Benjamin Cardozo in The Nature of the Judicial Process :
A judge “legislates only between gaps. He fills the open spaces in the law. . . [R]estrictions . . . are established by the traditions of the centuries, by the example of other judges, his predecessors, and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law.”
Article III, Constitution of the United States
Week 1
Tuesday
Read PRINCIPLES - Chapter 1 - Overview - Introduction (pages 1-5) SLIDES - OVERVIEW
Read PRINCIPLES Chapter 2 - Equity and Equitable Remedies (pages 7-15) SLIDES - intro to equity
The Law Courts and the Chancery Courts –
How should Judges decide: Precedent, Equity, and the Common law; the Common Good and the public interest.
Thursday:
Justice vs. Positive Law - Arc of Justice? Magna Carta to 1868.
John Locke - 1689 - Second Treatise of Government
Man being born …, with a title to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the law of nature, equally with any other man, … hath by nature a power … to preserve his property, that is, his life, liberty and estate, against the injuries and attempts of other men...
Somerset against Stewart [1772]
Read – speech of Lord Mansfield at pages 509-510, supra
Somerset's barrister Serjeant William Davy argued "However, it has been asserted, and is now repeated by me, this air [of England] is too pure for a slave to breathe in : I trust, I shall not quit this Court without certain conviction of the truth of that assertion"
Did Davy win that point?
Declaration of Independence 1776
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness. . . .Massachusetts Constitution 1780
Fugitive Slave Clause – 1789
Prigg v. Pennsylvania, 41 U.S. 539 (1842)
pages **48 to**53
Slides – magna carta to Emancipation in the U.S. (updated and corrected 828 1140 PM)
Resource page – Slavery, Natural law, and positive law
Weeks 2 & 3 Administrative Procedure Act
Second Treatise of Government
John Locke (1689)
Sect. 13. To this strange
doctrine, viz. that [any one in the state of nature may punish another for the
evil he has done], I doubt not but it will be objected, that it is unreasonable
for men to be judges in their own cases…. And hence nothing but confusion and
disorder will follow, and that therefore God hath certainly appointed
government to restrain the partiality and violence of men.
I
easily grant, that civil government is the proper remedy for the
inconveniencies of the state of nature…. But … remember that absolute monarchs
are but men; and if government is to be the remedy of those evils, which follow
from Men’s being judges in their own cases, … I desire to know … how much
better it is than the state of nature, where one man, commanding a multitude,
has the liberty to be judge in his own case, and may do to all his subjects
whatever he pleases, without the least liberty to any one to question or
controul those who execute his pleasure? …
Is John Locke correct? Did Congress overreach in Dodd-Frank? IS the SEC judge, jury and executioner
Tuesday, September 3
Read:
Administrative Procedure Act 5 USC 552, et seq. Review - particularly the highlighted sections
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)
Congressional Research Service Judicial review under the Administrative Procedure Act
David French: Overturning Chevron will Rebalance the Constitutional Order
Amicus Brief -Natural Resources Defense Council - in support of respondents in Loper Bright
AFL-CIO - Amicus Brief in Loper Bright
Lecture: Deadly Dust - the struggle for the creation of the Occupational Safety and Health Administration
Slides - Judicial review under the Administrative Procedure Act (pre-Loper and Pre-Jarkesy)
SLIDES - Remedies- Objectives and Constraints
Thursday, September 5
Are Jarkesy v. SEC and Loper Bright v. Raimondo victories for liberty or blows to democratic controls ?
Weaver, Principles of Remedies Law, Right to Trial by Jury, pages 26-30
How competent are juries? Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) Quimbee video
The King and the Dean: Melvin Belli, Roscoe Pound, and the Common Law Nation - John Fabian Witt
15
USC 77h-1 – authority of Securities and Exchange Commission
15
USC 77t – Injunctions and prosecution of offenses
Securities
and Exchange Commission v. Jarkesy (2024)
SLIDES Trial by Jury - 2024 - Common law to Jarkesy v. SEC
Week 3
Tuesday, September 10
The death of Chevron deference – is it a harpoon in the heart of the administrative state?
SLIDES - Loper Bright Review
*Josh Chafetz – Congress in a post-Chevron world - TESTIMONY
*Adrian Vermeule - Loper Bright Delegation Replaces Chevron Delegation
*Loper Bright – Supreme Court opinions
Reviews of Sunstein and Vermeule, Law and Leviathan:
Conor Casey - Modern Law Review (2021)
by Paul Gowder: Law & Leviathan
Amicus briefs
Professor Thomas Merrill - amicus brief in support of neither party
Amicus Brief -Natural Resources Defense Council - in support of respondents
AFL-CIO - Amicus Brief
Senator Ted Cruz, Speaker Mike Johnson and 34 other M.C.'s in support of petitioners - Amicus Brief
Thursday, September 12
*Slides - Judicial Supremacy? Chevron and the Major Questions Doctrine
Congressional Research Service: Major Questions Doctrine’
*CRS Update: May 2022 - Major Questions Doctrine
*Two views of the major questions doctrine - Cass Sunstein
Mila Sohoni - The Major "Questions Quartet
Blogpost - Conk, The most dangerous branch?
Tuesday, September 17
Equity and Equitable Remedies
Read Weaver and Kelly, Principles, Chapter 2 Equity and Equitable Remedies, pages 7- 30
Lecture SLIDES - Equity and Equitable Remedies
Can Women be prosecuted for obtaining an abortion? - read blogpost
Does the Comstock Act bar manufacturer of mifepristone from mailing the drug? - read blogpost
Emily Bazelon - The Comstock Act is a key issue
Vermeule & Casey: The Comstock Act Bars the Mailing of Mifepristone.
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