Introduction to American Law

Ⅰ．Introduction/Gun Cases

Soto v. Bushmaster Firearms International LLC, §§ 2-3: Negligent Entrustment

331 Conn. 53 (2019)
Facts Df Bushmaster and related companies manufactures the XM15-E2S rifle.
Camfour and related companies distributed and resold to Riverview and related
companies. Riverview sold the rifle to Nancy Lanza, whose son Adam used it
to kill 20 children, including pls’ descendants, and six staff members and
wound two staff members, including another pf, at Sandy Hook Elementary
School.
Procedural Pls, administrators of the victims, sued dfs pursuant to General Statute § 52-555
History (Conn.’s wrongful-death statute) for, among other claims, violating the
Connecticut Unfair Trade Practices Act (CUPTA) alleging that dfs advertised
(tort) and marketed the rifle in an “unethical, oppressive, immoral, unscrupulous
manner” that emphasized the militaristic and assaultive qualities of the rifle and
its suitability for “offensive combat missions.” They sought damages and
unspecified injunctive relief. Dfs emphasized that the federal Protection of
Lawful Commerce in Arms Act (PCLAA), 15 U.S.C. §§ 7901-7903, immunizes
firearms manufacturers, distributors, and dealers from civil liability for crimes
committed by third parties using their weapons. The state trial court granted dfs’
motion to strike the wrongful-marketing allegations. Pls appealed.
Issue Is an individual or business that makes or sells a military-grade firearm which an
adolescent civilian then uses to kill and maim others immune from negligent
entrustment state tort law claims for injury and death caused by that firearm?
Rule/ No. Under Conn. state law, a cause of action in negligent entrustment requires
Holding that (1) the df has entrusted a potentially dangerous instrumentiality to a
third person (2) whom the entrustor knows or should know intends or is
likely to use the instrumentiality in a manner that involves unreasonable
risk of physical harm, and (3) such use does in fact cause harm to the
entrustee or others.
Reasoning The tort of negligent entrustment creates liability whenever the df actively,
negligently, and foreseeably paves the way for a truly reckless individual to
impose serious risks of injury on the public. It applies only when the entrustor
believes or has specific reason to believe that the direct entrustee is likely to
use a dangerous instrumentiality in an injurious manner. This tort has
existed since Dixon v. Bell (Eng. 1816). Restatement. (2d) Torts § 308 agrees
and imposes an unreasonable risk requirement.
Application We do not determine whether an action of negligent entrustment lies when the
direct entrustee shares the dangerous instrumentiality with a specific third party
who is incompetent to use is safely because the pls do not allege that any df
possessed any knowledge ore had any specific reason to believe that (a) Lanza’s
mother would share the rifle with her son or that (b) he was especially likely to
operate it injuriously.

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 Terms in the complaint
 Complaint: the pleading filed by the plaintiff to the court, which initiated a lawsuit.
 Pleading: a document prepared by the plaintiff or their lawyer.
 Amici Curiae brief: friends of the court brief which is written by someone other than
the parties.
 Sources of Law in Soto
 Connecticut common law: negligent entrustment
 Federal statute: PCLAA
 Precedent: other states / federal courts: not binding bud persuasive

 Holding v. Dicta
 Holding (Ratio Decidendi): necessity to decide the case: negligent entrustment based on
state common law
 Dicta (Obiter Dicta): thoroughness: that on federal statute (narrower definition), not
binding authority
 Note: what is Holding/Dicta is decided by later decisions by courts.

 Roles of Courts: (a) resolving the dispute and (b) developing law
 However, also used as a “backboard” for politics?

 Senators Sheldon Whitehouse et al. (brief as Amici Curiae, NY Rifle & Pistol
Association Inc. v. City of New York (2020)): “NRA promoted the
confirmation (and perhaps selection) of nominees to this Court who, it
believed, would “break the tie” in Second Amendment cases… and a
majority now believes the “Supreme Court should be restructured in order to
reduce the influence of politics.””
 Audience/Addressee of the complaint
 The complaint is a public document. Generally, civil lawsuits and their proceedings are
open to the public. General public has an interest in the action which shapes legal rules.
 Legitimacy, predictability, chance to join by third parties (e.g., govt.)
 Addressee: courts

 Jurisdiction: dfs removed the case to the federal district court.

 Diversity jurisdiction: a federal court is able to take on a case when the parties in
question come from different states (diversity of citizenship). A Party may ask for this
because they think that they won’t get a fair trial in a state court as non-residents.
 Plaintiffs then filed a motion to bring the case back to state court, and the District Court
judge agreed. The case was then brought back to the state court.

 Cause of action: negligent entrustment

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  the doctrine creates liability when an individual or entity acts in such a way that he or
she actively, negligently, and foreseeably facilitates a third party’s infliction of
serious harm.

 Two ways to read Soto: gun law (See brief) or guns in U.S. culture & society (as follows)

 Guns in the U.S. Economy and Society: case as a vector for social issues

 Law and Society: important to look at legal institutions, decision-makers, decisions, and
policy more generally to situate law and policy within the social and economic context
in which the law is being made, interpreted, and applied.
 Sandy Hook complaint: “the most chilling legacy of the entrustment of AR-15s to the
general population may be that Americans are no longer shocked when combat weapons
are used to kill people as they work, shop, commute, attend school, and otherwise go
about their lives. We may be horrified, saddened, even sickened, but we can no longer be
shocked.”
 Not only a procedure of lawsuit but also social purpose; initiate a chain of
events that can lead to debate and deliberation on gun issues; constitute a
culture and community of interest; shape public policy.
 The gun’s description in the complaint is not necessarily legal facts. Rather,
status as a common military weapon and its intended purpose are statement of
value, but not necessarily legal facts. In fact, the guns are sold commercially
on the regular market. However, using such language, pls tried to set up their
claim that the gun was dangerous and not meant for civilians.
 Pamela Haag: The gun “became a thing that served psychological needs more than the
pragmatic ones of war, ranching, the conquest of Native Americans, or the rural
economy.... What was once needed now had to be loved.”

 James Boyd White: Law is the “art by which culture and community and character are
constituted and transformed.”

 How is the ‘art’ of legal thought and practice which is itself dependent on the language
of the common law supposed to constitute the ‘culture and community and character’?
 interdependent

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United States v. Lopez: Federalism v. Separation of Powers
SCOTUS (1995)
Facts Respondent, a 12th-adult, Alfonso Lopez, Jr., carried a concealed handgun into
his high school and was charged with the Gun–Free School Zones Act of 1990
(GHSZA), a criminal statute which forbids “any individual knowingly to possess
a firearm at a place that he knows is a school zone.” 18 U.S.C. § 922(q)(1)(A).
Procedural The District Ct. denied Resp’s motion to dismiss the indictment, holding that the
History statute is a constitutional exercise of Congress’ power to regulate activities in
and affecting commerce. The govt. petitioned for certiorari and was granted. The
Court of Appeals reversed, holding the opposite. At SCOTUS, the govt. argues
that Congress could have rationally concluded that the statute substantially
affects interstate commerce because possession of a firearm in school zone
affects the national economy. That is, (a) the costs of violent crime spread
throughout the population; (b) violent crime reduces the willingness of
individuals to travel to area within the country that are perceived to be unsafe;
and (c) the presence of guns in schools threatens the learning environment,
handicapping education and resulting in a less productive citizenry.
Issue Whether the Commerce Clause gives the government the power to regulate
schools and ban assault weapons on their premises.
Rule/ (Rehnquist, C.J., 5-4): No. Congress does not have authority under the
Holding Commerce Clause (Article I, Section Ⅷ) to criminalize the knowing possession
of a firearm at a place that an individual knows or has reasonable cause to
believe is a school zone, because such possession is not economic activity that
substantially affects interstate commerce.
Reasoning Federal powers are “few and defined” while state powers are “numerous and
indefinite.” The Federalist NO. 45. There are three categories of activity that
Congress may regulate: (1) the channels of interstate commerce, (2) the
instrumentiality of IC, including where “the threat may come only from
intrastate activities,” and (3) activities that substantially affect IC.
As of the category (3), (a) the statute does not regulate intrastate activity that
might, through repetition elsewhere, have a substantial effect on interstate
commerce or constitutes an essential part of a larger regulation of economic
activity in which the regulatory scheme could be undercut unless the intrastate
activity were regulated. (b) the statute contains no jurisdictional element that
ensures that the regulated activity has a nexus with interstate commerce. Under
the govt.’s theory, it is difficult to perceive any limit on federal power, even
in traditional states areas like criminal law and education. To “pile inference
upon inference” in order to find such a nexus would convert congressional
Commerce Clause authority to a general police power of the sort only held by
states.

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 Concurs (Kennedy, J.): If the boundary between federal and state blurs, then political
responsibility would become illusory and unaccountable. Because it is well
established that education is a traditional state concern, we have a “particular
duty” to ensure the federal-state balance. States are well equipped to regulate
this issue.
(Thomas, J.): At the time of ratification, “commerce” consisted of selling,
buying, bartering, and possibly transporting, in contradistinction to
manufacturing and agriculture. The substantial effect test would make much of
the Commerce Clause surplusage of the aggregation principle: almost any
activity can affect interstate commerce in the aggregate but not affect it when
taken in isolation.
Dissents (Stevens, J.): Gun possession is the consequence of commercial activity.
(Souter, J.): The correct standard of review is rational basis, in accordance with
the principle of judicial restraint. FCC v. Beach Conms., Inc. (1993).
(Breyer,J.): [noting empirical data] Under the substantial effects test, Congress
could have rationally thought that guns in schools significantly undermined the
quality of education, which affected interstate and foreign commerce, The
question is not whether we (judges) think there is a rational relationship,
but whether the legislative and executive branches did. In Katzhenbach v.
McClung (1964), we held that the CC authorized a federal statute that prohibited
racial discrimination at local restaurants. In Perez v. United States (1971), we
held that the CC authorized a federal statute that makes it a crime to engage in
extortionate credit transaction “loan sharking”) at the local level.
 Common law constitutionalism
 In order for the activity to be regulated by the Commerce Clause, the activity must fall
into one of three categories above. This logic comes from the Court which adopts
common law method and construes earlier decisions (precedents, not Cons. text.)
 Marbury v. Madison (1803): establishes the principle of judicial review.
 Common law and “categorical” style
 Setting a few different categories into which an action can fit
 Duncan Kennedy: “[Characterizing and categorizing] phenomena determines how they
will be treated by the legal system.”
 Karl Llewellyn: “A realistic approach would, however…. [recognize] that to classify is
to disturb…. Although originally formulated on the model of at least some observed
data, [legal categories] tend, once they have entered into the organization of thinking,
both to suggest the presence of corresponding data when these data are not in fact
present, and to twist any fresh observance of data into conformity with the terms of
the categories.”
 Common law and the question of “baselines”
 Cass Sunstein: “Without some foundations or baselines from which to make
measurements, legal analysis cannot go forward, and in some cases it is hard to dispute
that understandings like those reflected in the common law or the status quo are the

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 appropriate baseline…. It would be most surprising, and probably undesirable, to find
those foundations entirely abandoned.”
 Principle “baselines” in Lopez: majority/concurring v. dissenting
 Political structure: federalism v. separations of powers
 Political economy: non-economic v. economic / non-commercial v. commercial
 Do we think education is not an economic activity? Think tuition of law schools.
 How about guns? Gun violence imposes huge economic loss, gun industry revenue
 Prof. Thomas: the Court (especially Thomas, J.) uses 19th-century understandings of law
to resolve a 21ts-century problem, striking down economic legislation for the first time
in 60 years (cannot pass the rational basis test).
 To what extent, in order to resolve a public law dispute, is the Court relying on
common law (private law) understandings of U.S. economy as a free capital
market (today’s reality)?
 The meaning of “commerce” term is now different from that in the 19th-century.
How should the term be interpreted by the Court? Original intent, meaning, or
living-cons.? Note: counter-majoritarian difficulty (by Alexander Bickel)
 Standards of Judicial review
 Strict scrutiny: fundamental rights, race, ethnicity
 Intermediate scrutiny: gender, illegitimacy
 Rational basis: others, including poverty/wealth, age, education.
 Different Standards of review: deference
 De novo: pure issues of law. No deference
 Abuse of discretion: for procedural & evidentiary matters. Appellant must show an
abuse. Extreme deference
 Clear Error: for judge as trier of fact. Reverse factual finding only if clearly erroneous.
Substantial deference
 No substantial evidence: for jury as trier of fact. Reverse of not supported by substantial
evidence. Maximum deference
 Impact/Result of the Lopez decision
 Congress/President Clinton modified the statute to meet SCOTUS decision, adding a
requirement that each prosecutor must prove as a part of prosecution how gun affected
interstate commerce.

District of Columbia v. Heller: Modes of constitutional interpretation

SCOTUS (2008)
Facts D.C. generally prohibits the possession of handguns, other than when the chief
of police issues a 1-year license. Lawfully owned firearms must be kept
“unloaded and disassembled or bound by a trigger lock or similar device” unless

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they are located in a place of business or are being used for lawful recreational
purposes.

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Procedural Resp, denied a registration certificate for a handgun he wished to keep at home,
History sued in the federal district court on the Second Amendment grounds to enjoin
D.C. from enforcing its licensing requirement insofar as it prohibits (1) the
carrying of a firearm in the home without a license, and (2) the storage of a
firearm with a trigger-lock requirement. Before this court, petitioner claims that
the Second Amt. only protects the right to possess and carry a firearm in
connection with militia service, whereas resp claims that it protects an
individual right unconnected with service in a militia and to use it for
traditionally lawful purposes, such as self-defense within the home.
Issue Does the statute violate the Second Amt. by limiting the right to bear arms?
Rule/ (Scalia, J., 5-4): Yes. Subject to certain safety limitations, the Second
Holding Amendment creates an individual right to keep and bear arms for
traditionally lawful purposes, including self-defense in the home.
Reasoning We must interpret the Constitution in their “normal and ordinary” as
distinguished from “technical” meaning. The operative clause is “right of the
people.” The clause is not limited by the prefatory clause. In the clause’s other
two appearances- the First and Fourth Amt.-it refers to individual rather
than collective rights. Where “the people” is used in contexts other than rights
(preamble; Art. 1, Section 2, Tenth Amt.), the provisions deal with the exercise
ore reservation of powers, not rights. This creates a presumption that the Second
Amt. right it “exercised individually.” 18th-century definitions of “arms” extend
beyond instruments specifically designed for military use. Moreover, the
operative clause codifies a preexisting right (“… shall not be infringed”).
Historical documents and state analogues suggest that the likely meaning of the
Amt. is the securing of an individual right to bear arms for self-defense. The
post-Civil War Congress understood the Second Amt. similarly. United States v.
Miller (1939) does not foreclose this decision because that case held that certain
types of weapons, such as the sawed-off handguns at issue there, were ineligible
for Second Amt. protection.
Dissents (Stevens, J.): Miller stands for the proposition that we will protect the right to
keep and bear arms for certain military purposes, not that we will not curtail the
legislature’s power to regulate the nonmilitary ownership and use of weapons.
These considerations counsel my position: (1) the introductory language
defining the Amt’s focus; (2) the class of persons encompassed; and (3) the
unitary nature of the right protected. The words “the right of the people”
contemplates collective action, consistent with other provisions in the Bill of
Rights. The word “keep” does not convey the meaning of private nonmilitary
ownership. The majority’s reliance on the codification of a previous right is
misguided because service in a state militia was also a preexisting right.
(Breyer, J.): the majority is also wrong because the D.C. law is consistent with
the Second Amt. even the latter protects a separate interest in individual self-
defense, because it is a legitimate legislative responsive to the presence of
handguns in a high-crime urban area.

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 Oral argument in the SCOTUS
 Rule 28. Oral Argument: Intense questioning
 Why Oral? publicity, clarifying the points, screening…
 Why no camera? impartiality, media scrutiny avoidance, dignity of the courts…
 Majority opinion: textualism, historical interpretation
 Scalia, J.’s reasoning: he refers to the former part as not purposive but prefatory to
avoid the part limit the operative clause (result-oriented). “The people” is synonymous
with “persons” based on another part of the Cons. protecting individual rights. Plus, the
right to own gun is inherent, pre-constitutional, natural right.
 Originalism: interpret the Cons. as the framers intended, beyond the text. Scalia hates
the Living Constitution which permit the law to change based on common law method
(as anti-originalist). Note: Scalia admits the common law as a source of law.
 Dissenting opinion: purposive, historical interpretation (different history)
 Modes of Constitutional Interpretation
 Textualism: derive the meaning from the words
 Originalism: (1) intent – based on the purposes of framers (Scalia, J.), (2) understanding
(public meaning) – conventional understanding as the time (Thomas, J.).
 Common law precedent
 “Historical” precedent
 Constitutional values and principles: federalism, separation of powers, freedom, liberty
 Contemporary social values (Living Constitution)
 Blocher & Siegel: “Heller’s analysis is rather an identification of the grounds for the
government’s regulatory authority‒an authority that derives from the common law as it has
evolved over the century.”
 James Madison, Federalist37: “All new laws, …, are considered as more or less obscure and
equivocal, until their meaning be liquidated and ascertained by a series of particular
discussions and adjudications.” “The use of words is to express ideas. … But no language
is so copious as to supply words and phrases for every complex idea, or so correct as not
to include many equivocally denoting different ideas.” “When the Almighty himself
condescends to address mankind in their own language, his meaning, luminous as it must be,
is rendered dim and doubtful by the cloudy medium through which it is communicated.”
 Support for case law and historical precedent
 Textualism cannot be cogent interpretive stance.
 Charles L. Black, Jr.: “In one way or another law not only uses language, but may be said
only to exist in language; the dangers of language are dangers to law.”
 Law exists in Language, but there is limitation to express ideas with language.

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 Why does U.S. law rely on the language of common law as a Baseline source and method in
Cons. law argument and adjudication?

 Marshall, C.J.: “Its (Constitution’s) nature, therefore, requires, that only its great outlines
should be marked.”
 Shaw, C.J.: “It is one of the great merits and advantages of the common law, that instead
of a series of detailed practical rules, established by positive provisions, and adapted to
the precise circumstances of particular cases, which would become obsolete and fail,
when the practice and course of business, to which they apply, should cease and change,
the common law consists of a few broad and comprehensive principles . . . The
consequence . . . is, that when a new practice or new course of business arises, the
rights and duties of parties are not without a law to govern them.”
 No lack of law when new issues arise.

 Mode of legal analysis

 “Code-based” mode: interpretation (explain or tell the internal meaning in Code)

 “Common law-based” mode: expounding (lay open the meaning)

Ⅱ．Property

 Property (middle English)

 From propriete (old French) - proprietas (Latin) - proprius: ‘one's own, special’
 Property and Law
 Tocqueville: “In no country in the world is the love of property more active and more
anxious than in the United States.”
 Calabresi & Melamed: “The first issue which must be faced by any legal system is one
we call the problem of ‘entitlement’.”
 Sources of U.S. property law
 Constitution:
 Slavery Clauses: “Persons”
Article I, Section 9, Clause 1: The Migration or Importation of such Persons as any
of the States now existing shall think proper to admit, shall not be prohibited by
Congress prior to the Year one thousand eight hundred and eight . . . .
Article IV, Section 2, Clause 3: No Person held to Service or Labor in one State,
under the Laws thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service of Labour, but shall be
delivered up on Claim of the Party to whom such Service or Labour may be due.
 Due Process Clause

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 5th Amt.: No person . . . shall . . . be deprived of life, liberty or property, without due
process of law.
14th Amt.: [No State shall] deprive any person of life, liberty, or property, without
due process of law.
 Takings Clause
5th Amt.: … nor shall private property be taken for public use, without just
compensation.
 Federal statute
 State Constitutions and statutes
 Common law
 Two views of the image of property rights
 “Possessory” or “Bandle” Model: individual absolute, private
 “Relational” or “Network” Model: social or communal, contingent, shared
 Morris R. Cohen: “We must recognize that a property right is a relation not between
an owner and a thing, but between an owner and other individuals in reference to
things.”
 Property rights: right to possess, use, earn income, exclude others, alienate
Johnson & Graham’s Lessee v. McIntosh:
How does something become or come to be recognized in law as “property”?
SCOTUS (1823)
Facts Thomas Johnson, pls’ ancestor, purchased land in Illinois from Indian tribes.
Later, after the Declaration of Independence, McIntosh, df, obtained the rights to
the same land from the U.S. federal govt.
Procedural Pls, lessees of Graham (Johnson’s descendant), inherited the land and sued df
History asking the court of declare that df’s claim was invalid. Pls argued that their
claim was more legitimate because (1) Johnson had purchased the land earlier
and (2) their title came directly from the Indians who owned the land. The
Illinois District Court held for df, stating that the Indians never “owned” the
land and therefore, did not have right to sell it. (the doctrines of possession and
first-in-time)
Issue Whether pls’ title to the land, which was granted by Indian tribes can be
recognized in the courts of the U.S.?
Rule/ (Marshall, J.): No. “The absolute ultimate title has been considered as
Holding acquired by discovery, subject only to the Indian (Native American) title of
occupancy, which title the discoverers possessed the exclusive right of
acquiring.” Affirmed.
Reasoning The tribes were in “rightful possession” of the land they sold. Therefore, the
question is the Indians have the “power” of giving title which can be sustained in
U.S. courts. The principle governing the right of acquisition is that “discovery
gave title to the govt. by whose subjects ore by whose authority it was made
against all other European govts, which title might be consummated by
possession” (i.e., discovery leads to the right to obtain title).

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 The relationship btw the discoverer and the natives were to be regulated among
themselves. Indians may “retain possession” to land and “use it according to
their discretion,” but “their right to complete sovereignty as independent nations
were necessarily diminished.” Europeans asserted “ultimate dominion” and
exercised “a power to grant the soil while yet in possession of the natives.” After
the American Revolution, the land came under American rule and thus the
transfer to Johnson became invalid under American law.
 Johnson as a “public” common law opinion: doctrinal reasoning
 The doctrine of discovery: exclusive right of discoverer against other EU countries
 The doctrine of dominion: while respecting the right of the natives, EU nations asserted
the ultimate dominion to be in themselves, a power to grant the soil
 Conflict btw right of possession and power
 The right of dominion: “Thus has our whole country been granted by the Crown while
in the occupation of the Indians. These grants purport to convey the soil as well as the
right of dominion in the grantees.”
 The “principle” of sovereignty
 Jedediah Purdy: “The customary principle … is nested within a higher-order
principle of customary international law, a principle distinguishing between (at
least) two types of sovereigns: full sovereigns and imperfect sovereigns.”
 U.S. Property law as a political regime
 Joseph William Singer: “The history of United States law, from the beginning of the
nation to the present, is premised on the use of sovereign power to allocate property
rights in ways that discriminate—and continue to discriminate—against the original
inhabitants of the land. … We need to understand the racial context in which property
law developed. … Property rights are not self-defining. Rather, the legal system makes
constant choices about which interests to define as property.”
 Law and legal ideology: common law consists of doctrine, principles, rules, and ideology
 Judith Shklar: “The very word ‘ideology’ is apt to create misunderstandings as soon as it
is uttered.”
 Gordon: “What lawyers do should be examined as, among other things, the production
of ideology. …This . . . is equivalent to a recognition that both jurists and legal
practitioners are engaged in the task of trying to explain and rationalize what they see
happening in the world in terms of some general normative conceptions. …. Every
legal practice makes a contribution to building a general ideological scheme or
political language out of such explaining and rationalizing conceptions. …Very few of
them (lawyers) are self‒consciously doing anything of the kind.”
 Louis Althusser: “Ideology represents the imaginary relationship of individuals to their
real conditions of existence. … Law is a formal . . . system that cannot exist all by

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 itself. … On the one hand, it rests on part of the [state apparatus] for support. On the
other it rests on legal ideology and a little supplement of moral ideology for support.”
 Terry Eagleton: “modes of feeling, valuing, perceiving and believing which have some
kind of relation to the maintenance and reproduction of social power.”
 Another conception of property by Native Americans
 Mossasoit: “How can one man say it belongs only to him?”
 Tasunke Witko: “One does not sell the land people walk on.”
 Sealth: “We do not own the freshness of the air or the sparkle of the water.”
Dred Scott v. Sandford: Who can be a “subject” of property rights?
SCOTUS (1857)
Facts Before 1838, Scott served Emerson as a slave and accompanied him to a “free”
state (Illinois) and territory (later Minesota) and later returned to the slave state
of Missouri with him.
Procedural In 1846, Scott and his wife filed for battery and false imprisonment against new
History putative owner Sanford. They claimed that the time the Scotts spent on “free”
soil hade made them free persons, on the basis of the common law doctrine that
presence on free soil was considered emancipation regardless of the owner’s
intent. The trial court held for pls, and the Supreme Court of Missouri reversed,
holding that slave status “reattached” upon return. Pls filed in federal court,
arguing their diversity of citizenship from Emerson. The local circuit court held
for dfs, and pls appealed.
Issue Can a negro, whose ancestors were imported into this country, and sold as
slaves, become the citizens in the Constitution?
Rule/ No. Persons of African descent brought to the U.S. and held as slaves, and their
Holding descendants (negroes), are not considered citizens of the U.S. in the
Constitution and therefore are not entitled to rights and protections thereunder.
Reasoning The question is whether slaves who were “imported” into the U.S., sold, and
held as slaves are citizens in the constitutional sense. The word “people of the
United States” and “citizen” describe the political body which holds power
and conduct the govt. At the time the Constitution was drafted, slaves were
considered as a “subordinate and inferior class of beings, who had been
subjugated by the dominant race, and … had no rights of privileges but such as
those who held the power and the govt, might choose to grant them.” We are
powerless to decide upon the justice or injustice of laws. A state may confer on
an individual the character of citizen, but this does not change the constitutional
analysis. At the time of the Declaration of Independence, “negro” were articles
of commerce. Despite the words “all men are created equal,” the prevailing
negative view to African Americans at the time of drafting meant that the
Framers could not have intended those words to apply them.
 Whiteness as property
 Cherry I. Harris: “The social relations that produced racial identity as a justification
for slavery also had implications for the conceptualization of property. … [Slavery] as

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 a system of property facilitated the merger of white identity and property. … It
became crucial to have the property of being white.”
 For a long time, common law recognized the tort of defamation when a white person is
referred to as a black, because such a reference is deemed as a transgression on the
person’s “property in whiteness.”

 Note: his race, not his servitude denied Dred Scott’s eligibility (standing) for the protection
under Diversity Clause.

Association for Molecular Pathology v. Myriad Genetics:

What kinds of “objects” can be claimed and recognized as property rights?
SCOTUS (2013)
Facts Under 35 U.S.C. § 101, “Whoever invents or discovers any new and useful…
composition of matter, or any new and useful improvement thereof, may obtain a
patient therefore.” Df company discovered the exact location and sequence of
the BRCA1 and BRCA2 genes on chromosomes, the mutation of which
significantly increase a woman’s chance of cancer. This information allowed Df
to determine their typical nucleotide sequence and develop medical tests useful
for detecting mutations in a patient’s genes in order to determine whether they
have an increased risk of cancer. Df obtained a number of patents, including one
that gave it the exclusive right to isolate the genes, and one that gave it the right
to synthetically create the genes from mRNA into a creation called cDNA.
Procedural Pl filed a suit to seek a decision that DF’s patents are invalid. The district court
History granted summary judgment for Pl. The Cir. reversed, and the Sup. granted
certiorari and vacated remanded. On remand, the Cir. affirmed in part and
reversed in part, agreeing that both isolated DNA and cDNA were patentable.
Issue Whether the naturally occurring DNA is patent eligible under the statute.
Rule/ (Thomas, J.): No. A naturally occurring DNA segment is not patent eligible as
Holding an inventive act merely because it has been isolated from the rest of the
chromosome.
Reasoning Naturally occurring things may not be patentable even if the discovery were
groundbreaking because “[patentable things] are the basic tools of scientific and
technological work” that individuals use to create and innovate. Mayo Collab.
Sers. v. Prometheus Labs., Inc. (“[laws] of nature, natural phenomena, and
abstract idea are not patentable”). Df’s isolation of the genes is not “new…
composition of matter” and falls into the “natural phenomena” category. But
cDNA is created in a lab and therefore not naturally occurring. cDNA is
patentable, “except insofar as very short series of DNA may have no intervening
introns to remove when creating cDNA.”
Concur (Scalia, J.): I am unable to confirm the scientific details. But “the portion of the
DNA isolated from its natural state sought to be patented is identical to that
portion of the DNA in its natural state.” That suffices.
 The “product of nature” doctrine: laws of nature, natural phenomena, and abstract idea are
not patentable, because these are the basics to create and innovate.
 On the other hand, cDNA is patent eligible as a genetic technology.

14
 Justice Alito: “Isn’t this just a question of probability? A branch has fallen off a tree… it’s a
baseball bat.”
 More or less, everything might be a result of nature.
 What makes the SCOTUS competent to adjudicate questions about science?
 Should we have specialized courts to deal with technical issues? Df’s opinion is that the
court should let stand the decision of the Patent Board (administrative branch).
 Property and power
 James Madison, Federalist: “By a faction, I understand a number of citizens, ... who are
united and actuated by some common impulse of passion, or of interest, adverse to the
rights of other citizens, or to the permanent and aggregate interests of the
community. … The most common and durable source of factions has been the various
and unequal distribution of property.”

15
 Property law: a model-metaphor for rights
 Cato Institute: “Property is the foundation of every right we have, including the right to
be free.”
 Fletcher: “Private property was at the core of the founders’ vision of a new society; it
was critical in the Civil War when a plantation-based, slave-owning South sought to
defend its way of life; and it remains a foundation of the American understanding of
what makes democracy work.”

 Property Law: an image of eudaemonia (happiness)

 Fletcher: “for when the Bill of Rights was adopted in 1791, the critical trilogy of
American law became ‘life, liberty and property.’ The right to private property took the
place of the ‘pursuit of happiness’ in the American commitment to basic human rights”
 The right to own land (“A man’s home is his castle.”) as an embodiment of personal
sovereignty.

 Components of common law: revisited

 Lloyd Bonfield: “The common law is a set of legal rules and a system of analysis.”
 Prof. Thomas: “and also a production of ideology.”

Ⅲ．Contract

 Paradigm shift from Feudal to Liberal (multiple choices)

 Sir Henry Maine: “The movement of the progressive societies has . . . been a movement
from Status to Contract.”
 Prof. Heller: the “choice” theory of contracts. Purpose of contract law is to maximize
the exercise of choice.
 Social contract theory
 Fletcher & Sheppard: “The best way [to understand the basics of American private law]
is to approach them as aspects of political philosophy. What kind of legal culture is the
common law? Is there a single legal culture? Or is the common law constantly torn by
conflicting [political] assumptions about the possibility [and/or desirability] of
individual autonomy [or of the collective autonomy of social groups] in the face of the
demands of the state [or private power]?”
 Sources of contract law
 Common law = Judge-made law
 Uniform Commercial Code (UCC)
 Federal / Local statutes

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 Focuses of contract law
 Formation
 Interpretation
 Enforcement
 Remedies
Dementas v. Tallas: Formation
Court of Appeals of Utah (1988)
Facts Pl, Dementas rendered assistance to Tallas. Before his death, Tallas dictated a
memorandum to Dementas stating that $50,000 for his help over the years and
that he would change his will to make Dementas as an “heir for the sum of
$50,000.” Tallas notarized the document and delivered it to Dementas.
Procedural After Tallas died without changing the will, Dementas timely filed a claim for
History $50,000 with Tallas’s estate. The lower court found the memo as unenforceable
for lack of consideration.
Issue Is there any valid consideration for Tallas’s promise to pay money to the Pl?
Rule/ No. A purported contract expressing a promise to pay for past services rendered
Holding gratuitously is unenforceable for lack of consideration.

17
 Reasoning A generally accepted definition of consideration is that a legal detriment has
been bargained for and exchanged for a promise. Miller v. Miller (Wyo.
1983). A mere promise creates no legal duty. Cobin on Contracts § 110. A
returned promise, on the other hand, must be bargained for. Resr. (2d) Contracts
§ 71. To determine whether there is consideration, one focuses on whether there
is any detriment, not whether such detriment embodies fair market value.
Dementas’ services were past consideration, which are the legal equivalent of no
consideration; in other words, there was no bargain. Cobin on Contracts § 210;
County of Clark v. Bonanza (Nev. 1980). We refuse to embrace a “moral
obligation” concept as other courts have done, because “that would practically
erode to the vanishing point the necessity for finding a consideration.” And even
if the concept were to be applied, it is irrelevant here, because the trial court
found that Dementas rendered the services with the expectation of not being
compensated.
 Definition of contract in U.S. law
 A. Corbin: “A contract is a promise between two or more parties that the law
recognizes as binding by providing a remedy in the event of breach. However, the
mere fact that one man promises something to another creates no legal duty and
makes no legal remedy available in case of non-performance.”
 E.J. Baehr and Another v. Penn-O-Tex Oil Corp.: “Nothing less than the whole body of
applicable precedents suffices to define the term ‘contract’.”
 Architecture of contract
 Offer: a reasonable person understands an acceptance would result in an contract
 Acceptance: conduct from which agreement can be reasonably inferred
 Consideration: bargain of benefits or detriments, quid pro quo (this for that). Note:
courts are reluctant to inquire into the equivalence.
 Two stories of contract
 Promise by Homo moralis: not U.S. law, morality, ethics
 Bargain by Homo economicus, arms-length transactor: U.S. law, market, economics
 Uncouple law and morality
 Identify law of law with the market economy
 Jurisprudential (Ideological) paradigm shift (1): from moral values to economic value
 Chirelstein (moral): “Legal rules in some way provide assurance that the agreement will
be honored. Contract law is supposed to implement that expectation.”
 Kronman & Posner (economic): “The basic [economic function of contract law] is to
provide a sanction for reneging. … To the extent that contract doctrines reflect judicial
efforts, whether deliberate or unconscious, to achieve efficiency, economics may help
toward an understanding of the meaning of the doctrines and their appropriate limits.”
 Unconscious: A. Smith’s invisible hand

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  Posner on the value of efficiency: “By a process of voluntary exchange, resources are
shifted to those uses in which the value to the consumer, as measured by the consumer’s
willingness to pay, is highest. When resources are being used where their value is
greatest, we may say that they are being employed efficiently. … Efficiency is a
technical term: it means exploiting economic resources in a such a way that human
satisfaction as measured by aggregate consumer willingness to pay for goods and
services is maximized. Value too is defined by willingness to pay.”
 Efficiency is to maximize aggregate value (= willingness to pay)

 Jurisprudential paradigm shift (2): from promise keeping to (potential) promise breaking
 Ray Kroc in the Founder: “Contracts are like hearts – they’re made to be broken.”

Wolf v. Marlton Corp.: duress, morality

Facts Pls, husband and wife, made a deposit under a contract to purchase a house to be
built for them by df corporation. Df completed the “closing in” of the house,
notifying pls’ attorney of that fact. Pls experienced marital difficulties and
instructed their attorney that they would like to get out of the agreement, which
stated that after the “closing in.” Thus, under the contract, pls must pay
additionally. The contract further provided that “[should] Buyer fail to make
payment…as herein provider, the sum or sums paid on account may be retained
by Seller either on account of the purchase price or as compensation for the
charges and expenses which Seller has sustained, as Seller may elect, in which
latter case this contrast shall become null and void…” Pls’ attorney told df’s
sales agent that if they had to purchase the home, they would arrange a
subsequent resale with “a purchaser who would be undesirable in our
tract,” and made additional verbal threats toward df’s president that he would
ruin dfs’ president’s building career. Df sold to a third party the home which had
been intended for the pls.
Procedural In order to recover the deposit, pls sued in Camden County Ct., which held for
History pls. On appeal, pls argued that a threat to do what one has a legal right to do
does not constitute duress. Smith v. White (N.J. 1940).
Issue Whether the threats, assuming they were made, constituted duress and justified
df in declaring a breach of the contract?
Rule/ When a contracting party for purely malicious and unconscionable motives
Holding makes an otherwise legal threat specially selected to injure the other party’s
business, such conduct is wrongful under the law of duress. Remanded.
Reasoning Whether duress existed in a transaction is generally a matter of fact, but what in
given circumstances will constitute duress is a matter of law, so we may reach
this question. If one party makes it impossible for the other to carry out the terms
of the contract, the latter may regard the contract as breached and recover
damages. Tanenbaum v. Francisco (N.J. 1933). Duress is tested by the state of
mind induced thereby in the victim, not by the nature of the threat itself.
Rubenstein v. Rubenstein (N.J. 1956). Pls’ premise is wrong because a “moral or
equitable” threat may be legally wrongful even though the act threatened is
legal. The trial judge should exercise discretion in factual determinations,

19
 including the actual amount by which df was damaged by reason on pls’ breach.
 The doctrine of duress
 Restatement, Contracts, §492(g): “Acts or threats cannot constitute duress unless they
are wrongful. … Acts may be wrongful within the meaning of this rule though they are
not criminal or tortious or in violation of a contractual duty. … Acts are wrongful in a
moral sense, if made use of as a means of causing fear.”
 Hypothetical case: would the result be the same if we add a factual twist?
 Buyers tell the seller “If you don’t let us cancel this contract, we will sell our house to a
person who is on the state list of convicted sex offenders and we’re going to let
everyone the fact.” The result would not change. Duress is not about the result, but
about what it makes the person threatened do.
 What is legally enforceable changes according to contemporary social norms
 In Shelley v. Kramer (1948), the SCOTUS ruled that states cannot enforce a covenant
between private parties that discriminates because it violates the Equal Protection
Clause/Due Process of the 14th Amt. of the Constitution. (State Action Doctrine)
 The Civil Rights Act of 1964 prohibits discrimination based on demographic factors.
 Prior to neoliberalism
 John Ruggi; “democratic capitalism,” three domains of human life; (1) govt./state; (2)
civil societies (private life); and (3) market
 Embedded liberalism: the market is embedded in society. The market is subject to
democratic deliberation. This version of liberalism promotes free trade, generous
welfare programs, and active government role in steering the national economy, which
is permissible because the market is within society and notions of social democracy are
more accepted within civil societies.
 “Neoliberal” contract jurisprudence: from morals to markets
 David Harvey: “theory of political economic practices that proposes that human well-
being can best be advanced by liberating individual entrepreneurial freedoms and skills
within an institutional framework characterized by strong private property rights, free
markets, and free trade. If markets do not exist then they must be created, by state
action if necessary. But beyond these tasks the state should not venture. State
interventions in markets must be kept to a minimum. it seeks to bring all human
action into the domain of the market.”
 Ronaldo Munck: “Policies of ‘deregulation’ have, in fact, been creating new forms of
regulation with new-market-oriented rules and policies to facilitate the development of a
‘new’ capitalism. Society is transformed in the image of the market and the state itself
is now ‘marketised’.”

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  e.g., political campaigns, policies favor for donors
 Fundamental factors of neoliberalism
 Deregulation: Deregulation is the preferred modality for state intervention. The market,
rather than the State, ought to regulate. This will unleash economic growth, according to
the myth of the neoliberal project.
 Liberalization: The IMF and the World Bank conditioned aid to countries in the Global
South on the adoption of free market/neoliberal policies.
 Privatization: Public Institutions are to be disfavored and dismantled, being replaced
with private market control over industries. The market runs what the State once ran.
(e.g., private prisons, telecommunications). This is a bipartisan (the Democratic Party
and the Republican Party) effort. Every President since Reagan, or arguably his
predecessor Carter, has governed using neoliberal means.
 Reagan: “Government is not the solution; government is the problem.”
 Margaret Thatcher: “There is no such thing as society. There are only families and
individuals.”
 Austerity: Fiscal and monetary policies which favor owners of capital. Fiscally, this
means tax cuts for the wealthy. Monetarily, this means central bank policies which favor
markets, like Federal Reserve Chairman Volcker’s decision to let interest rates float, as
well as Bernanke’s decision to start QE in response to the late 2000s housing crisis.
 Moral hazard
 Laissez-Faire believes moral hazard to be that market actors bear both the benefits and
risks of market actions. Neoliberalism rejects this understanding. Moral hazard is a
bilateral exchange of bearing risks for reaping profits only for the average person. For
institutional market actors deemed “too big to fail,” (e.g., Goldman Sachs, AIG, J.P.
Morgan Chase), they do not bear the risk of free markets.
 Legal neoliberalism: legal institutions, legal thought and legal practice are transformed in the
image of the market and the law itself is now “marketized”
 Chicago School led by Milton Friedman
 Lawyering, as a profession to as an economic role. Legal education from a profession to
a marketized commodity, which leads students to borrow money from banks and pays.
 Efficiency v. Justice (1973)
 John Rawls (“A Theory of Justice”): Justice as Fairness is the main idea, exemplified
by his thought experiment of the Veil of Ignorance, which asks us to choose policies
which maximize the public good and fairness from a detached perspective, i.e., you do
not know your own socioeconomic, demographic standing.
 Legal Formalism 2.0
 Formalism: categorizing the world into discrete units.
 Efficiency is the operative version of legal formalism

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 Efficient breach of contract
 O. W. Holmes, Jr.: “The law makes the promisor pay damages if the promised event
does not come to pass. In every case it leaves him free from interference until the time
for fulfillment has gone by, and therefore free to break his contract if he chooses.”
 Neil Duxbury: “Breaches of contract ought to be permitted … so long as they meet with
a peculiar standard of efficiency. Although the breach may have been willful, it has
nevertheless generated an improvement in the overall economic position of the
parties.”
 Law and economics (efficiency) v. process tradition (moral)
 Arther A. Leff: “If human desire itself becomes normative (in the sense that it cannot be
criticized), and if human desire is made definitionally identical with certain human
acts [here ‘willingness to pay’], then those human acts are also beyond criticism [in
normative terms]; everyone is doing as best he can exactly what he set out to do which,
by definition is ‘good’ for him.”
 Organization of social order (Feinman and Gabel)
 Ideological image: voluntary contracts by free and equal citizens’ choices
 Socioeconomic reality: competition, coercive, class dominance
Lochner v. New York: law and unequal market power (image and reality)
SCOTUS (1905)
Facts/ Df Lochner was charged with requiring and permitting a baker to work more
Procedure than 60 hours in one week in violation of New York state law.
Issue Does the NY State Law (using the NY state police powers to regulate public
health) violate the Constitution?
Rule/ (Peckham, J.): Yes. A state may, not consistent with the 14th Amt.’s Due
Holding Process Clause, regulate the working hours mutually agreed upon between
an employer and employee.
Reasoning State govt. cannot deprive a person of liberty without the due process of law.
The right to buy or sell labor is a part of the liberty protected by the Due Process
Clause. The statute infringes upon the right to contract of employers and
employees. There is a limit to the valid exercise of the police power of the state.
There is no reasonable ground for the interference.
Dissents (HARLAN, J.): The statute only applies to bakes and confectioners, who unlike
other professionals constantly breathe unhealthy air. There is much scientific
evidence to support this.
(HOLMES, J.): The decision is based on an economic theory which a large part
of the country does not entertain, and which contradicts other Due Process
decisions of this courts (citing cases).
 Law and unequal market power

22
  Cass Sunstein: “The Lochner Court chose the status quo, as reflected in market
ordering under the common law system. . ..”
 Prof. Thomas: notions of contract in private law are eventually applied to public law.
 David N. Mayer: “. . . in the middle of the eighteenth century . . . ‘contract began to emerge
from the shadow of property’; with the emergence of contract, there arose in Anglo-
American common law ‘a new way of thinking about legal relations, emphasizing
intention rather than possession, voluntarism rather than vestedness’...”
 Criminal law contract: plea bargains
 Posner: “The major function of criminal law in a capitalist society is to prevent people
from bypassing the system of voluntary, compensated exchange—the ‘market’. …
Plea agreements are interpreted under principles of contract law, because prosecutors
draft these agreements and enjoy advantages in bargaining power over the defendants
(to understate the matter), courts will construe plea agreements strictly against the
government.”
Ⅳ．Torts
 Negative definition of torts: “civil liability not arising out of contract”
 Coleman: “Arguably, both the laws of tort and crime impose duties or prohibitions on
agents, whereas the law of contract confers powers on individuals to create legally
enforceable rights and duties.”
 Three bases of tort law liability
 Intentional torts:
 Assault, battery, Intentional infliction of severe emotional distress, false
imprisonment, invasion of privacy, defamation, tortious interference with contract,
marital torts (Note: out of the scope of lecture)
 Negligence (“fault”): focus of lecture
 Strict liability (“no fault”)
 Examples of torts lawsuit
 Heslin v. Jones: Defamation case brought against a prominent shock radio figure, Jones.
After Sandy Hook massacre, he aired that the killing was a hoax. Plaintiffs, including
parents of the victims, won.
 Cases related to COVID-19
 A fed. jury awarded $31 million in damages to Kobe Bryant's widow et al for emotional
distress.
 Elements of negligence
 Duty of care
 Breach
 Cause in fact: simple, actual, historical fact
 Proximate cause (legal cause)
 Injury
 Damages

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 Why negligence (fault) as a condition of liability?
 Holmes: “The requirement of an act is the requirement that the defendant should have
made a choice. But the only possible purpose of introducing this moral element is to
make the power of avoiding the evil complained of a condition of liability. There is no
such power where the evil cannot be foreseen.”
 No legal culpability without moral blameworthiness, no moral blameworthiness with
out freedom of choice, no choice without reasonable foreseeability
 Why strict liability?
 Holmes: “I mean the notion that a man is answerable for all the consequences of his
acts, or, in other words, that he acts at his peril always, and wholly irrespective of the
state of his consciousness upon the matter”
 The notion of contributory negligence
 Defendant can file a counterclaim that Plaintiff is also partly blameworthy for the result.
 Finding case in fact
 But for test: if not the df’s behavior, the injury would not have happened.
 Substantial Factor test: whether the df’s conduct is a substantial factor in the injury.
 Example of test standards decision: the Monsanto “Roundup” cases
 Pl argued they had gotten lymphoma (a type of cancer) because of Roundup. If they had
adopted the other products, they would. This case cannot pass the but for test, but can
substantial factor test.
 The doctrine of proximate cause
 From a viewpoint of legal policy, limit defendant’s liability.
 S. Malone: ““Proximate” or “legal” cause has claimed the lion’s share of attention, …”
 New York Central Railroad Co. v. Grimstad (1920)
 (Facts & Procedure): a person fell over the side of the boat and drowned. The Survivor
sued under the theory that it was negligent for the defendant to operate the boat without
lifejackets. If lifejackets were equipped, the plaintiff could have utilized them to save
his life.
 (Opinion): The proximate cause of the decedent’s death was his falling in the water.
… Whether a life buoy would have saved decedent from drowning, we think the jury
were left to pure conjecture and speculation.”
 Atlantic Coast Line Railroad Co. v. Daniels (1911)
 (Opinion): Cause and effect find their beginning and end in the limitless and
unknowable. Therefore courts, in their finitude, do not attempt to deal with cause and
effect in any absolute degree, but only in such a limited way as is practical and as is
within the scope of ordinary human understanding. Hence arbitrary limits have
been set, and such qualifying words as ‘proximate’….”

Ryan v. N.Y. Central Railroad Co.: “proximate” causation

Court of Appeals of NY (1866)

24
 Facts The defendant, N.Y. Central Railroad Co., by the careless management, or
through the insufficient condition, of one of its engines, set fire to its
woodshed. The fire spread to the plaintiff’s house, situated at 130 feet distant
from the woodshed, was consumed.
Procedure Pl filed an action to recover from df the value of his house. The Circuit Court
nonsuited, and the General Term of the fifth district affirmed.
Issue Is df liable for negligence to pl for the damages because of the fire?
Rule Df is not liable to damages too distant from the direct result of the negligence.
Holding No. in case of negligent firing, owners are liable to the damages incurred by the
immediate result of the negligence. The immediate result in this case is the
destruction of df’s wood and sheds; pl’s house is too remote and unusual.
Reasoning Liable only for damages which are necessary consequences of negligent acts.
The spread of the fire to the house is unforeseeable.
Economic rationality: each person runs the hazard of his neighbor’s conduct and
enabled to obtain a security by insurance.
 Policy implications (capitalism) /doctrinal analysis
 Francis Wharton: “The capitalist, therefore, becomes liable for all the disasters of which
he is in any sense the condition…. there would soon be no capitalist to be found to be
sued.”
 If not limit the range of liability, economic activities (especially, large ones) stop.
 Horowitz: “The decision in Ryan is one of many in the period after 1840 limiting the
liability of the agents of economic growth, especially the railroad. Many judges, to
be sure, manipulated the proximate‒remote distinction in other cases to limit
entrepreneurial liability, but few did so as brazenly as Ryan, threatening to bring the
entire intellectual system into disrepute.”

 Paradigm shift: from negligence & duty to “the cost of accidents”

United State v. Carroll Towing Co.: Hand Formula
Court of Appeals for the Sec. Circuit Court (1947)
Facts Connors Company chartered the barge ‘Anna C’ to the Penn. Railroad Co. The
barge, which had lifted a cargo of flour, was moored off Pier 58 and afterward
shifted to Pier 52. Later, five other barges were moored outside Anna C and her
line to the pier were not strengthened. The Grace Line chartered the tug ‘Carrol’
and sent it to drill put one of the barges in the adjacent Public Pier and in other
to do so it was necessary to throw of the line btw two tiers. On board the tug was
a harbomaster employed by GL. The harbomaster and the deckhand went abord
the Anna C and readjusted its fasts to their satisfaction. After doing so, they
threw off the line and boarded the tug, which backed away from the outside
barge. The tier of Pier 52 broke adrift because the fasts of Anna C rendered. The
Anna C hit a tanker and the propeller of the tanker made a hole in Anna C and it
sunk with the cargo of flour. The Carrol would have been able to prevent
Anna C from sinking but the bargee was absent to inform that it was
leaking.
Procedure Appellants sought review of a judgment from a district court that held them

25
 liable for damage to a barge and for lost cargo.
Issue Whether Connors, GL, and Carrol should be held partially liable for damage.
Especially, Conner is also liable despite her damage.
Rule Court reversed, adopting the formula: liability depends upon whether burden (B)
is less than injury (L) multiplied by probability (P). if B<PL, then breach.
Holding Yes. Court reversed and modified as follows: (1) Since the harbomaster and the
deckhand took part in the decision on the moored barges, Carrol and GL are held
equally liable. (2) because there was no bargee aboard the Anna C, Cnnors is
liable for 1/3 of the sinking damages, while GL and Carroll are equally liable to
the rest.
Reasoning There is no general rule to determine when the absence of a bargee will make
the owner of the barge liable for injuries to other vessels if such barge breaks
free from her moorings, therefore the court sets forth the following variables to
calculate the damages: (1) the probability that the barge will break away, (2)
the gravity of the resulting injury, and (3) the burden of the adequate
precautions.

 The calculus of risk by Hand formula

 B: burden of accident avoidance
 P: probability of accident
 L: loss in the event of an accident
 B > PL then NO breach
 Note: Judges assume that tortfeasor is a reasonably prudent person.
 Note: This formula is not so much numerical as interpretative.
 Example of calculus application: the Ford Pinto case & the Monsanto “Roundup” litigation
 Ford found the defect of Pinto, which would lead to lethal accidents. However, the firm
decided not to correct its design based on economic calculus.
 Grimshaw v. Ford Motor Company: “Ford could have corrected the hazardous design
defects at minimal cost but decided to defer correction of the shortcomings by engaging
in a cost‒benefit analysis balancing human lives and limbs against corporate
profits.”
 In “Roundup,” the company knew a chemical would harm people.
 Sources and dynamism of tort law
 Reynolds: “Tort law is a common law system, which means that its rules are within a
body of judicial opinions. … But … In every state, a complex web of statutes written
by legislators. … It is plaintiffs (and, to a lesser extent, defendants) who frame the
facts and arguments.”
 Prof. Thomas: plus, market actors, including investors, consumers, and workers.
 Economic analysis of tort law

26
 Holmes: “The man of the future is the man of statistics and the man of economics.”
 Posner: “Hand was adumbrating, perhaps unwittingly, an economic meaning of
negligence. Because we do not like to see resources squandered, a judgment of
negligence has inescapable overtones of moral disapproval, for it implies that there
was a cheaper alternative to the accident.”
 Coase Theorem (reframed): the efficient allocation of resources is a synonym for the
morally good allocation of resources.
 The rationale of the L&E school. It is also the neoliberal basis for morally justifying
the behaviors of market actors.
 Prof. Thomas: The conservation of scarce resources and finding better ways to
maximize their usage (i.e., the efficient allocation of resources) is not historically
bound to neoliberalism.

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 Coase: the problem of social cost
 The Coase theorem postulates that generating the most efficient economic outcomes
between two parties, with no transactional costs/no informational costs.
 A critique of the doctrine of objective causation
 Calabresi: “Cause is a ‘weasel’ word.”
 Coase believes that (classical) tort law restrains allocation. The real question is which
person can maximize the value and then, is allowed to harm the other.
 L&E’s tort law is just?
 Posner: “I hate the word ‘justice.’ The word is meaningless.”
 Zipursky: “Posner’s contempt for morally tinged accounts of legal language is so
profound that he cannot see the moral language as a real option.”
 Stiglitz: “There is more to a successful economy than just efficiency.”
 Is there more to a successful economy than just maximizing the value of production?
 Some possibilities: human dignity, community, flourishing and the common good.
 ‘Maximizing the value’ norm cannot restrain gun manufacturer’s pursuit of profit. Still,
neoliberal logic endorses such an economic activity.
Ⅵ．Corporate

 Epigraphs: different conceptions of corporation

 Gomory & Sylla: “General incorporation laws that were introduced mostly in the 1840s
and 1850s…. The United States thus became what might be called the first corporation
nation.”
 Wharton: “We are accustomed to look with apathy at the ruin of great corporations and
to say, ‘well, enough, they have no souls, they can bear it without pain, for they have
nothing in them by which pain can be felt.’”
 Romney: “Corporation are people, my friend.”
 Different conceptions of corporation: no souls/friend

 Delaware: corporation state

 Eight of the ten largest U.S. companies by revenue are incorporated in Delaware.
 Greenfield: “Delaware … is the state of incorporation for more than fifty percent of
U.S. public companies and more than sixty percent of the Fortune 500. … In fact, …
incorporation and franchise fees provide one-quarter of the state’s total revenue.”

 The internal affairs doctrine

 Restatement (Second) of conflict-of-laws § 302: “Issues involving the rights and
liabilities of a corporation … are determined by the … local law of the state of
incorporation.”
 Exception from conflict of laws principles

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  Greenfield: “Corporations can, in effect, choose which corporate governance laws will
apply to them. … The ability of corporations to elect their governance law is
illegitimate as a democratic matter and inefficient as an economic matter. … It is only
corporate law that is left to the corporation itself to choose.”

Burwell v. Hobby Lobby Stores, Inc.:

SCOTUS (2014)
Facts Under the Affordable Care Act (ACA, “Obamacare”), the Department of Health
and Human Services (HHS) issued a regulation that all FDA approved
contraceptive methods should be covered under employer insurance. HHS did
not permit exemptions from the mandate for “religious employers” to
enterprises for profit.
Hobby Lobby, a for-profit closely held corporation and its owner sued arguing
that this policy violated their religious beliefs as protected under the federal
statute (RFRA).
Note: not a Cons. case but a statutory case. RFRA reflects Congress’s
interpretation of SCOTUS case laws regarding religious freedom.
Procedure Case1(Hobby Lobby): Fed. District Court of Oklahoma denied pl’s motion for
preliminary injunction. Pl appealed. 10th Circuit Court reversed and remanded.
Case2(Conestoga): Fed. District Court of Penn. did so. 3rd Circuit Court
affirmed.Certiorari was granted in each case and cases were consolidated.
Issue Does the RFRA permit HHS to issue regulations requiring a closely held
corporation to provide employee health-insurance coverage for methods of
contraception to which the company’s owners are opposed because of their
“sincerely held religious beliefs”?
Rule Under the statute, a gov. action imposing (1) a substantial burden on religious
exercise must serve (2) a compelling interest. Plus, (3) it must adopt the least
restrictive means of serving the goal.
Holding (Alito, J.): No. The agency lacks authority under the statute (RFRA) to
compel a closely held corporation to provide health-insurance coverage for
methods of contraception when provision of such coverage would violate the
company owners’ sincerely held religious beliefs.
Reasoning Under RFRA, (1) a govt. action that imposes a substantial burden on
religious exercise must (2) serve a compelling government interest . . .[but] in
order for the HHS mandate to be sustained, it must also (3) constitute the least
restrictive means of serving that interest, and the mandate plainly fails that test.
There are other ways in which Congress or HHS could equally ensure that
every woman has cost‒free access to the particular contraceptives at issue here.
(On the question that RFRA protection includes for for-profit company): in the
definition of “person” in the Dictionary Act, the word contains for-profit
corporation. There is no provision in RFRA that suggests otherwise.
Dissenting (Ginsburg, J.): By incorporation a business, an individual separates herself from
the entity and escapes personal responsibility for the entity’s obligations. Why
can owners only hold and enjoy when corps. serve the interest of those who
control? Corporations have no consciences, no beliefs, no feeling , no thoughts,
no desires.

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 Scope of the holding
 “Our decision is concerned solely with the contraceptive mandate. … Other coverage
requirements, such as immunizations, may be supported by different interests.”
 Prof. Thomas’ comment: another viewpoint. women’ s gender equality
 Hypothetical case: Word Up
 What or Who is a corporation?
 “Congress provided protection for people like the Hahns and Greens by employing a
familiar legal fiction: It included corporations within RFRA’s definition of “persons.””
 Alito, J.: “A corporation is simply a form of organization used by human beings to
achieve desired ends. An established body of law specifies the rights and obligations of
the people (including shareholders, officers, and employees) who are associated with
a corporation in one way or another. When rights, whether constitutional or statutory,
are extended to corporations, the purpose is to protect the rights of these people. …
Corporations, “separate and apart from” the human beings who own, run and employ
them, cannot do anything at all.”
 Legal personality of a corporation is to protect the rights of natural persons.
 Millon: “Theories about ‘what corporations are’ influence thinking about how the law
ought to treat corporate activity. … In other words, corporate theory can be used to
legitimize or criticize corporate doctrine.”
 Prof. Thomas: Alito, J. in Burwell chose to apply the protection of RFRA.

 What makes this theory of the “corporate personhood” a legal theory?

 Lochner v. New York: “It is a question of which two powers shall prevail, the power of
the state to legislate or the right of the individual to liberty of person and freedom of
contract.”
 Formulation as the general police power v. liberty of contract
 Cass Sunstein: “The Lochner Court chose the status quo, as reflected in market
ordering under the common law system, as the baseline for measurement of departures
from neutrality and of action and inaction. Under this framework, the common law
categories were taken as a natural rather than a social construct.”
 Common law categories, including corporation personhood, as a baseline.
Skepticism against govt. action

 Conceptions of corporate identity: (1) Aggregation v. Entity

 Aggregation) Alito, J. in Hobby Lobby: “Corporations, “separate and apart from” the
human beings who own, run and employ them, cannot do anything at all.”
 Entity) Amicus Curiae brief in Hobby Lobby: “The essence of a corporation is its
‘separateness’ from its shareholders. It is a distinct legal entity, with its own rights
and obligations, different from the rights and obligations of its shareholders. … This is
true whether the for-profit corporation has one, one hundred, or one million
shareholders.”
 Cedric Kushner Promotions, Ltd. v. King, 533 U.S. (2001)

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  Another brief in Hobby Lobby: “The religious views of Hobby Lobby’s shareholders
cannot be ‘passed through’ to the corporate entity.”
 (2) Artificial creatures of law and policy v. Natural products of market activity
 (3) Public social activity v. Private, individual activity
Dodge v. Ford Motor Company:
170 N.W. 668 (Mich. 1919)
Facts Ford decided to decrease the price of cars, because he wanted the cars to be
affordable for more people. Further, he announced a plan to end special
dividends to the company’s shareholders, and would instead take the profits and
reinvest them to employ more people and build more factories.
Procedure Pls, shareholders of Df, ask a decree requiring the distribution of at least 75 % of
the cash surplus. At the trial court, a decree requiring the dividends of one half
of the surplus. Df appealed.
Issue Whether shareholders can force Df company to payout dividends.
Rule The corporation’s directors have some discretion to chart the course of the
business. However, that discretion does not extend to the reduction of profits
or the non-distribution of profits among shareholders to benefit the public.
Holding Yes.
Reasoning A corporation is organized and carried on primary for the profit of the
stockholders. The discretion of directors is to be exercised in the choice of
means to realize that. Indeed, the Court noted that an incidental humanitarian
expenditure for the benefits of the employees is permissible.

 Conceptions of corporate purpose: only shareholders’ interests or more?

 Alito, J.: “A corporation is simply a form of organization used by human beings to
achieve desired ends. An established body of law specifies the rights and obligations of
the people (including shareholders, officers, and employees) who are associated with
a corporation in one way or another.”
 (1) Shareholder theory
 Opinion in Dodge v. Ford Motor Company: “A business corporation is organized and
carried on primarily for the profit of the stockholders. The powers of the directors are
to be employed for that end. The discretion of directors is to be exercised in the choice
of means to attain that end.”
 (2) Management theory
 Gomory & Sylla: “The management that [controls] a corporation, [exercising] powers
obtained on a quasi-contractual basis, ‘can operate it in their own interests, and can
divert a portion of the asset fund or the income stream to their own uses’.”
 (3) Stakeholder theory
 Berle & Means: “The modern corporation serve not alone the owners or the control but
all society. … balancing a variety of claims by various groups in the community and
assigning to each a portion of the income stream on the basis of public policy rather
than private cupidity.”
 Debate: wealth maximization v. social responsibility

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  The Business Roundtable (1981): the BR issued a statement recognizing the
stewardship obligations of corporations to society.
 BR (1997): the BR wishes to emphasize that the principal objective of a business
enterprise is to generate economic returns to its owners.
 BR (2019): we share a fundamental commitment to all of our stakeholders.
 Ideology and corporation
 Gordon: “Every legal practice makes a contribution to building a general ideological
scheme or political language. … every legal act has a specific local purpose and
consequence quite apart from its role in the construction of an ideological framework.”
 T. Roosevelt (1901): “Great corporations exist only because they are created and
safeguarded by our [national] institutions; and it therefore our right and our duty to
see that they work in harmony with those institutions.”
 Coolidge (1925): “The chief business of the American people is business.”
 Lewis Powell, Attack on the American Free Enterprise System (1971): “No
thoughtful person can question that the American economic system is under broad
attack. The American political system of democracy under the rule of law is also
under attack.” This memo Activated “corporate citizen” view in law and policy,
advanced corporate interests.
 Obama (2008): “Look, I am a pro-growth, free market guy. I love the market.” “I
also think that there is a connection between the freedom of the marketplace and
freedom more generally.”
Ⅶ. Criminal Law
 Epigraph
 Marx: “A criminal produces crimes. … The criminal produces not only crimes but also
criminal law, and with this also the professor who gives lectures on criminal law and
in addition to this the inevitable compendium in which this same professor throws his
lectures onto the general market as “commodities”.”
 Definitions by Black’s law dictionary
 Criminal Law: The substantive criminal law is that law which for the purpose of
preventing harm to society, (a) declares what conduct is criminal, and (b) prescribes the
punishment to be imposed for such conduct.
 Crime: A positive or negative act in violation of penal law; an offense against the State
or United States. … A crime may be defined to be any act done in violation of those
duties which an individual owes to the community, and for the breach of which the law
has provided that the offender shall make satisfaction to the public.
 Social aspects of crime and punishment Law in the U.S.
 The U.S. has the most prisoners of any developed country in the world — and it has the
largest total prison population of any nation.
 The research suggests that by the time they reach the age of 23 nearly one in three
Americans have an arrest record.

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  people with criminal records as four-year college graduates; larger than the U.S.
population in1900. Nearly 50 percent of black males and almost 40 percent of white
males are arrested by age 23.
 Intersections of incarceration and illiteracy: the “school to prison pipeline”
 3/5 prisoners can’t read. 85% of the young into the criminal justice system are
functionally illiterate, etc.
 Law, criminalization, mass incarceration: the “prison-industrial complex”
 Jonathan Simon (2007): “Sociologists and criminologists have called ‘mass
imprisonment’… If present trends continue, nearly one in 15 Americans born in 2001
will serve time in prison during their lifetimes. Broken down by race and gender, the
odds are even more daunting: one in three black men, ….”
 Eisenhower: “This conjunction of an immense military establishment and a large arms
industry is new in the American experience. … The total influence—economic,
political, even spiritual—. Our toil, resources, and livelihood are all involved. … by
military-industrial complex.”
 “prison-industrial complex” similarly influences.
 Media images & narratives: media air crimes as usual
 Sources of U.S. criminal law and procedure
 Common law
 Federal and state Constitution/statute
 The model penal code (MPC)
 Elements of crime
 Actus Reus: objective
 Pursuant to MPC: 1. Conduct of a certain nature, 2. Attendant circumstances at the
time of the conduct, or 3. The result of that conduct
 Mens Rea: subjective
 Elonis v. U.S.: “The ‘central thought’ is that a defendant must be ‘blameworthy in
mind’ before he can be found guilty, a concept courts have expressed over time
through various terms such as mens rea, …’
 The notion of “morally blameworthy individual”: subject or object of criminal law?
 Morissette v. U.S.: “The contention that an injury can amount to a crime only when
inflicted by intention is no provincial or transient notion.  It is as universal and
persistent in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between good and evil.”
 MPC: Purposely, knowingly, recklessly, negligently
 The notion of “malum in se” and “malum prohibitum”
 Malum in se: an intrinsically bad act
 Malum prohibitum: a bad act because the sovereign defines the act as bad.

Roper v. Simmons

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SCOTUS (2005)
Facts Df, Simmons, committed a capital crime, by robbing, kidnapping and killing
Mrs. Crook, at the age of 17. He was tried as an adult and sentenced to death at
a state trial court. The Missouri Sp. Court affirmed. After proceedings had run,
the SCOTUS held in Atkins v. Virginia that the 8th and 14th Amt. prohibit the
execution of a mentally retarded person.
Procedure Df filed a petition for state postconviction relief arguing that the reasoning of
Atkins established the Cons. prohibits the execution of a juvenile under 18 when
he the crime was committed. The Missouri Sp. Court agreed.
The SCOTUS granted certiorari.
Note: Simmons committed under 18, but sentenced at 18, which suggests that
the SCOTUS wanted to address this issue.
Issue Whether it is constitutional to execute a juvenile offender who was from 15 to
18 years old when he committed a capital crime under the 8th and 14th Amts.
Holding/ (Kennedy J.,): Affirmed. 8th and 14th Amendments prohibit death penalty against
Rule those who was minor when he committed a crime.

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Reasoning the expression “cruel and unusual” in 8th Amt. constitutes expansive language.
(1) development of a consensus: the beginning point is a review of objective
indicia of consensus. 30 States prohibit the juvenile death penalty. Even in
the 20 States without a formal prohibition, the practice is infrequent, which
provides sufficient evidence that today our society views juveniles as
“categorically less culpable than the average criminal.”
(2) Since death penalty is the most severe, it must be limited to a narrow
category of crimes and offenders. Categorically, juveniles are not extremely
culpable. Three general differences; (1) a lack of maturity; (2) vulnerability
to negative influence; and (3) more transitory; render suspect any conclusion
that a juvenile falls among the narrow category. Plus, neither retribution nor
deterrence provides adequate justification toward juvenile’s death penalty.
(3) Furthermore, international trend, including the UN Convention.
Dissent Scalia, J.): On the evolving-standards hypothesis, the only legitimate function of
this Court is to identify a moral consensus of the American people. By what
conceivable warrant can nine lawyers presume to be the authoritative conscience
of the Nation? The Court’s argument that American law should confirm to the
laws of the rest of the world ought to be rejected.
 History of standards on “cruel and unusual” punishment
 Thompson (1988): no death penalty under 16-year-old
 Stanford (1989): admits for btw 16-18
 Penry (1989): admits for mentally retarded offenders
 Atkins (2002): no for mentally retarded offenders
 Why does the SCOTUS consider this issue under 14th Amt?
 The doctrine of incorporation: the 8th Amt. applies to the States govt. by the DPC (“No
State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States”) of 14th Amd.
 The Bill of Rights (the first 10 Amendments) only apply to the Federal govt. unless
they are “selectively incorporated” to apply to the States.
 The doctrine of reverse incorporation: the EPC (“Nor shall any State deprive of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws”) of 14th Amt. applies to the Federal govt.
by the DPC of 5th Amt.
 Prof. Thomas: both doctrines are products of common law method.
 State Supreme Court’s reasoning
 national consensus based on empirical/sociological data
 analogy to the mentally disabled: common law method
 Jurisdiction: federal question


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 Analysis of SCOTUS’ reasoning
 Relevant precedents: Atkins
 Should the law deem children “categorically less culpable” than the average criminal?　
What evidence does the Court use?
 Empirical date about legal distinctions, including right to vote; drink; and drive
 Medical/psychosocial evidence (vulnerable to peer pressure)
 Law cannot avoid some categorical design/application. The real issue is what is the
reason/justification to differentiate minor from major. In my view, this category is
prevailing in legal system, If so, the opinion’s reasoning is not arbitral and
agreeable.
 How does the Court decide whether a punishment is cruel or unusual?
 “Cruel or unusual” is an expansive language, then not rule but standard. The Court
says the standard is “evolving standards of decency,” which requires interpretation
to apply.
 Why does the Court focus on the number of states that permit juvenile executions? Is a
practice less “cruel and unusual” simply because many people engage in it?
 To determine whether there is a national consensus on execution of minors.
 Not necessarily, but it is a way of rationale. Ultimately, social sciences entail a kind
of subjective recognition (Ugly Duckling theorem)
 How does the majority import foreign law and the practices of other nations into its
analysis? Why do you think the Court concludes that foreign law and practice are
relevant to the task of constitutional analysis? Why do you think the dissenting opinion
argues that foreign law and practice have no bearing on interpretation of U.S.
constitutional law?
 Comparison to foreign (domestic) laws and international laws.
 On the other hand, Scalia, J. puts more emphasis on the uniqueness of the U.S. and
American law.
 Considering social contract or democratic legitimacy, it is difficult to reflect (or
justify) cosmopolitan values to interpret Cons. even in favor of living cons. support
Scalia.
 What constitutes a “national consensus”? What type of social change must occur for a
practice to become “unusual” under the Eighth Amendment? What types of evidence
should a court require in reaching a determination regarding these questions?
 No decisive answer. As possible elements to consider, comparison to the Founding
Era, number of States, executions, State law amendments, but not limited. Defer to
the Congress/Assemblies.

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 Scalia, J’s dissenting opinion
 What is (current) national consensus is the matter of fact. The role of (appellate) courts
are to say what the law is (in its original intent). American legal system adopts jury to
reflect the people’s sense.
 Plus, (1) only four States’ forbidding death penalty for minors is insufficient to prove a
shift of the standard of decency in the nation. (2) in some extraordinary cases, minors
are culpable to be sentenced to death, (3) international consensus is irrelevant to
interpret the U.S. Cons.

MaCleskey v. Kemp
SCOTUS (1987)
Facts Pl, McCleskey, a black man was convicted of two counts of armed robbery and
one count of murder in the Superior. Court of Fulton County, Georgea, and
sentenced to death.
Procedure Df filed a claim that the Georgea capital punishment statute violates the 8th and
the Equal Protection Clause of the 14th Amt or the State as a whole has acted
with a discriminatory purpose.
Issue To prevail on a claim under the EPC, must a black defendant sentenced to death
for killing a white person prove only that the state which sentenced the
defendant to death imposes capital punishment more often on black
defendants and killers of white victims than on white defendants and killers of
black victims, or must the defendant offer particularized proof of
discriminatory intent, motive or purpose in defendant’s case?
Holding (Powell J.,): (on first claim): proof of the latter is necessary. To prevail under the
EPC, McCleskey must prove that the decisionmakers in his case acted with
discriminatory purpose.　To show “discriminatory purpose” a death row inmate
must plead and prove that state killing was sought or imposed because of and
not merely in spite of race (the Feeney doctrine)
Reasoning Necessity to limit the scope of inquiry
Dissent Brenan, J.): “There was a significant chance that race would have play a
prominent role in determining if he lived or died.” [Citing cases] would be
unrealistic to ignore the influence of history in assessing the plausible
implications of df’s evidence.
 Evidence submitted by the plaintiff: the Baldus Study and Statistical Evidence of Systemic
Racial Discrimination
 examined over 2,000 cases in the State
 indicates that black defendants who kill white victims have the greatest likelihood of
receiving the death penalty.
 Why the Feeney doctrine requires not causation but intent?
 A capital punishment premises jury verdict. Jurors specifically make a decision to the
case. On the other hand, statistical causal inference cannot exclude spurious correlation.
 However, the real problem is jurors themselves might be discriminating.
 Necessity to limit the scope of inquiry down to the single case.

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 Principle: separation of powers & the Constitutional limits of the judicial function
 Consequential argument in opinion by Powell, J.: “McCleskey’s claim, taken to its
logical conclusion, …The Eighth Amendment is not limited in application to capital
punishment, but applies to all penalties. … Thus, if we accepted McCleskey’s claim
that racial bias has impermissibly tainted the capital sentencing decision, we could soon
be faced with similar claims as to other types of penalty.”
 “McCleskey’s arguments are best presented to the legislative bodies.”
 “The Court articulated a test that brought the required scope of inquiry down to the
single case, and set a bar for proving discrimination so high that only the most
egregiously racist conduct could pass over it.”
 Implication of the opinion: reasonable racism
 If the Court see the issue of racism too closely, the entire system would collapse. So, the
Court itself choose to limit exercise of the judicial power.
 Scalia, J. on McCleskey: his internal memorandum in the SCOTUS
 “I disagree with the argument that the inferences that can be drawn from the Baldus
study are weakened by the fact that each jury and each trial is unique, or by the large
number of variables at issue. And I do not share the view, implicit in [Powell’s draft
of the Opinion of the Court], that an effect of racial factors upon sentencing, if it
could be shown by sufficiently strong statistical evidence, would require reversal.”
 “Since it is my view that the unconscious operation of irrational sympathies and
antipathies, including racial, upon jury decisions and (hence) upon prosecutorial [ones],
is real, acknowledged by the [judgments] of this court and ineradicable, I cannot
honestly say that all I need is more proof.”
 In short, Scalia accepts “ineradicable” racism as status quo.
 Does the McCleskey decision rest on the asserted “irrelevance” of the proffered data on
race and the death penalty or on the apparent judicial “indifference” to (or acceptance of) the
systemic and “unconscious” racism that Scalia deems “ineradicable” or “inevitable”?
 Based on the Scalia’s memo, there was the draft that permits statistical data without
particular discrimination in the case as the evidence to invalidate df’s death penalty or
the statute. Eventually, Scalia’s argument to accept “unconscious” racism as status quo
gathers more supports than Brenan’s dissenting opinion.
 Critique: “The McCleskey standard is uniquely framed to ignore both implicit (i.e., non-
consciously purposeful) and systemic or structural (i.e., well beyond the level of individual
actors) racisim, settled social science insights. Thus, existing legal remedies for racial bias
and the social psychological realities of racism now diverge considerably.”
 Ferguson Police Department: Neoliberal thinking policing as a (public) business
 U.S. Department of Justice: “Ferguson’s law enforcement practices are shaped by the
City’s focus on revenue rather than by public safety needs.”
 Corruption of police officers in other cases

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Ⅷ. Constitution: substantive due process
 Viewpoints
 State power or individual rights? Who decides? How?
 Modes and methods of constitutional analysis/interpretation
 Levels of generality/specificity
 Originalism or Non-originalism
 Textualism or Non-textualism
 Interpretivism (courts’ role is interpretation) or Non-interpretivism
 Standards of judicial review
 Strict scrutiny
 Intermediate scrutiny
 Rational basis review
 Categories and baselines: revisited.
 Privacy, equality, or dignity
 Act or identity
 Status or conduct?
 Sexuality or reproduction
 Moral personhood and political personhood
 Separation of powers or citizenship
 Epigraph (1)
 Tocqueville: “There is hardly a political question in the U.S. that does not sooner or
later turn into a judicial one.”
 Feminist Movement Maxim: “The personal is the political.”
 The Due Process Clauses
 5th Amendment: “No person shall … be deprived of life, liberty or property, without
due process of law.”
 Emphasis on rights
 14th Amendment: “nor shall any state deprive any person of life, liberty or property,
without due process of law.”
 Emphasis on limitation of power
 Procedural due process
 When the govt. acts in such a way that denies a citizen of a life, liberty, or property
interest, the person must be given access to rights listed not below (but not limited).
 Right to an evidentiary hearing
 Right to confront witness
 Right to written statement setting out the evidence decisionmaker relied upon and
the legal reasons for the decision

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 Substantive due process: protects two types of rights
 Interests or rights unrelated to procedure
 Interests or rights not expressly mentioned in the Constitution
= implied or unenumerated fundamental rights
 9th Amendment: “the enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people.”
 Lochner and “Lochnerizing”
 14th Amd. confers a right to liberty of contract
 Brought the critique of judicial activism: the Court is engaged in Politics, acts as a
super-legislature
 Reason of the critique (root difficulty): the counter-majoritarian difficulty (A. Bickel)
 5 unelected Justices can invalidate democratic choices by C & P.
 Philip Bobbit: typology of the modalities/forms of constitutional law argument
 Historical
 Textual
 Structural: e.g., federalism, separation of powers
 Doctrinal
 Prudential: e.g., political questions doctrine
 Ethical: moral arguments
 Bobbit’s excerpt: “By relying upon a written instrument to protect and perfect the
undertaking [of constitution-making], the framers introduced the modalities of legal
argument into the fundamental politics of our state. This was the American innovation:
to take the common law methods of argument that hitherto had been used to construe
deeds and wills, property settlements, trusts, and contracts, and apply these methods to the
great trust created by the people− [i.e., the constitution of enumerated power and of] the
subordinated government. As a consequence of this transposition, the legal culture of the
United States developed [modes of constitutional] argument by taking them from the
common law. Another consequence of the subordination of the government to a written
instrument was the inevitable reliance upon judicial review, that is, the review of
governmental acts by courts for their constitutionality. Since courts are also subordinate to
the written constitution, the only power they possess is to apply constitutional laws.”
 Political legitimacy ultimately relies on the common law method (not public but private
law discipline)
 Additive to Bobbit’s typology by Prof. Thomas: Political
 Example: Amicus Curiae brief by U.S. Senator, arguing that the Court should reduce its
influence on politics”

40
 Frickey & Eskridge: Funnell of abstraction
 McCulloch v. Maryland (1819): held, a federal bank cannot be taxed by the State of
Maryland because an institution created by a federal law cannot be inhibited by a tax
imposed by a state law due to federal supremacy; stands for the proposition of “no
taxation without representation”

 Road to Griswald
 McReynolds, J. in Meyers v. Nebraska (1923): “That the State may do much, go very
far, indeed, in order to improve the quality of its citizens, physically, mentally and
morally, is clear; but the individual has certain fundamental rights which must be
respected.”
 Harlan, J. dissenting in Poe v. Ullman (1961): “The full scope of the liberty guaranteed
by the Due Process Clause cannot be found in or limited by the precise terms of the
specific guaran This ‘liberty’ is not a series of isolated points pricked out in terms of
the taking of property; the freedom of speech, press, and religion; the right to keep and
bear arms; the freedom from unreasonable searches and seizures; and so on. It is a
rational continuum which, broadly speaking, includes a freedom from all substantial
arbitrary impositions and purposeless restraints. … Of the whole ‘private realm of
family life’ it is difficult to imagine what is more private or more intimate than a
husband and wife's marital relations.”

41
Griswold v. Connecticut: the right of privacy SCOTUS (1967)
Facts Two doctors informed married persons of the means of abortion and prescribed
contraceptive device or material for the wife. They were found guilty as
accessories and fined under the state criminal statute prohibiting abortion and its
help.
Issue Whether the statute preventing abortion is constitutional under 14th Amt.
Holding (Douglas, J.): No. While state regulation may not be achieved by means which
sweep unnecessarily broad and thereby invade the area of protected freedom.
Reasoning Under the DPC of 14th Amt., The Court do not determine the need of laws,
relating to economic problems. However, Lochner v. New York cannot be the
precedent of this case, because the statute at issue operates directly on an
intimate relation of husband and wife and their physician’s role.
“Penumbras” from the Bill of Rights create “zones of privacy”
Case involves “a right of privacy older than the Bill of Rights”
As a practical matter, states are not allowed to regulate conducts in marital
bedrooms. (Consequentialist analysis)
 The right of privacy
 Zonal: penumbra doctrine, pro-Constitutional (natural?) right
 Decisional: as Lochner, an unenumerated fundamental right
 Is it “right” decision?: distinction btw non-economic and economic?
 Relational: belongs to an individual/ among marital relation?
 Generality v. specificity
 Bowers v. Hardwick (1986): upheld Georgia statute that prevented two people from
engaging in a certain sexual act. The court read the phrase “homosexual sodomy” into
the statute and explained that there was no constitutional right to the same.
 Burger, C.J. concurring: “To hold that the act of homosexual sodomy … as a
fundamental right would be to cast aside millennia of moral teaching.”
 Blackmun, J. dissenting: “This case is no more about ‘a fundamental right to engage
in homosexual sodomy,’ … Rather, … ‘the right to be let alone’ . . . what the
Court really has refused to recognize is the fundamental interest all individuals
have in controlling the nature of their intimate associations with others.”
 Eisenstadt v. Baird (1971): A Massachusetts statute prohibits the distribution of any
drug or device to unmarried persons for the prevention of conception. SCOTUS holds
that the statute violates the EPC.
 Why EPC? Because the statute treats unmarried and married persons differently.
 Brennan, J. opinion: “Whatever the rights of the individual to access to
contraceptives may be, the rights must be the same for the unmarried and
married alike. It is true that in Griswold the right of privacy in question inhered in
the marital relationship. Yet the marital couple is not an independent entity … but
an association of two individuals …. If the right of privacy means anything, it is
the right of the individual.”

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 Epigraph (2)
 Carol Sander: “The classification of abortion as one kind of issue or another matters
tremendously for how abortion disputes proceed.”
 Religious belief/morel or philosophical grounds, medical in nature/medicalized
 Duncan Kennedy: “Characterizing and categorizing phenomena determines how they
will be treated by the legal system.”
 Various way to categorize the issue: privacy, equality, general police power, etc.
 Roe v. Wade (1973)
 Facts: Texas statutes prohibit procuring an abortion procedure except “by medical advice
for the purpose of saving the life of the mother.”
 Standard of review: strict scrutiny
 Compelling governmental interest
 Narrowly tailored to further the CGI
 Challenged law is the least restrictive means available for furthering the CGI
 Issues at Roe
 Does a woman have a fundamental right to terminate her pregnancy?
 When does state regulation of abortion amount to a deprivation of that right?
 Is the state/governmental interest compelling? (PURPOSES)
 Is the challenged regulation (MEANS) narrowly tailored to promote the state’s
asserted regulatory purposes?
 Is the regulation the least restrictive means available to the state?
Note: the former two questions (especially fundamental right or not) are crucial to
choose the standard of review.
 The “fundamental rights” doctrine in opinion of the Court
 Blackmun, J.: “This right of privacy, whether it be founded in the Fourteenth
Amendment’s concept of personal liberty [as] we feel it is, or [in] the Ninth
[Amendment], is broad enough to encompass a woman’s decision whether or not
to terminate her pregnancy. … At common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, a woman
enjoyed a substantially broader right to terminate a pregnancy than she does in most
States today … .”
 The rise and fall of the “fundamental rights” doctrine
 Maher v. Roe (1977): the Court reversed the district court judgment striking down a state
regulation that imposed conditions on payment for abotion, because there was no suspect
class involved.
 Harris v. McRae (1980): the Court held that states participating in the Medicaid program
were not obligated to fund abortions. The Court found that a woman's freedom of choice
does not carry with it “a constitutional entitlement to the financial resources to avail
herself of the full range of protected choices.”
 Prof. Thomas: these decisions are not supported by socioeconomic reality

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Casey v. Planned Parenthood of Pennsylvania: SCOTUS (1992)
Facts The Penn. Abortion Control Act imposed spousal notification, informed consent,
24-hour waiting period, anti-abortion info., and parental consent for minors
(with judicial bypass option) on women seeking an abortion. For a married
woman, the Act requires a statement signed by her husband. Petitioners filed a
claim that the statute is unconstitutional.
Procedure The District Court found that the statute’s definition of medical emergency was
too narrow because several serious conditions were uncovered by the emergency
provision. However, the Court of Appeals upheld each of the provisions but the
husband notification requirement.
Issue Whether the statute restricting abortion is constitutional.
Holding (O’Conner, J.): (partially) no. the spousal notification req. imposes an undue
burden on the women, then the part is unconstitutional. On the other hand,
neither the definition of “medical emergency” nor the informed consent req.
does not impose substantial burden, so constitutional. Affirmed.

The essential holding of Roe

1. Recognition of the right of the woman to choose to have an abortion
before viability and to obtain it without undue interference from the State.
2. The confirmation of the State’s power to resist abortion after fetal
viability, if the statute contains exceptions for pregnancies which endanger
the woman’s life or health.
3. The State has legitimate interest from the outset of the pregnancy in
protecting the health of the woman and the life of the fetus that may become
a child.
Reasoning Stare decisis: Roe’s central holding, putting emphasis on fetal viability is
reaffirmed. But the trimester formula should be altered to substantial burden test.
The test considers an undue burden exists when the intention is to place a
substantial obstacle in a woman’s seeking an abortion before the viability,
Dissent Scalia, J.): Oppose to partially reaffirmation. It seems to me that stare decisis
ought to be applied even to the doctrine of stare decisis, and I confess never to
have heard of this new, keep-what-you-want-and-throw-away-the-rest-
version- of state decisis.
 Stare decisis in Casey
 In developing right of privacy/choice, the Court is engaged in traditional common law
function (caselaw)
 Natural evolution of family/privacy rights (earlier caselaw)
 Yet abortion is (arguably) qualitatively different, according to Rehnquist, C.J.
 Rule of law requires continuity (then, doctrine of Stare decisis)
 Creates expectations
 How has society changed in response to Roe?
 Women’s economic, social, and political status
 Even if precedent (Roe) wrongly decided or unsound?
 The precedent has changed conditions

44
  Redrawing the line between individual right (privacy) and state police power
 Replace trimester framework with “viability”
 Adopts a bit of the analysis in decision in Webster (1989)
 State has interest in “potential life” through all stages of pregnancy
 State may proselytize (through public marketing campaigns expressing official state
preference for birth over abortion), can make abortion more difficult
 So long as not “designed to strike at right itself”
 Why doesn’t stare decisis apply to the “mode of analysis” as well the holding? Is Rehnquist
right that only a shell of Roe remains?
 In short, to mediate stare decisis and social reality (impact of reverse), Roe is reaffirmed
minimally. In reality, Justices try to gather majority votes.
 The undue burden test: strict scrutiny is not adopted
 “Only where state regulation imposes an undue burden on a woman’s ability to
[decide]” will it be subject to heightened scrutiny
 Then, other restrictions are reviewed on rational basis.
 “Purpose or effect of placing substantial obstacle in the path of [aborting] a nonviable
fetus”
 Impermissible purpose to prevent abortion
 Impermissible means if abortion cannot be obtained
 Why not consider an “undue influence” test? What interests would such a standard protect?
 State action is intentionally or not, generally influential. Can courts judge the
significance of influence without committing a specific normative value (e.g., abortion
(self-control) or possible life)? Further, can imagine the situation without State’s
influence as baseline.
 But it is true that evaluation of burden is also difficult.
 Application: O’Connor, J. opinion of the court
 Spousal notification requirement’s likely effect is to “prevent a significant number of
women from obtaining an abortion”
 Unnecessary in well-functioning relationships
 Potentially dangerous in dysfunctional ones
 New viewpoint: gender inequality, male violence
 Does the Casey put an equal protection “spin” of the substantive due process doctrine?
 The right to abortion as a Constitutional right to “equaliberty”
 From privacy to equality

 Would an explicit focus on the EPC have changed the Court’s constitutional analysis? Of the
Court’s conclusions regarding the other challenged provisions? Why? How?
 Probably. Under the EPC, even Justices who do not think the right to abortion as a
fundamental one can test the statute’s constitutionality from the perspective of equality.

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 Dobbs v. Jachson women’s health organization:
Separation of powers v. women’s citizenship, gender equality
SCOTUS (2022)
Facts A Mississippi state law generally prohibits an abortion after the 15th week of
pregnancy – several weeks before the point which a fetus is now regarded as
“viable” outside the womb. The State ask for overruling of Roe and Casey, and
upholding the constitutionality of the law. On the other hand, respondents ask to
reaffirm these precedents.
Issue Whether the statute prohibiting abortion before a fetus becomes “viable” is
constitutional
Holding (Alito, J.): Yes. The Roe and Casey must be overruled. The Constitution makes
no reference to abortion, and no such right is implicitly protected by any
constitutional provisions, including the Due Process Clause of 14th Amt.
Reasoning (The right to abortion is not fundamental one protected by the Cons.): to be
protected by the Constitution, unmentioned rights must be “deeply rooted in this
Nation’s history and tradition” and “implicit in the concept of ordered liberty.”
Washington v. Glucksberg. In fact, when 14th Amt. was added, most States
prohibited abortion, then, the right to abortion does not pass the reqs.
(Stare decisis): Roe was egregiously wrong from the start.
(Separation of Powers): it is time to heed the Constitution and return the issue
of abortion to the people’s elected representatives.
Dissent (Breyer, Sotomayor, Kagan, JJ.):
(Stare Decisis): there is no good reason for upheaval. Roe and Casey have been
the law of the land for decades, … Women have relied on the availability of
abortion both in structuring their relationships and in planning their lives.
(Substantive): Roe and Casey have balanced between women’s liberty and
equality, and States’ legitimate interests to protect “the life of fetus”. The
majority opinion discards that balance, which imposes severe restrictions on the
poor women who cannot pay to fly to receive abortion procedures out of the
State prohibiting it.
(Realism): The Court reverses course today for one reason and one reason only:
because the composition of this Court has changed.

Ⅸ. Constitution: equal protection

 Two aspects of the Constitution
 Power: “power-conferring (and limiting)” Constitutional law
 Rights: “rights-recognizing” Constitutional law
 Stone et al: “To what extent is our experience with discrimination against African-
Americans generalizable?” “Have the special problems faced by black Americans distorted
constitutional law?”
Brown v Board of Education
SCOTUS (1954)
Facts Pls, minors of the Negro race have been denied admission to schools attended by

46
 white children under laws requiring or permitting segregation according to race.
Procedure Pls sued to the federal court (Kansas, South Carolina, Virginia, and Delaware) to
seek the aid in obtaining admission to the public schools on a nonsegregated
basis. Pls alleged that segregation at public school deprives them of the equal
protection of the laws under the 14th Amd. The fed. Circuit Court denied relief
to the Pls of three cases but the Delaware case based on the separate but equal
doctrine. In Delaware case, the Pls were admitted to the white schools because
of their superiority to the Negro schools (this segregation cannot be justified
under the doctrine.) the SCOTUS granted.
Issue Does state-mandated segregation of public schools by “race” violate the EPC of
the 14th Amt. or the equal protection component of DPC of the 5th Amt.?
Holding Warren, C.J.): Yes. Because racially “separate but equal” public schools are
inherently unequal, state-mandated race-based segregation violates the
guarantees of the EPC。
Reasoning We must look to the effect of seg. Itself on public education. The policy of
separating the races is usually interpreted as denoting the inferiority of the negro
group, which affects the motivation of a child to learn. Psychological finding
supports this.
(Importance of education): foundation of good citizenship, democratic society.
 Modes & methods of analysis and argument: Bobbitt
 Text: 14th Amd., one of the reconstruction Amendments after the Civil War
 EPC: “No state shall “deny to any person within its jurisdiction the equal protection
of the law”
 DPC: “No state shall . . . . deprive any person of life, liberty, or property without
due process of law.”
 Cons. structure and relationship
 History
 Court says “inconclusive” as to whether drafters and ratifiers intended to abolish
race-based discrimination in schools. And even if it were clear, we cannot turn the
clock back to 1868.
 Case law precedent
 Distinguished from pressy
 Prudential
 Ethical/moral
 “Today [education] is a principal instrument in awakening the child to cultural
values, in preparing him for later professional training, and in helping him to adjust
normally to his environment. In these days, it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the opportunity of an
education.”
 Political

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  “Today, education is perhaps the most important function of state and local
governments. Compulsory school attendance laws and the great expenditures for
education both demonstrate our recognition of the importance of education to our
democratic society. It is required in the performance of our most basic public
responsibilities, even service in the armed forces. It is the very foundation of good
citizenship. Such an opportunity, where the state has undertaken to provide it, is a
right which must be made available to all on equal terms.”
 Living Constitution: when 14th Amt. was drafted, there was educational segregation, but…
 Black Reconstruction and “Abolition Education”
 Earl Warren, C.J.): “Education of Negroes was almost nonexistent, and practically all of
the race were illiterate. In fact, any education of Negroes was forbidden by law in
some states.”
 E.g.,): Virginia revised code of 1819
 As a result, slavery, race & the regime of “compulsory illiteracy”: see Scott v. Sanford
 Frederick Douglass: “Education and slavery are incompatible with each other.”
 W.E.B. DuBois: “The uprising of the black man, and the pouring of himself into
organized effort for education, in those years between 1861 and 1871, was one of the
marvelous occurrences of the modern world.”
 Manning Marable: “Education was viewed as a decisive means to end the vicious cycle
of racial underdevelopment.”
 Plessy v. Ferguson (1896): Creole was denied entering a white school.
 The “separate but equal” doctrine
 “The object of the amendment was undoubtedly to enforce the absolute equality of the
two races before the law, but, in the nature of things, it could not have been intended to
abolish distinctions based upon color, or to enforce social, as distinguished from
political, equality, or a commingling of the two races upon terms unsatisfactory to
either”
 Constitutional common law “baselines”: the dominant race is ‘property’
 Cheryl I. Harris: “Moreover, as it emerged, the concept of whiteness was premised on white
supremacy rather than mere [racial] difference….The concept of whiteness is built on both
exclusion and racial subjugation.”
 Common law (property and contract) supported slavery
 Charles W. Mills: “Social contract tradition …, is not a contract between everybody (“we
the people”), but between just the people who count, the people who really are people (“we
the white people”). So it is a Racial Contract.”
 Harlan, J. dissenting in Pressy v. Ferguson: “Our Constitution is color-blind, and neither
knows nor tolerates classes among citizens. … in the eye of the law, there is in this country
no dominant, ruling, superior class of citizens. There is no caste here.”
 The “color-blindness” principle: the law is forbidden from seeing race or color.

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  Note: Harlan also take the existence of a dominant race as a baseline.
 Korematsu v. United States (1944): Japanese American was forced to move to camps
 Black, J.) “It should be noted, to begin with, that all legal restrictions which curtail
the civil rights of a single racial group are immediately suspect. That is not to say
that all such restrictions are unconstitutional. It is to say that courts must subject them
to the most rigid scrutiny. Public pressing necessity may sometimes justify the
existence of such restrictions; racial antagonism never can.”
 The “suspect classification doctrine”: strict scrutiny
 (Suspect classification)
 Compelling governmental interest
 Challenged classification is narrowly tailored
 Least restrictive means for achieving compelling governmental purpose
 Note: the Brown court does not refer to the doctrine. Why?
 The statute at issue is wholly based on races. Then, the Court take it for granted that the
is suspect classification.
 Charles L. Black, Jr.: “one in-group enjoying full normal communal life and one out-group
that is barred from this life and forced into an inferior life of its own.”

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Loving v Virginia SCOTUS (1967)
Facts Pls, a Negro woman and a white man, were married in D.C. pursuant to its laws.
After their marriage, they returned to Virginia, which interracial marriage. They
were sentenced to one year jail by the State Circuit Court because the Lovings
violated the state statutes prohibiting interracial marriages.
Procedure Pls filed a motion in the state trial court to vacate the judgment, but the court
denied. The Pls appealed to the Supreme Court of Appeals of Virginia, which
upheld the antimiscegenation statutes were constitutional. The Pls appealed to
the Fed. Sp. Court. The Court granted.
Issue Is the state statute prohibiting interracial marriages constitutional under the 14th
Amd.
Holding Warren, C.J.): No. it’s unconstitutional. There is no legitimate overriding
purpose independent of individual racial discrimination which justifies racial
classification. Reversed.
Reasoning At very least, the Equal Protection Clause demands that racial classifications,
especially suspect in criminal statutes, be subjected to the ‘most rigid scrutiny.’
Korematsu v. U.S.
Concur Stewart, J.): under the Cons., criminal statute depending on the actor’s race is
invalid.
 Mixed claim under two clauses of 14th Amt.
 DP: violation a fundamental interest or right to marry
 EP: impermissibly (wrong) discriminates against persons on a “suspect classification”
 The statute is discriminatory because the law depends upon a person’s race
 Real purpose of the statute: “the fact that Virginia prohibits …maintain white supremacy.”
 Another interpretation of 14th Amt.: affirmative action to facilitate equality (of opportunity)
 Does 14th Amt. embody an anti-classification principle, or anti-subordination (i.e.,
anti-white supremacy)? If latter, you may have to treat people unequally. that’s an
argument that has never gotten traction.
 The orthodox narrative is equal treatment. But one could tell a story where EP
represents the Constitutional option for the oppressed. it is not just about govt.
neutrality, but imposing affirmative obligations on govt to create laws that equalize
between groups?
 The other standards of judicial review
 Rational basis: actual reason or possible reason? See Lopez
 Legitimate [permissible or valid] govt. interest
 Rationally related to govt. interest,
 Intermediate scrutiny: quasi-suspect classifications; sex, gender, illegitimacy
 Important or substantial govt. interest
 Substantial relationship of challenged basis for law (classification) and govt.
interest

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United States v. Virginia (the VMI case)
SCOTUS (1996)
Facts Virginia Military Institute (VMI) was the public single-sex school. The US sued
Virginia and VMI, alleging that VMI’s exclusively male admission policy
violated the EPC. The Fed. DC ruled in favor of VMI. The 4th Cir. CT reversed
and ordered the State to remedy the constitutional violation. In response,
Virginia proposed a parallel program for women: VWIL. The Fed DC found that
the proposal satisfied the constitutional req., and the 4th Cir. CT affirmed. The
US appealed for a certiorari. SCOTUS granted.
Issue (1) Does Virginia’s exclusion of women from the educational opportunities
provided by VMI deny to woman the equal protection of the laws guaranteed
by the 14th Amd.
(2) If so, whether VWIL (the dual system) is sufficient to remedy such a
violation of the EPC
Holding (Ginsburg, J.): (1) Yes. Virginia has shown no “justification” for excluding all
women, then violates EPC.
(2) VWIL does not provide opportunity equivalent to VMI, then the remedy
does not cure the constitutional violation.
Reasoning (1)Gender-based govt. action must demonstrate an “exceedingly persuasive
justification.” Virginia’s argument depending on the hard curriculum of VMI
cannot justify exclusion of all women, because some are “capable of the
activities required of VMI cadets. Too broad generalization is not permitted.
(2)VMI is an extraordinary educational institution not only for its tangible
facilities but also intangible, including connections with alumni, which VWIL
cannot provide.
Dissent Scalia, J.): the Cons. – the old one – takes no sides in this educational debate.
 Standard of review: ‘exceedingly persuasive justification’
 Ginsburg, J.: “Classifications by gender must serve important governmental
objectives and must be substantially related to the achievement of those objectives.”
 “Parties who seek to defend gender-based government action must demonstrate an
‘exceedingly persuasive justification’ for that action. Today’s skeptical scrutiny of
official action denying rights or opportunities based on sex responds to volumes of
history.”
 Exam Question: Is Ginsburg’s “exceedingly persuasive justification” formula synonymous
with, or a substitution for the “substantial relation to an important governmental objective”
formula? That is, synonym or ratcheting up?
 In Casey, the Court ratcheted down strict scrutiny with the undue burden standard.
1992 court in context of DP made it easier for states to defend restrictions on abortion
by not talking about fundamental rights, compelling interest, or narrowly tailored, but
rather talking about undue burden.
 Ginsburg’s argument here, in EP context, court ratchets up the quasi-suspect
classification analysis that had formerly applied to sex/gender.

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  Ratcheting up. Scalia, J. (below) admits the difference. At first, Ginsburg admit
important govt. interest. Indeed, majority opinion puts emphasis on the fact that several
women are willing to enter VMI. This fact does not deny the substantial relationship.
Then, Ginsburg’s formula seems to ratchet up the requirements.
 Scalia, J. dissent: majority opinion raises the standard
 “Only the amorphous ‘exceedingly persuasive justification’ phrase, and not the standard
elaboration of intermediate scrutiny, can be made to yield [the Court’s] conclusion that
VMI’s single-sex composition is unconstitutional because there exist several women
willing and able to undertake VMI’s program. Intermediate scrutiny has never
required a [‘least restrictive means’] analysis, but only a `substantial relation’
between the classification and the state interests it serves. [There] is simply no support
for the notion that a sex-based classification is invalid unless it relates to
characteristics that hold true in every instance.”
 Adarand v. Pena (1995): foreshadow in dissent
 O’Conner, J.: “the Fifth and Fourteenth Amendments to the Constitution protect
persons and not groups.”
 Discrimination against groups or individuals?
 Black, J. in Korematsu: “all legal restrictions which curtail the civil rights of a single
racial group are immediately suspect.”
 Does VMI hold that the EPC prohibits govt. recognition or use of “sex” as a basis for state
action?
 Ginsburg, J.: “Supposed “inherent differences” are no longer accepted as a ground for
race or national origin classifications. Physical differences between men and women,
however, are enduring. *** “Inherent differences” between men and women, we
have come to appreciate, remain cause for celebration, but not for denigration of the
members of either sex or for artificial constraints on an individual’s opportunity.”
 Based on Ginsburg, affirmative action is OK.
 If Law is color-blind, why not sex/gender-blind?
 “sex/sexual” difference is a constitutive and meaningful component of human being but
“racial” difference is not? : right? How about transgender?
 In VMI, gender stereotype is shared among the Justices. They do not adopt gender-blind
approach. However, Ginsburg says legal stereotype is not permissible.
 Sex: male/female
 Gender: masculine/feminine as normative baselines
 Scalia, J. dissent: manly honor at VMI is destroyed.

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