SC.
 Lawyer’s perspective-predict (“bad man’s perspective”)
o clients hire lawyers for their special knowledge, their prediction of the public force
 Judge’s perspective-reform (Holmes)
o either unsettling law or backing down on state con law issues
Hart would criticize and say he isn’t talking about analytical jurisprudence but about how a lawyer can be good
Pitfalls
1. Morality
a. generates confusion
b. business-like approach to Ks; a promise to perform or promise to pay $, not moral promise
c. look at it from a cynical perspective, eminent domain v. burning down your home, way of saying
you’re allowed to do something and you pay a fee (same as a fire)
d. example: meeting of the minds, inferring reasonable terms even though they didn’t agree
e. Law is fundamentally separate from morality, lawyer’s give bad advice if they rely on it
2. Logic
a. C.C. Landgell’s case method a product of legal formalism (deny OT all SC)
i. there are axioms of law and from those you can work out all the principles
ii. these principles are then applied to new cases, no OT, there is a logical answer
b. Holmes responds by saying law does not have this inherent logical structure
i. far from logic, present are inarticulate policy grounds
c. Example: old rule of negligence and newer railroad cases, there is an internal policy judgment
present, they might say he’s negligent but actually looking at employer-take care of their workers
i. they will do whatever they have to do to initiate the policy
d. Example: Lochner and the SC acting on unconscious moral concerns with economic interference
Instead Study
1. History: enlightened skepticism
a. English skepticism: so we don’t confuse law with logic and morality, creates enlightened skepticism
 Examples include larceny, larceny by trick, embezzling, if we study history we see there is
no good reason for a difference between the two, historical accidents
 rationalizations for those distinctions based on logic or morality would fail
 Example: need to look at history to decide why if certificate disappears the K disappears
 Example: quickened fetus, instead of exploring why the rule makes sense in past make a
distinction on whether it make sense today
b. Foster the enlightened skepticism by looking at history, the statute, if antiquarian judge should
change it or let the legislature change it
2. Public Policy (be conscious and articulate)
a. economics
b. cost-benefit
c. look to purpose-why do we desire the purpose?
d. Example: adverse possession, rationale based on not complaining about lack of rights when you
refuse to enforce them + possession has a sentimental value/attachment
Connection between Holmes and Dworkin
 Dworkin said:
a. do what is right based on morality, understanding of situation principles necessary to make right choice
 Holmes said:
a. choice based upon balancing of policy analyses, no pie in the sky, make choice that advances policies
2 Ways to Achieve Such Change
a. Common law activism
a. set CL and reform
b. Constitutional law restraint
a. SC should let reform go through by not interfering with it
Differences between Dworkin and Holmes with Regard to Reform
focus
a. Dworkin’s focus is on the parties, their rights, metaphysical principles of justice
b. Holmes’s focus is on cost-benefit analysis, economics, a forward looking policy
con law
a. Dworkin wants judges to be activists in field of constitutional law, active aggressive use to promote vision of
justice ex-SS
b. Holmes wants judges to back down and let the legislature be the vehicle for reform ex-RBR
Legal Realists Llewellyn/Frank 1920s/1930s New Deal and Progressive Movement
Reform agenda with an emphasis on facts.
Interest
Primary
Right
4th amendment-unreasonable search and seizure
Rule
knock + announce rule Wilson v. Ankwar
Remedy
Section 1983 includes the exclusive rule
Advocates spending less time on abstractions and more time on the facts.
Paper rules
Working rules
Courts + Congress
low-level (citizens) (dealers not likely to sue if rule broken or not)
General rules
Practitioner application (Southside Chicago)
For Llewellyn you can focus on the abstractions but when you look at the facts you can see there is no right, you
can only change the world by looking at the true facts. Working rules much different than paper rules.
 Example: all criminal defendants are guilty, all criminal lawyers, judges, D attorneys know this rule, easier
to convict criminals while violating the Constitution, police lie about these violations, everyone’s aware
most more likely to be police officers (especially trial judges, whom appeals courts agree with).
 Example: Contracts
o Formalists: some say Ks are a promise
o Realist: Holmes said K is promise to perform or pay damages
o Next Step: K gives you a right to sue (a remedy, ineffective), suit would be expensive, need a good
lawyer, not functional; social promise where in the end you may just end up refusing to do business
with that person
 Example: Car Search
o Case appears to provide privacy protection
 however, what happens is actually different, impoundment-resulting search gets around rule


Risk
if we want to really change things we must examine the working rules, we don’t want just a
rearranging of paper rules so we must ask what are the consequences of our decision? if our
goal is greater privacy protection or more police discretion
Example: Interrogation under 5th Amendment
o Totality of Circumstances: “coercion test” do the police intimidate someone into a statement, fact
intensive, police + trial courts determine its validity
o Move to Miranda: D given direct rights, can’t be coerced in any way, bright line factual question, as
a paper rule its harder for the working rule to stray away from
o Next Step: empirical studies show that Miranda has had little impact, still pits officer’s word against
the D, waiver test ends up being the TOC test that was faulty
Penalties
You can lower the risk by expanding rights but there might be a reaction of harsher penalties. When thinking about
reform we have to think about our goals and the facts related to them. Social reform is hard, but can be achieved by
looking at the facts (cost benefit, feasibility, opposition) instead of rearranging the paper rules.
Llewelyn says in practice paper rules with OT/SC does not translate into wrong rules (not really a statement).
 Holmes has a strong focus on paper rules, Llewelyn advocates fact study.
 Dworkin says both have a normative goal, he, however, is focused on paper rules based on justice.
 Llewelyn doesn’t want to think about metaphysical forms of justice, he wants to focus on the common
sense thoughts about social goals and how we advance them making sure they translate into working rules.
Legal Realist Jerome Frank
Frank believes
 stimuli (law, legally relevant facts, all other facts)
 filtered through personality bias (race, gender, social class)
 produces a “hunch”
 which results in an opinion (decision or rationalization)
Understand your biases to get better judging. You can then control it and minimize the way it affects your
decisions negatively. Make it function the opposite-advance social reform to help traditionally affected by biases.
-Frank gets close to the belief that law doesn’t have a SC. he advocates learning psychology so we can understand
the stimuli and help control them to get more rational decisions


Legal Pragmatist Richard Posner
hostile to metaphysics, secular-can’t focus on metaphysics, don’t exist
progressive and experimental, forward looking
o consequences
o law as an instrument
 social needs as goals
 “common sense”
 science and social science-increasing knowledge to advance society
Not a school just a set of tendencies. There is no logical structure but just a need to advance social goals.
The Modern Legal Pragmatists Improvements over Legal Realists of the 1930’s
3 Failings of Legal Realism
1. Belief in legislative process as reasonable and that it advanced public good
a. actually it’s run by special interests
2. Naive enthusiasm for government
a. bigger government counter-productive, a real failing
3. lack of a social science method
Contributions of Legal Pragmatism
(1) Free speech
a. No real truth always means we want to encourage free speech to learn more
(2) Critique of the metaphysical
a. law not interested in your mind, more so how dangerous you are
b. mens rea, causation, punish people for conspiracy, let people off on proximate cause (letting people
off who do cause harm and those who don’t cause harm)
(3) Criticism of Formalism in common law
(4) Critique of Formalism in constitutional and statutory law
a. formalism caused by a reaction activism
(5) Adjudication
a. using law as an instrument of advancement, judge thinking of himself as a problem solver
(6) Economic analysis of the law
a. Posner wants people to make money, law should help people make money
(7) Social Science
a. empirical methods of study should be used to create real reforms ex-criminal justice system
(8) Rhetoric
a. should be emphasis on persuasion and the act of persuasion
Posner on Hart and Dworkin
SC-apply law
easy cases-interpret
OT-make law
hard cases-interpret
all agree
all disagree
Posner says Hart is right substantively, there is an OT where judges have to make the law.
Dworkin is right semantically, using the right words to describe.
 Hart’s language suggests a judge has violated the SOP by making up law in the OT.
o Posner says judges can’t avoid it and that they have to make up the rule.
 the language that avoids an implication of wrongdoing is Dworkin’s description of
interpreting the law in a hard case
 Dworkin wants judges to go to metaphysics in hard cases (legal fit + justification) ex-right to abortion
o Posner says judges should be moderate-not aggressive, decision based on CL and social sciences.
Posner bashes concept of Academic Moralism-Metaphysics
It has no value and no motivation for change (knowledge does not equal change). It can’t overcome self-interest or
moral intuition, the more people know the easier it is to rationalize further showing it is impossible to advocate one
moral side over another. Morality is local, norms can be explained without any academic-moralism (social
cooperation).
Dworkin (left wing metaphysics)
Finnis (right wing metaphysics)
Posner says don’t listen to either, metaphysics should not be touched, adjudication should be kept away from
metaphysical discussions/arguments because:
 It provides no answers (strong)
 Judges not comfortable (weak)
 Socially Divisive
 Doesn’t mesh with law + cases
Posner Making Rules while Avoiding Moral Issues
 recast it as one of interpretation
 stare decisis
 social consequences (common sense perspective)
 talk about separation of powers
 institutional competence
Example: Glucksberg (1998)-physician assisted suicide rights, Finnis: right wing advocate against it, Dworkin: left
wing freedom of the individual/personal autonomy
Posner wants to answer the question without doing any academic moralizing. SC used the social consequences
tactic to attack, fraud/duress of elderly, cites institutional competence, interpretative methods and precedence.
Example: Roe (1973)-Blackmun did not make abstract moral argument, SC pointed to social consequences of
women having a child when she didn't want, even dissenters addressed interpretation, other non-moral arguments.
Example: Brown (1950's)-no reference to principles, economic process for African Americans, separate schools
stigmatizing, stare decisis, common-sense social consequences, text of the equal protection clause
Example: Riggs v. Palmer (1889)-no moral arguments present, interpretation of the statutes, will meant to manifest
intent of the testator and the legislature
Critics of Posner's law/economics advocacy might point to the uncertainty surround economics, arguments
surrounding economics tend to be just as difficult as arguments surrounding metaphysics. Also, decisions are
divisive every time people disagree with them.
Balkin, Deconstruction and the Critical Legal Studies
Uses of Deconstruction
 generates arguments
 critique existing doctrines
 uncover ideological thinking
Goal
 reform
 enlightenment + emancipation (maximize freedom of thought/broad perspective)
 confirm-self reflection (psychoanalysis)
The Practice
1. inversion of a hierarchy
2. liberating the text from the intent of the author
Hierarchy: privileging one thing over another
ex-tall v. short
Difference: thing about the real difference, means to differ and to defer
Trace: in tall is a trace of short, come as a matched pair.
Reviewing: actually injury Ps v. ideological Ps
-don't want to clog up courts, for remedy their needs to be an actual injury, forms stronger arguments for ruling in
their favor, prevents 3rd parties and others from unfairly influencing
Reversing: ideological P may be better, actual P may only care about their injury and look for $ instead of respect
for the Constitution, may not pull the rug out from under the system
This deconstruction helps us understand why we do it and to remember our goals/reasons.
Reviewing: Warrant for home is needed but no warrant is needed for an automobile.
-concern that car will drive away, privacy expectation not quite there
Reversing: more privacy in the automobile than home (key to a trunk), people can move things from a home, not a
meaningful distinction. Pluming system and opaque walls, with automobile you can either eat it or throw it out
Deconstruction doesn't tell us where to go, in the end we will end up with less privacy overall.
Balkin Critical Legal Studies Continued
Reviewing: 1st degree murder (pre-meditation and deliberation) v. 2nd degree murder (spontaneous)
-1st degree person may only kill one, may never encounter that situation again, 2nd degree person killed on a whim
and thus might be more dangerous
Nothing Outside the Text
object/thing---thought/"sight"---speech/writing----thoughts/signs
(What the thing produces influences us, can't get outside our sensory brain)
intent-text-correct reading
not based on intent-text-incorrect reading/misreading
T.S. Elliot The Hollow Man (1925) based on Guy Fawkes.
-we aren't reading it according to his intent so we are misreading it, it's not clear even if we read according to intent
then we still aren't reading it correctly, we can never have a true reading of what he saw/thought
Brown v. Board (1954)
-education--economic statutes or political participation (psychological harm to children)
-however, this ended up applying to golf courts, restrooms, at first glance the reading appears incorrect
-the correct reading would be to understand the "miss" doesn't matter, improves it, no ultimate theme is present,
you can never experience the "deer"
Intent-----------rule of law separation of powers predictability/stability
Readings
Non-Intent
In Re Jane Doe (2000)
-ex parte hearing, judicial bypass of requirement of parental consent
-intent was to make it hard, but it ended up being easy, Texas challenged the standard and the SC said they were
going to read the non-intent of the text accepting the underlying intent
Sexton
-knowledge, understanding the intent/non-intent of the legislature contradictory sections in the law, text the rule of
law is important, not sure intent rules
-Scalia says no legislative history, read the text, rule of law says text is to be enforced, not the intent
United States v. Holloway
-carjacking a special case and you have intent to cause death or serious bodily injury
-CL rule apply condition intent, Scalia says that not what the text says (reversing) Stevens wants to look at intent
Deconstruction more often used by the left, attacks the status quo, a product more of conventional philosophy.
Although the right can use it (like Posner).
Hart Handout
American Jurisprudence through English eyes.
 points out Americans' excessive focus on adjudication
 reason for this is judicial review, courts can strike down acts of Congress or acts of a state legislature, also
the existence of substantive due process (more so should be directed at broad language of the Constitution)
o ex-Lochner and Roe, allows the SC to essentially take a side in a political debate
 to British people the judiciary looks more like politics, a less democratic method
Adjudication
Nightmare
Noble
-always make the law (LS)
-judges never make it up, NL
Dworkin looks for right answer
fit + moral justification
Sometimes (Hart)
-says Posner is over here, he
essentially says law has a right
answer given by law + economics
Llewellyn
-grand style of judging
-never thought there is a right answer, turns to policy sometimes
Adjudication Continued
Trust---> 10 Commandments
Executor decides
reasonable claim v. good faith claim?opinion? authority? but who? (lots of them)
Judge: possible interpretations include Old Jewish law, contemporary beliefs, an objectively reasonable person,
principals and goals of the 10 Commandments
Embarrassing 2nd Amendment Sanford Levinson
Cognitive Maps-Bill of Rights
 Liberal-really big (important) rights, criminal procedure, establishment clause claims etc. etc.
 Conservative-free exercise clause, 2nd amendment, 10th amendment
"Embarrassing" for a Liberal. BR expansive but an advocate of gun control? Arbitrarily ignore 2nd amendment?
Rhetorical Structures and Politics of Interpretation
Legitimate "Modalities" (legitimate because authors + lawyers use them, recognized as legitimate)
1. text
2. history
3. precedent/doctrine
4. structure (people-->state-->national government)
5. prudence (broad or narrow view, concern with consequences)
6. ethos/ethical interpretation (social conventions) (rugged individualism as a social ethos)
What is the tie breaker then? morality or justice (sounds like Dworkin's justification + legal fit)
Politics of Interpretation Allen C. Hutchinson
 2nd Amendment
 Thomas big individual right
 Stevens small fed big
 Establishment Clause
 Stevens big fed big
 Thomas small individual right
Taking the broad view of the law they like and the narrow view of the law they don't like. Not illegitimate but a
use of the morality/justice tiebreaker.
as compared to Dworkin meets Bobbitt
legal fit
text, history (original understanding or traditionalism), doctrine
Structures/Rights
moral justification Prudence (cost-benefit analysis, Posner) or Morality (Dworkin, Finnis)
Substructures to these Statutes
Precedent
1. Literal/Purposive
a. ex-social host not commercial host/purpose is on display
2. Narrow/Broad
a. commercial host outside reach/same danger still applies
3. General/Detailed Facts
a. host got drunk creates danger/social not commercial hurts other people
4. Old/New Authorities
a. 1970's concern/not well grounded to expand
Policy
1.
2.
3.
4.
5.
6.
7.
8.
Judicial Administration-strict/flexible
Institutional Competence
ex-major changes leave to tort law/courts invent tort the same sort of thing
Equality-formal/substantive ex-hosts should be alike/commercial has liquor license, different rule
Morality-freedom/security
Deterrence-flexible/stable rules
Cost-benefit analysis ex- deters social hosts and valuable social benefits/safety of individuals-gain immense
Distributive analysis ex-homeowner ought to buy insurance/drivers ought to have insurance (subsidize?)
Choice-paternalistic or anti-paternalistic
Federalist 78 and Judicial Supremacy
People
-judgment and will
Constitution
Judicial Power to interpret the
law Art III and the Constitution.
Legislative power to make law in
Art I and propose amendments
Law
Calder v. Bull (1798)
 Chase: there is the explicit law and the implicit law (based on injustice), courts then have the power to
strike it down
o Judicial Power: Activism; minority rights.
o Nature of the Constitution: Living Constitution; change.
o Will look at the text but look at evolving traditions and social ethos, but the main focus is on
justification. Liberals politics.
 Iredell: there is only explicit law based on the text, republican form of government means the people must
agree on something otherwise this is left to the legislature
o Judicial Power: Restraint; majority rule.
o Nature of the Constitution: Historical; republican form of government, constraint
o Emphasis on text and history as original understanding, the emphasis is on fit. Conservative Politics
Interpretation is Judicial Philosophy and Judicial Philosophy is Politics.
or
Interpretation is Law looking at Article III (SOP, federalism, representative democracy)
ex: Art III
14th amendment
abortion
Some Quotations
 Walt Whitman: reading is interpretation, what you put in is what comes out. Judicial Activist.
 Jefferson wants simple clear HC sounding.
 2nd Corinthians, sounds like LC not a SC/HC, the spirit of the Constitution.
 Harlan makes Art III point, his view of Article III and LC violates Art III.
 Brennan says Constitution is statement of us as individuals; have to read it consistent with who we are now
 Black says broad authority to interpret the 14th is not provided for in Art III, to do so violates the Const.
 Activism is elitist, it empowers those who are highly educated, upper middle class as a professional.
Idea that you have to adjudicate Art III sends you back to justification and that this ends up going back to Judicial
Philosophy-Political Arguments. Although the fact a judge finds broad authority under Art III may mean they
choose not to exercise the full scope of that power.


Robert George
Dworkin-NL, wants a lot of moral justification in adjudication, NL judging. Full authority under Art III.
Bork(Scalia)-NL, emphasis on original understanding and traditions, emphasis on fit, wants positive law,
deference, legislature final authority unless it goes against the Constitution
Lon L. Fuller Case of the Spelunking Explorers
-dying explorers throw dice to determine who gets eaten in order for the group to live longer
 Truepenny (affirm): don’t have to determine the law, it is the decision of the executive, normative
positivism
 Foster (reverse): NL, in a case positive law no longer applies NL is all that’s left, legal system applies but
need to read the statute to figure out its purpose, create an implicit exception for a non-deterrence situation
 Talfy (abstain): doesn’t buy they are in state of nature or they have a social compact but doesn’t want to
alter, they are also multiple purposes, no self exception, no decision based only on one person
 Keen (affirm): normative, positivist, clear court supposed to defer to legislature under the SOP, adhere to
the text, he still hopes the man is granted clemency
 Hardy (reverse): pragmatist, find out social consequences, need to get right outcome, statutes should not lay
outside public opinion
For the Natural Law Theorists you might look to these theories of judging.
1. Literal/Purposive (utilitarian ethics-counting heads vs. Kantian ethics-each person an individual)
2. S/P
3. Right Answer
Examples
 Dudley + Stephens (1884)-murder convictions for killing and eating boy, a utilitarian view
 Holmes (1842)-threw passengers overboard randomly, the weakest, utilitarian view
Fallon’s Doctrinal Implementation of the Constitution
It is both descriptive (describes what we do) and prescriptive (keep doing it as it’s a good practice).
For Article III the Institutional Mission of the SC is implementation of doctrine-texts.
 Fidelity to the Constitution
o Involves fidelity to other amendments as well as the 14th when interpreting
o Article I Section 5 means Congress passing statutes
 Interpreting the 14th (EP Clause) and Art III also at issue
o Standing, case or controversy
o Don’t get to 14th amendment because not within Art III power
o A doctrine-tiers of scrutiny, part of their Art III mission.
Knocks on the use of doctrines in interpretation and implementation
1. SC not being faithful to the Con/14th amendment because they made these tests up
a. Fallon says we are trying to be faithful to all parts of the Constitution and that it is about creating a
stable body of constitutional law to guide litigation and the purpose is to implement the Constitution
in the courts.
b. Everyone passing laws needs to know what they can and can’t do, important for a citizen to know
what rights they do and don’t have.
i. Necessary because the words of the EP clause don’t say enough and judicial supremacy.
2. What about over-enforcement and under-enforcement?
a. Fallon says it comes out of the doctrine so we shouldn’t be worried about it ex-SS to affirmative
action. Under-enforcement may take place when we apply RBR to age discrimination.
3. We get distanced from the Constitution with a doctrine….It’s inevitable.
a. We disagree with the meaning of the 14th amendment.
b. Text of the 14th amendment is abstract. Movement to concreteness will cause disagreement
c. Stare decisis: if we believe in this implementation idea we must use it; we can’t change the test
every time we think its wrong (when courts talk about it we know the past made mistakes)
d. Litigation costs: SS and RBR both suggest what will happen but IS means we don’t know what we
can get away with so cases are brought
e. Institutional competence/fairness of judicial resolution
f. Prudence: looking at consequences ex-in free speech concern with chilling, means we tolerate a lot
of bad speech, court applies SS to speech by the KKK
Creating the Stable Body to Implement the Constitution by Crafting/Making a Doctrine
Doctrines can be a mixture of several. Ex-Obrien, can effects test triggers a balancing test, SC says they aren’t
looking at purpose but are looking at aim.
1. Forbidden content test: state not allowed to regulate/infringe upon something
2. Suspect content SS: race classifications
3. Balancing tests: IS and SS balancing (freedom of association)
4. Non-suspect classification tests: RBR, nothing suspicious done
5. Effects test: ex-DI claim
6. Purpose (subjective motivation): disagreement over whether subjective though
7. “aim”: who is a statute directed towards? Objective on its face
a. Ex-no vehicles in the park, aim is to keep vehicles out of park for safety reasons
8. Appropriate deliberation test: stereotypes (did they have the right debate)
Stare Decisis
-question over whether it is prudential or mandated by Article III as a Constitutional doctrine (he believes it is this)
 Need good reason for changing the law
o Bad mistake: Lochner, Plessy, major unconstitutional injustice has not been treated as such
o Doctrinal erosion: other cases make that case look wrong
o Unworkability: created confusion/litigation, get rid of it
o Changes in Facts: ex-Lochner, economic system changed
Judicial Supremacy
-basic concept that courts, SC in particular, have the final say on the meaning of the Constitution
5 Supreme Court Justices vs. 48 states, President, 4 Supreme Court Justices, Large Majority in both Houses
Federalist 78
 Hamilton, Buchanan (McCullough v. Maryland, Marbury v. Madison)
 SOP: Courts are supposed to say what the law is and the Constitution is law
 Settlement Thesis: Need way to answer questions and avoid crises, a single decision maker
Departmentalists and Coordinate Review Advocates
 SOP: means 3 equal departments, power to interpret Constitutional law which is not ordinary law is the
ultimate power
 Settlement Thesis means Tyranny: divisions are a natural outgrowth of democracy, single power has great
negatives, checks and balances needed to prevent this danger
Article III was intentionally left ambiguous. Disagreement over whether it is prudential in nature or mandated
 It is just like stare decisis, just like in that concept 3 reasons can lead the President not to follow a decision
 Concept of Modern Departmentalism, Lincoln-deference to litigation as to parties, but not policy as whole
 Extreme Departmentalists like Jefferson wouldn’t want to adhere to a decision between parties at all.
Dred Scott’s Effect Upon the Concept of Judicial Supremacy
 Dred Scott couldn’t get diversity jurisdiction because he was a slave and not a citizen but the jurisdictional
question collapses into the merits
 Asked whether an African American who was free was a United States citizen and the Supreme Court says
no because there is a color barrier in the Constitution, an implicit color norm.
 Court also rules that there is a 5th amendment SDP right to own slaves in states in the federal territory.
 McClan’s dissent: when ratifying the Constitution there were free African Americans, some even voted to
ratify the document. Same Congress that supposedly guaranteed SDP right to own slaves did not believe
there was a right to own them in federal territories because they voted to ban slavery in the federal
territories.
Tammy uses the Constitution
 The 3/5ths clause
 Slave importation clause
 Fugitive slave clause
 Federal system also protects slavery
 Lincoln thought its purpose was to implement the Declaration of Independence and the principles of
aspiration and progress. At its core an anti-slavery document. The neutral camp believed that the framers
recognized its existence but tabled the issue and didn’t answer the question.
and the Declaration of Independence
 3 Theories for what this statement meant
o Aspirational statement: Lincoln and Douglass believed it showed what the framers aspired to have
existent in the United States
o Hypocrisy: loudest cry of liberty form a driver of black men
o All men created equal applies only to white men (Tammy believes this)