U.S. CONSTITUTIONAL LAW TOPICS / LEGAL WRITING TIPS, AND
OTHER GENERAL COMMENTS ABOUT U.S. LAW SCHOOLS
Daisuke Beppu
Blakemore & Mitsuki
AUTUMN 2013
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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
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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
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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.
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F.
BACKGROUND TO MARBURY V. MADISON
1
◆ 1789: Congress enacts the Judiciary Act of 1789. 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 1800. 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.
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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.
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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
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C.
LAW SCHOOL
QUESTIONS?
EXAMINATIONS:
WHAT
KINDS
OF
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
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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
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