U.S. CONSTITUTIONAL LAW TOPICS / LEGAL WRITING TIPS, AND OTHER GENERAL COMMENTS ABOUT U.S. LAW SCHOOLS. Daisuke Beppu. Blakemore & Mitsuki AUTUMN 2013

Transcription

1 U.S. CONSTITUTIONAL LAW TOPICS / LEGAL WRITING TIPS, AND OTHER GENERAL COMMENTS ABOUT U.S. LAW SCHOOLS Daisuke Beppu Blakemore & Mitsuki AUTUMN i-

2 TABLE OF CONTENTS *All cases used are excerpts only and have been edited accordingly. Please do the reading for that week prior to the lecture. I will assume that you have read the materials before class, and I plan to call on members of the class during the lecture to contribute to discussion. LECTURE 1: A (VERY BRIEF) HISTORY AND BACKGROUND OF THE CONSTITUTION 1 A. THE DECLARATION OF INDEPENDENCE 3 B. THE ARTICLES OF CONFEDERATION 9 C. THE U.S. CONSTITUTION 19 D. INTERPRETATION OF THE CONSTITUTION 47 E. THE U.S. SUPREME COURT AND JUDICIAL REVIEW 49 F. BACKGROUND TO MARBURY V. MADISON 50 Case: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 52 LECTURE 2: THE FEDERAL LEGISLATIVE POWER; THE FEDERAL EXECUTIVE POWER 61 A. THE FEDERAL LEGISLATIVE POWER 62 B. BACKGROUND TO MCCULLOCH V. MARYLAND 64 Case: McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) 65 C. THE FEDERAL EXECUTIVE POWER 77 Case: Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) 79 LECTURE 3: FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION 91 A. INTRODUCTION: THE CONCEPT OF FUNDAMENTAL RIGHTS 91 B. THE DUE PROCESS CLAUSE 93 C. THE EQUAL PROTECTION CLAUSE 98 D. AN EXAMPLE: THE RIGHT TO MARRY 100 Case: Loving v. Virginia, 388 U.S. 1 (1967) 101 Case: Zablocki v. Redhail, 434 U.S. 378 (1978) 104 E. ANOTHER EXAMPLE: THE RIGHT TO PRIVACY? 112 Case: Griswold v. Connecticut, 381 U.S. 479 (1965) 113 Case: Eisenstadt v. Baird, 405 U.S. 438 (1972) 121 -ii-

3 LECTURE 4: Ⅰ. LAW SCHOOL EXAMINATIONS 125 Ⅱ. LEGAL WRITING IN LAW SCHOOL 133 Ⅲ. GENERAL TIPS ON "SURVIVING" THE U.S. LAW SCHOOL EXPERIENCE 136 -iii-

4 E. THE U.S. SUPREME COURT AND JUDICIAL REVIEW Article III, Section 1 of the Constitution reads as follows: Section 1 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. The first sentence ( The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. ) establishes a federal judicial system, comprising of the Supreme Court and other inferior courts. This judicial system is vested with the judicial Power of the United States. The second sentence ( The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. ) provides independence to such judicial system because federal judges receive life tenure ( shall hold their Offices during good Behavior ) at a salary that cannot be decreased during such tenure. However, absent from Article III is any provision that allows for the federal judicial system (specifically the Supreme Court) to have the power to review the constitutionality of executive or legislative acts. This kind of authority of the judiciary, which is sometimes referred to as the power of Judicial Review, is extremely powerful in that, under such authority, a judicial body could strike down a law on the grounds that such law is in violation of the Constitution. So, without any explicit mandate set forth in Article III, there is an issue as to where this power of review lies. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), is the opinion in which the Supreme Court established that it had this very powerful authority of judicial review. On the basis of Marbury, the Supreme Court has since exercised this authority of judicial review in numerous landmark cases involving the constitutionality of laws and/or executive actions. It is for this reason that Marbury is regarded as the single most important opinion in U.S. Constitutional law. -iv-

5 F. BACKGROUND TO MARBURY V. MADISON : Congress enacts the Judiciary Act of Section 13 of which reads as follows: The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases hereinafter specially provided for;... and shall have power to issue writs of prohibition... to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any court appointed, or persons holding office, under the authority of the United States. President John Adams (1797 to 1801), the 2nd President of the United States, loses the election of The winner of such election is Thomas Jefferson. Jefferson is to be inaugurated in March 1801, until which time Adams is to remain as President. In January 1801, Adams names John Marshall, who was secretary of state at the time, to serve as chief justice of the Supreme Court. On February 13, 1801: Congress enacts the Circuit Judge Act, reducing the number of Supreme Court justices from 6 to 5, and creating 16 new judgeships on the circuit courts. On February 27, 1801: Congress enacts the Organic Act of the District of Columbia, authorizing the President to appoint 42 justices of the peace. March 2, 1801: President Adams announced his nominees. March 3, 1801: the Senate confirms the nominees. Immediately, Secretary of State (and Chief Justice) Marshall begins to sign the commissions for these newly appointed judges so as to have them properly delivered. However, not all the commissions are delivered before the inauguration. March 4, 1801: Inauguration of Thomas Jefferson as President of the United States. At this time, the commission to William Marbury had 1 For more information on the background of this decision, please see, for example, William Van Alstyne, A Critical Guide to Marbury v. Madison, 1969 DUKE L.J. 1. Additionally, much literature on this case is available online. Please be sure that you understand fully the factual background of this case as you read the decision. -v-

6 not been delivered. After March 4: Now with Thomas Jefferson as president, he instructed the new secretary of state, James Madison, to withhold delivery of the remaining undelivered commission, including that of William Marbury. In protest, Marbury filed suit in the Supreme Court, seeking a writ of mandamus to compel secretary of state Madison to deliver the commission. The argument of Marbury was that the Supreme Court was authorized under the Judiciary Act of 1789 to grant mandamus in a proceeding initially filed in the Supreme Court. -vi-

7 MARBURY v. MADISON 5 U.S. (1 Cranch) 137 (1803) Mr. Chief Justice MARSHALL delivered the opinion of the court. The following questions have been considered and decided. 1. Has the applicant a right to the commission he demands? 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3. If they do afford him a remedy, is it a mandamus issuing from this court? The first object of inquiry is, 1. Has the applicant a right to the commission he demands? This is an appointment made by the president, by and with the advice and consent of the senate, and is evidenced by no act but the commission itself. In such a case therefore the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission: still the commission is not necessarily the appointment; though conclusive evidence of it. In considering this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which, delivery is essential. It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It is therefore decidedly the opinion of the court, that when a commission has been signed by the president, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state. To withhold the commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right. 2. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the fir -vii-

8 C. LAW SCHOOL EXAMINATIONS: WHAT KINDS OF QUESTIONS? The most common type of question on an exam is a "fact-pattern" question. The student will be presented with a factual pattern and will then be asked to provide an answer to a related question. See the following example: An Example of a Question for Torts: Question 1 (50 points) Amy, a woman who weighed about 290 lbs., was sitting at a table in a restaurant called Sally's Restaurant in New York City. The chair she was sitting on was one that was manufactured by a company called Big Chairs Inc. That particular chair was purchased by Sally's Restaurant from the store called Chairs Store, in New York City. Amy was sitting at the table, and her waiter was Bill. Bill brought Amy some water. However, just as Bill was about to leave, his toe hit the bottom of the front leg of the chair Amy was sitting on. Suddenly, all four chair legs collapsed and Amy fell onto the ground, hitting her side against one of the sharp pieces of wood of the chair. Amy immediately felt pain in her side. Sitting at the table next to Amy's was a man named John, who was a doctor. John had been drinking wine. At the time of Amy's fall, John had already drunk a total of 8 bottles of red wine. When he saw Amy on the floor, John immediately went to Amy to see if she was in need of assistance. In doing so, John stepped on Amy's side (the side where she felt the pain), and Amy felt an even sharper pain. John then tripped on some wood, and fell on Amy. John hit his head on Amy's face. Suddenly, Amy felt a sharp pain in her face, and blood began to come out of her nose. Some time later, Amy visited her doctor, who informed her that she had a broken nose and two broken ribs. In a written answer, please set forth all the claims of all the parties concerned as well as the likelihood of success of each claim. If you require more information, please state the reasons why. When trying to answer a question like the one given above, the following tips might be helpful to you: (a) Read the Directions Although this tip may seem to be a very obvious point, please remember that the situation of test-taking is very stressful, and, as a result, even the best of us can forget to read and review the directions -viii-

9 carefully. For example, if the directions instruct you to "Write all the causes of action available to X", then you need not write anything at all about the causes of action available to Y. Remember that any portion of your written examination that does not answer the question will not be counted towards your final score. So, if you write a written answer, where only 10% of it is about the causes of action of X, and 90% is about the causes of action of Y, the professor will have no choice but to grade only that 10% portion of the written answer that discusses the causes of action of X. Consequently, your grade is at risk. If you look at the law examination question example, you will note that the directions call for you to set forth all the available tort claims of "all the parties concerned." Therefore, your essay will potentially discuss not only the claims of Amy, but also, potentially, the claims of the restaurant, the claims (if any) of John, the claims (if any) of Bill, etc. (b) Be Accurate with the Facts As you can tell from the law examination question example, usually a long fact pattern will involve a multitude of facts. Please remember that you are not obliged to use all of the facts that are set forth. However, at the same time, you must be careful not to employ anything that is not mentioned in the fact pattern. If you look at the law examination question example, you are given a specific set of facts. For example, the question states that "John stepped on Amy's side". However, we do not know whether it was the right side or the left side, whether the "stepping" was light or heavy, etc. A student who writes, for example, that "John kicked Amy" would not be accurate in his or her use of facts. Another point to keep in mind is to be sure you are dealing with the correct law. If, for example, the question asks you about legal issues as relating to California law, you should not analyze the question conclusively on the basis solely of, say, New Jersey law. (c) Time Yourself Remember that you have a limited amount of time, so be sure you time yourself. This may mean reading all the questions in an examination to give you a sense of the total amount of writing you will be expected to perform. (d) Write Well Of course, to have a successful law school examination, you must -ix-