Welcome! About This Site What Is It, And Why? Provide Feedback Go To Old Site About Me Who am I? Curriculum Vitae (not current!) LinkedIn Professional page More information ... See top menu bar, "sean wilson" Web Lectures Help What Are They? Actual Courses Constitutional Law I (govt powers) How Do You Want To Search? Use These Neat Menus Introduction Course Information The Subject Matter Course subject matter Intro and warning about Part II The Professor Meet the professor Teaching philosophy The Course Rules Final course paper Exams, quizzes, etc. Grades Quality points Student parliament Helpful Advice Briefing cases Tips for success Slide Methodology Slide methodology Development of American Constitutionalism English History The Medieval Political Order Divine Right & Chain of Being Religion and Society in the Middle Ages Absolute Monarchy Modernity Arrives in England The Enlightenment & Reformation Advantage on the High Seas Violations in the Chain of Being Glorious Revolution The Financial Revolution Rise of the Two-Party System The First Modern Country? The American Colonies Intro Spain, France & England in the New World Introducing the new British colonies "Specs" Success: population & mercantilism The mercantilist relationship Colonial economy, population & government, etc. Rebellion and Independence Miscalculation England loses the colonies Taxation & Representation Discussion: was it real or rhetoric? They never wanted reprsentation Separation Becoming/declaring independence Creating American Government Early Experiments Experiments in self governance the Articles, failure and nationhood The Constitution The convention -- protocol and origin The convention -- plans of government Ratification of the new constitution Inventing American Constitutionalism What is 'Unconstitutional?' James Otis & "constitutionality" The Constitution's Theory of Design Its philosophic significance What it does to statutory power The oil of the new machine: structured conflict Parliamentary philosophy hidden within But how democratic? The Federalist Court Background Development of political parties Supreme court -- the early years Key Cases Chisholm v. Georgia Martin v. Hunter's lessee McCullough v. Maryland Judicial Review Marbury v. Madison Judiciary Act of 1789 The midnight judges) The historic decision Was it politics or law? Judicial Review Was it intended? Why it created controversy Growth of Federal Power Limited Government? Introduction Why the issue is problematic "Simon says" Uncle Sam cannot do that What is "regulating commerce" anyway? The "Regimes" John Marshall (Federalists) Gibbons The facts The issue The ruling Brown v. Maryland Open package rule Roger Taney (Anti-Federalist) Intro Who is Roger Taney? Key Contributions Miln: state police powers Dormant commerce power (cooley, license cases) Laissez Faire What Caused It? Social transformation, late 1800s Early Commerce Decisions E.C. Knight (protecting Goliath) Hammer v. Dagenhart (allowing child labor) The effect of these rulings How a laissez faire commerce clause would read Taxation Decisions McCray v. US (taxes can regulate?) Bailey v. Drexel Furniture (but can't penalize?) U.S. v. Butler (taxes CAN'T regulate) Butler as regime politics "Substantive Due Process" Blunting the states,too Killing the New Deal Schechter Poultry(the final straw) Schechter's significance; FDR's reaction Carter v. Carter Coal (the last stand) The "Four Horseman" (mischief makers) FDR and Beyond Roosevelt's Significance Great depression and capitalism's failure The New Deal arrives "Switch in Time" The court packing plan West Coast Hotel (ending substantive due process) Owens and why he switched his vote NLRB (ending commerce doctrines) Discussion: NLRB, law and politics Meet the New Boss Wickard -- to infinity and beyond Motivation test abolished )Outlawing discrimination with the commerce clause Do we have a Parliamentary system now? The Rehnquist Court David Strikes Goliath Lopez (the first shot) Morrison (entering the danger zone?) David Walks Away Raich, retreat and why? The Big Picture Is the commerce fiction good or bad? The Power of Institutions Emergency Powers Legal v. "Extra-Legal" What's the difference? "Legal" Emergency Power Suspending Habeas Corpus Ex Parte Milligan (when can you suspend habeas?) Revoking the Court's Jurisdiction Ex Parte McCardle The limits upon revoking jurisdiction "Extra-legal" Emergency Power The President's Prerogative Lincoln, law, war and power The Prize Cases (presidents come first) Quirin and Nazi terrorists The Captures Clause (why Quirin didn't raise it) Japanese internment (social context) Japanese internment ("the final solution") Structuring This Power The Youngstown case (facts) Youngstown's solution: don't ignore statutes the Dames and Moore idea: watch existing laws Hamdi and the due process ritual Hamdan and propping up Congress Presidential Power Theorizing About There are three epochs of power Epoch I (the framer's presidency) Epoch II (the American Caesar?) Epoch III (reigning in Caesar) Is liberal legal culture threatening Article II?? Development Of Evolution of power and role views about in the 1900s Curtiss-Wright (rhetoric) Example of implied power: executive agreements The Rule of Law Above the law? (pardons, imeachment) Investigations, lawsuits, exec. priv Starting War Who really has the power? Role of Court in American Government Philosophic Issue Hamilton versus "jurocracy" Examples In This Course What do civil war cases say about it? What does Korematsu say about it? Is the Court beholden to hegemony? View chronological-order page View topical-index page Supreme Court Decision Making How Do You Want To Search? Use These Neat Menus Introduction Course Information The Subject Matter Jurisprudence, Behaviorism & Orthodoxy Teaching approach (philosophical) The Professor Who is the professor? The Course Rules Exams, quizzes and more Helpful Advice Tips for success Your first quiz Advice for paper Help with the paper Slide Methodology Slide methodology Must Know Beforehand Philosophic terminology Development of Legal Epistemology From Antquity Through the 1700s Development of Statututory Power Difference between statutes and precedents How power over statutes developed Roman example: might makes right? Monarchy: to share or not to share statutes? Rise of Common Law Historical development in England History and ideology of Example of the orthodoxy (tipping) The Great Conundrum Bonham's case: who is the boss? What are the foundations of judging? Difference between positivism and natural law Introduction to jurisprudence & cognition Summary and review of the basis of legality America's Contribution "Privatizing" religion New rationalization for statutory power Codification of fundamental law Lowering the rank of common law Judging is "special" The big loophole: Ninth Amendment From 1800s to the Present The American Legal Debate Classical Legal Thought What Is It? Introduction Langdell, Blackstone & "science" Examples (Using "Logic") Marbury v. Madison (the great syllogism) McCullough v. Maryland (introduction) If McCullough Hadn't Used Classicism Did Marshall use logic or ideology? Examples (Using Tradition) Is it ok to use "tradition" to decide cases? Was Brandwell tradition or ideology? Understanding The "A Priori" Format Wynehammer and the "a priori" Holmes/"Realists" The Conundrum Returns What is the foundation of legal judging? The rebellion against classicism Summary of the Holmesian critique Examples of Holmes' Critique The Lochner majority (classicism's last stand) The Lochner dissent ("quit faking") The Realists and Realism Who are "The Realists?" "Sociological Jurisprudence" What Is It? Policy by statutes and empiricism New solution: law as a growth science? Real Examples Of Brown v. Bd. of Education Brown v. Board (a summary) Was Brown "ideological?" When is a decision 'ideological?' Hypothetical Examples Of Speed Traps Gay marriage War on terror Critique Of The flaws of this approach Decline Of Death and decline Positivism What Is It? Introduction to; definition of Summary of positivism Significance Of Implications for morality, international law judging is reading Development Of Development into a regime ideology Examples Of The Tom Brady fumble Riggs v. Palmer (class discussion) Riggs v. Palmer (the decision) Neal v. US (sentencing guidelines) Neal v. US (weight of the drugs) Neal v. US (discussion: why follow stupid laws?) Neal v. US (the idiot's decision) Critique of Excess legalism in culture? Problems with this approach to judging Summary: why follow bad rules? If Law is Indeterminate? Introduction Introduction Aren't most legal rules unclear? Solutions for Unclear language Summary of Solutions Positivism's solutions for indeterminacy Solutions Three Different Schools Originalism What Is It? Originalism v. neo-originalism Original intent (speaker's meaning) Problems With Failings of Speaker's Meaning) "Law" is not your intentions "Analytic" Positivism What Is It? Using rules to read for you A judicial reading machine? Caution: this only a philosophic exercise The Canons of Construction Rules of reading Supporting Literal Semantics Reading canons support literalism Supporting Equitable Results Canons for good results Example of canonical 'realism' "Inductive" Positivism What Is It? Finding essences "behind" words An Example Griswold v. Connecticut Skepticism What Is It? Introduction to deconstruction As a teaching tool v. orthodoxy What it does to "law" Learning the "buzz words" Word pairs for world views? Applications of Two kinds: external v. internal Argument from hallucination "Fundamental contradiction" (Duncan Kennedy fallacy) Original Thoughts About These Problems Re-conceptualizing Jurisprudence Organizing the Approaches Summary of basic approaches Relating Them to Cognition The "Kantian" influence on the mind) Seeing is believing Desires are what rules Three dimensions to semantics? Implications for "Law" "Law" is a cognitive recipe? Integrity versus ideology? Social Science's Ideas Theories of decision making Who Are The Justices Introduction Justices and "liberal ratings" By Appointing President Roosevelt appointees Truman appointees Eisenhower appointees Kennedy and Johnson appointees Nixon and Ford appointees Current-Era Members The current appointees It's all Just "Ideology" A Troubling Idea What is "Ideology?" Introduction Class discussion: what is it? Selecting a unit of analysis What "ideology" means Subject Matter of Beliefs? Lexicography of exemplar subjects in politics Lexicographic typology of exemplars in politics Discussion: "atmospheric" postulates The Court decides non-exemplars? Discussion: what if judges have high scores? Justification for Beliefs? Criticism/observation of epistemology Discussion: when epistemology is the unit of analysis Application of Beliefs? Intro to casuistry Underlying Motivation (Passions)? Deficient brain state (bias) Attitudes and cognition Social Consequences of Beliefs? Rationalizing clients Using this idea Who Uses It? Rush Limbaugh Spock and David Gergan Pat Buchanan Boils down to art appreciation? A Meaningless Idea? Follow/not follow is meaningless? Empirical evidence for Introduction Dockets, Ratings & issues Career Liberal Ratings For different subject areas Problems with, significance of Newspaper Reputation Scores Segal/Cover scores The Paltry Relationship The newspaper-reputation model It's Strategy Game Theory Explaining game theory Example Of Street v. New York It's Generational Regimes What Is It? Intro to regime theory Is It True? According to career ratings? Specific issue: search-and-seizure Is It Bad? The ethics of regime theory No, It's Structuralism What Is Structuralism? Introduction Thinking as negating (derived from Karl Popper) Dworkin: structured discretion and concept of law Dworkin: chain novels, integrity, hercules, correct answers Relating It to Cognition Three dimensions of brain cognition (triangle) Fit within a theory of cognition Implications for "Law" implication for jurisprudence, ties to neo-institutionalism Example Of Flag burning -- an introduction Flag burning -- background cases Flag burning -- Scalia/Kennedy as principled Flag burning -- Rehnquist dissent as value laden Evidence For Core political speech View chronological-order page View topical-index page Politics of Trials and Litigation How Do You Want To Search? Use These Neat Menus Introduction Course Information What Is The Course About?