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
What will be the consequences of this ruling by the Supreme Court? Would state laws barring out of state travel? interstate shipment of abortion-inducing drugs? or "Facetime" consultation with doctors about obtaining an abortion? be consistent with Justice Alito's majority opinion which declares "
* Can Women be prosecuted for obtaining an abortion? - read blogpost
Thursday, September 26
SLIDES - The Comstock Act
FDA Mifepristone Label - January 2023
Office of Legal Counsel, U.S. Dept. of Justice, December 23, 2022:
Application of Comstock Act to Drugs that can be used for abortion
*Vermeule & Casey: The Comstock Act Bars the Mailing of Mifepristone.
*Does the Comstock Act bar the manufacturer of mifepristone from mailing the drug? - read blogpost
*Emily Bazelon - The Comstock Act is a key issue
Does FDA permission to prescribe a drug override state laws banning abortion?
Background
Trump Camp says menstrual surveillance is OK - Talking Points Memo
DHHS Final Rule, April 26 2024, protecting privacy of private health information
Policy Analysis: Medication Abortion Accounted for 63% of All US Abortions in 2023—An Increase from 53% in 2020
Contempt - Tuesday October 1 and Thursday, October 3
Weaver- Principles of Remedies Law - Chapter 3 - Contempt, pages 31 -55
SLIDES - Introduction to Contempt of Court
18 U.S.C. 401 Power of Court
Contempt of Congress 2 U.S.C. §§192 - 194 Refusal of witness to testify or produce papers
The "Smith Act", 18 U.S.C. 2385 - Advocating Overthrow of Government - f/k/a Alien Registration Act
Yates v. United States, (1957)
In Re Debs, 158 U.S. 564 (1895)
Gompers v. Buck Stove & Range, 221 U.S. 418 (1911)
United Mineworkers of America v. Bagwell, 512 U.S. 821 (1994) [read syllabus]
Thursday October 3
*NPR 50 years after Letter from a Birmingham Jail
Walker v. Birmingham, 388 U.S. 307 (1967)
SLIDES - 1963
SLIDES The Collateral Bar Rule
See discussion questions at slide **
Background/ Context:
Alabama 1963 - TV news report
Congressional Research Service - Congressional Contempt Power (2017)
Tuesday, October 8
Restitution and Unjust Enrichment
Restatement of the Law - Restitution and Unjust Enrichment - selected sections
Slides: Restitution, Part 1
SLIDES Restitution, Part 2
Read Chapter 5 – Restitution, page 133-156
General principles, defenses, measuring the enrichment, Special Restitutionary Remedies – Constructive trusts, equitable liens, subrogation, and statutory liens
Thursday, October 10
Read Weaver, Chapter 8 Declaratory Judgments
pages 157-164
SLIDES - Declaratory Judgment
Jeannette Rankin Brigade v. Chief of Capitol Police, 342 F. Supp. 575 (D.D.C. 1972)
Tuesday, October 15
A decade after Brown = a stone wall
SLIDES - The Founding to the Second Founding to American Apartheid
"In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies [fn 4] and by a facility for adjusting and reconciling public and private needs. [fn 5] These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling."
Title IV Desegregation of Public Education Civil Rights Act of 1964
From Brown v. Topeka (1954) through Charlotte (1972), Detroit (1974), and Seattle (2007)
*How the government built white suburbs
Walter Cronkite - CBS - video: The Battle for Busing
SLIDES Swann v. Charlotte Mecklenberg
Read Syllabus: Swann v. Charlotte Mecklenberg [1971]
SLIDES - Detroit & Kansas City
Detroit: Bradley v. Milliken - District Court - excerpt
*Milliken - Syllabus by Clerk, SCOTUS
*Milliken - Marshall dissent
*Milliken - bullet point highlights
Busing - Supreme Court Restricts Equity Powers of District Courts - Elizabeth Warren - Rutgers Law Review - 1975
Segregation in suburbia: Levittown's Legacy
The Color of Law
The Federal role in housing segregation: Economic Policy Institute amicus brief in Texas Department of Housing v. Inclusive Communities Project
Housing Apartheid, American Style
Rothstein Color of Law - Excerpt
Thursday October 24
Seattle v. Parents Involved, 551 U.S. 701 (2007) Read Syllabus
Kennedy - Concurring
Stevens dissent in Seattle
*Stephen Breyer – dissent in Parents Involved v. Seattle
The Color of Law - Richard Rothstein
Tuesday October 29 and Thursday October 31
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
| Damages - General | |||
| 8.10 | Damages — Effect of Instruction — Personal Injury Case Verdict Sheet | Word | |
| 8.11A | Medical Expenses (Non Auto) | Word | |
| 8.11B | Duty To Mitigate Damages By Medical And Surgical Treatment | Word | |
| 8.11C | Loss of Earnings | Word | |
Mass tort remedies – Thursday November 7 & Tuesday November 12
MDLs – Personal injuries and product liability claims
Occupational disease and third-party asbestos product liability claims
Schedule of disabilities - NJ Workers Compensation Act
Johnson & Johnson hip implant cases- the structured settlement grid
MASS TORT SETTLEMENTS
SLIDES - DePuy/ASR Hip Implant Settlement
SLIDES Ground Zero worksite tort claims
BACKGROUND
Deadly Dust: Occupational Health and Safety as a Driving Force in Workers’ Compensation Law and the Development of Tort Doctrine and Practice , 69 Rutgers U. L. Rev. 1139 (2017)
BY George W. Conk
Alvin Hellerstein, D.J., Aaron Twerski, and James Henderson, MANAGERIAL JUDGING: THE 9/11 RESPONDERS' TORT LITIGATION (2012)
Judicial Panel on Multi-District Litigation - 2022 Report
8 USC 1407 MDL
FRCiv Pro 23 - class actions
Philip Landrigan 9/11 Lessons Learned - Worker Health and Safety
Firefighters - presumptions
Pulmonary Function of firefighters after 9/11 Exposure
John Fabian Witt: The Transformation of Work and the Law of Workplace Accidents 1842-1910, 107 Yale L.J. 1467 (1998)
Health trends among 9/11 Responders - 2011 - 2021 - Pre-hospital and Disaster Medicine - Cambridge University
Aggregate Settlements - SLIDES
Environmental Disaster Class Actions –
the BP Gulf of Mexico Oil spill
November 14 & 19
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