JUFN19 INTRODUCTION TO THE LEGAL SYSTEM OF THE UNITED STATES
SPRING 2016
EXAM STUDY GUIDE
1. Topics covered and major cases
2. Readings assigned
3. General guidance
4. Materials that will be distributed in hard copy for use during the exam
1. Topics covered and major cases
Introduction to the US legal system as a whole
• Introduction to the common law and to common law legal reasoning
• The principle of stare decisis
• Ratio decidendi and obiter dicta
• Case law in relation to legislation
• How to read a case and engage in Socratic dialogue
• Scott v. Harris (which we read more for how to read a case rather than for any
black-letter legal rule, and see also Rogers v. Tennessee, at the very end of the
course, which we read for the same reason)
• Historical and legal background to the US Constitution
• The US law-making process and governance structure
• The electoral/appointment process for each of the three branches of the national
government
• Notion of separation of powers and of checks and balances
• Allocation of powers among the different branches of the federal government
• Judicial review
• Marbury v. Madison
• “Strong” judicial review vs. “weak” judicial review: which of these does Marbury
establish? What are the implications of that for a legal system, in terms of allocation
of powers among the different branches of government, or with regard to electorate?
• “Cases and controversies” restriction
• The concept of standing as a form of restriction on judicial review
• Scott v. Harris (as an example of the court arguing over the role of the court in
determining fact)
• Federalism
• Allocation of power between the federal government and the state governments
• Focus on enumerated powers of congress as set out in Art. 1 Sec. 8 of the US
Constitution
o The Necessary and Proper Clause
▪ McCullough v. Maryland
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o The Commerce Clause
▪ Wickard v. Filburn
• On choice of laws (which courts apply which laws in a federal system?), see
below.
• Structure of the judicial system
• Structure of the federal judicial system: District courts (the trial courts), Circuit
courts (the appeals courts) and the US Supreme Court
• Structure of state judicial systems (in general, noting that systems vary between
states)
• Stare decisis in the US federal and state judicial systems: who is bound by the
decisions of which courts?
• Jurisdiction: which cases come before which courts?
• Diversity jurisdiction
• Choice of laws: which courts apply which laws (eg, state law, federal law)? For
instance, if a case based in state law comes up before a federal court on diversity
grounds, which law does the federal court apply?
• Erie Railroad Co. v Tompkins
Contracts
• Elements of a contract: offer, acceptance, consideration
• The “four corners of the contract” principle (the Parole Evidence Rule)
• Unconscionability
• Promissory estoppal
o Williams v. Walker-Thomas Furniture Co.
o E.J Baehr and Another v. Penn-O-Tex Oil Corp.
o Feinberg v. The Pfeiffer Company
• Differences between Swedish and US approaches to drafting and interpreting contracts,
including the use of evidence and the role of the courts
Freedom of Expression
Note: in this section of the course, as opposed to the other sections, our class discussions for
many of the cases focused on the facts of the case and on the outcome, more than on the
specific legal arguments involved. In studying for this section it would be good to be sure
that you have paid attention to the legal arguments and the ratio in at least the four cases
marked in bold below.
• First amendment of the US Constitution
• Restrictions on content of speech
• Schenck v. US
• Dennis v. US
• Brandenburg v. Ohio
• Hostile reaction (including “fighting words”)
• Chaplinsky v.New Hampshire
• Snyder v. Phelps
• Freedom of the press
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• New York Times v. Sullivan
Classified information and prior constraint
• New York Times Co. v. United States (the Pentagon papers case)
Profanity etc
• Cohen v. California
Hate speech
• RAV v. City of St. Paul
Symbolic conduct
• United States v. O’Brien
Different national approaches to protecting speech between the US and Sweden
• The Swedish jury system for cases regarding freedom of the press
• The role of judicial remedies in protecting freedom of expression in Sweden and the
US specifically
Equal protection and non-discrimination
• Historical background:
• The Dred Scott decision (not covered in the readings, but as discussed in class)
• Context for the 13th and 14th Amendments to the US Constitution
• Equal protection under the 14th Amendment and the 5th Amendment
• Plessy v. Ferguson (not covered in the readings, but as discussed in class)
• Brown v. Board of Education (not covered in the readings, but as discussed in class)
• Development of the idea of different levels of judicial scrutiny
• The history of the shift towards rational basis review as the principal approach of the
court except in specific contexts
• The famous footnote in the Carolene Products case
• United States v. Carolene Products
• Current approach by the court to different levels of scrutiny:
• Rational basis review
• Strict scrutiny and intermediate scrutiny
• “Suspect classes” that currently trigger strict scrutiny
• Suspect classes that currently trigger intermediate scrutiny
• Korematsu v. United States
• Loving v. Virgina
• Willingness or not of the US Supreme court to expand the groups for which it takes a strict
scrutiny approach, and the notion of “animus” in relation to rational basis
• City of Clegburne v. Clegburne Learning Center
• Romer v. Evans
Criminal law
• Substantive due process and “incorporation” of certain rights in the Bill of Rights (the first
ten amendments of the US Constitution) so as to apply them to the states through the Due
Process clause of the 14th amendment
• The jury system
• Freedom from unreasonable search and seizure
• Mapp v. Ohio
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Torts
We never had a full discussion of the torts readings, so knowledge of these will not be
expected in the exams.
2. Readings assigned
Scott v. Harris (H20 site)
Optional, but highly recommended: Orin Kerr’s How to Read a Legal Opinion (H20 site)
Fletcher and Sheppard pp. 5-10 (“The ‘simple' facts about American law”)
Fletcher and Sheppard chapter 5
Fletcher and Sheppard chapter 6
Fletcher and Sheppard, chapter 7
Fletcher and Sheppard pp. 277-278 (the opening pages of Chapter 13, up to the introduction
to the Pennoyer case).
Fletcher and Sheppard chapter 14
One-page handout on the structure of the federal court system (handed out in class)
Wickard v. Filburn
Fletcher and Sheppard chapter 19
Williams-Walker Furniture Co (H20 site)
Introductory note on the Parole Evidence rule from Contracts: Cases and Materials, by
Kessler, Gilmore and Kronman (H20 site)
Fletcher and Sheppard chapter 10
Reading packet (extra copies available at the Library reception desk) with Brandenberg,
Chaplinsky, discussion of the Skokie situation, and Snyder
Schenck v. United States (H20 site)
United States v. O’Brien (H20 site)
R.A.V. v. City of St. Paul, Minnesota (H20 site)
Cohen v. California (H20 site)
New York Times Co. v. United States (H20 site)
Optional but highly recommended: Vilhelm Persson’s background note on freedom of
expression in Sweden (class website at Juridical)
United States v. Carolene Products (H20 site)
Korematsu v. United States (H20 website)
Loving v. Virginia (H20 website)
"Levels of Scrutiny Under the Equal Protection Clause" on Doug Linder's "Exploring
Constitutional Law" website at the University of Missouri-Kansas City School of Law (link on
the H20 site)
City of Clegburne (Justice Marshall's dissent, after paragraph 115 or so, is optional) (H20
site)
Romer v. Evans (the dissent is optional) (H20 website)
Fletcher and Sheppard chapter 11 (on the jury system; read only up to the start of the Bloom
case)
Fletcher and Sheppard chapter 12
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Fletcher and Sheppard chapter 4 (focus on the Rogers v. Tennessee case)
del Carmen, Criminal Procedure: Law and Practice, pp. 17-26. (Handed out in class; extra
copies available at the Library reception desk)
Lon Fuller, The Case of the Speluncean Explorers, 6 2 Harv. L. Rev. 616 (1949) (link on the
H20 website)
Torts readings: not required for the exam, but interesting and worth discussing in the review
session in case of any questions
• Pam Karlan's playlist Duty I: Action vs. Inaction; Malfeasance vs. Nonfeasance:
• read just the introductory note (H20 site)
• Pam Karlan's playlist Proximate Cause (Scope of Responsibility): read Introductory
Note and Palsgraf (H20 site)
• Pam Karlan's playlist Negligence Per Se and Res Ipsa Loquitur. US Legal System
class: read introductory note and skim Martin v. Herzog (H20 site)
• Pam Karlan's playlist The Plaintiff's Role: Assumption of Risk, Contributory and
Comparative Negligence: read just the introductory note (H20 site)
3. General guidance
Of course there is more to the course than the topics and cases listed above — this study guide
is meant as a general summary and overview. The more familiar you are with all of the issues
and cases we discussed, the richer your answers to the questions will be.
In preparing for the exam, on the big topics — for instance the role of the judiciary or the
approach to non-discrimination — a helpful technique would be to ask yourself if you could
explain the relevant formal structures and principal legal approaches to a lawyer who is not
familiar with the US legal system.
On the more specific topics — the black letter law that we have learned, for instance — a
helpful technique would be to ask yourself if you understand the general rule involved so that
you could apply it to a set of facts. For instance, the exam will include an “issue spotter”
question — ie, one that sets out a story with a series of events in it, and asks you to identify
and discuss the legal issues involved. If the story involved a police officer searching a home
without a warrant, you would think of the 4th Amendment right against unreasonable search
and seizure, and know that under ordinary circumstances, any evidence the officer found
would not be admissible as evidence in court under the rule in Mapp .v. Ohio.
For the cases, of course it is always important to think about what precedent the case sets, in
terms of the legal arguments involved (the ratio of the decision, and any interesting opposing
arguments in the dissents, if we read the dissents.) Given a new and somewhat different set
of facts, would you be able to argue for why the case is a relevant precedent or not?
4. Materials that will be available at the exam
• The US Constitution, including amendments
• Doug Linder’s “Levels of Scrutiny Under the Equal Protection Clause” one-pager
• Possibly more, to be discussed in class
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