MIDTERM DOS Legal 177

AAAHHHHH

The "Brandeis Brief"

A revolutionary legal brief submitted by Louis Brandeis in Muller v. Oregon (1908) defending a 10-hour workday limit for women in laundries and factories; out of roughly 100 pages, only two contained traditional legal precedent, while the remainder compiled medical, sociological, and economic data showing the harms of overwork.

Right to Privacy (Brandeis)

A legal concept originating in an 1890 Harvard Law Review article co-authored by Louis Brandeis defining the "right to be let alone," which he later expanded in landmark privacy and anti-wiretapping dissents.

Buck v. Bell (1927)

An 8–1 Supreme Court decision delivered on May 2, 1927, upholding the constitutionality of a Virginia compulsory sterilization statute under the Due Process Clause of the Fourteenth Amendment, asserting that the state could mandate sacrifices "to prevent our being swamped with incompetence."

Relief, Recovery, Reform

The three components of New Deal programs: short-term emergency aid and public employment (FERA, PWA, WPA), economic measures to restart agriculture and industry, and permanent overhauls of the financial and banking systems.

Glass-Steagall Act

A New Deal financial reform statute designed to prevent banking speculation and restore trust in business enterprise by separating commercial banking from investment banking and establishing the Federal Deposit Insurance Corporation (FDIC).

Fred Korematsu

A Japanese American shipyard worker who resisted wartime internment by altering his appearance and changing his name; his arrest on May 30, 1942, resulted in an ACLU-backed constitutional challenge to Executive Order 9066 (his conviction was later vacated).

Theory of Social Engineering (Roscoe Pound)

A legal philosophy viewing the law as a specialized instrument to balance overlapping and competing individual, public, and social interests, aiming to achieve maximum social harmony and happiness with minimal friction and waste.

"Law in Action" vs. "Law in Books"

A principle coined by jurist Roscoe Pound arguing that formal, written statutory rules ("law in books") matter less than how judges, attorneys, and administrators actually apply and experience them in daily practice ("law in action").

Jacobson v. Massachusetts (1905)

1. states have the authority to enforce compulsory vaccination laws and public health regulations under their police powers

2. The Law: A Massachusetts statute allowed local boards of health to require smallpox vaccinations for residents, and the city of Cambridge ordered all adults to be vaccinated or pay a $5 fine. [1, 2]

3. The Challenge: Henning Jacobson refused the vaccine and the fine, arguing that the mandate violated his Fourteenth Amendment right to personal liberty and bodily autonomy. [1, 2, 3]

4. The Ruling: Justice John Marshall Harlan delivered the majority opinion, holding that individual liberty is not absolute. 

   1. In a well-ordered society, personal freedoms can be reasonably restricted under the pressure of great public dangers like a disease outbreak. [1, 2]

   2. Can require that anyone who goes to school 

   3. Liberty is subject to restraint 

      1. Unregulated liberty is harmful to society 

      2. Liberty within restraint 

   4. There are some people who believe that vaccinations are harmful, but most people believe that they are good 

   5. What people believe is for the common welfare should be treated as such whether it does or not 

   6. Questions of public health are not for a judge or jury to decide, it is for legislators 

      1. Common knowledge can validly be translated into statute by voters

   7. The court is not deciding whether vaccination prevents small pox, it’s instead saying that this law is a health law and because it’s a health law it’s within the state’s police power 

      1. Majority is now willing to uphold state power as police power 

      2. Limit their own power of decision making

         1. Separate legislative from judiciary

Foraker Act (1900)

Federal legislation establishing civil government in Puerto Rico as an "unorganized territory," creating a presidentially appointed governor and Executive Council, an elected House of Delegates, a non-voting Resident Commissioner, and duties on goods moving between the island and the U.S. mainland without extending U.S. citizenship.

"Foreign in a Domestic Sense" (Downes v. Bidwell)

A doctrine articulated by the Supreme Court in Downes v. Bidwell (1901) establishing the status of unincorporated territories as belonging to the United States but not forming an integral part of the nation under all constitutional provisions.

Congress could set custom duties for Puerto Rico because it was not fully part of the United States. [1, 2]

1. The Doctrine: The Court labeled these places ____ creating a new legal class called unincorporated territories

Sociological Jurisprudence

A jurisprudential movement championed by Roscoe Pound that treats law as a social institution shaped by economic, political, and social conditions rather than a collection of static, abstract, mechanical rules.

1. Law as a Social Institution: Law is not isolated from human culture; it is shaped by economic, political, and social conditions and is designed to serve human welfare

2. Law in Action" vs. "Law in Books": Coined largely by American jurist Roscoe Pound, this principle argues that formal written rules ("law in books") matter less than how judges, lawyers, and administrators actually apply and experience them in daily practice ("law in action")

Executive Order 9066

A presidential order signed during World War II authorizing military commanders to designate exclusion zones under "military necessity," leading to the warrantless removal and indefinite internment of over 100,000 individuals of Japanese descent without trial or hearing.

Military Authorization: The order allowed the Secretary of War and military commanders to define geographic zones as military areas under "military necessity", giving them total discretion over who could enter, remain in, or leave them.

• No Trial or Hearing: Under these orders, people could be removed or restricted from their homes and businesses without any individual trial, due process, or proof of wrongdoing.

• Targeted Exclusion: Although the text of the order did not explicitly mention "Japanese" or "Japanese Americans"—instead using broad language about "any or all persons"—it was designed and applied almost exclusively to remove people of Japanese descent from the Pacific coast

Carlisle Indian Industrial School

The first federally funded, off-reservation boarding school for Native American children, operated under the assimilationist philosophy "kill the Indian, save the man" through strict military discipline, English names, and Western clothing.

Jim Thorpe

A Sac and Fox Nation citizen and Carlisle student who became the first Native American to win an Olympic gold medal for the U.S. (1912 pentathlon and decathlon) before having his titles revoked because he had played two seasons of semi-professional baseball.

Footnote 4 (United States v. Carolene Products Co.)

1. Requiring Heightened Scrutiny:
   The footnote identified three types of laws that warranted stricter review: 

   1. Laws on their face that appear to violate explicit constitutional prohibitions (like those in the Bill of Rights). 

   2. Laws that restrict the political processes normally relied upon to repeal undesirable legislation. 

   3. Laws that are directed against "discrete and insular minorities," who lack political power and are susceptible to prejudice. 

      1. early 1970s, when it began to delineate the class characteristics of such groups. Included were groups that had been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." 

      2. Although race, nationality, and alienage seem to have been firmly established as class characteristics of the "discrete and insular minority," the Court has refused to extend such class status to illegitimates, the poor, or conscientious objectors.

      3. The first time this was determined was in Korematsu v. US

2. s footnote shifted the role of the Supreme Court from largely deferential to economic regulations to more actively protecting individual liberties and correcting flaws in the political process. This principle became the foundation for the modern concept of strict scrutiny and continues to influence cases involving civil rights and civil liberties

• first applied to Korematsu v. US

Carrie Buck

The plaintiff in Buck v. Bell (1927), a young Virginia woman who was raped by her foster father, committed to the Virginia State Colony to conceal family embarrassment, diagnosed as a hereditary "imbecile," and involuntarily sterilized.

"The Constitution Follows the Flag" (Downes v. Bidwell)

The legal concept debated in the Insular Cases over whether full constitutional protections and limitations automatically extend to any territory annexed, occupied, or governed by the United States.

Territories Clause (Downes v. Bidwell)

Article IV constitutional provision granting Congress plenary and general power to govern federal territories, historically understood as an interim status intended to culminate in statehood or independence.

Uniformity Clause (Downes v. Bidwell)

The Article I, Section 8 requirement that all federal duties, imposts, and excises be uniform throughout the United States; ruled inapplicable to unincorporated territories like Puerto Rico in Downes v. Bidwell.

Burlingame Treaty (1868)

A landmark, relatively equal treaty between Qing Dynasty China and the United States guaranteeing reciprocal free migration, most-favored-nation trade status, mutual protection against religious persecution, and the right to establish consulates.

Naturalization Act of 1790

The first federal naturalization statute, which limited naturalized U.S. citizenship to any alien who was a "free white person" of good character with two years of residency, creating an explicit racial binary for national citizenship.

• before had a pretty much open door policy to migration

National Origins Act (1924) (Johnson Reed Act)

Immigration legislation (Johnson-Reed Act) that imposed a strict annual ceiling of 150,000 immigrants, instituted total bans on Asian immigration, and capped visas at 2% of each nationality's U.S. population in the 1890 census to favor Northwestern European arrivals.

Minersville School District v. Gobitis (1940)

An 8–1 Supreme Court ruling written by Justice Felix Frankfurter holding that public schools could compel Jehovah's Witness children to salute the American flag because national unity is the basis of national security and overrides religious objections.

public schools could compel students to salute the American flag and recite the Pledge of Allegiance, despite religious objections

1. The Plaintiffs: Lillian (age 10) and William (age 12) Gobitis were elementary school students in Minersville, Pennsylvania. [1, 2]

2. The Conflict: As Jehovah's Witnesses, the children believed that saluting the flag violated biblical commands against bowing to graven images or worshipping anything other than God. [1, 2, 3]

3. The Action: After the children were expelled for refusing to participate in the daily school flag salute, their father sued the Minersville School District, arguing it violated their First Amendment rights

4. The Ruling: In an 8–1 decision authored by Justice Felix Frankfurter, the Court ruled against the family.

5. The Logic: The majority concluded that national unity is the basis of national security, and a state's interest in promoting patriotism through a uniform school requirement overrides individual religious objections. Justice Frankfurter argued that religious freedom does not mean a person is exempt from civic obligations that apply generally.

Strict Scrutiny

The most demanding tier of judicial review under the Equal Protection Clause, applied to suspect classifications and fundamental rights; carries a presumption of unconstitutionality unless the government proves a compelling state interest achieved by the least restrictive, narrowly tailored means.

• puts burden on the government to prove constituitonality
  - bill of rights

• rights that can affect political process

• discrete and insular minority

Substantive Due Process

The constitutional doctrine under the Fifth and Fourteenth Amendments holding that the government cannot enact legislation that deprives individuals of fundamental rights and liberties, regardless of the fairness of procedural safeguards, unless justified by an extraordinary state interest.

does the content of the law take away your life, liberty, or property

1.  Does the government have a good enough reason to take away or restrict this right in the first place?

1. Even if a state passes a law with 100% proper paperwork, voting procedures, and public hearings that bans adults from marrying or having a private family structure, courts can strike it down under substantive due process because the underlying right is too fundamental for the government to touch

2. It guards core, fundamental liberties (such as privacy, marriage, or raising children) against unfair laws. If a law steps on a fundamental right, the government needs an extremely strong, compelling reason to justify it.

"Subject to the Jurisdiction Thereof" —> Citizenship Clause

The phrase in the Fourteenth Amendment Citizenship Clause ensuring automatic birthright citizenship (jus soli) to persons born within U.S. territory who are bound by U.S. law and not exempt via foreign diplomatic status.

Plenary Power

Complete, absolute, and exclusive governmental authority vested in Congress over specific fields, notably territorial governance, immigration admission/exclusion, and Indian affairs, often commanding broad judicial deference.

Unincorporated Territories

A legal classification originating in the Insular Cases for overseas territories not intended for statehood, wherein only "fundamental" constitutional protections apply ex proprio vigore rather than the entire Constitution.

Liberty of Contract

A Fourteenth Amendment substantive due process doctrine prominent during the Lochner era holding that private employers and workers possess a constitutional right to negotiate work agreements, wages, and hours free from state regulatory intervention.

The Hundred Days

The initial three-month legislative burst of Franklin D. Roosevelt's presidency in 1933 during which Congress passed foundational New Deal emergency relief, banking, and recovery statutes.

Cooper v. Aaron (1958)

LITTLE ROCK

1. The Little Rock Nine: Following the U.S. Supreme Court's 1954 Brown v. Board of Education ruling that school segregation was unconstitutional, nine African American students tried to integrate Central High School in Little Rock, Arkansas, in September 1957. [1, 2]

2. State Resistance: Arkansas Governor Orval Faubus deployed the Arkansas National Guard to block the students from entering, and hostile mobs gathered. [1, 2]

3. Federal Intervention: President Dwight D. Eisenhower federalized the National Guard and sent the 101st Airborne Division to protect the students and enforce integration

A unanimous Supreme Court ruling affirming that state officials and legislatures cannot obstruct or defy federal court desegregation orders, reiterating that Supreme Court interpretations of the Constitution represent the supreme law of the land.

• cooper v aaron confirmed federal judicial supremacy since Orval tried to interpret the Constitution himself

In re Jacobs (1885) TENEMENT HOUSE CIGAR CASE (1885)

A New York Court of Appeals decision striking down a law banning cigar manufacture in tenement dwellings, establishing early precedent for economic substantive due process by holding that the statute infringed upon a worker's property rights in labor under the false guise of police power.

FREEDOM TO CONTRACT AND ECONOMIC FREEDOMS BASED ON PROPERTY

NY said you can’t manufacture cigars in tenement houses

• NY court of appeals strikes this down 

  • Earle: civilization is an unceasing struggle for success and existence 

    • Got this from Herbert SPencer, The principle of biology → social darwinism 

• Right to property in one’s labor (use in faculties)

  • Right to use that property and a right to its value 

• You can be deprived of right in property in labor not just if the government takes something from you or if you limit the ability of property or value of property 

  • Worker has a right to pursue his calling

  • Right to tenement house and get revenue from it and they’re both protected by 14th amendment’s due process clause 

• Levels of scrutiny

  • Property is not absolute and legislatures can regulate public health

    • There has to be means and ends

      • It is the court's job to decide whether the legislature is passing laws that have a sufficient purpose

        • Court second guesses the law 

• Earle said this isn’t a public health law 

  • But the people (the workers) are the best people to judge this and they vote for laws that pass thi

General Allotment (Dawes) Act of 1887

Federal legislation sponsored by Senator Henry Dawes that dismantled collective tribal landholdings into individual allotments for Native American families, offering citizenship upon assimilation while transferring vast "surplus" acreage to white settlers.

Judicial Restraint

A judicial philosophy counseling judges to defer to elected legislative and executive bodies and refuse to invalidate statutes unless a clear, irreconcilable constitutional violation exists.

Harry Laughlin

The superintendent of the Eugenics Record Office who drafted model sterilization legislation and submitted an influential deposition in Buck v. Bell diagnosing Carrie Buck and her relatives as members of a "worthless class of anti-social whites."

Eugene V. Debs

1. ____ delivered a public speech that incited his audience to interfere with military recruitment during World War I. He was indicted for violating the Espionage Act of 1917 for allegedly attempting to cause insubordination and refusal of duty in the US military. He was also accused of attempted obstruction, recruitment and enlistment. He appealed his conviction on First Amendment grounds.

2. In a unanimous opinion by Justice Oliver Wendell Holmes, the Court upheld Debs’s conviction. The Court reasoned that Debs's case was similar to Schenck v. United States (1919), in which the Court had concluded that the arrest of an individual for distributing leaflets encouraging readers to oppose the draft was constitutional. The Court found Debs's sympathy for individuals convicted of opposing the draft and obstructing recruitment analogous to the situation in Schenk

3. Attempted to obstruct the recruiting and enlistment service 

National Industrial Recovery Act (NIRA)

A New Deal statute that temporarily suspended federal antitrust statutes and empowered industry groups to draft binding "codes of fair competition" setting minimum wages, hour ceilings, and production quotas under the National Recovery Administration.

Classical Legal Thought (Legal Formalism)

A conservative, judge-centric jurisprudence that treats the legal system as an autonomous, deductive science of fixed principles (such as freedom of contract) sharply separated from public policy, sociology, and politics.

1. Reason downward from fundamental axioms to derive specific legal rules. 

   1. E.g. “Freedom of contract” 

"Court-Packing" Plan

The Judicial Procedures Reform Bill of 1937 proposed by President Franklin D. Roosevelt to appoint an additional Supreme Court justice for every sitting member over the age of 70, introduced to overcome judicial opposition to New Deal programs.

FDR actually got a lot of backclash for this

Pretty Boy Floyd

A Depression-era bank robber celebrated as an antiheroic folk figure across the Midwest and South Central U.S. because he allegedly incinerated mortgage contracts during bank heists, freeing debtors from their loans.

West Coast Hotel Co. v. Parrish (1937)

1. Minimum wage law for children 

2. Maid wants to be paid difference between what her husband paid her vs minimum wage 

   1. Pay me what you owe me under state of washington’s law 

3. Under Washington state law, the Industrial Welfare Committee and Supervisor of Women in Industry set a minimum wage of $14.50 for each work week of 48 hours. Elsie Parrish, an employee of the West Coast Hotel Company, received an amount less than this wa

4. Does a minimum wage law for women violate the Due Process Clause of the Fifth Amendment, as applied to the states by the Fourteenth Amendment? 

5. The Court held that the establishment of minimum wages for women was constitutional. Echoing Muller v. Oregon (1908), the majority ruled that the state may use its police power to restrict the individual freedom to contract. The decision overruled Adkins and marked the Court's departure from the expansive view of the freedom to contract

A 5–4 Supreme Court decision upholding Washington state's minimum-wage law for women, explicitly overruling Adkins v. Children's Hospital and bringing a decisive end to the Lochner era's unrestricted freedom of contract doctrine.

Schechter Poultry Corp. v. United States (1935) —> NON DELEGATION

A unanimous Supreme Court ruling invalidating Section 3 of the National Industrial Recovery Act for violating the nondelegation doctrine, holding that Congress could not delegate unfettered lawmaking power to the executive without intelligible principles and rules.

NIRA IS CONSTITUTIONAL due to non delegation doctrine

Did Congress unconstitutionally delegate legislative power to the President by giving him power to regulate certain industries without also providing guiding standards?

Discrete and Insular Minorities

Vulnerable minority populations defined by race, national origin, or alienage who are systematically disadvantaged and politically powerless, rendering them unable to protect their rights through regular democratic voting processes and triggering heightened judicial review.

"Clear and Present Danger" Test (Schenk v. US)

The First Amendment standard established by Justice Oliver Wendell Holmes in Schenck v. United States holding that speech is unprotected if the words create an immediate danger of bringing about substantive evils that Congress has the constitutional authority to prevent.

Korematsu v. United States (1944)

A Supreme Court decision upholding the internment of Japanese Americans under Executive Order 9066 as a valid exercise of wartime power, while marking the first formal application of strict scrutiny to racial classifications.

"Legalization of Racism" (korematsu)

The critique voiced by Justice Frank Murphy in his Korematsu dissent, arguing that the Court crossed constitutional boundaries to validate racial discrimination without any demonstrable, impending danger.

Chinese Exclusion Act (1882)

The first federal law that banned an entire national group from entry based on race, halting Chinese laborer immigration for 10 years and explicitly barring resident Chinese immigrants from naturalization.

Brown v. Board of Education of Topeka (1954)

A landmark unanimous Supreme Court ruling holding that state laws establishing racially segregated public schools violate the Equal Protection Clause because separate educational facilities generate feelings of inferiority and are inherently unequal.

The Dolls Experiment (Brown v. Board)

A sociological and psychological experiment conducted by Kenneth and Mamie Clark demonstrating that Black children internalize feelings of inferiority under segregation, cited in Footnote 11 of the Brown v. Board decision.

Massive Resistance (Southern Manifesto)

A coordinated campaign of legal opposition, school closures, and obstruction organized by white Southern politicians and citizens following Brown v. Board of Education to prevent public school desegregation.

Lochner v. New York (1905) —> LIBERTY OF CONTRACT

A 5–4 Supreme Court decision striking down a state maximum-hours law for bakers as an unconstitutional infringement on the liberty of contract protected by the Fourteenth Amendment's Due Process Clause.

1. Struck down in 5-4 decision on 14th Amendment SUBSTANTIVE DUE PROCESS

   1. Right to buy and sell labor is protected by the due process clause 

2. We the court get to decide what’s reasonable legislation 

   1. We can tell when the legislature is doing something nefarious 

      1. In the opinion, he’s insulting the legislature

1. The "Lochner Era": The decision launched a 30-year period during which the Supreme Court frequently struck down state and federal economic regulations, minimum wage laws, and worker protections. [1, 2]

2. End of the Era: The Court officially repudiated the Lochner framework in West Coast Hotel Co. v. Parrish (1937), which upheld state minimum wage legislation. [1, 2]

3. Substantive Due Process: While economic substantive due process was discarded, the concept of substantive due process under the Fourteenth Amendment later resurfaced in landmark privacy and civil rights decisions

Constitutional Revolution of 1937

The historic jurisprudential transition marked by the "switch in time that saved nine," in which the Supreme Court abandoned economic substantive due process and began upholding federal and state regulatory statutes.

1. a dramatic shift in American constitutional law when the U.S. Supreme Court stopped striking down President Franklin D. Roosevelt's New Deal economic and social welfare legislation, fundamentally expanding the powers of the federal government

2. Interpretations

   1. Judicial restraint (deference): problem with Lochner COurt was that it was too activist and did too much to protect the market

      1. The violation of the constitution has to be clear

         1. Court as an idiocy commission (rational basis): when it obviously violates 

   2. Liberalism: the problem with Lochner Court was that it actively promoted the wrong values 

3. The "Switch in Time That Saved Nine": Justice Owen Roberts shifted his vote from the conservative bloc to join the liberal justices, breaking a series of 5–4 decisions. [1, 2, 3, 4]

4. End of the Lochner Era: The Court moved away from strict, laissez-faire interpretations of "freedom of contract" under the Due Process Clause, allowing federal and state governments much broader police powers to regulate the economy. [1]

5. FDR’s Court-Packing Threat: The shift occurred while President Franklin D. Roosevelt was pushing the Judicial Procedures Reform Bill of 1937 (his "court-packing" plan) to add a new justice for every member over age 70. Though the bill ultimately failed in Congress, the Court's pivot alleviated political pressure to alter its size. [1, 2, 3, 4]

• West Coast Hotel Co. v. Parrish (March 1937): The Court upheld a Washington state minimum-wage law (5–4) and explicitly overruled earlier precedent (Adkins v. Children’s Hospital), effectively ending the era of invalidating wage and hour laws. [1, 2, 3]

• NLRB v. Jones & Laughlin Steel Corp. (April 1937): The Court upheld the National Labor Relations Act, dramatically expanding Congress's power to regulate interstate commerce. [1]

• Social Security Cases (May 1937): The Court upheld the constitutionality of the Social Security Act's old-age pension and unemployment compensation provisions

Espionage Act of 1917

A federal wartime law criminalizing acts that interfered with military operations or recruitment, expanded by the Sedition Act of 1918 to punish public criticism of the government, armed forces, or flag.

1. Schenk v. US

   1. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause insubordination in the military and to obstruct recruitment.

   2.  The court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress’ wartime authority. Writing for a unanimous Court, Justice Oliver Wendell Holmes concluded that courts owed greater deference to the government during wartime, even when constitutional rights were at stake.

Orval Faubus

The Governor of Arkansas who deployed the Arkansas National Guard in 1957 to prevent the Little Rock Nine from entering Central High School and later closed Little Rock public high schools during the 1958–1959 "Lost Year."

tried to give is own constitutional interpretation
“[hoped] that [desegregation] would proceed peacefully, because I didn't see any way to turn back from the Supreme Court decision.” Despite what he said later, Faubus won four more terms in office on the strength of his segregationist record.

Segregation Academies ("Seg Academies")

Private, non-sectarian schools established across the American South between 1954 and 1976 by white parents seeking to avoid court-ordered desegregation in public schools.

• publically funded charter schools (evaded desegregation orders for a long time)

Southern Manifesto

A 1956 declaration signed by 101 Southern congressmen condemning Brown v. Board of Education as a clear abuse of judicial power that infringed upon Tenth Amendment states' rights, pledging resistance through all lawful means.

The document accused the Supreme Court of a "clear abuse of judicial power", claiming the justices overstepped their constitutional authority and infringed upon rights reserved for the states under the Tenth Amendment. It pledged to use "all lawful means" to reverse the decision. 

Downes v. Bidwell (1901)

One of the foundational Insular Cases in which a 5–4 Supreme Court held that the Uniformity Clause did not apply to Puerto Rico, confirming broad congressional plenary authority to levy customs duties on goods imported from unincorporated territories.

Schenck v. United States (1919) —> CLEAR AND PRESENT DANGER

A unanimous decision written by Justice Oliver Wendell Holmes upholding the Espionage Act convictions of socialists who mailed anti-draft circulars, creating the "clear and present danger" test.

The Court held that the Espionage Act did not violate the First Amendment and was an appropriate exercise of Congress’ wartime authority. Writing for a unanimous Court, Justice Oliver Wendell Holmes concluded that courts owed greater deference to the government during wartime, even when constitutional rights were at stake.

Articulating for the first time the “clear and present danger test,” Holmes concluded that the First Amendment does not protect speech that approaches creating a clear and present danger of a significant evil that Congress has power to prevent. Holmes reasoned that the widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process.

Famously, he compared the leaflets to falsely shouting “Fire!” in a crowded theatre, which is not permitted under the First Amendment. 

Muller v. Oregon (1908)

A Supreme Court decision upholding a 10-hour workday limit for female factory and laundry employees, ruling that women's physical and maternal functions justified state health protection and limits on freedom of contract.

FREEDOM TO CONTRACT

• BRANDEIS BRIEF

  • The brief contained only two pages of traditional legal precedent, followed by over 100 pages of sociological, medical, and economic data. It argued that the physical structure, endurance, and maternal functions of women placed them at a disadvantage and justified state protection

"Domestic Dependent Nations"

1. possess inherent sovereignty to self-govern yet remain subject to the authority and trust protection of the federal government. [1, 2]

2. Guardian ward relationship with federal government → subject to congressional power

The legal status assigned to Native American tribes in Cherokee Nation v. Georgia, recognizing tribal inherent sovereignty over domestic affairs while placing them in a ward-to-guardian relationship subject to federal plenary authority.

1. Self-Government: Recognized tribes can create their own laws, run their own police forces and courts, set membership rules, and manage local resources.

2. Federal Power: Congress holds "plenary power" (broad authority) over tribes, meaning tribal rights are protected by federal trust responsibility, but they can also be limited by federal laws.

   1. Plenary power: complete and exclusive authority over a specific subject area, subject only to constitutional limits

"Four Horsemen of the Apocalypse"

The conservative bloc of four Supreme Court justices—Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter—who consistently voted to invalidate New Deal economic statutes.

"Fighting Faiths" (Abrams v. US)

A concept from Justice Oliver Wendell Holmes's dissent in Abrams v. United States (1919) arguing that experience upsets absolute beliefs and that truth is best tested through ____

1. DISSENT: when men have realized that time has upset many fighting faiths, they may come to believe... that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market"

   1. Free trade in ideas and the competition of the market 

      1. expression did not present a clear and present danger and that government cannot suppress dissenting ideas. [1, 2]

      2. Legacy: The dissent laid the groundwork for the "marketplace of ideas" concept, championing open debate over censorship
         

West Virginia State Board of Education v. Barnette (1943)

A 6–3 Supreme Court decision overruling Gobitis, ruling that compelling public school students to salute the flag and recite the Pledge of Allegiance violates the Free Speech Clause, holding that no official can prescribe what is orthodox in politics, nationalism, or religion.

• Free Speech Protection: The majority opinion, written by Justice Robert Jackson, rested heavily on the Free Speech Clause rather than solely on religious freedom. The Court ruled that a flag salute is a form of expression and "communal utterance". [1, 2]

  • “Falg salute is a form of utterance”

  • Symbolism is a primitive but effective way of communicating ideas 

  • Various symbols are associated with gestures of acceptance or respect 

    • Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks.

  • Your rights as an individual are not subject to democracy  → what the bill of rights sought to do

overturned gobitis two years earlier following attacks on Jehovah’s Witnesses

United States v. Wong Kim Ark (1898)

A 6–2 Supreme Court ruling establishing birthright citizenship (jus soli) under the Fourteenth Amendment for children born on U.S. soil to foreign parents who are not employed in a foreign diplomatic capacity.

Abrams v. United States (1919)

A Supreme Court decision upholding 20-year prison sentences under the Sedition Act for Russian immigrants who distributed anti-war circulars, memorable for Justice Holmes's dissent advocating for the "marketplace of ideas." FIGHTING FAITHS

 Russian immigrants in the US circulated literature calling for a general strike in ammunition plants to undermine the US war effort. The defendants were convicted for two leaflets thrown from a New York City windoW

Nondelegation Doctrine (Schechter v. US)

The constitutional doctrine grounded in separation of powers establishing that Congress cannot transfer its essential legislative authority to the executive branch or private entities without setting clear statutory standards.

Roscoe Pound

An influential legal scholar and jurist known for advocating sociological jurisprudence, emphasizing that law must evolve with social conditions and values.

legal classicist 

1.  fact based jurisprudence (realism) 

2. To distinguish it from old classics who they claimed engaged in mechanical jurisprudence 

   1. Eventually this becomes legal realism 

      1.  law is shaped primarily by social interests, public policy, and human judgment rather than by abstract, self-contained logical rules

3.  Theory of Social Engineering views law as a specialized tool for balancing competing human interests, maximizing social happiness, and minimizing friction and waste within society

   1. If legal utilitarian 

   2. viewed law as a tool for "social engineering"—consciously balancing overlapping and competing individual, public, and social interests to achieve maximum social harmony with minimal friction. 

4. Law in Action" vs. "Law in Books": Coined largely by American jurist Roscoe Pound, this principle argues that formal written rules ("law in books") matter less than how judges, lawyers, and administrators actually apply and experience them in daily practice ("law in action")

US v. Carolene Products

• Some random case about milk that gave us footnote four and strict scrutiny

• Footnote four → apply heightened scrutiny and presume unconstitutionality (burden falls on government)

  • Appears on tis face to violate Bill of rights (or any constitution but particularly BOR)

  • Restricts the political process that could repeal an undesirable law

    • Restricting voting rights, organizing, disseminating info

  • Discrete and insular minorities