Hist. of Am Law

Bradwell v. Illinois

-Early example of strategic litigation: individual using a lawsuit as a broader effort to secure social/political change -Bradwell applies to be a member of the bar but is rejected because she has no independent identity from her husband -argued that this was a denial of her right to practice a trade, not broader suffrage rights -court rejects this 8-1, because slaughterhouse decided privileges and immunities don't include civil rights

Radical Republicans - state suicide reconstruction

-Idea that when states seceded they reverted their rights as states and became territories again -empowered congress at the expense of state powers -wanted reconstruction to be a far-reaching transformation in southern society -creation of freedmen's bureau: operated through military and handled conflicts arising due to the end of slavery

Plessy v. Ferguson

-Law required separate but equal accomodations for railroads -Influential group of wealthy black people in Louisiana wanted to overturn law -Picked Homer Plessy, a white-presenting black person and organized his arrest -Argued under 14th amendment if they can pay 1st class cost they should be able to ride in that car -Argued that the law was discriminatory state action, not private action -Decision said these were social not civil rights -Lawyer argued 13th amendment banned this type of segregation because it implied inferiority, Brown said that segregation wasn't because they were inferior, but they just felt that way

14th amendment

-expanded the citizenship language of civil rights act of 1866, privileges and immunities clause, and due process -not just born, but born and naturalized (asserts federal power to decide citizenship) -congress has power to enforce this legislation -doesn't give rights, but gives a negative power to stop discrimination based on race -open-ended language for congress to interpret -word "male" regarding right to vote

Claiming property and freedmen

-land was understood as a guarantor of freedom and a means of subsistence -their vision of rights claiming sought to transform social rights into civil rights (equal education, public accomodations)

womens rights after 15th amendment

-stantion started making arguments based on ideas of sex- needed feminine element to keep masculine element in touch -no longer rejecting ideas of women being different to men

Chinese labor in America

1868 Burlingame Treaty- Six Companies brought workers to US -Very large anti-chinese movement, were not allowed to be citizens -coolie: rallying cry against chinese workers, refers to the slavelike presence of Chinese workers

Civil Rights Cases

A series of 1883 Supreme Court decisions that struck down the Civil Rights Act of 1875, rolling back key Reconstruction laws and paving the way for later decisions that sanctioned segregation -Declared unconstitutional because it sought to stop discrimination by private businesses, and not by states -"Black people needed to stop seeking special favorite of laws and be satisfied with protection of law" -you can have social discrimination, those are social rights that can't be policed

Claims of Kinfolk & Penningroth

After abolition freedmen reject being dependents, and assert their entitlement and masculinity as heads of household -antebellum idea that if you could lead a household, you had government power and economic responsibility -asserting ones right to independence often meant claiming the work of children/family

United States v. Susan B Anthony

Anthony rejects argument that citizenship is supreme over state citizenship, says if you sever 14th and 15th amendments and don't view political rights as civil- you'll start to undermine black voting rights -exactly what starts to happen, you can't disenfranchise in explicitly racial grounds, but can do poll taxes/ tests

civil vs. political/social rights

Civil: the ones in the 14th amendment, privileges from the government based solely on citizenship (contract, property, marry, sue, access to court) Political: not even really rights, but a privilege not tied to citizenship (vote, hold office, jury duty) Social: civil rights as we think of it today; public accommodation, education, inter-marriage

Plenary power doctrine

Congress broke the Burlingame Treaty with China, giving them the power to break a treaty -Now break treaty with Native Americans over the end of fighting and that established reservations

Cruikshank

Cruikshank was arrested under enforcement act, indicted under conspiracy to deprive black men of their rights -said the rights he supposedly violated were under the purview of state law and not federal power -State Action Doctrine: does not protect upon violations of civil rights that happen at the hands of non-state actors, only protect from state action

Dawes Act/ Lonewolf

Dawes Act goes against Medicine Lodge Treaty, breaking up reservation lands into individual plots to be given out along with American citizenship, natives lost millions of acres -Lone Wolf sues to stop this saying it violated their 5th amendment due process, they were losing property to government -Supreme court decides congress can amend treaties and terminate land rights, rooted in ideas of Native dependency

Rosen- Testifying to Violence

Ideas about black people being able to claim their rights of citizenship, specifically going to court. Black people were equal under law, but not in actuality

Slaughterhouse

Narrows the basis on how the federal government can intervene, limiting the purview of the 14th amendment -decision reflected an antebellum perspective -said state can regulate slaughtering using traditional police powers -argument 14th amendment only protects rights explicit to federal citizenship, not state

Godcharles v. Wigeman

Nullified law passed by PA legislature requiring that companies pay their workers in US dollars, because it restricted them from engaging their labor however they wanted

In re debs

Pullman Company reduced wages, but not any other part of their company towns -American Railway Union started a sympathy strike, refusing to work with any train that was pulling a Pullman car -Lead to a huge jam up of the nations rail lines, but jamming up rail lines also opened up federal intervention from troops -Federal courts could issue injunctions against strikes, and unions lost the power of the strike

Granger laws

Regulated discriminatory grain elevator rates, limiting what they can charge

Black codes

Restricted the physical movement of black people, provided some property rights (engage in contracts, marry, make a will, inherit, testify) -make sure freedman remained working in agriculture for cheap -vagrancy codes led to essentially re-enslavement

Brandeis Brief

states women are fundamentally weaker than men, departed from traditional legal formalism by presenting sociological and medical evidence to support constitutionality

Violence & the Klan

the Klan was a military force that existed to restore white supremacy and carry out views of the Democrats -undermine reconstruction state governments -restore black subordination and destroy black labor force -motivated by need to protect white womanhood -enforcement acts against Klan members, giving national jurisdiction to crimes that would have been state, but this federal power was in contestion

Law of covertrue

the idea that women's legal status in the law was defined by her relation to a man -English common law guided this theory -husband and wife are one person by law, and a woman's legal existence is suspended during marriage and given to husband -women could not own property, control earnings, or be guardian to underage children if widowed, could not sue/contract, or retain property brought into marriage -women are property of their husband, obligated for labor and to have children, and give up physical control -part of argument for black men vote was that they had women and children relying on them

Law schools in late 19th century

used to be no requirements to be a lawyer, now had to go to law school -Langdell made it harder to get a degree, and introduces case method -study common law tradition

new departure

women already possessed the right to vote, so they should just go vote -said voting was a privilege and immunity of citizenship, close reading of the 14th and 15th amendments

Abolition and feminism

women were very active in the abolition movement, believing extending citizenship to everyone would expand it to women too -women organized to get 13th amendment passed -idea of universal suffrage, both black and women -inclusion of word male in 14th amendment led to schism between the groups -bigger jump to grant political rights to women than just to black men

Smith- Reconstruction coercion

historians often focus on coercive labor on African Americans during slavery, but similar systems in the West were imposed on Chinese immigrants and Native Americans. Legal and economic structures like debt peonage and contract labor exploited and controlled these groups. Demonstrates the uneven and imperfect state of postwar liberalism

Penningroth

impact of emancipation on kinship/property/social relations, issues of claiming labor of family members or wives. asserting property rights and gender roles

Substantive due process doctrine

Can any amount of due process make this law constitutional? Some say that certain laws can never be constitutional- such as state-level economic regulations -Key doctrine used by courts to justify reviewing doctrine and determining if they were valid use of state power, allowing judges to legislate through their decisions -Doctrine that asserted certain rights were so fundamental to being a citizen, no amount of process could invalidate them -Associated with formalism in legal reasoning -Court is actively engaging for a search for rights that are not enumerated in the constitution (judicial legislation) -Gave courts an additional power, elevates the power of the courts

Railroads

Central to the legal conflict of the era, because they were so central to American life, symbolized notions of independence -change the nature of cities and are huge concentrations of capital -confound traditional ideas of competition and economies of scale -no small companies, only one company does it all, sucking money from farmers and stage coaches

Loewe v Lawlor

Expanded on the courts view on strikes -Involved a strike against Loewe company who did not recognize one of its unions, so AFL has a nationwide boycott -Loewe sues the union for violating the Sherman Antitrust Act saying it violated the right to engage in interstate commerce -Supreme court unanimously agreed, making secondary boycotts illegal, and AntiTrust act is now not only ineffective against corporations but a tool against workers

Rise of big business

Factories got big, giving workers less control over their time -Capital was concentrated, accumulating wealth -US becomes a more urban nation, increase in consumption mirrors increase in workforce -Railroads allow all these changes, employing millions of workers and facilitating other industries -America and free enterprise used to stand for independence/republicanism/liberty, now the opposite

United States v E.C. Knights

First Sherman Ant-trust Act that went to supreme court Company bought four Pennsylvania refineries, gaining 98% control of the market -Supreme court said states can only regulate manufacturing at the state level, and congress can only regulate commerce over state borders -Formal, categorical test that judges tried to set up -Sherman can't touch the manufacturing of goods, it was infringing upon the police power of states

railroad commissions

First was Massachusetts Railway Commission, only real power was to compel information -thought state was just a broker, not an adversary

State Action Doctrine

From Cruikshank- does not protect people from private action, only state action

In re Jacobs 98 N.Y.

NY passes law that banned tenement house production of cigars, union supported, appeal to public health so falls under police powers -NY court of appeals struck this down, saying it infringed upon rights of working men to engage in contract -Not police powers, but class legislation in disguise -Reverence for liberty of contract over everything

Joint Committee on Reconstruction

Investigation on the ground to see the needs of people during reconstruction and the conditions on the south -Wanted a firm constitutional footing for conception of civil rights

Munn v. Illinois

Is rate regulation of grain elevators constitutional? -Purpose was property interest vs. public interest -Court said regulation was fine, because it was a public interest -Field dissent says the right to pursue a business is so fundamental to being an American it can not be abridged by government, and conflicts with the 14th amendment (this is what ends up being important)

Key contexts of urbanization

Large amounts of people leave rural areas for urban, rise of wage work and decline of self-employment, and rise in immigration, changing the makeup of cities

Idea of liberty of contract

Liberty of contracts is not in the constitution, and is something that has been read into the 14th amendment -The belief of being able to do whatever you want with your property, the exchange of property is so inalienable/natural it can't be taken away -Citizenship is to pursue wealth and enrichment

Lochner v. New York

NY Bakeshop Act that limits hours, Supreme court do not think its a legitimate exercise of police powers and is instead class legislation -Classic example of formalism, viewing as an impermissible violation of freedom of contract -Not concerned with effects of the law -Many saw this as an attempt for court to cover up their own class bias, very unpopular -Dissent "a constitution is not meant to embody a particular economic theory", just because court is laissez-faire does not mean the constitution is too

Sherman Anti-Trust Act of 1890

Passed by congress, prohibited restraints of trade in interstate commerce, monopolization or intent to monopolize -Vague language, courts to determine boundaries

Woodward Louisiana Traveler

Plessy v. Ferguson, not only legitimized racial segregation but set the precedent for institutionalizing racial discrimination, "separate but equal" doctrine was a facade

15th amendment

Protected voting as a distinct right from Civil rights, gave the federal government a negative power to respond- not an affirmative statement that all men had the right to vote -left states with great control over suffrage, like literacy tests/property requirements -Republicans wanted to preserve state authority in deciding who had the right to vote -weak 15th amendment showed republican desire to maintain inequality

Interstate commerce act

created first federal regulatory agency, which had subject matter expertise about railroads -interstate commerce commission initially set max rates railroads could charge, but court gutted this power saying they could only regulate unfair ones- pretty much gutting their power

Muller v. Oregon

State law saying no woman can work more than 10 hours a day in a factory job -Protective legislation embraced by labor reformers -Brandeis brief says long hours damage women's health, accepted by court -Women are viewed primarily in terms of their reproductive functions -Signified that the court was open to non-judicial sources and an opening for sociological jurisprudence

Case method

Study old cases as precedent -Law conceived as a science, study old common law cases that have withstood the test of time -Formalism as a pedagogy- "it is this way" or "it is not this way", no in between -Draw bright line separations between categories, don't look at the effect of the law, just the law itself

Forbath- government by injunction

Supreme court forced labor unions to turn to means other than lawsuits to advocate for their rights, sherman act was used for anti-strike decrees and injunctions, courts were threatened by labor unions

Chinese Exclusion Act of 1882

Suspends entry of Chinese people for 10 years, bars courts from recognizing citizenship for Chinese people -Could come if you were a non-laborer

Dual federalism

There were some rights exclusive to the federal government, and some explicit to state governments -how federalists in the antebellum era imagined separation of powers

Lee- Keepers of the Gate

Very strict interpretation of exclusion laws in SF, embedded in anti-chinese sentiment, officials were enforcing things on tiny technicalities, racist stereotypes about chinese people

Yick Wo v. Hopkins

Yick Wo operated a laundry in SF for 22 years, but now ordinance says you need a permit if you operate in a wooden building -Yick Wo sues under idea that 14th amendment applies to everyone not just citizens -Court rules in favor of Yick Wo, under equal protection clause

Dubois- Taking Law into Our Own Hands

about how suffragists used enforcement act to vote before women's suffrage was granted, suffragists claimed how they were already enfranchised

Foner- second founding

addressed the complexities and nuances of the amendments language, debates and discussions surrounding interpretation and implementation of the 14th amendment