Federalism
Historically, there’s been a shift from “dual
federalism” to “cooperative federalism”
1. Dual federalism = Federal gov’t & states are coequals, each sovereign. Constitutional powers
of federal government are narrowly interpreted.
2. Cooperative federalism = Federal gov’t is
supreme over states. Constitutional powers of
federal gov’t are broadly interpreted.
Original jurisdiction in cases “affecting
Ambassadors…”
Appellate jurisdiction “in all the other cases
… with such Exceptions … as the
Congress shall make.”
Judiciary Act authorizes Supreme Court “to
issue writs of mandamus….”
Key Constitutional Provisions
• Powers reserved to the states
(Amendment X).
• The Supremacy Clause (Art. VI).
• The Necessary and Proper Clause (Art. I,
§ 8, cl. 18).
• Commerce Clause (Art. 1, § 8, cl. 3).
McCulloch v. Maryland
(1819)
• aka the ‘national bank case’
• The Court upheld the (implied) power of
Congress to create a national bank.
• The Court’s broad interpretation of the
necessary and proper clause paved the
way for later rulings upholding expansive
federal powers.
• McCulluch was the first major decision by
the Supreme Court under Chief Justice
John Marshall about the relationship
between the states and the national
government.
• The Court denied the right of a state to
tax the national bank.
• “the power to tax is the power to destroy”
• Supremacy clause – state can’t have the
power to destroy a creation of Congress
Gibbons v. Ogden (1824)
– Both New York and New Jersey wanted the
right to control shipping on the Hudson river
– New York granted one shipping company a
monopoly at the same time that the US
licensed a ship to sail on the Hudson
– Supreme Court decides that Congress has
the authority under the Commerce Clause in
the Constitution
State Resistance to Expanding
Federal Power and the Civil War
1. Missouri Compromise of 1820: newly
admitted states “slave” or “free”?
2. Dred Scott v. Sandford (U.S. 1857)
3. Civil War (1861-1865)
4. Civil War Amendments to Constitution
(1865)
The New Deal
1. The New Deal, FDR’s response to the
Great Depression, was being struck down
as unconstitutional by the Supreme Court
– Held Congress exceeded the Constitutional
powers of the national government
2. FDR’s court packing threat
3. Supreme Court abandons dual federalism,
allowing further extensions of national
power
Revival of Federalism?
• By the 1980s and 1990s, many
Americans began to think that the
national government was too big, too
strong, and too distant to understand
their concerns.
• Reagan Revolution / New Federalism
proposed a return of powers to the
states
• Beginning in 1980’s, the Supreme
Court once again played a role in the
evolution of federalism.
• Several members of the Rehnquist
Court supported limitations on
Congressional power and greater state
autonomy
– For example: Since 1989, the Court has
been allowing states to introduce
limitations on the right to an abortion.
Another attempt to revive
federalism—the Commerce Clause
Wickard v. Filburn (U.S. 1942)
U.S. v. Lopez (U.S. 1995)
U.S. v. Morrison (U.S. 2000)
Gonzales v. Raich (U.S. 2005)
Gonzales v. Reich (2005) Facts:
• Federal Controlled Substance Act (CSA) prohibits
possession, distribution, and manufacturing of
drugs like marijuana.
• California Compassionate Use Act authorizes
limited marijuana use for medicinal uses.
• Monson grows & uses marijuana for medicinal
purposes within scope of California law.
• Federal government agents seize & destroy his
plants.
Claim: Monson seeks court order prohibiting
enforcement of CSA to the extent that it prevents
him from possession of marijuana for medical use.
He argues that Commerce Clause does not
authorize federal legislation in this area.
Sources of Law
Briefing Cases
Class 4
STATUTORY INTERPRETATION
• Overview
• Muscarello v. United States
Overview of Statutory Interpretation
• Common Law Attitude Toward Statutes
• 10 Tools of Statutory Interpretation
Comparison of Civil Code and U.S.
Statutory Interpretation
1. Civil Codes:
a. Written in general language.
b. Treated as containing germinating principles from
which specific rules can be generated.
c. Cts fill gaps in code by analogy.
2. U.S. Statutes
a. Written in specific language.
b. Cts do not look for germinating principles there.
c. Cts do not fill gaps by analogy.
10 Tools for Statutory Interpretation
1. Wording of statute.
2. Statutory context—other sections of
same statute, other statutes on same
subject, title, headings, preamble.
3. Historical context—events and conditions
that motivated the legislature to act.
4. Public policy announcements in other
statutes and caselaw.
5. Interpretations of the statute by lower or
collateral courts.
6. Legislative history—records created by the
legislature during the course of enactment.
7. Canons of statutory construction.
8. Comparison to parallel statutes in other
jurisdictions, focusing on the judicial
interpretations & historical context.
9. Interpretations by administrative agencies
charged with enforcing the statute.
10. Scholarly interpretations.
Wording of the Statute
1. The tension:
a. “Interpretation is the art of finding out …
what [the drafter] intended to convey.”
•
Francis Liebre
b. “I don’t care what their intention was. I
only want to know what the words mean.”
• Oliver Wendell Holmes.
Plain meaning rule:
Language of the statute controls “absent a
clearly expressed legislative intention to
the contrary.”
Hypothetical statute:
“All stores shall be closed at 10 p.m.”
What does this mean?
Legislative History
1. Committee reports.
2. Statements of individual legislators
responsible for drafting the bill.
3. Statements on the floor of Congress
(Congressional Record).
4. President’s signing message.
5. Testimony from committee hearings.
Canons of Statutory Construction
1. Ejusdem generis: “Of the same kind.”
Where general words follow a specific list
of items, read the general words to refer
to similar items only.
2. Noscitur a sociis: A word “may be known
by its associates.” Context helps to
define a word.
3. Expressio unios est exclusio alterius:
“The expression of one thing implies the
exclusion of others.
4. Rule of Lenity for Criminal Statutes:
Criminal law should give clear notice to
possible violators of what conduct is
prohibited, so any ambiguity should be
interpreted in favor of def.
5. Interpretation to Avoid Unconstitutionality
Interpretation by Administrative
Agency Interpreting the Statute
• Rationale:
– Agency has expertise in matters within their
control.
– Court delegated intrepretation to the agency.
• Controversy: How much deference is due?
– Chevron, U.S.A., Inc. v. Natural Resources
Defense Council (U.S. 1977): Court should
defer to agency interpretation “unless there
are compelling indications that it is wrong.”
Muscarello v. United States
Impact of Gov’t Structure on the
Legal System (cont’d)
Vertical Federalism: Concurrent
Federal & State Lawmaking
Powers
a. Incomplete Federal Legislative Intervention
b. Doctrine of Preemption: Presumption against
preemption. State law is void if (i) federal law
explicitly preempts it, or (ii) federal law
implicitly preempts it by (1) direct conflict, or
(2) occupying entire field.
Vertical Federalism (cont’d)
Concurrent Federal & State Adjudicatory
Powers
a. Jurisdiction
•State cts have jurisdiction over federal questions.
•Federal cts handle state law claims in diversity
cases.
b. Removal from State to Federal Court
c. Applicable Law
•Fed ct handling state claim applies state
substantive law & federal procedural law.
•Vice-versa.
Horizontal Federalism: Multiple
States with Adjudicatory Powers
1. “Long arm” personal jurisdiction.
2. Choice of law.
Effects of Separation of Powers &
Federalism on Federal Cts
1. “Cases” & “Controversies” Limitation of
Article III.
2. Implied private rights of action.
3. Anti-Injunction Act & Federal Ct
Abstention.
4. State sovereign immunity.
Horizontal Federalism
1. Right to Travel
a. Crandall v. Nevada (U.S. 1867)
b. Shapiro v. Thompson (U.S. 1969)
c. Is it constitutional for state universities to
charge higher tuitions to students coming
from out of state?
2. Dormant Commerce Clause. E.g.:
a. Fencing out: NY prohibition on sale of out-ofstate milk at prices lower than NY minimum
price.
b. Fencing in: Prohibition on exports, such as
fish.
c. Burden: NC law prohibiting advertising of
apples according to the WA grading system.
Personal Jurisdiction
1. Personal jurisdiction = power of ct to
force out-of-state party to respond to
lawsuit.
2. Service of process is required to
establish personal jurisdiction.
3. Minimum contacts: Constitutional due
process requires that for ct to exercise
personal jurisdiction party must have
sufficient contacts with the state to make
it reasonable (“fair play”) to require def to
defend a lawsuit brought there. Int’l Shoe
Co. v. Washington (U.S. 1945).
4. “Full faith and credit” requirement (U.S.
Const., art. IV, § 1)
5. Extradition of Fugitives from Justice
Class 5: Common Law
Methodology
•
•
•
•
Stare Decisis
Induction / Deduction
Analogy
Other Forms of Legal Reasoning
Stare Decisis
See PPTs attached to Intro to
U.S. Law Mindmap
Induction & Deduction
New Case
J analyzes
relevant
precedents to
determine their
holdings
Holding in new
case
Application
(deduction) to
new case
Holdings
Broader principle
Induction
(synthesis)
Deduction = Reaching a Conclusion from
the General to the Particular
Major Premise: All men are mortal
Minor Premise: Socrates is a man
Conclusion: Socrates is mortal
Mortals
Men
Socrates
Induction = Reaching a Conclusion from
Particulars to General
Swan A
Swan B
Swan C
A is a swan and it is white
B is a swan and it is white
C is a swan and it is white
Conclusion: All swans are white
Math Example of
Induction/Deduction
What’s the next number in this series:
1,2,3,5,8,13,21,?
Induction: Formulating the principle
Deduction: Applying that principle
Why is Induction/Deduction
Necessary in Common Law?
No 2 cases exact same facts. So, deductive syllogism
would be faulty:
Major Premise: Precedent says (A + driving) = negligence.
Minor Premise: Here, facts are (B + driving)
Conclusion: Here, def is negligent.
Negligence
B + driving
A + driving
B + driving
Exercise 1
You can create a rule
through induction,
then use that rule as
the major premise for
deduction.
Reach under
seat for
coffee
Read
newspaper
First, induction:
Precedent 1: Driving + read newspaper = negligence.
Precedent 2: Driving + reach under seat for coffee = negligence.
Broader principle: Driving + __________________ = negligence.
Then deduction:
Major premise: Driving + (doing another activity
that takes attention away from road) =
negligence
Minor premise: Watching TV = (doing another
activity that takes attention away from road).
Conclusion: Driving + Watching TV = negligence.
Holding:
Activity:
# of People:
Date:
Time of
Day:
Coffee Shop
Case
15 min. late
Eat
3
8 days ago
3 pm
Movie Case
5 min. late
Movie
2
1 day ago
12 pm
Study Group
Case
30 min. late
Dinner
Study group
14 days ago
7:30 pm
New Case:
?
Gym
2
Today
3 pm
General
Principle
Induction/Deduction Exercise
Is Dana a Trespasser?
(see handout)
Example from Burnham p.68
Issue: Does owner recover from third party (3P)?
Holding How taken
from owner?
3P’s
knowledge of
illegal taking
Fair market None
value
Price paid
Case Yes
1
Stolen
Case No
2
Fraudulent
check
Fair market None
value
Case Yes
3
Fraudulent
check
Below
market
value
Heard rumors
Reasoning by Analogy
“Your neck is like a tower of ivory. Your eyes
are like pools.”
-- Song of Solomon 7:4
“Shall I compare thee to a summer’s day?
Thou art more lovely and more temperate.”
-- Shakespeare, Sonnets XVIII
• To analogize = To show that determinative
facts of two cases are the same so the
result should be the same.
To distinguish = To show that the
determinative facts of two cases are different
so the result should be different.
1. When use analogy?
a. When rule-based reasoning is problematic-no rule exists, rule is ambiguous, or rule
arguably inapplicable to the case; or
b. As a confirmation that rule-based argument
is accurate.
2. How use analogy?
a. Start with the same synthesis chart to
identify the similarities & differences in
cases’ determinative facts.
b. Look for policy reasons (not a rule)
explaining why different facts led to different
holdings.
Exercise
Facts: Man is suing for the loss of his luggage
while he was traveling onboard an overnight
ferry with a restaurant and a bar. The luggage
was stolen from an overhead rack in the
plaintiff’s locked cabin.
Precedent 1: Hotel proprietor found liable for a
guest’s stolen luggage because contract of
hospitality impliedly involved reasonably safe
storage of the guest’s belongings.
Precedent 2: Railroad company found not liable for
the loss of the luggage of a passenger who
traveled on a train in a locked sleeper berth
because the contract was primarily for travel and
not for lodging.
Example from Burnham p.70
Issue: Does owner recover from third party (3P)?
Holding How taken
from owner?
3P’s
knowledge of
illegal taking
Fair market None
value
Price paid
Case Yes
1
Stolen
Case No
2
Fraudulent
check
Fair market None
value
Case Yes
3
Fraudulent
check
Below
market
value
Heard rumors
Exercise: Argue by Analogy
• General rule: Minor may disaffirm k.
• Precedent: No exception for minor in army.
• New case: Your client is married and argues
there is no exception for married minors.
Conclusion
“The Life of the law has not been logic; it
has been experience.”
--Justice Oliver Wendel Holmes
Other Types of Legal Reasoning
• Normative
• Institutional
• Narrative
NORMATIVE
“Norm” = a principle of right action binding
upon members of society and serving to
guide their behavior. (e.g., statute’s
declaration of policy or biblical principles of
morality).
“Normative reasoning” = Deciding present
case based on norms.
INSTITUTIONAL
Definition: Deciding case based on what is
best for legal institutions.
Examples of Institutional Reasoning
Institutional Argument:
Counter-Argument:
This is the kind of decision courts are
best-equipped to make.
This is the kind of decision best
made by the legislature.
This is an area where the state is free
to make law.
Federal law preempts state law.
This rule would “open the floodgates”
• Few litigants could/would invoke
this rule.
• The gates are already open.
• There can’t be too much justice.
Courts/juries would have difficulty with Courts/juries use standards like this
this vague standard.
all the time.
This is a bright-line rule, easy to apply. • The rule is inflexible.
• Draw the line somewhere else.
This rule creates a “slippery slope.”
The rule is narrow and precise.
NARRATIVE
• Narrative Reasoning = Deciding a case by
telling it in the form of a story that
suggests a particular decision.
• Example: This pl, a minor, should be
allowed to disaffirm his contract because
the def, a car dealer for 22 years,
pressured the pl, discouraging him from
calling his parents to ask for advice and
telling him that he had to decide at that
very moment whether to buy the car.
Class 6: The Adversary System &
Jury Trials
1. Characteristics & Rationale of the
Adversary System
2. The Adversary Trial & the Lawyer’s
Role in It
3. Evidence Law
4. Criticisms of Adversary System &
Jury System
1. Characteristics & Rationale of
the Adversary System
Features of adversary system:
1. Neutral & passive decision maker
2. Party presentation of evidence and arguments.
3. Trial designed to emphasize clash between
parties
4. Parties have equal opportunities to present and
argue their cases.
Hypothesis--This is the best way to:
1. Search for the truth
2. Resolve parties’ dispute
3. Do so in a way acceptable to society
Neutral & Passive
Decision Maker
Passive = Not involved in investigation
because:
• Investigator needs preliminary theories of
the case to decide what to investigate
• “Ego investment” in these theories can
lead to premature conclusions.
Passivity preserves neutrality (delaying
judgment until all evidence presented).
Juries work well in adversarial system because
passive and neutral compared to J:
1. Passive:
a. Jury waits thru trial for sole job, deciding.
b. J actively manages case, making legal rulings—
evidentiary, discovery, etc.
2. Neutral:
a. J may be biased by experience.
b. Jury is comprised of multiple people so may check
each others’ biases.
c. Voir dire available for juries not J.
Parties Investigate & Present
Evidence
1. Search for truth: Parties have incentive to
do best job possible investigating &
presenting evidence in support of their
case.
2. Preserve appearance of judge’s fairness.
3. Since each party heard & considered,
human dignity reinforced & parties more
likely to accept judgment.
Trial Designed to Emphasize Clash
Between Parties
Trial is designed as a clash between two
parties, keeping the decision maker in
suspense & avoiding premature judgment.
• Pl & def constantly take turns—e.g., direct
examination then cross examination.
• Continuous & concentrated trial.
• Preference for “immediate” oral evidence
over written evidence allows fact-finder to
consider nonverbal clues to credibility.
Parties Have Equal Opportunities
to Present and Argue Their Cases
1. “Discovery” gives each party equal
opportunity to examine opponent’s proof.
2. Prosecution sits at same type table and
wears same clothes as defense attorney.
3. Rules of evidence protect decision
maker’s neutrality by excluding evidence
likely to be unreliable or pose serious
threat of exciting unfair prejudice against a
party.
3. The Adversary Trial & the
Lawyer’s Role in It
See Mindmap
Class 7: The Adversary System &
Jury Trials (cont’d)
1. Movie for Jurors
2. Evidence Law
3. Criticisms of Adversary System &
Jury System
Criticism & Defense of the
Adversary System
•
•
•
•
Pace of Adjudication
Discovery of the Material Truth
Access to the Courts
Power of the Attorney
Pace of Adjudication
Criticism:
• Parties take too long to present evidence.
• J should have power to accelerate proceedings.
• Jury selection & instructions slow proceedings.
Defense:
• The slow pace allows for careful deliberation.
• The slow pace due in part to party control (benefits
truth-finding, sense of control, lower impositional
costs).
• J’s inability to accelerate proceedings is an aspect of
passivity (avoid appearance of partiality).
Discovery of Material Truth
Criticism:
1. Party control of evidence gathering & presentation
means that the decision maker will hear only the
evidence the parties want to present.
2. Party control of discovery allows for “fishing
expeditions.”
Defense:
1. Party control has above-mentioned benefits.
2. “Fishing” should be allowed.
Discovery of Material Truth
Criticism:
1. Party coaching of witnesses distorts the
truth.
Defense:
1. Subornation of perjury is illegal.
2. Admittedly, Ls have a subtle impact on
witness testimony. The negative impact of
this may be outweighed by the value of
information gathered through zealous
investigation.
Discovery of Material Truth
(cont’d)
Criticism:
• Rules requiring lawyers’ zealous advocacy & client
loyalty do so at cost to the search for truth.
Defense:
• Since Ls are just advocates for their clients, these
costs are inherent in party control.
• If Ls were required to act on behalf of ct in seeking
truth, it could discourage party candor, cooperation,
& trust in L.
• There are some limits to zealousness, including the
rules against aiding in the commission of a crime or
fraud.
Discovery of Material Truth
(cont’d)
Criticism:
• The rules of evidence prohibit a wide range of info
from being presented to the fact finder, undermining
the search for truth:
Defense:
• Rules preserve party control by controlling J’s power
to choose what evidence to admit.
• Rules protect the neutrality of fact finder by insulating
him from info that is misleading or could evoke bias.
Access to the Courts
Criticism:
• Party control of gathering & presenting evidence
is technical, requiring L. Only wealthy can afford
justice.
Defense:
• This failing of the adversary system is undeniable.
Compare to the inquisitorial system, where both
parties get the same fact gatherer—the judge.
• Inquisitorial system may have greater
impositional costs: J may be unwilling to pursue
claim against gov’t.
Access to the Courts (cont’d)
Defense (cont’d):
The adversarial system can increase access to the
courts by low income people through:
1. Public defender: Indigent criminal def who faces
the prospect of jail has a right to a lawyer at
gov’t expense.
2. Contingency fee
3. Legal Services Corporation
4. Class actions
5. Pro bono work
6. Attorney fee shifting provisions
Power of the Attorney
Criticism:
• L may dominate the process, reducing parties’
sense of control and creating “impositional
costs.”
Defense:
• Rules of ethics require L to allow clt to make
certain decisions (e.g., in criminal case,
whether to plead guilty, whether to testify,
whether to accept a settlement offer).
• The potential of a malpractice claim allows
clts to control Ls.
Constitutional Recognition of
Adversarial Procedures
1.Article III: Federal Js hold office for life (unless impeached)
& their pay cannot be decreased. This promotes
independence from other branches.
2.Article III and Sixth amendment: Create the right to trial by
jury in criminal cases.
3.Sixth Amendment: Allows accused in criminal case “to be
confronted with the Witnesses against him, to have
compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defense.”
4.Seventh Amendment: Preserves the common law’s right to
jury trials in civil cases and specifies that “no fact tried by
jury, shall be otherwise re-examined in any Court.”
Nonadversarial Reforms
The U.S. has abandoned adversarial techniques in
several settings. For example:
1. Limits on courts’ subject matter jurisdiction: e.g.,
workers’ compensation boards.
2. Judges are encouraged to take an active role in
settling cases, including rendering opinions regarding
issues not yet litigated.
3. Judges have been ceded power to question and call
witnesses.
Criticisms of the Jury System
Criticisms:
• Adjudication takes longer ($).
• Abilities of juries as decision makers.
(Would J be less biased, more expert in
deciding Qs of fact?).
Defenses
• Protect against tyranny.
• Value of civic participation.
• Help protect Js’ independence.
Brief Intro to Rules of Ethics
1. State law, mostly based on American Bar
Association’s Model Rules of Professional Conduct.
2. Penalty for violation of the rules is discipline, from
warning to disbarment.
3. E.g.:
a. Nature of L-C relationship: Duty of competent
representation; duty to consult; duty to charge
reasonable fees; duty of confidentiality; duty of
loyalty (L can have no interest in matter, must not
accept representation if L already has a C with
directly adverse interests).
b. Duty to Administration of Justice: Duty of candor to
ct; duty to refrain from asserting frivolous claims.
Highly Structured Forensic
Procedure (Cont’d)
Rules of Ethics:
• Restrain misuse of L’s power to gather &
present evidence by prohibiting:
– Tactics designed to harass or intimidate
opponent.
– Tactics intended to mislead or prejudice
decision maker.
• Promote zealous advocacy to ensure parties
gather & present most persuasive evidence.
Class 8
Overview of Court Systems
A. Trial Courts & Appellate Courts:
Characteristics & Interrelationship
B. State & Federal Ct Structure &
Characteristics
C. Subject Matter Jurisdiction of State &
Federal Courts
Diagramming Rules
Diagramming Rules
End
Class 9
Civil Procedure
Making a Course Outline