The Political Branches 🦅
This term describes the flexibility agencies have in interpreting and enforcing statutes.
Administrative discretion!
Follow up: why is it important? Give us some pros and cons!
Which constitutional right did Fred Korematsu allege had been violated by the exclusion orders?
Due Process
Follow up: Did he use the 5th or 14th? Why?
What is one notable difference betwen common law systems and civil law systems?
Common law systems rely on stare decisis: a legal doctrine directing courts to follow established precedent.
This framework examines how law reflects and reinforces economic power and class relations.
Marxian legal theory
Give three examples of public law.
Constitutional law
Criminal Law
Administrative Law (incl. immigration law)
Human Rights Law
Grants the executive/President:
Power to make treaties
Command military
Enforce federal law via the administrative state
Appoint judges
Where in the constitution can we find the source of federalism?
10A
Supremacy Clause
Follow up: Can the courts force states to enforce federal law? Like immigration? Why not?
What is blackletter law?
well-established legal rules that are no longer subject to reasonable dispute; law "on the books".
Follow up: when might a study of (or commitment to) blackletter law give an incomplete picture of justice in the US?
According to legal realists, how is "real law" produced? What makes valid law?
Realists like Oliver Wendell Holmes argued that law's validity comes from the interpretation of the law by the courts in different cases.
Give three examples of private law.
Torts (personal wrongs like negligence or defamation)
Family Law
Contract Law
Property Law
Succession/Probate Law
According to the textbook (and the World Justice Project), for a nation to really be committed to the ROL, it must meet four principles. What are they?
Equal Protection of Laws
Government Accountability
Procedural Justice: laws are enacted, administered, and enforced in a public and fair way
Representation is done by qualified, ethical, independent, and objective individuals who reflect the population
To withstand strict judicial scrutiny, a discriminatory law must meet three conditions. What are they?
-Must serve a compelling government interest
-Must impact the least number of people possible (narrowly tailored)
-Must be the least restrictive means to accomplish goal
Follow up: give examples!
A group of Muslim women brings suit against the government for outlawing wearing the hijab in public buildings. What level of scrutiny would the court apply when examining the law?
Strict scrutiny.
Follow up: Why not intermediate scrutiny?
This social scientist warned that the rise of bureaucratic, rule-bound law increases legal predictability (and accessibility) while simultaneously trapping individuals in an “iron cage” of rationalized authority.
Max Weber
Follow up: explain this theory to me like i'm five! Give examples
According to the textbook, what are the three "jobs" of law?
1. Social Control
2. Dispute Resolution
3. Social Change
Follow up: give examples!
Why do the courts defer to the political branches?
Legislators and presidents are politically accountable to the people; courts practice judicial deference when reviewing laws
A state university adopts an admissions policy that allows race to be considered as one factor among many to promote student body diversity. A rejected applicant challenges the policy, arguing that the use of race in admissions violates the Constitution.
Question:
What type of constitutional claim is the owner most likely to bring? What amendment/protection bears on this case?
Equal protection
Follow up: when level of scrutiny would the court apply?
What are two basic ways of establishing a racial classification (discriminatory law) in an equal protection case?
1. The law explicitly targets one racial group.
2. If the law is facially neutral, you must prove that either the intent or the enforcement are racially discriminatory.
Follow up: give some examples!
What are the three types of legal consciousness? Explain.
Before the Law
With the Law
Against the Law
Follow up: explain each of these! give examples
Give some examples of historical injustices which were nevertheless legalized through the courts.
Extreme cruelty/punishment of enslaved people (State v Mann)
Black people cannot be citizens (Dred Scott)
Segregation (Plessy v Ferguson)
Forced sterilization (Buck v Bell)
Indian Removal
In Korematsu, Justice Jackson critiqued the Court's reliance on "national security" in its decision. Explain why he believed military intelligence had no place in a court of law.
1. Courts require evidence; military intelligence relies on suspicion and secrecy.
Jackson emphasized that courts operate on: Evidence, Due process, Reasoned justification that can be tested and challenged
Military intelligence, by contrast: Is often classified; Relies on assumptions, probabilities, and worst-case scenarios; Cannot be meaningfully scrutinized by judges or defendants
2. Judges are not competent to evaluate the above
3. Constitutionalizing military decisions is dangerous
How do the courts categorize "classifications"? What are they and which groups belong to them?
Suspect: race, national origin, religion
Quasi-suspect: gender, legitimacy, sexual orientation (possibly)
Non-suspect: age, income, disability
1. Military necessity during wartime justified extraordinary measures
2. The exclusion order was framed as a military regulation, not racial punishment
3. Racial classifications can be constitutional if they meet a compelling interest
4. Reliance on precedent validating wartime restrictions
What contributions did critical race theorists make to our understanding of law, identity, and political institutions?
Law is not neutral or color-blind: even facially neutral laws can reproduce racial hierarchy through disparate impact and institutional design.
Identity (especially race) is socially constructed but legally produced: legal categories, court decisions, and administrative practices actively create and maintain racial identities rather than merely reflecting them.
Power operates through institutions, not just intent: racism is embedded in routine practices of courts, legislatures, policing, housing, education, and bureaucratic governance, not only in overtly discriminatory actors.
What does it mean to view law not just as an authority but as a system of relations?
Public understanding of law is that it is
primarily punitive…but it is also productive.
Law produces new categories of people,
space, crimes, new technologies of
governance
Law circulates through narrative and ideas, not just what's on the books