Federalism

Historically, there’s been a shift from “dual federalism” to “cooperative federalism”

1. Dual federalism = Federal gov’t & states are co-equals, 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. Statutesa. 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 Statute1. 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

Powersa. 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 Powersa. Jurisdiction•State cts have jurisdiction over federal questions.•Federal cts handle state law claims in diversity cases.b. Removal from State to Federal Courtc. 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 Travela. 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-of-state 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.

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).

Personal Jurisdiction

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

Holdings

Broader principle

Holding in new case

J analyzes relevant precedents to determine their holdings

Induction (synthesis)

Application (deduction) to new case

Deduction = Reaching a Conclusion from the General to the Particular

Major Premise: All men are mortalMinor Premise: Socrates is a man

Conclusion: Socrates is mortal

Mortals

Men

Socrates

Induction = Reaching a Conclusion from Particulars to General

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

Swan A

Swan BSwan C

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

B + drivingA + driving

Exercise 1

Readnewspaper

Reach under seat for coffee

You can create a rule through induction, then use that rule as the major premise for deduction.

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

Holding How taken from owner?

Price paid 3P’s knowledge of illegal taking

Case 1

Yes Stolen Fair market value

None

Case 2

No Fraudulent check

Fair market value

None

Case 3

Yes Fraudulent check

Below market value

Heard rumors

Issue: Does owner recover from third party (3P)?

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.

ExerciseFacts: 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

Holding How taken from owner?

Price paid 3P’s knowledge of illegal taking

Case 1

Yes Stolen Fair market value

None

Case 2

No Fraudulent check

Fair market value

None

Case 3

Yes Fraudulent check

Below market value

Heard rumors

Issue: Does owner recover from third party (3P)?

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.

“The Life of the law has not been logic; it has been experience.”

--Justice Oliver Wendel Holmes

Conclusion

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.

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 this vague standard.

Courts/juries use standards like this 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.

Examples of Institutional Reasoning

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 maker2. Party presentation of evidence and arguments.3. Trial designed to emphasize clash between

parties4. Parties have equal opportunities to present and

argue their cases.

Hypothesis--This is the best way to:1. Search for the truth2. Resolve parties’ dispute3. Do so in a way acceptable to society

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).

Neutral & PassiveDecision Maker

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.

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.

Parties Investigate & Present Evidence

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

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).

Pace of Adjudication

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

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.

Discovery of Material Truth (cont’d)

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

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

Access to the Courts (cont’d)

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.

Power of the Attorney

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.”

Constitutional Recognition of Adversarial Procedures

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 Ethics1. 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.

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.

Highly Structured Forensic Procedure (Cont’d)

Class 8Overview 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 9Civil Procedure

Making a Course Outline