Emily Taft

Foundations Outline
Professor Boyle

Class 1: History of American Legal Thought

 American Post-Revolutionary Era – 1776-1885 (Mensch: Preclassical Consciousness):
o Historical Backdrop: keeping/ousting of British common law was problem for the new American
state. Lawyers were ones to “tinker” with common law.
o Role of lawyers: “trustees” embodying Republic virtues against “hotbeds of instability” in new
nation. Especially important to safeguard private property.
o Method: factors to consider in keeping good law and throwing out bad law is:
 Utility – think pre-classical judge that’s Posner-like
 Natural law – abstract, universal principles
 Liberality of interpretation – what the judge wants
o Tension: legitimacy of the law came from natural law, but some thinkers conceded that it also
came from positive law (from English common law, that is, on custom and long usage, and NOT
statutes). EX: 1810 decision by Marshall, Fletcher v. Peck, blended natural law and common law
to protect property rights from redistribution by the legislature. Departures from common law
were done by citing the principle of utility, which was “reasonableness” derived from the
natural reason and universal principle. Finally, judges appealed to the “technique of implied
intent” to balance implied intent of parties with a socially imposed duty which was assumed by
private parties in private law like contracts. This created an overall amorphous set of rationale.
 Classicism – 1885-1935
o What is law: a structure of positivized, objective, formally-defined rights. The legal world was
not made of of discrete relationships but rather protected spheres of absolute rights and
powers. Boundaries between spheres logically derivable. Freedom was understood as the legal
guarantee that rights and powers were absolutely protected within one’s own sphere.
Counterbalance is that no one could legally invade another’s sphere. Common law became seen
as an expression and definition of rights. Justice was the protection of these rights.
o Social impact: women were in the private, domestic sphere while men were engaged in the
public sphere of economic activity. Also, power dynamics in society went unchallenged by the
state, for the most part. See Coppage below.
o Role: lawyers are “scientists” who derive the law. The judiciary in turn only needed to find the
objective definition of “rights” protected by the Constitution. No more messy natural law
morality.
o Cases: Coppage v. Kansas: Kansas state legislature outlawed yellow-dog contracts (workers
agree not to engage in union activities). Issue was whether this was within the bounded sphere
of public power. Despite arguments about the law being meant to protect workers from signing
a contract under duress, the court held that the state overstepped its sphere. By definition, the
workers’ signing of the contract was freely entered and a private matter. The state cannot
interfere in the contract.
 Realism – 1920-1939
o Historical Backdrop: realists drew on early Progressive movement critique against property
rights that characterized abundance of private power in capitalist America. Jurists sacrificed
rigidity of logical doctrine for social policy.
o Critique of Classicists: Realists uncovered the circular logic of the “rights” regime. Justification
of a property right, for example, only worked by assuming that the right existed with the
private party in the first place.
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 o What is Law: For disputes about which party’s “right” governs, realists argued that this was
essentially a “social choice” about which facts were more essential—not a logical exercise but a
value choice, political/moral in nature.
o Categorization of Law: Realists collapsed public and private law categories.
 EX: Property, realists like Morris Cohen said, is always a condition delegation of
sovereignty. Thus property law was a form of public law.
 ii. EX: Similarly, legal coercion is underpinning of private contract law.
o Role: lawyers as social engineers
o Tension: since there is no inherent “rightness” to a legal or political structure in America, what
is to protect us from things like totalitarianism?
o Example of realism in our cases: proximate cause
 Modern Reconstruction – 1940-present (Mensch’s 1990 perhaps)
o Where to find legitimacy?
 Hart and Sacks in 1950s – proposed that substantive rights were found in a shared social
value in not the distribution of rights but rather the process by which rights are defined.
That is, shared value of institutional competencies through reasoned elaboration.
 ii. Another response found in case law is concept of fluid boundaries. That is, there’s a
weighing of how public or private a case at hand is. EX: are privately owned shopping
centers public or private? SCOTUS vacillated back and forth in a span of eight years.
 iii. Rights also depend on status and relationship. That is, what right exists between two
people may depend not only on the fact that both are human but also on whether
person A is a boss or a friend, for example.
o Judges decision-making: “continuity with growth”; “vision with direction” – formalist
boundaries are not totally done away with; rather, formalism is given flexibility by judges. EX:
Cardozo in McPherson v. Buick Motors Co.- relaxing privity rule to allow redress for injury
where injury foreseeable.
o Tension: we come to an era with a parade of legal thinkers, and not one distinct theory of law.
Instead, this is a blended era of law, where judges are called by be either value-neutral or social
justice proponents, are called to use “prudence” to draw the line between principle and
expediency or be principally “reasoned” when they apply “interest balancing”. Mensch notes
resurgence of libertarianism and social conservatism. She also notes willingness to learn from
traditionally marginalized groups in legal thought.

Class 2: Legal Realism

 Mench overview:
o Classicism: Law has separate and absolute spheres – individual, state gov’t, federal gov’t
 Courts draws the lines between the spheres
 Not about balancing tests (ex. not consumer security vs. economic efficiency)
 Based on logic, not policy
 Ex. I can get workers compensation if injured at work whether I was negligent or
not and whether or not employer made unsafe environment
o This state rule replaces the entitlement employer had from common law
schemes
o There has to be some rules that political process can’t touch =
substantive due process
 Ex. Sic utere – majority focuses on the absolute property line
 Ex. Set property law to maximize reciprocation

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 o Ie. surgeon and candy maker both harm each other, so set rules that
maximize output of both surgeons and candy makers = courts set these
lines
 It wouldn’t count as a harm if court hadn’t set a legal right to it
o Realism
 Bundle of rights vision according to policy choices
 Judges have been making policy but they need to explain their policy choices - don't just
inject political views but actually give justifications for decisions

o Example of differing views: Negligence governs services, strict liability governs products
 If blood is a service, then can’t detect negligence; if it’s a product, hospital/doc liable
 Classicist: it has to be one or the other
 Realist: policy analysis = look at economics of blood industry, which would best
incentivize safety, which would protect consumers, can they spread the cost across
consumers– if yes, then strict liability and if no, negligence
 In between: multi-factor balancing test
o Common realist move: try to define proximate cause in a way that can curb liability using
rationale and policy
 Fair question: Have they gone too far (they haven’t really set a limit)?
o Realists reached peak in 1930 (New Deal): many of them wrote the New Deal programs
o Both realist and classicist arguments are sound
 Our classes have been a mix of both
 Reading Notes: Cohen’s “Transcendental Nonsense and the Functional Approach”
o Transcendental Nonsense:
 Courts use “transcendental nonsense” – that is, legal reasoning based on definitions
with no basis in actual fact – to support decisions, which results in the real underlying
economic, social, and ethical issues never being effectively addressed. The result is
circular logic.

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 By not analyzing sources of empirical fact and ethical questions outside “legal” thinking,
the court uses unjustifiable circular logic and bars the way to intelligent investigation of
social and ethical concerns.
 “What is a Corporation” – Question of Jurisdiction over Corporations
o A corporation is a person because it can be sued; to be sued, one must be
a person. Yet—there is no tangible evidence of a corporation (a
“supernatural” person).
o A corporation itself is a legal fiction, and instead of using evidence such
as the economic impact of the business on the state, etc., to determine
jurisdiction, courts use “personhood”, a legal concept with no basis in
real fact for a nontangible entity.
 ii. “When is a Corporation” – Examining the Personhood of a Union
o In the Coronado case, instead of arguing economic, social, ethical issues,
the defense argues the union can have no tort liability because they are
not a person. BUT the Court says they are a person.
o “Chicken and the egg” – the argument the union is not a person only
remains true so long as the court doesn’t find it’s a person. A labor union
is a person because it can be sued; to call something a person in law, is,
merely to state, in metaphorical language, that it can be sued.
o The court’s reasoning has no actual justification in non-legal terms of
fact, such as economic, social, or ethical reasoning.
o To justify or criticize a legal rule in purely legal terms leads to the circular
arguments.
 iii. Trademark Protection and Unfair Competition
o Instead of basing trademark protection on scientific proof or social value,
trademark protection relies on the logic that a trade name is protected
because it has value; HOWEVER, that value stems from the fact that it is
protected. (Circular logic.)
o Courts create inequality for social exploitation (a function of property) by
protecting trade name, which depends on considerations of economics,
social fact, commercial custom, and moral faith – but instead of directly
engaging with these facts, they hide behind circular “legal reasoning.”
 iv. Value of Public Utilities
o Instead of determining the value of a public utility by actual cost or
replacement costs, the courts allowed public utilities a fair return on the
“actual value of the property.”
o “Actual value” = a function of a court’s decision, where the value is
created by the court. Prior to the court’s decision, and aside from
information or belief as to what the court will decide, it is not an
economic, ethical, or social/political fact.
 v. Due Process
o Due process is not justified through historical or psychiatric fact, or based
on social or moral principles. Instead, courts consider their own prior
decisions about what ‘due process’ means.
 Ie: Due process means what we’ve already said it means…
(without there ever having been specific fact-based justifications
for what it means.)

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 o The Functional Method
 Cohen wants to use certain principles or tendencies which appear most clearly in
modern science and philosophy to eliminate stating the problems in “supernatural”
legal terms in order to redefine problems in terms of verifiable realities.
 Thinks that the “Restatement”-style Classicists are on their way out, and new creative
legal thinkers will look beyond vague concepts like “reason” and “justice”, and
comprehend things in ethical terms such as social values, psychological doctrines, and
sociological and economic facts.
 A realistic theory of judicial decisions must think of every decision as a function
of social forces / a product of social determinants and an index of social
consequences. “A judicial decision is a social event.”
o Law as a social process
o Legal research must fill in the gaps in our existing knowledge of science
and study of human behavior and social forces
 Calls for the “cleansing” of legal rules, concepts, and institutions of circular legal
logic and “metaphysics” which has traditionally masked social realities in terms
of transcendental nonsense.
 While Cohen wants us to use real facts and statistics to support legal decisions, he also
cautions that “social facts without a selective criterion of human values” results in the
statistics being useless. Therefore, we should be open about what social values are
being advanced.
 Calls for a “union between objective legal science and critical theory of social
values”.
 Class notes
o Cohen, a classic realist
 His thoughts on the way judges decide opinions or couch the language of opinions
 They use legal fictions (which realists believe we shouldn’t use) = metaphorical
device that can’t be falsified by pointing to something but is used to continue
analysis as if the entity actually exists
o “What is a corporation” example
o Makes it harder to criticize arguments
 What court should’ve done: take into account economic and social
considerations
o May or may not lead to consistent results
 Realists hope that as more judges examine policies overtly, the policies will drive
results more and produce results that are consistent and accepted by society b/c
we can see those arguments and deconstruct them
 Criticisms of decisions on trademarks:
o Courts extend trademark (property) rights by claiming the property right
is on the value of the word (ex. Requiring payment for using “ivory soap”
in movies)
 Cohen says this can’t be right b/c the only reason the word only
has value because there’s a property right to it
o INS v. AP: about whether a party can use the facts in news printed on
bulletin boards – Court says there’s a quasi-property in the news
o We didn’t think Apple was evil for taking others’ mp3 players and making
them better

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 o Cohen would consider whether it’s economically efficient or maximize
consumer welfare to give property rights for “ivory” - probably decreases
confusion of customers
 We often remember only the logo/colors and not the brand name
= trademark law at its best
o Classicist mode/definition of law = circular arguments b/t values and facts
 Cohen says both values and facts should be let in
 Both values and facts should be in taught in classes and included in
treatises/casebooks -- this would transform legal education
 He’s basically arguing that we have this formalistic common law where we aren’t re-
evaluating principles as we should be doing
o Realism in general
 Realists said we need policy science, so the values that are going to overtly inform our
legal decisions shouldn’t be just subjective and whimsical
 Posner would say we do have this science = law & economics!
 Common realist arguments
 More purposive view of language (rather than dictionary definition)
 Tendency towards standards rather than rules (if 30 days encapsulated
conflicting policies)
 Greater line blurring b/t legislative and judicial functions coupled with argument
that common law has been making the law, should be making the law, and will
be making the law
 Realism was originally associated with left wing ideas b/c it came to power during New
Deal, but it’s not inherently right or left wing
 Can still say the values I want to impose are those of Posner or Hayek, etc.
o How realism and classicism play out
 In many civil law countries, like France, have arguments that say the answer is this b/c
otherwise the law would be de-natured = like a black box; not clear the law could be
read in 2 different ways
 Criticisms
o Replacing old conceptualism with new conceptualism (reasonableness or
multifactor analysis also black boxes)
o May give judiciary too much freedom
 Realists would say no at least it’s out in the open what they’re
doing; Posner would say should be all the way realist (not say
multi-factor analysis but say I’m maximizing efficiency) not just
half-realist
 In sum: we use both classicism and realism, sometimes implicit and sometimes explicit
(ex. may have multifactor analysis but don’t know if decision is based on those factors or
that balance)
 Example of classicist to realist move:
 Classicists try to eliminate existence of unilateral contracts, then realists bring
Section 90 of Restatement with “avoid injustice”

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Class 3: Law and Economics
 Chapter 1
o Lecture Notes
 2 main definitions/visions of law and economics
 (1) offered as a partial explanation of the rules we already have, because legally
inefficient rules will get weeded out (natural selection)
 (2) normative vision – should follow rules of efficiency (we’re legal engineers and
can optimize the system, and law and economics will gives us the tools to do so)
 Unfair criticisms
 Can’t put value on human life
o We do all the time; economists just say we should do so more explicitly
o Shouldn’t object to the fact that the calculation is being made, but the
way it is
 All of law and economics is based on unrealistic assumptions
o It’s still useful because it’s a model that represents reality, like all science
o The question is if these particular models are appropriate
o Reading Notes
 Economists isolate 1-2 issues at a time by making simplifying assumptions that eliminate
the others
 Even though each simplified case is unrealistic by itself, it will generate some relevant
insights, and a comprehensive perspective can be obtained by examining all the cases
 Chapter 2
o Lecture Notes
 Efficiency = benefits v. costs [doesn’t have to be discussed in USD; often speak in terms
of quality adjusted life years]
 Equity = distribution of income among individuals
 Law and economics is a subspecies of the utilitarian view
 Calibrate your incentives wisely (i.e. it would be bad if the penalties are the same
– death – for stealing versus killing the officer trying to arrest you)
 The world is limited to equity and efficiency (soon just efficiency)
 Exclude from the definition of equity; (1) rights that aren’t utilitarian (i.e.
exogenously determined rights – rights that are an end themselves, not just a
means to achieve some other goal) and (2) how wealth is acquired [Kant and
Locke are thrown from the boat]
o Reading Notes
 If, in order to create a bigger pie, its division must be unequal, there may be a conflict
b/w efficiency and equity
 Standard assumptions
 For the purposes of discussing the legal system, a reasonable simplifying
assumption is that income can be costlessly redistributed
 All benefit and costs can be measured in terms of a common denominator ($)
 Consumer sovereignty (individuals themselves determine values to put to
benefits and costs)
 Values that individuals place are “stable” (not affected by changed in public
policy)
 Utility maximization (individuals maximize their benefits less their costs)

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 Chapter 3
o Lecture Notes
 At the time when the theorem was developed, courts had been stepping in to force the
internalizing of externalities
 Coase pointed out this is wrong; efficient result will occur no matter who the
entitlement is assigned to [not necessarily equitable distribution, but efficiency is
automatic]
 Coase is telling liberal interventionists that they don’t have adequate info to ensure the
correct result either…the same transaction costs that might prevent the market from
achieving a just result might prevent interventionists from doing so
o Reading Notes
 Coase 1 – if there are zero transaction costs, the efficient outcome will occur regardless
of the choice of legal rule [although the choice will affect the distribution of income]
 Coase 2 – if there are positive transaction costs, the efficient outcome may not occur
under every legal rule; the preferred legal rule is the rule that minimizes the effects of
transaction costs (give it to the party who values it more)
 Chapter 4
o Lecture Notes
 Types of efficiency
 Kaldor-Hicks – care only about efficiency (not distribution)
o Efficiency measured by ability and willingness to pay
o Really expensive to identify who deserves compensation and then do it
o Simple wealth maximization; leave it to someone else to distribute
 Pareto superiority – requires compensation
 Analysis
 (a) do you do your calculation assuming current distribution of wealth?
 (b) if so, do you counter in diminishing marginal utility of wealth? (worth less to
the rich)
 (c) how do you calculate wealth effects?
o i.e. Peeveyhouse
o Not required to take market evaluation: choose alternatives through
property rules v. liability rules
o Hypo – little old lady refusing to sell to Trump: state steps in and
imminent domain flips from property rule to liability rule and she’s forced
to sell
 (d) how big is our frame/the world of costs and benefits we include? Whose
losses are cognizable in the efficiency analysis?
o Moral and political choice (can’t be set by market)
o Now, judges are making this case (realists would say it should be done so
overtly) - should they be making it?
o Reading Notes
 (1) entitlement must be chosen, then (2) a decision must be made about how to protect
the entitlement (i.e. injunction v. damages)
 4 possible solutions, corresponding to who is given the entitlement and how it is
protected (polluting factory example)
 Parties may behave strategically (i.e. hold-outs)

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  Under the injunctive remedy, to overcome strategic behavior it’s necessary to
choose an entitlement corresponding to the efficient outcome (otherwise
strategic behavior might prevent an agreement from being reached)
 Under the damages remedy, to overcome strategic behavior it’s necessary to set
liability equal to actual damages (otherwise extortion can occur)
 Hypo - court has limited information
 It can no longer achieve the efficient result under injunctive remedy
 If it underestimates victim’s damages the damages remedy will initially lead to
an excessive output, and this inefficiency may not be corrected (strategic
behavior)
 So either remedy could be more efficient (in the abstract; in particular
circumstances it might be apparent one is better)
 Lecture Notes – Main Takeaways
o Coase theorem 1 + 2 (not concerned w/ distribution)
o 2 definitions of efficiency
o Series of switches you can flip to get different results (i.e. factor in diminishing utility of wealth)
o Get different calculation if property rule v. liability rule (allocation of rights will change the
valuation)

Class 4: Legal Arguments

 Integration of “Advocate Mode” with “Hornbook Mode” -
o Advocate Mode – Creative interpretation of legal norms to argue
o Hornbook Mode – Application of formal rules, holdings, etc.
 TWO MODES OF LEGAL UNDERSTANDING – BOYLE
o “Elements” of legal rule – formal components of rights
 Rules are created within context of conflicting principles, policies, ideals.
o Arguing for the plaintiff – emphasizing the fact of loss.
 Morality argument gets increasingly refined as doctrine evolves, e.g.
 “Between two innocents, the person who causes the harm should pay”
 “Between an obviously innocent plaintiff and a probably negligent defendant,
the person who probably caused the harm should pay (unless he can prove he is
blameless).”
 Timing
 Plaintiff’s side thinks about after the loss – the harm has occurred, and now
requires redress.
 Three central arguments
 Rights (as to security) – I should be secure in my person or property; if that
security is violated, the person who violates it should pay.
o Good social consequences if these rights are enforced
 Formal Realizability – Objective standard; clear rule, easily applied.
 Economic Incentives – causes internalization of negative externalities of
defendant’s behavior; creates incentive to act rationally in a way to minimize risk
of harm to others.
o Arguing for the defendant – emphasizing the injustice of punishing reasonable actions
 Morality argument – unjust to hold defendant liable with no moral culpability. State is
taking A’s resources and giving them to B when A did nothing wrong.
 Timing
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 
Defendant’s side thinks about before the loss – would it be reasonable to expect
defendant to do something else to avert the loss?
 Three central arguments
 Rights (as to freedom of action) – with earlier time frame, I can argue that you’re
abridging my freedom to take reasonable actions
o Good social consequences if these rights are enforced
 Formal Realizability – Flexible standard that does justice; courts are used to
looking at different facts, distinguishing them, and delivering justice.
 Economic Incentives – negligence standard encourages people to take
economically efficient safety measures – doesn’t make sense to spend $1000 to
avert a $500 harm, and this recognizes that
o Connection to Coase Theorem – this changes distribution, but increases
efficiency.
o Same arguments rehashed throughout evolution of doctrine; come down in different ways
 Transferred intent: we don’t care that you were trying to hit A, you need to pay for the
harm you caused B. Rights as security.
 Non-negligent harm during medical procedure; no liability without fault. Rights as
freedom of action.

o In table, representing the broad strokes of the doctrine, Plaintiff’s proposed rules seem to be
victorious. But diving deeper, the same arguments used over and over again.
 Conversation never stops, because both sides have a point, and we care about the
values espoused by both sides. So we end up with…

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 o Bottom line – make sure you integrate rules mode and arguments mode
 A BEDTIME STORY – JEREMY PAUL
o Types of arguments used
 Applicability of prior rules
 LIKE CASES SHOULD BE TREATED ALIKE
 NARROWING PRECEDENTIAL HOLDING
 BROADENING PRECEDENTIAL HOLDING
 CATEGORY CHARACTERIZATION
o Offensive use: If we allow this, we have to allow all these similar things
o Defensive use: No, because they’re not actually that similar, because this
is the relevant characteristic
 Facts-based arguments
 WRONG ON THE FACTS
 PROBING THE PROOF PROBLEM
o Concerned with veracity and trustworthiness of the facts; can the “facts”
actually be realistically obtained, and can their source be trusted?
 SPOTTING A GAP IN THE RULE - Responses
 LITERALISM
 PURPOSIVISM
 INSTITUTIONAL COMPETENCE
 JUDICIAL DEFERENCE
o Legislature’s job to make rules; court’s job to enforce them. Hands are
tied.
 AMBIGUITY OF LEGISLATIVE INTENT
o Can respond by ENCOURAGING LEGISLATIVE CLARITY
 DANGERS OF JUDICIAL BIAS
 Gap-spotting and these responses to it is key; stems from uncertain meaning of
rule, or ambiguity in construction
 Policy arguments
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  FACILITATION
o Rule encourages negative consequence
 PATERNALISM
o Sometimes gov’t needs to protect people from themselves
 RIGHTS AS SECURITY
 LONG-RUN COST-BENEFIT ANALYSIS
 RIGHTS AS FREEDOM OF ACTION
 EXPECTATIONS & RELIANCE
o Countered by SOURCE AND LEGITIMACY OF EXPECTATIONS
 FLEXIBLE STANDARD
o Leads to LITIGANT MANIPULABILITY
o Often associated with FAIRNESS
o Also can lead to JUDICIAL MANIPULABILITY
o Can cause UNPREDICTABILITY
 FIRM RULE
o Use of enumerated EXCEPTIONS to soften rule
o EASE OF APPLICATION
o PREDICTABILITY
 Ease of application and predictability create FORMAL
REALIZABILITY
o Danger of OVERINCLUSIVE results
o Danger of UNDERINCLUSIVE results
o RIGIDITY OF RULES can lead to nonsensical applications
o Sometimes EXCEPTIONS RIDDLE THE RULE and diminish the ability to
enforce the rules
o Sometimes an EXCEPTION SWALLOWS THE RULE
 Occurs often when the exception uses a flexible standard, e.g.
“This rule will not apply if there is a good reason for not enforcing
it”

Class 5: Race and American Law

 General themes we have been talking about in previous classes that apply here:
o Race is the site of American law’s moments greatest shame and triumph
o Ideas of formal vs. substantive equality
o Time-framing: do we take a broad or narrow view
 when does the clock on state action run out? At what point can we say are we done
with addressing racial inequality?
o Questions of public vs. private actors perpetuating racism
o Should we look at intention or effects?
 Plessy v. Ferguson (p.1-4)
o 1896: post-Reconstruction
o Facts: Plaintiff, who was 7/8 white and 1/8 Black, violated Separate Car Act of 1890 by sitting in
white section
o Issue: Act unconstitutional because it violates 13th and 14th Amendment?
o Holding: Act is constitutional
o Brown’s Analysis:

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  Does not conflict with 13th Amendment because a law that distinguishes two races
based on color doesn’t destroy legal equality between the two races or reestablish
slavery
 Also does not conflict with 14th Amendment, which forbids states from making or
enforcing any law that abridges the privileges or immunities of citizens, deprives any
person of life, liberty, or property without due process, or deny any person equal
protection of the laws
 Separate but equal
o amendment’s object was to enforce equality but not to abolish
distinctions based on raise
 aim of amendments was to provide political not social inequality
o laws permitting segregation do not necessarily imply
inferiority/inequality
 the reputation of belonging to the dominant race is property and P not white
here so no right to that reputation
o one-drop of blood rule
 this Act doesn’t cause any real injury or enforce equality; P is the one causing
injury by construing the law to make Blacks inferior
 social prejudices will be overcome through society not law
o Harlan Dissent
 Predicted this case would become as infamous as Dred Scott
 The real meaning of the Act is that Black Americans are so inferior that they should not
be allowed to sit with whites in public coaches
 Act plants seeds of race hate
 Constitution is color-blind; everyone equal before the law; no caste but still kind of
seems to believe whites are superior
 Says some questionable things about Chinese people (saying they are so
different from whites that they don’t even allow them to be citizens but still
allow them to sit with whites) but hard to tell if this is what he believes or if it is
a strategic argument
 Korematsu v. United States (p.4-7)
o 1944
o Facts: D remained in a military area violating Civilian Exclusion Order 34 which excluded all
persons of Japanese descent from the area; no question about D’s loyalty
o Issue: Exclusion Order 34 which (based on Executive Order 9066 which ordered internment of
Japanese Americans) unconstitutional?
o Holding: Exclusion Order is constitutional
o Black’s analysis:
 Rigid scrutiny here: any legal restriction which targets civil rights of a single racial group
is immediately suspect
 Pressing public necessity can sometimes justify existence but not racial
antagonism
o Here, hardships imposed on citizens but hardships part of war and during
war burden always heavier
o Basically says it’s impossible to tell if Japanese Americans were enemies
but knew some of them must be
 This is nothing but an exclusion order

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 o Won’t look at other two orders which say that Japanese Americans had
to report to and temporarily remain in an assembly center and go under
military control to a relocation center because not issues in this case
 Refused to call relocation centers concentration camps because of
ugly connotations
o Only look at first part of law which stops Japanese Americans from going
to certain places
 Black is using law to obscure here
o Frankfurter’s concurrence:
 Separation of branches: this is a war power move; judiciary doesn’t have the power or
ability to know about the threat like Congress and President do
o Jackson’s dissent (not in the reading): if we bless an act like this during wartime, it is a loaded
gun that could be used at a later time
 This argument is not only about racial inequality but also government power
o Robert’s dissent: this is not simply about an exclusion order; it is about imprisoning citizens to
concentration camps based on ancestry
o Murphy’s dissent:
 There is a racism underlying the law
 No reasonable relation to immediate and impending public danger is evident to support
this racial restriction
 Stereotype that Japanese Americans have dangerous tendency to commit
espionage and aid Japan is unreasonable/unfounded
 Warns of dangers of stopping Court from putting scrutiny on some decisions
 Themes of discretion here; it’s not only that a mistake in discretion being made
here but a pattern is happening and discretion is allowing stereotypes to shape
law
o Posner defended outcome of Korematsu recently
 Robert Bork, Civil Rights: A Challenge (p.7-9)
o The New Republic, 1963
o At this point, was a libertarian and said Interstate Public Accommodations Act was an affront to
personal liberty
 Act: outlawed discrimination in business facilities serving the public
 Why was the debate about why court used commerce clause and not 14th amendment
and not about cost in freedom that must be paid for such a law, the morality and
consequences of enforcing the law?
 Agrees that racial discrimination is an ugly custom but doesn’t agree racists should be
forced to serve people they don’t want to serve
 Using state coercion to force them into a righteous pass also ugly
 Contrasts sacrificing freedom to protect people from assault or theft with this Act; says
it’s a long leap
o Says that the Act’s waiver argument (business owner’s putting their goods out in public) is an
artificial construction of public/private line
o Also says argument that business licensed by any governmental unit can’t discriminate because
state action was involved in their business
 Says there is a fundamental difference from keeping Blacks from voting and a doctor not
serving a Black person because he was licensed by govt.
o Trouble with freedom: will be used in ways we abhor

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 o General note: Why did Court use Commerce Clause instead of 14th Amendment to defend Act?
American law is path dependent
 Loving v. Virginia (p.9-11)
o 1967
o Facts: mixed couple married in D.C. and returned to VA; were charged with violating ban on
interracial marriages and sentenced to one year in jail
 Trial judge: suspended sentence for 25 years as long as they left and did not return for
25 years
 Said God created races separately and put them on different continents for a
reason
o Issue: whether Virginia’s anti-miscegenation statute violates Equal Protection and Due Process
Clause of 14th Amendment?
o Holding: yes; unconstitutional
o Warren’s analysis:
 Powerful because no one names white supremacy in later cases
 State argued that marriage is within police power but doesn’t argue that this police
power is unlimited notwithstanding 14th Amendment
 Argues that there is Equal Protection because law applies equally to whites and
Blacks because punished to same extent
o If this argument is true, then state can also say question of
constitutionality becomes whether was a rational basis for a state to
treat interracial marriage differently from others
 Since scientific evidence in doubt, Court should defer to state
legislature
o Court: rejects notion that mere equal application of statute based on racial classifications
means there is no racial discrimination
o Also rejects proposition that debates in 39th Congress (before 14th Amend. passed) or in state
legislatures that ratified it supported state’s theory that equal protection of laws satisfied by
equal application of penal laws defining offenses based on racial classifications
o Doesn’t just say this is inequality; says this law obviously supports white supremacy, which is a
step further than what he had to do
 Griggs v. Duke Power Co. AND McCleskey v. Kemp
o Two classic cases
o Griggs says look at actual effects on ground while McCleskey says there needs to be evidence of
discrimination in the individual cases
 why did these two cases come out different?
 Context: is McCleskey better done by Congress because of institutional
competence?
 Griggs v. Duke Power Co. (p. 11-12)
o 1971
o Facts:
o Issue: whether an employer is prohibited by the Civil Rights Act of 1964, Title VII, from requiring
a high school education or passing of a standardized general intelligence test as a condition of
employment in or transfer to jobs when (a) neither standard is shown to be significantly related
to successful job performance, (b) both requirements operate to disqualify Blacks at a
substantially higher rate than white applicants, and (c) the jobs in question formerly had been
filled only by white employees as part of a longstanding practice of giving preference to whites?

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 o Holding: yes
o Burger’s analysis:
 Objective of Title VII is plainly to achieve equality of employment opportunities and
remove barriers that have operated in the past to favor whites
 Practices that are neutral on their face, and even neutral in intent, cannot be
maintained if they operate to maintain status quo of discriminatory employment
practices
 Point of Act is not to guarantee a job to everyone regardless of qualifications
o It is to remove artificial, arbitrary, and unnecessary barriers to
employment when barriers operate to racially discriminate
 Blacks have received inferior education for so long and
requirements don’t significantly affect job performance
 Doesn’t matter that intelligence test isn’t actually racist
 McCleskey v. Kemp (p.12-15)
o 1987
o Facts: Black man convicted of murder of police officer during robbery
 Jury must find certain aggravating circumstances to exist beyond a reasonable doubt
existed in order to impose death penalty and found two here
 D offered no mitigating evidence but claimed discriminatory capital sentencing
process and used statistical study as support
o Issue: whether a complex and sophisticated statistical study that indicates a risk that racial
considerations enter into capital sentencing determinations proves that petitioner McCleskey’s
capital sentence is unconstitutional under the 8th or 14th Amendment?
o Holding: no
o Powell’s analysis:
 D must prove:
 Existence of purpose discrimination and
 The purposeful discrimination had discriminatory effect on him
 Here D doesn’t provide any evidence that racism played a part in his sentence and relied
solely on study
 Constitution not violated because:
 GA did not intend to discriminate (at least no proof that GA legislature enacted
the capital punishment statute to further a racially discriminatory purpose) and
 Discretion that D argues is bad but discretion to be exercised is controlled by
clear and objective standards as to produce non-discriminatory application
o It against actually offers substantial benefits to the D
o Also death sentence can be automatically appealed
 Court as has accepted statistics as proof of intent to discriminate in certain limited
circumstances (jury selection in particular district and to prove statutory violations
under Title VII of Civil Rights Act) but these are different from this case because of the
above following reasons
 Parents Inv. In Comm. Sch. V. Seattle School (p.15-17)
o 2007: good example of modern arguments about race
o Facts: race conscious set of policies adopted by two different school boards in order to produce
more diverse/balanced schools
o Issue: whether racial balancing is a compelling state interest to justify imposition of racial
proportionality throughout American society

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 o Holding: no
o Roberts analysis:
 Contrary to equal protection clause which says we must treat citizens as individuals, not
simply components of racial, religious, sexual or national class
 The degree to which these school districts tie their racial guidelines to their
demographics shows racial balancing has no logical stopping point
 Basically: just stop discrimination on basis of race by not doing it
o Thomas’s concurrence:
 Compares diversity initiatives to segregation Brown v. Board of Education
 Dissenters in Brown argued about practical consequences of ending state-
imposed system of racial segregation and dissent here is making similar
arguments
o Stevens dissent:
 Cruel irony in Roberts relying on Brown
 Majestic equality of law: forbid both rich and poor from sleeping under bridges
and beg on streets
o Only black schoolchildren segregated; white children never struggled to
attend black schools
o Breyer’s dissent:
 De facto segregation is on the rise and reasonable to conclude that serious educational,
social, and civil problems will arise
 Thomas decides best solved through color-blind approach but it is Congress jobs
to respond not the Court’s
 Until today, Court understood Constitution to mean that the people, acting through
elected representatives selected to use race-conscious criteria
 Brown was talking about true racial equality not just on paper
 The districts that spurned desegregation now strive for it and have not asked us
to take their instruments they have used to rid their schools of racial segregation
 Court and Nation will come to regret this decision

Class 6: Constitutional Interpretation

 The Constitution- basis of judicial interpretation
o Important document- started it all
 Puts limits on power
o Short and broad
 So much to be interpreted- maybe to allow to better fit the times
o Gives judges a crucial role in governing
 DC v. Heller
o How do we know what the Second Amendment means?
 The text- almost all judges begin with the text
 Plain meaning
 Framers’ intent
 Public meaning
 In theory Textualism provides limits and constraints on judges and provides for a
more objective bench
o Problems with Textualism- indeterminate, need context, only hiding the
problem of judicial discretion

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 o Textualism
 Justice Scalia (majority)
 “Militia”- any able bodied man so the right is extended to all
 “Right of the people”- used throughout the Constitution to mean individual
rights
 “To keep arms” equals “to have weapons” (natural reading)
 “To bear arms” means to bear weapons outside of an organized militia
 The prefatory clause- only an introduction to the operative clause that does all of
the work
 Dissents
 “Militia”- creations of the States
o Scalia’s response- the text says a militia, not the militia
 Prefatory clause- all words in the Amendment have a purpose so it must have
some effect on the understanding of the right
 Proposes a judge-empowering interest-balancing inquiry to evaluate the Second
Amendment
o Scalia’ response- no other right is analyzed in this way
o Originalism
 Original intent- the intent of the Framers
 Why rely on this?
o Article V allows for the amendment process so the strict meaning should
hold
o The intent is possible to determine- there are the Federalist Papers,
debates, etc.
o The meaning can be found by the intent of those who passed the
amendment
 Original understanding- understanding of the general public at the time of ratification
 Why rely on this?
o “We the People” govern
o Easier to determine (evidence in past newspapers, dictionaries, etc.)
o Arguments for Textualism/Originalism
 What it says or was intended to say is the meaning
 Epistemologically correct
 Definite and determinate (clear lines lead to consistency and predictability)
 Looking at the history of enactment is built into the legal system
 Part of the practice of law
 Most objective theory of interpretation available
 We have a written Constitution
o Arguments against Textualism/Originalism
 In reality, it is just as subjective as other methods of interpretation (only hiding what is
actually going on like what the legal realists accused of the legal classicists)
 Often the record is too sparse making it very difficult to determine the original meaning
 What about how times have changed? (slavery, gay rights, etc.)
 Why should we be bound by a document written by old, dead, white men?
 Process theorists- an alternative to the originalism vs. living constitution teams

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Class 7: The Case of the Speluncean Explorers
 As a moral answer which is the right answer?
o Release with time served or life imprisonment
 Would your answer change if you were a judge?
o Dilemma of the judicial method
 What does it mean to be faithful to the judicial role?
 What counts as an argument for that method?
 How would you answer to those two questions?
 The Case of the Speluncean Explorers
o Facts
 5 members went to explore a cave, landslide happens, they get stuck, rescue methods
occur but people die trying to help
 Radio inside the cave to contact the outside world
 They ask: “Can we live that long without eating? What about if we eat one of
them?”
o They ask a lot of resources to figure out who will get eaten
 They roll dice and decide Whetmore gets eaten (he choose the system and then refuses
to take part à they roll the dice for him)
 They are charged and convicted for murder
o Lower Court – charged and convicted
 Foreman says that the judge applies the law after they find the
facts
o Appeals the conviction
o Judges
 Truepenny
 Confirm the sentence but the chief executive will mitigate and pardon them
o Thinks there is a reason why the chief executive will go along with it
o He would have to conduct extensive hearings
 Institutive competence issue
 Because we had more time to study it we can tell you to
pardon them but we must find them guilty
o Foster
 Two broad lines of arguments for their innocence
 They are no longer in a civil society (they are outside of society, law of Newgarth
doesn’t apply)
o They are only bound by natural law
 The law of Newgarth doesn’t apply
o Physical distance doesn’t matter
 Basic make up of a state is that people are living together in
harmony (Social Contract Theory)
 Weren’t given the protection of the social contract they
we used to
 Where they were they had to live in conflict in order to survive
o Legal v. Non legal
 Unethical but still law?
 Law is not just a relationship of force
 It is granted

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  Has to do with patterns of obedience with them
o The normal assumption of law was lacking in that cave
 The state could not help them
 They all could not survive
o Where you are outside the areas of survival
 “When the reason for the rule ceases, so does the rule”
 Applies this to the entire rule
 Purposive argument on the grand scale
o The state killed 10 people to save them and they killed only one to save
themselves
 Why are we fine with this outcome?
 No one intentionally killed the 10 workers and we knew
one person could die just not which person would die
 Goes toward intentionality
o Criticisms
 Slippery slope
 If they are choosing to return to society must be subjected to its
rules
 He says he doesn’t have any authority but he still makes this
judgment (its under someone else’s jurisdiction)
 The law is not meant to be treated literally, there are exceptions
o Self-defense is an exception for murder
 Once you accept this, the Judges must look beyond the text
 It is a legitimate practice that is required
o Where laws are clearly ludicrous they must be
examined in more depth
o What’s the purpose behind the law then?
 Society is the code system of men
 Deterrence (we have the law to deter)
o Even if the law applied, the conclusion would still be not to apply it
because deterrence does not apply
 When you look at the law you must look at the purpose to know what they mean
o Keen
 Don’t look at what’s right and what’s wrong and what we think
 That’s not what law is about
 Legal Positivist
 Law is a matter of a command from the state backed by a threat from a group
based on a habitudinal means
o Doesn’t mean its just, only that it is law
 For the rights to exist there must be a moral conception implicit within them
 Don’t consider whether the defendants should be pardoned
 As a private citizen he thinks they should be pardoned
 Particular vision of when Judges go bad (judicial dissent into malfunction)
 When they legislate from the bench
o Defeats the separation of powers
o When this was allowed there was a civil war and power struggle in their
society
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 o Foster agrees with this
 If you accept that premise, you have to accept plain meaning interpretation
o Judicial fidelity requires textualism
 Foster doesn’t agree with this
 Says Foster doesn’t say what the actual purpose is
o Keen says that Foster will pick out a purpose that
will work for their own decisions
 Self - Defense argument
 Actual self-defense exception does not apply it was not a legitimate attack
 What about the precedence that self-defense applies?
o If you want to make a difference interpret the law that way and make the
legislature change it
 Law should be about form because otherwise the law will lead to chaos
o Handy
 Wants to be in line with the public opinion and common sense
 Like O’connor, Holmes, Cohen
 Judges have power that exists from the majority so they should follow the public
opinion
 Common sense
 Stupid to kill people who the state sent 10 people to save who ended up dead
 Legitimacy consists of do something that makes sense
 System of justice that the whole procedure took place, proves that he is right
 Criminal justice system is full of digression by all the parties that are involved
o Good and bad digression
o Prosecutor uses disgression
o Jury uses disgression
o Clemenacy
 The law exists in the large world of digression
o Should deal with this and let the people live
 Do need rigid adherence to form in some places (formalistic)
 How we elect people
 Free civil moin
o Even the more purposive policy judge will protect their own view on what
society needs to be more formalistic about
 Almost all of law is subject to purpose with a small about of formalistic
 Point: Can’t actually have a coherent form of law without arguments of purpose and form
o You will always have variations of the two topics

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