Judicial Process
Spring 2025

Mezes B  0.306

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All cases assigned should be briefed unless otherwise noted, If a case is not linked to the web, it appears in the course packet available at the Coop.  On this page “cp” means the case or reading is in the course packet.The Course Syllabus  page contains a link to instructions on briefing a case. Briefs need to be written and brought to class unless you can commit your brief to memory in a way that you can answers questions about it. There are relatively few cases assigned in this class and many  are very short because they are state cases, not Supreme Court cases,  or they are cases about procedural issues.   We will be covering them in more detail than the cases in my con law survey courses.

General reading assignments should be summarized in writing and also brought to class. Usually, for the assignments in Courts, Judges and Politics, called CJP on this Assignments page, three or four sentences summarizing the main points will be sufficient. Also do this for D’Amato chapters that appear in  cp.  They may take 1/2 page or more. Pay particular attention to the way D’Amato uses hypothetical fact situations to illustrate his points. He is a master at this kind of argument which is  fundamental to the understanding of how judges and lawyers think and behave.

NOTE: As we move through the semester, assignments are subject to change. Check this page on a regular basis. Some links may not be updated until 2 weeks before the relevant class.

There is a videopage for this course which will be kept updated, mainly with relevant videos from Youtube. (click here)

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How do we predict the behavior of actors in the legal/judicial system,    We make predictions consciously and unconsciously in our life all the time,  For some students if we know how hard a course is we can predict whether they will enroll.  No social prediction has a perfect correlation. If you can get predictions right maybe 75% of the time you are doing well.   Social life is multivariate.  This will be illuminated in more detail in the famous Supreme Court death penalty case. McCleskey v Kemp.  By actors I mean not only judges but also juries, lawyers, prosecutors and others who affect the system.  As a citizen and/or a lawyer, you need to know this as you navigate life.  For instance, at times when  one is  making a difficult business decision, as I know only too well, one must  be cognizant of the law and how judges, juries and lawyers might react. In  law school, one mainly studies the black letter law, written law and precedent.  In many contexts these  may not fully shape the outcome of the case or conflict. Many  other factors may  do so either individually or jointly.  I have been in cases where I had to make these calculations.  At times, I have been wrong.

This is not a normal Judicial Process course. We cover the material in a number of ways  

First, we use cases to illustrate various parts of the process.  If we are going to talk about how juries operate and impact the process, we will be looking at some famous cases on  juries.  If we want to know how judges operate in interpreting common law we will be reading some of the most famous common law cases one might encounter in law school, Palsgraph, Hawkins, mentioned in the movie about Harvard Law School,  The Paper Chase,  and others. If we want to know what options a judge might see in deciding a case we will be looking at “The Case of the Speluncen Explorers”, a famous hypothetical developed by Harvard  Law Professor Lon Fuller, written in the 1940’sd complete with 5 judges using different philosophical approaches to making  a decision in this case. As an add on,  my late dear friend and Fuller student, Professor Anthony D’Damato(perhaps the smartest person I have ever met), added 3 more possible opinions in his book  A Introduction To Law and Legal Thinking.  This is one of the best books ever written for law students and undergraduates about this topic.   Most of the book is in the course packet. (cp). And of course, some other legal scholars came along and added a number of other possible opinionto  this famous hypothetical. So we will be more than 10 different opinions. There are not different outcomes.  Just 10 or different justifications for either guilty or not guilty as charged.  And as we will  see when we read the  case of Queen v. Dudley and Stephens,  the original article by Professor Fuller is a variation of this famous 1890’s English case. We don’t get the Speluceans until  near the end of the course. Bu then many of you could write a number of different opinions in the case too!

Second,  as we learn about the legal/judicial process we also want to look at predictive models of outcomes, a major pastime for us quantitative social scientists.  We will be looking at such models to help us understand patterns in judicial decision making. This was originally Dr. Sager’s specialty.  His  dissertation was “A Computer Simulation of the 1962 Term of the Supreme Court.”  These models will help us see how various parts of the process impact the final part, the actual judicial decision.  Also he is not sure  anyone else has attempted to build a full computer simulation of a court at any leel.

Third, we will be reading commentaries on various part of the judicial process by academics and actors, mainly judges. In reading these, we want to keep in mind what the writer is saying about predicting  decisions and outcomes.

Fourth, we will be analyzing the bivariate and multivariate  relationships at various levels of generality. A bi-variate relationship  is between 2 variables.  If we know one variable, we try to predict the other.  If we know the political view of a judge can we predict the outcome a particular case.  In some  instances,  it would be hard to take the notion of whether there is American style judicial review and predict the outcome of a particular case, But we could take that variable as a predictor of some broader concept such as a fair judicial system.  Of course, we have to  define “fair” first. This will be clearly  explained as we read the  two articles assigned during the semester from when I was on the student board of “The Law and Society Review” at Northwestern University., It was at a time when probably many of  your parents were even born.  Both are classics though we may have not realized they would be when we made the publishing decision. This is especially true of  the one on witchcraft, assigned for the our first class. It flummoxed us for a while. Then we printed it. These above noted foci will be apparent as we go through the semester.  We cover everything from from data suggesting when cases get into the judicial  through the pre-trial phases to the trial, appeals and so on.

If you want to venture into what the whole judicial process looks like go to this link:   http://sites.la.utexas.edu/judpro/files/2024/01/flow-chart-model-judicial-process.pdf  (The name was to long to fit into a click here on this page) The cases we cover will involve  parts of the process,  The purpose for this model is for students to see the overall flow from the start Exampleof conflict to the steps it must follow through the judicial process.  Our cases will be high court opinions about conflicts that have occurred at   various parts of the the process such as evidence, judicial recusal, prosecutorial behavior.  And , of course, we will be analyzing judicial behavior throughout the semester from constitutional interpretation to statutory interpretation to general predictors of judicial decision making.

For many of the students in this class, I am using unfamiliar terms.  By mid-semester they will be very familiar.

REMINDER: Assignments from book, “Courts Judges and Politics” referred to as CJP are now in course packet,  referred to as CP.  Example: a reading is  listed as 9.1 The Adversary Judge. It can be found in Chapter 9 entitled Fact Finding in the Courts. Read the introductory part of Chapter 9. It is followed by the assigned parts of Chapter 9.  First one is article by a famous trial judge. Only a few  parts of each chapter are assigned and they follow one another in order, e.g.,  Reading 9.6 comes after Reading 9.1 or parts of  Chapter 9 are assigned on other days.

Class 1 Monday  January 13, 2025

1. Read and  Digest article on Witchcraft, Elliot Currie, Crimes Without Victims, in course packet  CP.  Original article can be found  (click here)

      2. Many  students have  probably read Franz Kafka’s book The Trial in high school.   Either review it for class, read it( it is quite short) or watch the old Anthony Perkins film of the same name. This is the 1962 film with an all star cast including Romy Schneider, Jeanne Moreau and  the great Orson Wells who wrote the screenplay. Run time is 118  minutes.  I find the movie quite scary so you might want to watch it with someone.

     3. Dr. Sager will recall the events in Kenosha, Wisconsin  in the summer of 2020.  Kyle Rittenhouse was charged with killing 3 people and eventually acquitted by a jury.    Did the prosecutors know he would not be convicted by a jury? Why was he arrested iu first place?

      4. Consider the coverage and aftermath of the January 6th Events at the U.S.  Capitol.  What do you know about this and how do you know it? W     

 

Here are some questions we will consider in Classes 1 and 2.

1. What is the judicial/legal process in this country?   What are its main parts or essential elements? Is it followed everywhere, all the time, at all levels of government, by all actors in the process.   What are your thoughts as we begin this course
2. Who are the main “players” in the judicial  and legal process? How were they represented in the Curie article and Kafkas, The Trial.
3. Does Kafka’s  book have any relevance to what goes on with our judicial/legal  process today?
4. Some conservative writers now say the “process is the punishment” What does that mean.  Does the Currie article or the Kafka movie shed light on this comment. How about the January 6th events and their aftermath
5. Considee the Trunp Trial from charges to prosecution to judges behavior to verdict to appeal to final decision.  What does that tell you about the judicial process and judicial behavior.

The entire civil and criminal process from the original conflict between two parties over a civil matter, contracts, torts, property etc or over a criminal matter, e.g. assault, is complex.  If you would like to see a relatively full model of the processes,  see the model linked at the beginning of the assignments for Class 7. Even that model only traces the progress through the trial court level.  Sometimes, the appeals process can get very complicated as well.  For the most part we will only rarely see complexities of appellate process. Usually it is  case appealed to an appellate court and one side wins and other loses on law. Loser then goes to  highest court in state or federal system. At times the  case is sent back to appellate court or a different court.   I will discuss when relevant in class, I was in a business case  that went to 4 different courts in federal and states court systems. First before trial it went from  state district court to federal district court to federal appellate court,  back to  state district court, then to state appellate court, then  back to state  district court and then back to state appellate court and then settled after appellate opinion.   

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Class #2 – Wednesday January 15, 2025

We will finish up the material and discussions from Class #1.

Why are judges important and How should judges behave?

1. Importance of judges

Reacquaint  yourself with Marbury v. Madison.  If you have never read it you can find the case on Findlaw or Scotusblog.  Dr. Sager will discuss it. Get  a sense of how it is put together  with regard to arguments and focus.

2. How Should judges behave?  How should they make decisions.  

To begin thinking about judges and judging we will  start  with a well know Supreme Court case, Republican Party of Minnesota v. White.

Brief  Republican Party  of Minnesota v. White. It is a rather short Supreme Court opinion

Go  to the full Supreme Court opinion:
Republican Party of Minnesota v. White(Online findlaw)   After doing your brief     (click here for Dr. Sager’s very brief brief of this case)(you can find  more about the case and judges who decided it by going to the Oyez Oyez website on our resources page and search for the case by name.  Also, you can find on Oyez the oral argument in downloadable mp3 format and a transcript of the oral argument.Most oral arguments are exactly an hour long and they provide great insights you may not get from reading an opinion)

On the surface this is a case about free speech during a judicial election. But this is not a course in civil liberties. So you need to look below the surface to see how this case applies to this course. Study this case very carefully.

• What theories about how judges do and should behave are propounded or hidden in the various opinions?
• Do these theories apply only to judges or to all political actors or all people?
• How would you have decided this case and why?
• What is the political significance of this case?
• What current political issues does this case speak to?
• What parts of this course does this case speak to? (look at the various topics in the syllabus to get a handle on this question)
• We will be reading a book that is now out of print entitled “An Introduction To Law and Legal Thinking.”    All but 2 of the chapters are reprinted in the course packet (CP)
  Professor D’Amato in a law review article and a presentation accused a famous judge of lying about the facts of a case that came to his court on appeal.  D’Amato was representing a  black doctor from Chicago who was accused of killing his wife.  For a brief news article in the  New York Times from 1989 about D’Amato’s accusations  click here.  What, if anything,  does this have to do with the above questions and this case?

For this  second class:

Begin reading Clarence Thomas, My Grandfather’s Son.  We will begin using it for discussion in our fourth class.
For this second  class: Read and briefly summarize Scott Turow   One L:An Inside Account of Life in the First Year of Harvard Law School CJP Reading 5.1 pp 221-228  Again all  CJP readings are in course packet. you are welcome to buy a used copy of the book if you wish.  Courts, Judges and Politics, Murphy, Pritchet and Epstein, Here  is the article for your use only.(click here)

3. Take detailed notes on Oliver Wendell Holmes, Jr. The Path of
       the Law, CJP Reading 1.4, pp 27-30 in course packet.   This is an essay from the an 1897  
      Harvard Review. You can find this on many different websites.
      Here a link to a Holmes piece from Murphy book (click here)

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Monday January 20th No Class MLK birthday

 

 

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Class #3- Wednesday January 22nd

Since we did not have a class on Monday. This class has a large set of assignments. You also have a week to prepare these materials. If we fall behind , we will eventually catch up by Exam 1.

First, for a little fun read this article about 25 of the weirdest, silliest and frivolous lawsuits in a USA Today article covering each one rather briefly.  What are your two favorite ones on the list.
(click here)

Now to more serious reading.

Brief   Caperton v. Massey  (Edited version Click here) It is about 10 pages long.
On the surface this is a case about due process of law and whether a judge should recuse himself or herself as a result of campaign contribution by parties in case on which he or she is sitting.
But under the surface, as in the Republican Party v.White case, there are theories about judicial behavior and the role of Courts in defining and regulating it.
This is another case like Republican Party v. White, where a civil rights claim is made and decided on top of a number or assumptions about how judges do or should behave and appear. It deals with some of the same underlying issues as in Republican Party v. White from the perspective of a litigant where as White deals with them from the perspective of the bar associations.  Both cases involved judicial elections which is one of the major ways many states staff their judiciaries.  There is a reading about the various ways judges are selected in the states coming up in CJP. These case also provides some context  the federal process in which judges and justices are appointed for life.

The majority opinion in Caperton mimics a model of how judges should decide cases.  Can you see that model?

Brief Band Refuse Removal v. Village Fair Lawn (cp)(If you have not gotten course packet yet, you can find this case by clicking here)

At a general level, what are some of the similarities and differences  between Band and the previous two cases, White and Massey.  Of course the previous two were decided by the U.S. Supreme Court not a New Jersey court.   The mafia was not involved in the previous 2 cases as best we know, though in some political circles Massey Coal and Blankenship are spoken of as if they fit the common view of the mafia.

What  is Justice?

Read: D’Amato  Chapter 7 on Justice (cp)

What role should Justice play in judicial decision making?
What would a “just result” be in a  constitutional case or a common law case or a murder case?  We have read 3 cases so far.  Were the results just?   Was justice done? As noted above, D’Amato wrote an interesting article about the injustice done to a Black doctor he represented in a Chicago murder case in 1968.  D’Amato eventually wrote an article that appeared in the New York Times about appellate judges lying about case facts.  He wrote a more erudite article in 1990 (click here).   Read at least first two pages of this article.   To be up front, D’Amato was a friend from 1968 till he passed away in 2017.  We were also in business together for much of that time  Among other things he had a law degree from Harvard and a Ph.D. in Political Science from Columbia in International Relations. Most of his teaching life was spent at Northwestern Law School.  He wrote about 3 articles a year and a book every 3 years or so.  He also took interesting cases usually involving international law around the world.  We will be reading more parts of his book, An Introduction to Law and Legal Thinking, which is out of print.  He gave me permission to reproduce parts when the book went out of print many, many years ago. He also produced a hit Broadway show and wrote his own musical. More
about this in class as we read his book.

 In class video: Justice For Sale  from 60 Minutes   1988.

Watch the classic American film on justice in the old West, The Ox-Bow Incident.  Very short film,  Runs 1 hour and 15 minutes. Since it was created in 1942 it is not in color.  What version of justice is this and how does it fit with what we are studying.  People today are often “hung” on social media which may be more painful for a longer periods of time than an actual hanging.  Look up story of couple, The Resnicks, who were alleged to control or hoard  most of the water in California and thus, responsible for the lack of water to put out fires.

The Selection of Judges I: State and Federal Processes

Read:CJP Chapter 4 pp 141-159 (137-157 in earlier edition) on judicial
selection in Course Packet

Read Russell Wheeler ‘s piece on background of federal lower court judges(click here)  He updates some of the data in the Goldman and   Slotnick following this section of Chapter 4. Russell was a Judicial Fellow  a year ahead of Dr. Sager
Read: Commentary Article on Bork nomination to Supreme Court for a word version (click here)   For a pdf version of the article(click here)

Can politicians and the public predict judicial behavior?
Should a judge’s future behavior matter?  Was Bork treated “justly”?  Why or why not. 

Read David Beckwith’s  5 page Time cover story on Robert Bork shortly after he was nominated and before the hearings started.  (click here)  
What does this add about Bork  that is not in the Garment piece and the whole anti Bork campaign?  What does this foreshadow for the future defenses of  conservative Supreme Court appointments?

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Class #4- Monday January 27th

The Selection of Judges: State and Federal II

TMA Video will be shown in class.  It is a companion to the Justice for Sale Video shown last Wednesday. Watch some of the Bork and Thomas videos on the videopage for this class and the next.  Read Commentary articles on Thomas nomination and the letters about those articles.(click here)  
For PDF version of Thomas nomination article (click here)

Finish Thomas autobiography by this class.  We will discuss,

Click here for study questions on Garment articles on Thomas and Bork and Thomas Book

Click on Table Number to get that table. Tables 7, 8 and 15

View the following Tables in CJP  now in case packet and see if they add much to what we know from the above tables:
Siegal et. al. Table 1 p. 194 Presidential Policy Liberalism by Walker and Barrow  Tables 1 and 2, pp 202-203  Gender and Policymaking and Race and Policymaking Note again: various editions of CJP may have different page numbers.

After studying the table ask your self what information does it give you about judicial behavior, the appointment process, the comparative views of Republican and Democratic appointees, and about some of the conflicts in the Senate about the process.
Work on getting as much information as you can from each Table and compare what each Table says in light of the others.

Was the Kavanaugh nomination process a repeat of the Bork and Thomas nomination processes

What do Courts Do?: I

 Brief The Queen   v. Dudley and Stephens.  CP  The  opinion and summary of facts and procedure   (click here)  (notes and questions on Dudley and Sherrod case
assigned for next Monday as well as Currie article.
( click here)

Read the following article by Arthur Koestler written in 1946.  You may have read his book Darkness At Noon in high school  .  The article  gives you the larger picture around the issues in Dudley and Stephens (click here)

This issue is embedded in much of the judicial process and certainly in the issue of justice.

Here is briefing assignment in case you did not see it in your canvas email.  It contains a list of cases for briefing, value of each part of brief and some letters of last name of those who are assigned to each case.  (click here)

 Class #5 Wednesday January 29th

(There are a number of Thomas videos  of various lengths on the class Videopage.  Dr. Sager met with the Justice the morning  he gave that talk as part of the Annual Judicial Fellow Program.  At one point he talks about judicial narratives which we  will discuss in connection with a spirited and moving Thomas dissent in the Brumfield case assigned near end of semester.   This is a very
good one to watch)

What do Courts Do?: II

       Brief   McNaughten’s Case    (click here)   
      

Note I have just included a couple of pages from the old English case
      which is the basis for the insanity defense.  Should Dudley and
      Stephens have pleaded insanity?
      Who should decide if the defendant is insane,  the judge or the jury?

    Brief Sherrod v. Berry  cp

      CJP reading 8.2, Epstein and Walker, The Choices Justices Make 
       (essential reading to go with Craig v. Boren)

      Brief Craig v Boren  United States Supreme Court(Online Findlaw)

Read D’Amato,  Chapter 1 What Law Does  cp or 
 (click here)

Figure 1. Traditional Model of Legal Reasoning  (click here)

 

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Class #6- Monday February 3rd

Models of the Judicial Process

The entire Anglo-American judicial and legal process is quite complex.  For a beginning look at  this process in  a flow chart. (click here)

The Traditional Model of the Judicial Process I: Examples from the law of Torts

       Brief Winterbottom  v. Wright cp (click here )for text of 1842 English case
       Brief Thomas v. Winchester  cp 
       Brief Loop v. Litchfield cp

When reading these tort cases on the development of product liability law, pay attention to  the exactly what part of the process is being challenged, e.g., a jury verdict or a judicial ruling or a pleading and so on.

Read D’Amato chapters on What Is Legislation and  What Is Court Made Law  For  Chapters
3 and 4  (click here)

CPJ Chapter 10 Precedents and Legal Reasoning pp. 438-449  Products Liability Glossary  (click here)(Begin reviewing these terms and make sure you understand them all by the end of class 8. Ask questions about those you do not understand).

Figure 1. Traditional Model of Legal Reasoning  (click here)

 

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Class #7 – Wednesday February 5th

The Traditional Model of the Judicial Process II: Examples from the law of Torts

         Brief   Losee v. Clute  cp
         Brief Devlin v. Smith  cp
         Brief Torgeson v. Schultz  cp
         Brief MacPherson v. Buick  cp Listed as Justice Cardozo in book of readings
In case there is a problem with cp copy of case,  this case is linked here (click here)

Read:  10.7 Lewis Powell, Stare Decisis and Judicial Restraint 
         

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Class #8 – Monday February 10th

 Read Appellate Judge Ruggio Aldisert

He talks about categorical syllogisms and deductive reasoning.   (click here)
All you need to understand for class and for the exam later this week is what is a categorical syllogism and how it is constructed from judicial reasoning.  We will discuss this
in class today.  I will start this discussion  with2 assumptions  1. That you have read Aldisert and understand the basic syllogism:  All men are mortal.  Socrates is a man.  Therefore Socrates is mortal. 2.  That you know the the 3 parts of the syllogism.  If you already know syllogisms, this will be a review.  If you don’t,  you have this reading.  Read as much of Aldisert as you need to understand the basic syllogism.  

Three  Models of Judicial Decision making  (click here)

The Traditional Model of the Judicial Process III : Examples from the law of Torts

Brief Escola v. Coca Cola  cp
Brief Greenman v. Yuba Power cp
Brief Sindell v. Abbott Labs cp

 Read part of introduction to Dr. Sager;s speech about “Bridging The Gaps: Examples of Supreme Court Justices Who Did and Did Not.  (click here)  

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Class #9 Wednesday February 12th

  Exam #1     Generally covers all cases and many of  reading maerials.  Will give more  detail by Class 8. Exams are 40% objective and 60% essay.   These instructions have been updated around midnight February 4th.,

A. Cases: 10 on product liability and first 7 from RP of Minnesota to Craig v. Boren. Marbury v Madison will not be on exam

B. Movie OX Bow Incident and book My Grand Father’s Son will be covered on exam,  The Trial  movie or book will not be on ezam

C, Some videos  on video page seen in class  Numbers 8, 9,, 13, 14, 15, 17, 26, 27 29  

D. Understand fully about categorical  syllogisms discussed by Judge Aldisert in reading for class 8.  We will work on creating them for some of the cases we have already done. 

E.Readings on exam will will include Curries article, Koestler article on Dilemma of our Times, D’Amato book chapters 1,3,4, and 7 and his  defense of the Dr., Holmes Path of the Law, Garment pieces on Thomas and Bork nominations,

E Exam with be 25-30 multiple choice questions testing that you read or watched material sand can relate them to class material, and each other.   Objective is worth 40 points total and essays are each worth 30 points. Average objcctive raw percentage over the years is around 60-75% maybe. It gets curved depending on a number of factors.

F. There are just 17 cases  for exam of which 10 are about product liability.  There will be no case list per se on the exam. Probably all cases will be involved in one or more objective questions so there will be an implicit case list on the exam. So t

G. There will be two essay questions.     Essays will be of the following types: (1) a hypthetical where you are to find the issues and present clear and brief arguments and counterarguments ( 2:)Arguments and counterarguments about  ideas in a reading ( 3:)A brief of a very short case where you will do the main parts of the brief starting with facts and going through source of law. There is a model brief listed on  Syllabus page for the case Craig v Boren

H. All essay answer will be one on lined pages provided.  Each essay must be done on 2 pages, front and back of each page provided.  Bubble sheets provided for objective exam.
Bring a pencil to fill in bubble sheet and write your name and UT EID clearly so gradescope can read it and  score it. A pen is better for essays.

I. Tidbits in your class notes.

J. No questions on data tables and models other than basic one  shown in figure 1.  The rest of the semester will be more data and model intensive.

 

 

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Class #10-Monday February 17th

Begin reading Murray book.  Part I  through Chapter3, An Extra Legal State Within the State.  This book is about a many  political issues related to law,  the legal and judicial processes.  Among things, at some points in Chapter 2 he mentions cases we have already read in this class.  He discusses early in the book some of the concepts and issues we are covering in the course.  The latter part of the book is his unique solution to the problems he presents.   Unfortunately the way he develops his thesis does not fit  with the organization of this course.  For instance  several parts of Chapter 3 fit with Class 24 and  Part III fits in any number of places and so on.   His conceptions of justice,  correct constitutional interpretation and judicial roles underlies much of this provocative book.

The Traditional Model of the Judicial Process IV: Examples from the law of Contracts I

Brief Oscar Schlegel v. Peter Cooper’s Glue(2 cases)  cp
Brief Williams v. Walker Furniture Company(2 cases) cp
Brief Hawkins v. McGee cp

Tables 10 and 11.(click here)

Additional reading for Class 11
Conversation with Clarence Thomas at Library of Congress Auditorium on Thursday February 15th. One of his former clerks who was law professor and just was appointed to a Judge position on a federal administrative court interviewed him.  Here are 3 different stories from various news sources.  The Daily Caller story appeared  on The Drudge Report for less than 24 hours. What difference if any do you see in them.  I will denominate them as  Story 1, 2 and 3  Click on name for article.  Story 1    Story 2  Story 3

 Read and Consider A couple of years ago,  Justice Ginsburg sat down with Jefferey Rosen who is a law professor and liberal columnist.  The link here is for  an article  about the interview.  The full interview is shown in the article.  For the article, click here

In light of Republican Party of Minnesota and other materials we have read, what do you think about her doing such interview.
Based solely on the news stories.  what ways  is   her interview similar to the Thomas Conversation and in what ways is it different.

Lastly, check out this article about a Federal judge who was basically appointed by Senator McCaskill of Missouri fining the Senators Republican opponent   (click here)

 

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Class #11 – Wednesday February 19th

The Traditional Model of the Judicial Process V: Examples from the law of Contracts II  

     Brief Peevyhouse v. Garland Coal Co.   2 opinions CP
     Brief  Pacific Mutual Insurance v. Haslip   (click here)

Read Media War on Clarence Thomas  (click here)
Whose data is reliable? (click here)
Dr. Sager has often noted how repeal of SALT tax limitation helps mostly  upper class Americans. Here is an analysis of who is    helped by
 the student loan pause.  Three guesses  (click here)

Last day to turn in Paper #1, Supreme Court Brief

For voting behavior in Haslip and 2 related  cases(click here)

How the Judicial Process Works I: Choice of Forum and Pleadings

      Swift v. Tyson(Dr. Sager will discuss)

Swift v. Tyson  (Click here)  While not assigned to brief, you are
welcome to try your hand at reading it. We are interested in the issue related to what law applies to this contract, New York  or Federal. If it is Federal, where does that conclusion come from, what is its source?     

      Brief Erie Railroad v. Tompkins  (click here)

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Class #12  – Monday  February 24th

Read and digest Justice Brandeis in Ashwander v. T.V.A. (click here)

Erie cites a case entitled Black and White Taxi v. Brown and Yellow Taxi.
It is important to understand this case. Click here for a brief description of the case.
You should fully understand the issue and voting lineups in the Supreme Court when case was decided and when Erie comes around

For Table of voting behavior in Erie and B & W Taxi cases (click here)

Read Chapter 8  Limitations on Judicial Power (click here)

While this updated Assignment Page is being done around January1st, we will be discussing
lots of current cases mainly involving judicial power with regard to President Biden and now candidate Donald Trup.  A good starting point is thinking about who should decide any of their claims or their side’s claim about the other.  The Courts or the voter or some other person or groups. The Chapter on Limitations of Judicial Power does not directly look at this question.

How The Judicial Process Works II: Trials, Pre-Trials, Juries
Brief J.E.B. v. T.B.      (click here)
Brief Ballew v. Georgia   (click here)
Brief State v. Susan Nelson  cp

From J.E.B.  be sure you  you know the facts with regard to gender of the various parties.  Also understand the difference between peremptory challenges of jurors and challenges for cause  and how they work in jury selection.  Lastly  be sure to understand the various positions of the justices for and against the allowing the challenge in question.

For Ballew, pay particular attention to the research on juries discussed by Justice Blackmun. Some other jury research appears in the CJS readings.  Also wrestle with what is called Type I and Type II error and try to apply that to your everyday decisions metaphorically.  Again be sure to know the various pomositions laid out in all the various opinions.

In conjunction with State v. Nelson read the following article on prosecutorial misconduct from the D.C. Bar magazine and be prepared to discuss in class. (click here)

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Class #13 – Wednesday February 26th

 Trials, Pretrials and Juries contined

CJP Readings  Again summarize in a couple of sentences

9.1,  Frankel  The Adversary Judge: The Experience of the Trial Judge
9.2   Zeisel and Kalven, The American Experiment  Dr. Sager to discuss. Not in CP
9.5   Etzioni,  Science; Threatening the Jury Trial  Dr. Sager to discuss.  Not in CP
9.6   Michael Saks, The Limits of Scientific Jury Selection

 13.1 Charles Nesson, Critical Issues in the Courtroom: Exploring a Hypothetical case(click here)

How the Judicial Process works: III Evidence, Lawyers  and Ethics

       Brief U.S. v. Kasto  cp
       Brief Nix v Whiteside (click here)
       Brief In Re Winship (click here)

Lawyers Trilemma  (click here)

        Read Blumberg, The Practice of Law as a Confidence Game    CJP 5.3.  Another famous article from the late 60’s The Law and Society Review.

 

With regard to our previous discussions of prosecutors, read a review by a large law firm lawyer of  Daniel Fischel’s late 90’s book Payback.  One of the main main prosecutors referenced in the book and not mentioned by name was Rudy Guiliani.  Fischel, who had created a law and econometrics business,   later became dean of University of Chicago Law School. He hired as an adjunct Professor  Barak Obama to teach at the U of C Law School. (Click here)

Also read through the introductory pages to Chapter 5 in CJP about The Bar

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Class #14-Monday March 3rd

How the Judicial Process Works IV: “Scientific Evidence”

Brief McCleskey v. Kemp  CJP 9.9 (or Findlaw)
Brief Daubert v. Merrill Dow  Findlaw

       Discussion of the movie “12 Angry Men.”

Junk science of John Edwards
Read again article  on Witchcraft in Europe and England from Law and Society Review cp

Table 4.
CJP Readings
9.10  David Baldus The Death Penalty Dialogue Between Law and Social Science
9.11   John C. Jeffries Jr. Lewis Powell Jr.

Dr. Sager’s  Department of Government Commencement Address May 2009(click here)\

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Class #15- Wednesday March 5th

Junk science of John Edwards
Read again article  on Witchcraft in Europe and England from Law and Society Review cp

How the Judicial Process Works V: Judicial Discretion and Control

At the end of this class Dr. Sager will show an  episode of LALAW that will be covered on the exam.

Brief Wyatt v. Stickney  cp
Brief Heilmann v. Joseph Oat  cp

     The Heilmann case has 5 dissents by  Federal Appellate Judges.    
     Dissenters Richard Posner and Frank Easterbrook are well known    
     scholars as well as judges.  Judge Daniel Manion’s father was 
      dean   of     Notre Dame Law School  He attended  Indiana Univ Law
      School at night after serving in Viet Nam.  Read all of the dissents
      carefully and be sure to identify the differing views on the main
      issue including those by Judges Ripple and Coffey.   This is a very
      important case  in that it relates to  many issues in this course.

Chart of Judicial Policymaking(click here)
CJP    Chapter 7 Instruments of Judicial Power  299-311  (click here)

Two views of Katani Brown nomination.  Pro (click here)  

Against (click here)

Votes and Values  Table 4 (click here)

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Class #16 Monday March 10th

How the Judicial Process Works VI: Doing Justice and Judging the Judges

Judicial Behavior and the Common Law: Does Judicial Biography influence case outcomes?

      Brief Palsgraph v. Long Island R.R. cp
      Brief Hynes v. New York Central Railroad cp
 

Here are some questions to consider  when reading Palsgraph and Hynes.  Can you draw a picture of what happened in each case?  How does Cardozo describe the injured party in each case?  What is basis of each decision.  Was justice done in each case?  Should each case have come out the same in terms of the injured party or the railroad winning? What other considerations not mentioned in the case may have played a role in the outcome, e.g. any other independent variables you can think of?

Have Cardozo book, The Nature of the Judicial Process finished by this class.

CJP Reading
1.4 Review  Homes Path of the Law
3.1
3.7  Kagan, Bliss  and Cartwright et. al. The Evolution of State Supreme Courts

9.1  only first 4 pages,  398-401 are the original textbook page sin CJPs, 425 to 428 on the Course packet

 

 

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 Class #17- Wednesday March 12th

Exam #2 will cover:
All cases since the last exam from Schlegel to Hynes. Black and White Taxi is included and Swift v. Tyson is excluded except for its simple holding about federal common law.
Cardozo book.  Murray book will not be on exam
12 Angry Men movie  1957 version, LALaw video, Voting behavior comparisons for Pacific Mutual with two other cases and Erie with one other case. Majority and main dissent in state cases, e.g., Kasto, Palsgraph etc. The second court opinion in Schlegel can also be considered a dissent.
Ashwander rules can be considered a case or a reading.  Williams v Walker Bros is two different cases.

Tables 4 and 10

 

Readings:
Blumberg, The Practice of Law As a Confidence Game also in CJP in course packet
9.1   Only first 4 pages reproduced in course packet
9.2  from class notes   9.6, 9.10, 9.11
Introductory reading in Chapter 5 “The Bar,” Chapter 7″ Instruments of Judicial Power” and Chapter 8 “Limitations of
Judicial Power”

Junk Science of John Edwards

 

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Spring Break  Monday March 17-22

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Class #18 Monday March 24th

How the Judicial Process Works VI: Doing Justice and Judging the Judges
Natural Law

 

Brief Sodero v. Sodero  cp
Brief Riggs v. Palmer cp

 Read Appellate Judge Ruggio Aldisert

 

 

 

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Notes on  Paper 2

 

Paper 2 Assignment. The assignment will be discussed in class.  It will be creating what is called a Guttman scale using your case and 5  similar cases either cited in your case or decided within a year or two of your case.  Exactly what is “similar” will be discussed in class. You can find a number or articles on the web describing Guttman scaling.  It is a psychological method more than a political science method. You  only need to read the first page or two o these articles to understand whats uch a scale is. 

We can use it to analyze judicial behavior.  It is a bivariate method.  Basically, we are trying to group justices by outcome in a set of related cases.  They can be related specifically, double jeopardy claims or more generally, such as deciding for defendant,  voting activist side or conservative side.  This grouping will lead to creating a hypothesis to explain the grouping.  The research is the test of the hypothesis by explain what it is and what it predicts or mispredicts in particular cases or
would predict had a  particular justice been on the Court in one of your five cases. It is an inductive hypothesis because you are going from data to hypothesis rather than from hypothesis to data.

For 4 examples of Guttman Scales(click here)
The first 2 are from actual research pieces appearing in political science
journals.  the second 3 are from student papers.
The actual forming of the scale is based on make sense of the patterns of
say +, –  and O which is missing.  The first student example is an example of
not making the most predictive Guttman scale.  See if you can figure out a better way or ordering to eliminate  errors, votes you would expect to be say + and are in fact -. 
The second student example is a well ordered Guttman scales.  They may or may not be based on same original briefed case.  However, even if they were the same briefed case for paper 1, the students could choose to use different  prior cases.  Also students could describe the issue they are focusing on in a different ways even if same case. This could give rise to
using different past cases for their Guttman scales eventhough they both
had briefed the original case.  What is important is getting the best Guttman scale from the cases cited in your briefed case. Then what is important is  discussing your scale, explaining the various errors and nonvotes.  Usually in this assignment there are justices on Court who did not sit on Court for some of the prior cases used for the Guttman scale.  The last President who did not have at least 1 Supreme Court appointment was Jimmy Carter and before him you have to back to Andrew Johnson who succeed Abraham Lincoln. 

Remember, use the justices who were on the Court when your case was decided.  As a result, the prior cases you use for the paper most likely
will include some where from 5 to  8 of the justices in your case, or less,  You can discuss in your paper what you think their vote would have been in this prior case, had that justice been on the Court.  This is called post-diction.  Most social science research is post-diction used to  make predictions.

 

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Class 19   Wednesday March 26th

Doing  Justice, Judging the Judges and International Law

         Brief People v. Alstoetter  CP

           View full movie, Judgement at Nuremberg. 
          for discussion in class. 

Judgement at Nuremberg  is a fictionalized version of the Alstoetter case.
The full movie is available for online viewing aat Amazon Prime and several other streaming locations.  Watch it with a a few other classmates to reduce the cost if you wish.   https://archive.org/details/movie-judgment-at-nuremberg-1961  (click here)

Read  over  Linder materials on Nuremberg Trials(click here) This contains a copy of Alstoetter case as well as excellent commentary on the issues. He also has some pictures from the trial.  This supplements the Alstoetter case that is in the course materials.

We are interested in the major part of the film which is the reenactment of the Alstoetter case.  Read this commentary on the Alstoetter class (click here)
Think about how these comments bring some of the themes of the movie back to some of our course themes.

This case is  depicted in the movie  is a fictionalized version of one of the many Nuremberg trials of lesser German officials.  Still
it raises the issues that existed in the real cases and many of which might still be unsettled today. Also we are seeing in our current poltical discussions the issue of who, if anyone, should be judging  what our judges do.

Rview D’Amato Chapter 7. Review materials on Justice. It has beeen alleged that Russia committed War Crimes
in Ukraine and vice versa.   Compare to issues in Judgement in Nuremberg and
Alstoetter case     Also Hamas Octobert 7th attack on Israel and Israeli response.

What  level of collateral damage in a conflict does it need to be to be a war crime Compare Octtoer 7th  and Hamas attack on young people attending a peace concert to civilians killed in wars and conflicts.  

definitions 

war crimes    violations of international humanitarian law during armed conflict, include acts like murder, torture, taking hostages, and intentionally targeting civilians or protected objects, leading to individual criminal responsibility. 

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Class #20 Monday March 31st

Some of these statutory cases are  not linked.  You can find them on Findlaw website  or other websites that have full opinion

Judicial Behavior and Statutory Interpretation I

(For the cases from TVA v. Hill to King v Burwell , excluding Alstoetter, make sure you put the statute in question in your brief.  Know clearly what words are  being interpreted so you can easily recite them when called up in class. Also try to figure out  what was  the method used for doing that interpretation if there is some way to denominate it from the Canons below.  Use the Canons below to learn about the methods. The first and most obvious is called “the plain meaning rule”.  Of course, my plain meaning may not be your plain meaning of a set of words. ( I am struggling through this trying to figure the guidance from Treasury and SBA on several laws related to my business.)  What you are looking for in the case again is words   of statute and getting  a sense of why the Court interpreted as they did.  It could be pure strict word  construction or perhaps some other reasons lead to a particular statutory construction.

            Brief  TVA v. Hill(click here)
            Brief PGA v. Martin (click here)
             Brief  U.S. v. Locke(click here)
             Brief United Steelworkers v. Weber  (click here)

Canons of Statutory Interpretation    Read and  Know Well (click here)

Graph 1
Read CJP Chapter 11, 491-501 on statutory interpretation

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Class #21 Wednesday April 2nd

Judicial Behavior and Statutory Interpretation II

    Brief  Swan v. Charlotte Mecklenberg Bd of Ed
(click here)    Why does Swan seem like a pasted together set of somewhat inconsistent arguments

    Brief   City of L.A.  Water Dept. v Manhart (click here)
    Brief  Fedorenko v. United States(click here)

Fedorenko case had a couple of issues.  We are only looking at the statutory interpretation issue.
The two parts of the statute in question are highlighted  on page 8 and again on page 10.
Most of the case as edited for this class is about the facts which  echos some of the issues
in the Judgment At Nuremberg case.

      Brief King v. Burwell(click here)
      Read articles about oral argument and a related case
to see how some may have predicted the outcome of Burwell (click here1) (click here 2((click here 3)     

One set of canons of interpretation (click here)

From Wikipedia  article on Statutory Interpretation, another list of canons(click here)
CJP Readings
Read Chapter 11 Introduction in CJP and note especally  comments about Easterbrook, Posmer amd Frankfurter approaches to statutory interpretation.

11.8 William Eskridge Jr.  Dynamic Statutory Interpretation

Read D’Amato  Can Legislatures Restrain Judicial Interpretations of Statutes (click here)

      

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Class 22 Monday April 7th

Beginning with Class 22 Dr. Sager may not link Supreme Court cases.  Best place to find them  on web is on Findlaw.

Judicial Behavior and Interpreting  the Constitution: Procedural and Substantive Due Process

       Brief Goldberg v. Kelly Findlaw
       Brief Deshaney v. Winnebago County  (click here)
       Brief Hudson v. MacMillan (Thomas dissenting)
        Brief Brumfield v Cain (Thomas dissenting opinion only Part I and   Part IV)(critique of Thomas Opinion)
For slightly edited version of full opinion  You can find these parts in full opinion on findlaw  https://caselaw.findlaw.com/court/in-court-of-appeals/2057291.html

In conjunction with Thomas opinion read the following very short article about a talk he gave at the 2018 Judicial Fellows  Reunion Program at Library of Congress. (click here) I had met with
him for around  1.5-2  hours  that morning. Can you relate the article to his autobiography to his view in
this case as well as the Alito critique of part of his opinion. The  full video  of the conversation with Clarence Thomas at the Library of Congress can be found
easily with a google search.  

Table 9
CJP Chapter 12, pp 539-558

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 Class #23 – Wednesday April 9th

Judicial Behavior and Interpreting  the Constitution: Criminal Justice 1

      Brief Coker v. Ga.  findlaw  
      Brief U.S. v Leon and Sheppard  v. Mass findlaw

Since many of the cases that will be briefed for  briefing assignment will be in the area of criminal justice, I will post some of the best ones for reading for this class.

Tables 4,5 , 11, 12, 13  (click here)

Read briefs on two recent cases on criminal justice and Constitution  (click here 1)   (click here 2)

Review D’Amato Chapter on Purpose of Punishment

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Class #24- Monday April 14th

Judicial Behavior and Interpreting the Constitution: The Role of Precedent

We come back to the issue of precedent in the context of constitutional adjudication.  These cases have been edited down.  Read Payne  to see how the Court handles overruling a precedent case that is less than 10 years old.  Also pick up a little more 8th amendment jurisprudence.  This case is about victim impact statements as evidence in the sentencing phase
of a criminal trial.  Then read Planned Parenthood fo9r another view of overruling precedents. O’Connor’s opinion makes what she thinks is a clear case of when to and not to overrule precedent.  Many of the other justices
disagree.  I have highlighted where Payne is cited by her.  Also notice the myriad points of view among the justices on various aspects of both the general constitutional issues relating to abortion and then which parts of
the Pennsylvania statutes should be uphold or struck down.  I have linked a chart outlining all the positions below. Maybe someone should do a Guttman scale for each part of the statute as well as the major issues about abortion.

For the next 2 cases click on opinion name  e.g., Pane v Tennessee,  to get to part of opinion that is assigned for class

Brief  Payne v. Tennessee

Also know a bit about South Carolina v. Gathers and Boothe v. Maryland cited in Payne

Brief O’Connoe opinion  in Planned  Parenthood v. Casey (For a brief diagram of Casey opinions click here)  We will
focus on part of the O’Connor opinion related to precedents. For the O’Connor opinion  (click here)

 Brief Bosse v. Oklahoma      Dr. Sager will discuss

Brief  Loper Bright Enterprises v. Raimondo one of most important Supreme Court cases in last few years. It overrule the Chevron Case Dr. Dr. Sager will post a student brief for this  case. Make sure you know the basics of the Chevron case. It will be partly explained in class with a cute video made by some law students at an east coast law school. For brief (click here)

 

Wednesday April 16th

Judicial  Behavior and Interpreting The Constitution and other sources of law:   Who is Right?

Finish Planned Parenthood v. Casey(know cold criteria for overruling among other parts)

Putting it All Together

 

Brief All Opinions

The case of the Speluncean Explorers.
5 short opinions Original Lon Fuller article(click here)
D’Amato additional 3 opinions cp

There are a total of 8 opinions in the Spelunceans
case.  It starts out as a case of statutory construction and then
proceeds beyond that. Five different opinions are presented by Lon Fuller in first article. D’Amato,
who was a student of Fuller’s when at Harvard Law School,
adds 3 more in his book, parts of which are in the Course Packet. They are in chapter 6 which is in the course packet.
In reading Fuller does he remind you of another writer we
read this semester?
As you read and digest the 8 opinions, write down a brief
one or two sentence summary of each Justice’s point of view
and argument.  Then think over the various opinions we have
read over the course of the semester.  Which “real”  justices might arguably match each of the Spelunceans justices.
Be sure to include Holmes and Cardozo in your considerations.

Read D’Amato article, about 8 pages,  on The Effects of Legal Theories on Judicial Decisions  (click here)

Now look to see what this Spelunceans case tells us , if anything.
about Judicial Process and Behavior.  Should this case
be assigned first or last in this course?  Why or why not?
What, if anything,  have you learned from and in this course.

What is the purpose of law and how is it related to judicial process and behavior

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Class #26 -Monday April 21st

Catchup

Review of student case briefs in  relation to what was covered in course.

If you have time here us an interesting set of events that resulted in a claim of self defense and now a wrongful death suit by family 
of deceased.  Of ny news sources only the Wall Street Journal has wwritten about it. We have covered some aspects of the alleged facts and  of the results so far.  If you have time it makes for interesting reading.  Perhaps we can discuss at office hours after Monday’s class. As usual,  I  will also be campus before class for any requested meetings. Hopefully you can read it without being a subsriber to WSJ.  It is about the shoot out `death in South Carolina of young man named Scott Spivey with another young man named Weldon Boyd.  It will not be a reading for the exam.  I am interested in what you think now that you know a lot about the judicial process, some law, and judic8ial decision making. (click here)

 

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Class 27  Wednesday April 23rd

Exam # 3

All cases since Sodero v Sodero including concurrences and dissents  Also the case of U.S. v. Alstoetter and associated opinions  as well as Movie: Judgement at Nuremburg, all 8 of Speluncean opinions. Lopez Bright case questions will be from posted brief. Two D’Amato articles assigned since last test and Tables  5, 12, and 13 may also be covered.  The book They Thought  They Were Free will not be on test. Readings from CJP may be helpful on essay part of exam. They will not be on objective part.

 

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Class 28  Monday April 28th

End of Year Awards Dinner and Speaker     Dr. Sager’s home 6:00 p.m.  or so.

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