Post-Revolution edit
I. Law and Society
- A. Internal (Formal/Classical) Approach
- B. Realist (Modernist) Approach
- Brown v. Board of Ed - "We're not looking at the 1870s. Plessy is irrelevant. Public Ed is crucial in modern life, thus..."
- C. Critical (Post-Modernist) Approach
- 1) Law 2) Environment 3) Ideology
II. Chronology
- A. Founding Era: Colonial-1787
- B. Early National Period: 1787-1868
- C. Classic Period: 1868-1937
- D. New Deal Era: 1937-1980s
- E. Present Day
III. Declaration of Independence (1776)
- A. Natural Rights
- B. Compact Theory of the State
- C. Popular Sovereignty
- D. Right of Revolution
IV. The Republican Ideology
- A. Pursuit of Happiness
- B. Civic Virtue
- C. The Republic
- D. Republican Politics
V. New Regime
- A. State Constitutions
- B. Articles of Confederation
- C. Political Chaos
VI. Problems with Revolutionary Politics
- A. Political Chaos
- B. Economic Chaos
- C. Republican Analysis
- D. Liberal Analysis
VII. The Federalist Alternative: #10
- A. Novus Ordo Seclorum
- B. Controlling Faction
- C. Economize Virtue
VIII. Coup D'Etat? #40
- A. Legal Argument
- B. Extra-Legal Argument
- C. Economize Virtue
IX. The Judiciary: #78
- A. Judicial Review
- B. Not Subversive to Democracy
- C. Economize Virtue
X. Jefferson's Objections to the Constitution - A Reaffirmation of Republican Values
- Two Major Ideologies
- republicanism (American Revolution) → communitarianism
- liberalism (US Constitution) → individualism
Post-Revolution America
- The Ongoing Confusion (Hall) - Constitutional vs. Legal
Massachusettes Constitution
Pennsylvania Constitution of 1776
- Not submitted to people due to wartime
- Survived 'til 1929
- Much protection for religious expression (Quaker population)
- Military training
- Voting based on property ownership
- Counsel of Censors
- 3-year limits creating continual rotation of office holders
Federalist Papers edit
| Federalists | Anti-Federalists | |
|---|---|---|
| Attitude of | cosmopolitan | ethnocentric |
| Structure | Nationalists | State-oriented |
| Interest in | Commerce (Int'l trade) | Agriculture |
| Governed by | elites | egalitarian |
Before the Constitution, creditors & land owners as minorities were inevitably subjected to the tyranny of the majority debtors & tenants.
Madison thought the republican system failed, because of the division into political factions, an inclination in the very nature of man (Jefferson hoped to educate this inclination out). Madison felt that a big government would dwarf the various factions, ultimately drowning each other out. Also, this would allow for the economizing of virtue, pulling the most virtuous into the positions of authority, rather than relying on the common man to be virtuous.
1)
2) Not reporting back to Congress, submitting directly to the people.
3) (pg. 22) How far considerations of duty...
They must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to ``abolish or alter their governments as to them shall seem most likely to effect their safety and happiness, since it is impossible for the people spontaneously and universally to move in concert towards their object; and it is therefore essential that such changes be instituted by some INFORMAL AND UNAUTHORIZED PROPOSITIONS, made by some patriotic and respectable citizen or number of citizens.
Since impossible for the people to work together, it's okay for some patriotic citizens to hijack the direction of the nation so long as they submit it to ratification.
Two subsequent cases of constitution being insufficient
- Civil War (changes made when southern states were not present in the congress)
- Bill of Rights previously didn't restrict states authority
- New Deal (broke deadlock of Lochner when FD Roosevelt threatened to double the number of judges unless Fed could regulate state commerce)
Release of Energy edit
Hamilton (evil genius of resolution)
- Judges must have life tenure because there aren't many great jurists and in order to make it attractive to them, we have to make the position attractive.
Bounded spheres
Public sphere { individuals' interactions w/ state } → Collective action where state impinges on individual lives
Private sphere { A, B, C... acting on their property } → Contracts, torts, protection of property
| Bounded Spheres | |
|---|---|
| Public | Private |
| individuals' interactions w/state | A, B, C, et al. acting on own property |
| Collective action | Property, contract, Tort or crime |
| Taxes, Eminent Domain, police powers | Criminal Code, Preservation of rights |
Similar dual spheres of legal interpretation (courts) and political action (legislature)
Instrumentalism = interpreting the law a particular way to achieve a certain result
- Law changed in the interest of economic growth (Willard Hurst called "the release of energy", others say "creative destruction")
Charles River Bridge
- 1650 - Ferry right to Harvard
- 1785 - bridge to CRB proprietors, 40-yr monopoly. bridge opened 1786. extended to 70 years from opening in 1792
- 1828 - Charter to Warren Bridge
- 1829 - sent to USSC by stipulation
- 1837 - Warren bridge now free, CRB franchise crumbles
Story's dissent
Changes in Property Rights edit
Vested Rights - Legislature cannot interfere with existing rights of property
- Protected first & foremost by
- Eminent Domain: private property not to be taken for a public purpose without due compensation
- No laws to impair obligation of contract
- Government cannot take property without due process of law
- Uniformity of taxation and equal protection
but checked by....
COMMONWEALTH V. ALGER, 61 Mass. 53 (1851) (Opinion by CJ Shaw)
- "...power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth..."
- "Rights of property, like all other social and conventional rights, are subject to reasonable limitations in their enjoyment."
Police powers are a limit on private property rights, however, not eminent domain (thus due compensation) as they apply equally to all
Common law intended to maintain the status quo, which was regarded as "good."
Your property is yours to do with as you like, except "sic utere tuo ut alienum non laedas"
- Translation "One should use his own property in such a manner as not to injure that of another."
| One View of the Cathedral | ||
|---|---|---|
| Effect | Remedies | |
| Property Rules | What's mine is mine, everyone must keep off | ejectment, criminal law, self-help |
| Liability rules | others can take, if they pay, eminent domain, tort law | Damages (compensatory et al.) |
| Privileges | may act freely w/o paying, harm w/o remedy, adverse possession, economic competition | None |
Riparian & Prescription phase edit
MERRITT V. PARKER,
- Parker, living downstream from Merritt, built a dam for his mill, the backflow from which created a lake on his & Merritt's land. Then, Merritt constructed a rivulet, diverting some water from the lake through his own mill. The water then flowed into a parallel creek running down onto Parker's land, but not through Parker's mill. Responding to diversion of river flow from his mill to the nearby creek, Parker builds a dam on the parallel creek, the backflow from which creates a second lake, rendering Merritt's mill inert. Merritt sues Parker for damages.
- Court views Merritt's diversion as causing a trespass on Parker's property rights and recognizes Parker's dam construction as self-help in preventing further trespass. Parker wins.
Utilitarian phase edit
The Massachusetts Mill Dam Statute
- Gives anyone the right to build a dam, an example of the legislature changing property law in a way that will advance industry. In this case, mill operators were given the right to flood the property of neighbors, if necessary, provided they paid compensation.
PALMER V. MULLIGAN
- Palmer, living downstream from Mulligan, has a dam for the purpose of operating mill and collecting logs. Mulligan builds a dam further upstream reducing flow and diverting the logs to the far side of the river away from Palmer's mill.
- Court views harm as non-compensable, like that of economic competition
FIFTY ASSOCIATES V. TUDOR
- Fifty Associates builds wall right on the property line. Some of Tudor's light & view feels infringed and exercises self help (tears down the wall)
- Court views common law self-help as no longer a remedy, only follow common law as helpful to us
Changes in Contract rights edit
TITLE THEORY - Old theory allowed juries to review substantive fairness and rewrite contracts to make them fair
- Fitch v. Hamlin - Usury vs Short-Sale/Speculation
- F: Fitch & Campbell gives Hamlin a note to come due in 6 months (for $16,839 in bank notes + 6% interest + note for $1000) in exchange for $16,839 in bank notes today. F & C used notes to buy silver, hoping the value of bank notes would fall by the time they had to pay back (short selling). Hamlin argues that both sides were playing speculator and each assumed the risks.
- H: Court rejects speculator argument asserting this is a loan and subject to usury statutes. Jury rewrites contract to comply and court upholds.
WILL THEORY - New theory preserves rights to contract freely and have terms enforced as written.
- Three significant elements: 1) Meeting of the minds, 2) Expectation damages, 3) Caveat Emptor
- Sands v. Taylor (1810) – Meeting of the minds for contract law
- F: Scooner arrives with wheat and bulk. Buyer accepts delivery and promises to pay. Later, buyer finds out that the wheat is not suitable for his purposes
- H: seller can get difference between contract price and cover price. Expectation damages
- This is an honest to goodness executory contract
- Seller claims entitlement to benefit of bargain. This is exactly what Fitch wanted, but the court refused. Here the court awards it
- This is a whole new theory of contract law. It is based on the meeting of the minds theory of contract
- The role of contract law is to enforce the intention of the parties
- The parties here enacted a sort of private legislation that authorized themselves to regulate each of their behaviors in the future
- Also new, caveat emptor. If you have a particular purpose, then you should get an express warranty
OBJECTIVE THEORY
- What constitutes the obligation of contracts is the law of the jurisdiction and the contract itself
- The contract here is vested, objective piece of law. The obligation is what the contract says and the law of the jurisdiction
- Thus New York is perfectly entitled to assert an insolvent bankruptcy clause within the jurisdiction of New York (Ogden v. Saunders). The whole point behind the bankruptcy law is to conserve entrepreneurship
Development of Civil Law edit
Changes in private Law mid 19th Century
- Property Rights → Liability Rights
- Strict Liability → Negligence (Social Contract)
- Creation of Torts law as harm done to persons outside the purview of contract law
- Status (labor) → Contract
- Corporations, public → Corporations, private
Employee Law edit
Starting in the 1830s, development of the railroads led to a wealth of employee injuries
FARWELL v. THE BOSTON and WORCESTER RAIL ROAD CORP. http://homepages.udayton.edu/~alexanrs/FARWELL.html
Assuming the risk
Employees had little grounds for recovery based on:
- Fellow servant rule - boss not liable, if not around
- Assumption of risk
- Contributory negligence
Did Shaw know he was setting into motion the worsening of employee conditions?
- These were early days of railroads, no anticipation of size & damage of railroad corps
- No social safety net, costs fell on families
Fault principle in Liability between Strangers edit
While trying to break up a dogfight, struck a man walking behind him as he swung a stick at the dogs and was injured. Not negligent and thus no liability (depart from strict liability standard)
Most involve active defendants with inactive plaintiffs (minding own business). Changes as we have more collision cases with joint active participants. So standard shifts to carelessness or acting out of the ordinary.
Labour Unions edit
Common law regarded them as criminal conspiracies
Shaw recognizes employees can contract among themselves even at the cost of profits so long as they don't break the law (picketing was an intrusion).
Corporate Franchises edit
History of Corporations
- Branches of Government (East India Company, Hudson Bay Company)
- Eleemosynary (Churches, charities, colleges, cities) - Outlives any member, can own property, limited liability
- Franchises (turnpikes, canals, bridges) - created to provide for large scale (mostly transportation) projects, included power of eminent domain and limited liability
- Banks
- Private Corps
As 19thC progressed increased demand for "corporate project"
Jacksonians opposed corporations, believed in labour over capital
- "An honest merchant doesn't need limited liability"
- Inaccessible to most without connections to legislatures
- Worst of all - The Bank of the United States
- Jackson elected partially on his promise to destroy the bank
http://facweb.furman.edu/~benson/docs/ajveto.htm
Second Bank of the United States
Result of Jackson's veto was general accessibility of corporate status leading to much greater use.
Charles River Bridge: majority were jacksonians, Story had the old view of corp as gov't branch
The Trialectic edit
McEvoy's Trialectic
- Received Law
- environment
- ideology
- Jacksonian
- Popular Sovereignty
- Jeffersonianism
- development of markets
- formal equality, rule of law
- freedom of contract
- "release of energy"
Poverty & Paupers edit
Late Colonial, early Republic edit
- Poverty perceived as inevitable part of life.
- Paupers were by statute the responsibility of the place where they settled
- "Warning Out"
- Inefficient, Cruel, & Expensive
1820s-1840s edit
- Different groups of paupers identified
- Houses of employment with farms
- Orphanages, Houses of Refuge: turn orphans into citizens
- Asylums for the Insane
Wayne v. Stock edit
Wayne Township v. Stock County (1827)
- 18th Century Approaches (Fallen Nature)
- Not much interest in the reason why Mary Ensleigh was poor
- Not much interest in rehabilitation
- Poor relief was not an interest b/c of fertility of land
- Dispute is basically over which township is responsible for paying the relief for the person (they had dumped her outside of her town and passed the buck)
- Statute says that if you are in the town for a year without being run out is a resident entitled to relief. This brings up a natural rights v. vested righgts
- Township neglects to warn for a year, and therefore, she is that town’s problem
- Majority agrees
- Statute written for immigration
- If the laws are construed liberally, then there would be no poor relief and no immigration
- Natural right to move around
- Dissent and loser says that you only have to warn once. Poor people rely on charity
- Is relief a privilege a charity or a statutory entitlement? In this frontier state, it is a statutory entitlement
- See essay on reform (1820s) NY Report
- Old way is expensive and generates litigation
- Very disgusted with the panhandler
- Poor relief is no longer outdoors and physical
- Every county has a poor house with a farm attached
- People do work and don’t drink
- Regular religious services
- Children go to school
- Women are taught useful domestic skills
- These are basically training camps in bourgeois life
- Corporal Discipline
- Settlements
Criminal Law edit
Late Colonial, early Republic edit
1820s-1840s edit
Women in the 1800s edit
Liberal ideology
- Law is made up of abstract, objective, politically neutral law.
- The basic unit of society is the individual.
- Government's reach is limited by public/private distinction
- Private spheres (Bill of Rights, private property incl ED comp, contract, employment, marriage)
Outside world was one of contracts & competition. Home world was one of family & moral values.
Black case - Cannot be convicted of battery unless he causes a permanent injury. A man need control his household, court will not "look behind the curtain" to judge his methods.
Only females of age and unmarried (femme soles) were capable of entering into contract. Once married, (femme couver) becomes the "child" of her husband (hence the description of marriage as legal death).
Askew v. Dupree Lumpkin:
Bradwell v. Illinois in the Slaughterhouse cases, plaintiff argues that becoming a professional is a protected 14th amendment right of any citizen.
Sexual transgression cases: Seduction & Breach of Promise]
Hamilton v. Lomax - Seduced by man with promise to marry. Too young to contract, so no breach of promise. Mother sues on her behalf, because parent (father) lost the value of daughter (though in this case, the widowed mother).
Bennett v. Bennett (1889) - recognized that a wife had a limited cause of action for loss of consortium (really a claim for alienation of affections), which, like that of her husband, arose out of the marriage relation. (Promised to marry at completion of buggies, buggies never completed). Includes note of seduction in jury instruction.... Mr. Bennett now offers to marry her (specific performance), but court recognizes that after what she went through, she would shrink at his polluted trust.
Heartbalm statute
No automatic way to adopt a child. Taking children into the family was an indenture, not incorporation. Affection is great, but not required. Over time, the desire of adoptive parents to pass property to children created need for change.
Age of consent laws - In England, 10 years old. In 1889, D.C. raised to 16. Movement in U.S. caused by rumours of a scandal in England where a Mr. Stead bought a 10 year old girl for the purposes of selling her into prostitution.
Slavery & The Civil War edit
Vested (Positive) Rights vs. Natural Rights edit
Somerset v. Stewart
- F: Locals bring habeas act on behalf of slave imprisoned in hold of ship. Slavery is illegal in England although it is legal to contractually buy & sell slaves there.
- H: Natural right of slave overcomes vested property right granted by the colonies.
Commonwealth v. Ades
- Clause 3
- Extradition of laborers
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
The Fugitive Slave Law of 1850 was a Federal law, written with the intention of enforcing Art.4 §2.3 of the U.S. Constitution requiring the return of runaway slaves. It sought to force the authorities in free states to return fugitive slaves to their masters. In practice, however, the law was rarely enforced because the northern states were against slavery.
Some Northern states passed "personal liberty laws", mandating a jury trial before alleged fugitive slaves could be moved. Otherwise, they feared free blacks could be kidnapped into slavery. Other states forbade the use of local jails or the assistance of state officials in the arrest or return of such fugitives. In some cases, juries simply refused to convict individuals who had been indicted under the Federal law. Moreover, locals in some areas actively fought attempts to seize fugitives and return them to the South.
The Missouri Supreme Court routinely held that voluntary transportation of slaves into free states, with the intent of residing there permanently or definitely, automatically made them free. The Fugitive Slave Law dealt with slaves who went into free states without their master's consent. The U.S. Supreme Court ruled, in Prigg v. Pennsylvania (1842), that states did not have to offer aid in the hunting or recapture of slaves, greatly weakening the law of 1793.
- Revision of Fugitive Slave Act in 1850
In the response to the weakening of the original fugitive slave act, the Fugitive Slave Law of 1850 made any Federal marshal or other official who did not arrest an alleged runaway slave liable to a fine of $1,000. Law-enforcement officials everywhere now had a duty to arrest anyone suspected of being a runaway slave on no more evidence than a claimant's sworn testimony of ownership. The suspected slave could not ask for a jury trial or testify on his or her own behalf. In addition, any person aiding a runaway slave by providing food or shelter was subject to six months' imprisonment and a $1,000 fine. Officers who captured a fugitive slave were entitled to a bonus for their work. Slave owners only needed to supply an affidavit to a Federal marshal to capture an escaped slave. Since any suspected slave was not eligible for a trial this led to many free blacks being conscripted into slavery as they had no rights in court and could not defend themselves against accusations.
- Resistance movements in North
Underground Railroad → Though the law forbade aiding of slaves, upon arrival at door few could deny a night's stay. The UR forced Northerners to pick sides.
- Did Scott's residence in Illinois (a free state) or Wisconsin (a territory covered by the Missouri Compromise) make him free?
- Could a slave or a free black be a citizen?
If yes to both, then Scott was a Missouri citizen and could sue Sanford in Fed Court under diversity jurisdiction.
Lincoln & The Civil War edit
Lincoln's first inaugural address
Reconstruction edit
The process of Reconstruction was a series of challenges and responses - Statutes to make the blacks free, blocked by the Southern statutes in essence to reduce them to slavery. Eventually, the Republicans gave up. The Southern statutes were on the books until WWII.
In the course of this contest, the Republicans learned a lot about what freedom is. And also, paradoxically, that maintaining individual liberty requires a lot of force, redistribution of power, and centralization of power.
- Before the Civil War, the "release of energy" had already involved minor appropriations from individuals in order to promote development
- Police powers, eg. Commonwealth v. Alger
- Torts: Negligence requirement means that fewer victims will get damages
- Labor: Courts read into the contract that workers accepted the risk of injury
- Reconstruction: Freedmen's Bureau Act of 1865
- First steps to get the freed slaves on their feet
- Had some positive results
- When the Freedmen's Bureau pulled out, we get the act and response
| Rights | Invasions | Remedies |
|---|---|---|
| Personal/Natural | Slavery | 13th Amend |
| Civil | Discriminatory laws | 14th Amend |
| Political | Private terror | 15th Amend & Klan Act |
| Social | Social discrimination | Civil Rights Act of 1875 |
- Right-wing liberals → Economic liberals/libertarians (Reagan, Thatcher, laissez-faire)
- Left-wing liberals → Equal opportunity (education, safety net, encourage voting, etc.)
Black Codes (eg. Mississippi)
Phase 3 - 1873-1937 edit
Classical Liberalism edit
- Regulation vs. Takings
- Regulation vs. Freedom of Contract
- Legal Formalism (law as science) vs. Legal Realism
- "Law on the Books" vs. "Law in Action"
Protecting the "free market" for personal autonomy, ignoring inequalities in bargaining power on principle (A/B/C view), treating labour as property; the employment contract was like any other bargain in the free market
The idea of property was extended to abstractions like a fair rate of return and business goodwill, hence hostility to unions. Judges saw picketing & boycotting as attempts to coerce employers by depriving them of property rights, interfering with company's goodwill, and thus a nuisance that could be enjoined.
In extreme cases, courts protected the "right to contract" by striking down minimum wage laws, maximum hours laws (see Lochner & Adkins).
Progressivism & Realism were reactions to the obvious gap between the neutral market imagined by the courts and growing inequality and absence of bargaining power in the real world
- Majority categorizes statute as traditional police power
- Field's dissent asks: is this "really" about police power, or about redistribution?
- Field's new theory of labor as a property right
- Majority: traditional police powers for property affected with a public interest (regulation is not a taking)
- Field, again: Natural right to a market place, regulating private business is a taking
- One of the early arguments of substantive due process - There are irreducible rights (to make profit/reasonable rate of return) that all free people enjoy and with which government cannot interfere.
- Chicago, Milwaukee, and St. Paul RR Co. (1890)
- Creates a concrete, reasonable rate of return to which individuals have a right
Progressivism edit
From 1900-1920, characterized by rise in administrative agencies, governed by experts in the various fields.
Conflicts of Progressivism & Classical Liberalism
- Law-in-action vs. law-on-the-books
- Facts vs. abstract rules
- Pragmatism vs. formalism
- Social science vs. legal theory
- Experts vs. common-sense legal actors
Background events:
- CL judges saw it as their job to protect "free market" for business and thus went about striking down labour regulations and enjoining labour strikes.
- Eastman's photography, "embalmed beef" & tainted food scandals, and the Triangle Shirtwaist Factory fire
- With labour unrest rising, public opinion shifts in favour of labour reform
Unions & Regulation - Beginnings of social-welfare state, including Strikers rights, Workers Comp, Work Conditions regulation, Pure Food & Drug Act, & other legislation empowering regulatory bodies
Progressivism - Legislatures (& judges) should use social analysis, statistics, and empirical research to understand the effect of the law and decide issues on the basis of what is best for society; scientific management
- Careful: Faith in experts (could be oppressive, Buck v. Bell is classic example)
Realism - Posits that legal rules are indeterminate, as one can make a rule-based argument to support any outcome, and judge's "legal reasoning" is merely post hoc rationalizations of a result the judge reached on other ground
- "Consent" and "Liberty of Contract" are legal fictions, supposed "voluntary" agreements are in fact coerced (Triangle Factory working conditions). Law protects some kinds of coercion and not others by creating property rights
- Problem: If Oz is just a man behind a curtain, what authority does law have but raw power?
Decay & Collapse of CL - The New Deal edit
Constitutional Crisis edit
- a) New Deal as Madison Federalist #40 constitutional change (small number of patriotic citizens have to take matters into their own hands)
- b) Trialectic: Received law = Classical Liberalism, Environment = Economic collapse, Ideology = Social values
- c) Crisis itself: stock market crash, bank failures, mortgage foreclosures, evictions, unemployment,. Hoover poured hundreds of millions into the economy with no effect
Roosevelt's First Inaugural edit
- a) Failures of laissez faire
- b) Emergency requires extreme action; possibly deviating from the constitution
- c) New vision of self-sacrifice, moral good
First New Deal (1933-1937) edit
- a) Business: The National Industrial Recovery Act
- i. Set up trade associations: Industry, Labor, Government working together
- ii. draw up codes governing fair practices function like laws
- allow industry to set a standard for the entirety
- iii. Fix maximum hours, minimum wage, fix prices
- iv. Penalties for those who break the code
- b) WPA (Work Projects Administration)
- i. Create work projects
- ii. Maintain existing society
- c) Agricultural Adjustment Act
- i. Farm income had dropped by 2/3
- ii. Secretary of Agriculture had power to reduce acreage, set minimum price for goods
- d) Social Welfare
- i. Social Security 1935
- ii. Tax increases: top rate was 79%
- iii. Greatly expanded federal government at the expense of the states
New Deal Coalition edit
- a) Left-wing republicans: people should work together to pursue the public interest
- b) Left-wing liberals: increase liberty by increasing ranges of choices open to people and minimizing the limitations of circumstance
- i. Downward retribution
- ii. Recognition that workers don't have equal bargaining power
- iii. Insurance against fluctuations in life
- iv. FDIC banking insurance
(liberalism) vs. (republicanism)
- emphasis on individual vs. interdependence
- meeting in marketplace vs. common goals
- value neutral laws vs. virtue, values, morality
- laws as science vs. instrumentalism
- treat everyone as A, B, C vs. recognition of unequal bargaining power
Post-New Deal edit
Class 13 - Post Carolene Products
- Themes of the Day
- Uses of history: Is New Deal a fact of life or can it be challenged?
- Takings/Substantive Due Process: court used to use SDP to protect contract, then to protect minorities & privacy. Are we returning to contract?
- Commerce clause/Federalism: Again can New Deal be rolled back?
Small "r" republicans & liberals - where are they now?
- Left republican/communitarian - law should promote values/sacrifice individual liberties for common, any trace left of left wing values agenda, good/care more about America than own interests (also see Johnson speech on collective responsibility for jim crow laws, JFK's Ask not)
- Right republican/communitarian - dominated by religious right
- Left liberalism - Government should provide a level playing field, disintegrate into identity politics One group's equal rights is another's special favours, right wing groups learn to play the game.
- Right liberalism - Society is just a collection of individuals
- Anti-New Deal Theory in Academics
- Federalist Society/Taking's Project
- Epstein on SDP - No regulation of property at all, no environmental controls, rent controls
- Epstein on Commerce Clause - Commerce means trade, not manufacturing or public accommodation
- On commerce power & labour - Epstein goes back to freedom of contract
- Substantive Due Process - Lucas
- Natural rights, Vested rights, SDP
- After New Deal, SDP applied to restrictions on political process & minorities
- Lucas's property regulation - Is there a bright line limitation? Scalia says yes on common law principles
- Blackmun says no, no such limit was recognized until the 1980s. There is no value-free takings jurisprudence, no SDP
- Commerce clause - Lopez
- Is there a limit to the commerce clause? Rhenquist says, Yes.
- Does his expressed limit make sense?
- Thomas would go back to original principles, What would this mean?
- Civil liberties - Casey
Final review edit
| Received Law | Changed Environment | Ideology | |
|---|---|---|---|
| Revolutionary republicanism | British constitution, British rights | Distance - establishment of courts of general jurisdiction, colonial assemblies, social economic maturity, crackdown | "revrep" declaration of virtuous citizenry & service, natural law/popular sovereignty/right of revolution, Penn constitution of 1776 |
| Constitution | state constitutions | internal dischord (mass rebellion, states tried to break away), instability of gov't led to debt relief (assault on property) | liberalism cannot depend on individuals to put personal interests aside, checks & balances needed (judicial review/dual federalism), conservation of virtue (people elect the virtuous & patriotic to represent), separate spheres of public & private, Federalist ##10, 40, & 78 |
| liberalism | Common Law | territorial & economic expansion, slavery (though unaddressed) | mantras of liberalism ("release of energy," "creative destruction," "breaking monopolies"), development of private law incl tort (farwell), property (merrit v. parker, palmer v. mulligan), contract (Fitch v. Hamlin, Sands v. Taylor), business (private corps), development of public law (public trusts, police powers/commonwealth idea, Charles river bridge & Alger), rejected natural rights & conceived of vested rights (what legislature granted, it cannot take away, incl breach of private contract) |
| Civil war | |||
| Reconstruction | |||
| Classical liberalism | |||
| Progressivism |