BLL in Con Law? Forum

[goosey]

::still perplexed by wth I'm supposed to be doing in this class::

Here is my theory, which I am hoping somebody can confirm: is the bll basically just the constitution? And all the crap we read just tells us how to interpret it??

So are we not supposed to be getting bll out of these cases?

[uzpakalis]

All of the cases you have read up to this point MOST LIKELY have some sort of BLL. The BLL comes from the Constitution yes, but also from the Court's interpretation of the Constitution.

For example, Marbury v. Madison - the judiciary has the authority to review the constitutionality of executive and legislative acts. This is basically the BLL that you need to get out of this case. Where did it come from?...John Marshall and his interpretation of the text of the Constitution. There is more that you may need to know about Marbury, but the above is the main BLL.

As the course progresses, you will see the Court going one way, and then the other. This is normal because times change, justices change, the political climate changes, whatever. For example, the holdings in Lopez and Raich are different, why? There is not always a bright line answer, so you need to be prepared to discuss both holdings and how they may be applied to a hypo (like the health care debate for example).

[Geist13]

There's definitely black letter law. Take the commerce clause for example:

1. which of the three categories does the attempted regulation fit in to? (channels of commerce, instrumentalities of commerce, or substantial effects)?
2. If substantial effects (which most commerce issues will be), is the object of regulation economic activity? ---> If not, the court will probably not give wide deference to congressional findings of effects on interstate commerce
3. If is is economic activity, could congress have had a rational basis for finding that the regulated activity substantially affects interstate commerce?

The problem that people have is that within each of the parts of the test there's a lot of room for argumentation. For example in question number two, you have to ask yourself how broad or narrow are we want to understand economic activity (think Wickard and the aggregation principle). This aspect is compounded by the fact that SCOTUS almost always refuses to overrule a previous ruling even though it's clear that they probably want to. Thus, there is also an increased focus on distinguishing cases from each other. So when you apply the law to fact you need to pay close attention to the details of the facts and how a particular situation can be distinguished from certain cases and this will help you decide what path to take.

That's my take on con law after a month or so.

EDIT: the above poster's comment about Lopez and Raich is a perfect example of what I'm talking about. I think its pretty clear that the cases since 1995 have been all over the place. However, according to the court there is an important disintguishing factor. In Lopez the court refused to accept that regulating guns near schools was an economic activity, thus they would not give deference to Congress' findings that there was substantial effects. However the majority in Raich were convinced that regulating the marijuana trade did have to do with economic activity and therefore they were willing to give deference to congressional findings of substantial effects. So it comes down to distinguishing the facts betweeen the cases and using this as part of your interpretation of the law.

[goosey]

Thanks for the responses.

I think my main point of confusion is that everything we're doing is from 100 years ago and I have no idea if its been overruled.

Marbury v Madison is a case where the take away is clear. The civil rights cases I suppose its clear too, but in the end, I just don't get how this plays out in the modern world and what applies still and what doesn't. My professor rarely says "this is still valid law" and so basically I am just clueless

[BeenDidThat]

Thanks for the responses.

I think my main point of confusion is that everything we're doing is from 100 years ago and I have no idea if its been overruled.

Marbury v Madison is a case where the take away is clear. The civil rights cases I suppose its clear too, but in the end, I just don't get how this plays out in the modern world and what applies still and what doesn't. My professor rarely says "this is still valid law" and so basically I am just clueless

A case is valid law unless a case you learn later overrules it. And a case may not be the applicable law in a given fact situation if a case you learn distinguishes it. If you're learning it chronologically then you just have to wait. It will come together. Stop worrying.

[Paichka]

Remember too that a large part of Con Law is learning different interpretive strategies used by the Court from time to time -- sometimes the Court writes an opinion that is much more formalistic (see the early commerce clause cases, where they basically held that "commerce" just means buying and selling) and sometimes the Court writes an opinion that is much more functionalist (see the later commerce cases, where they expanded the definition of commerce to include things like manufacturing). Even if a case is later overruled, the strategy used by the Court is still important to understand.

Most first year Con Law classes all teach the same subject matter groupings:

(1) Judicial Review -- its origins, authority, and how it's used

First you learn about the authority for Judicial Review in Marbury, and then how the Court expanded the doctrine to include state actions in cases like Martin v. Hunter's Lessee. THEN you learn how the doctrine has been limited over the years -- sometimes by the Court (the prohibition on advisory opinions, the political question doctrine, the standing requirement) and sometimes by Congress (jurisdictional stripping, the eleventh amendment).

(2) Congress's Power -- N&P, Commerce, Taxing & Spending, section 5 powers under the Fourteenth Amendment, Congress's ability to regulate state actions (preemption, dormant commerce clause)

Like in Judicial Review, you first learn about the initial broad definition of the power, then you learn about how that power has been changed (limited, generally) over the years. For example, the Commerce Power was originally defined very broadly, then it was limited for about 50 years by a narrow definition of "commerce" and the 10th amendment. Currently, the power is defined broadly, but there's some movement by the Court to constrain Congress in this area (Lopez, Morrison, Printz).

(3) President's Power -- inherent executive power, appointment and removals, foreign policy, etc.

Here, the main wrangling is over whether the President has a plenary authority -- some people argue yes, and some people argue no.

The main thing to remember is that you are FIRST going to learn about the source of a particular power -- then you're going to learn how that power has been modified (or reinterpreted) over the years by various judicial decisions. That's the BLL you should be learning.

[keg411]

The problem is a chronological ConLaw class instead of a class by Article. With no syllabus. I mean, I think I'm slowly starting to be able to pull bits and pieces together (thanks to Chemerinsky), but it's still kind of tricky to get a good overview organization.

[jasonac21]

The problem is a chronological ConLaw class instead of a class by Article. With no syllabus. I mean, I think I'm slowly starting to be able to pull bits and pieces together (thanks to Chemerinsky), but it's still kind of tricky to get a good overview organization.

Keg,

You're bipolar on Chemernksy.

[Pizon]

is the bll basically just the constitution?

[keg411]

The problem is a chronological ConLaw class instead of a class by Article. With no syllabus. I mean, I think I'm slowly starting to be able to pull bits and pieces together (thanks to Chemerinsky), but it's still kind of tricky to get a good overview organization.

Keg,

You're bipolar on Chemernksy.

Chemerinsky law school is making me bipolar.

[Amy wineBerry]

The problem is a chronological ConLaw class instead of a class by Article. With no syllabus. I mean, I think I'm slowly starting to be able to pull bits and pieces together (thanks to Chemerinsky), but it's still kind of tricky to get a good overview organization.

Keg,

You're bipolar on Chemernksy.

Chemerinsky law school is making me bipolar.

TITCR. Law school is also making me apathetic, however, I heard that comes with the territory.

Oh, and this thread...all kinds of awesome with the con law approaches. Reading this thread has been the highlight of my day.

[huckabees]

::still perplexed by wth I'm supposed to be doing in this class::

Here is my theory, which I am hoping somebody can confirm: is the bll basically just the constitution? And all the crap we read just tells us how to interpret it??

So are we not supposed to be getting bll out of these cases?

You are too focused on a rigid briefing system. I probably never made a specific effort to find what I'd label bll in a case, ever.

Con law often looks like this: What is the granting power (const or codified?) -> what is the scope of the granting power? [fuckton of precedential cases, usually with a building up of jurisprudence on the scope of the power] if you want to call the source of the granting power the "bll" you can, but I think you are wasting time on trivial categorization issues.

Wow this explanation just clarified things for me 300%... i must be really lost in that class

[quiver]

great thread and responses, I definitely understand OP's confusion; con law seems to be unlike any other class I've had/have. I think what all the responses have pointed out is definitely correct. for my part I definitely understand the uncertainty associated with the lack of hard BLL rules in con law as opposed to things like property, torts, etc.

I think it is extremely important (as others have pointed out) to be able to distinguish the case law history (see commerce clause expansion, severe contraction, massive expansion, then gradual modern limits). but if not BLL, there does seem to be some cases (or set of cases) that provide a framework for analysis. for example, see lopez: channels, instrumentalities, substantial effect--> then for further clarification of substantial effect see morrison and raich. also see framework for spending power in south dakota v. dole and framework (kinda) for political question doctrine in baker v. carr.

It seems to me like these frameworks are as close to BLL as you're going to get in con law. Just know the framework and how to further clarify the elements according the the subsequent case law. that's my perspective at least.

[DaydreamBeliever]

All of the cases you have read up to this point MOST LIKELY have some sort of BLL. The BLL comes from the Constitution yes, but also from the Court's interpretation of the Constitution.

For example, Marbury v. Madison - the judiciary has the authority to review the constitutionality of executive and legislative acts. This is basically the BLL that you need to get out of this case. Where did it come from?...John Marshall and his interpretation of the text of the Constitution. There is more that you may need to know about Marbury, but the above is the main BLL.

As the course progresses, you will see the Court going one way, and then the other. This is normal because times change, justices change, the political climate changes, whatever. For example, the holdings in Lopez and Raich are different, why? There is not always a bright line answer, so you need to be prepared to discuss both holdings and how they may be applied to a hypo (like the health care debate for example).

Can anyone give me an example of how this would be applied to the healthcare debate? It seems it may be easier to comprehend with an issue that has not yet been decided so I can further understand how the arguments are being made and stop looking at it so narrowly.

[spondee]

Can anyone give me an example of how this would be applied to the healthcare debate? It seems it may be easier to comprehend with an issue that has not yet been decided so I can further understand how the arguments are being made and stop looking at it so narrowly.

I believe the application to the health care law is whether, via the Commerce Clause, Congress can require the "individual mandate," which essentially means if you don't have the required minimum of health coverage, you have to pay a kind of fine.

To test yourself on it, pull up the individual mandate part of the law, work through the Commerce Clause analysis under Lopez and other recent cases. Is it economic activity? Is it even activity? Etc.

Then you can compare your analysis to the D. Ct. opinions. Four courts have addressed the issue already, two saying it's constitutional, and two saying it's not.

[GATORTIM]

I thought Lopez/Morrison combine to say Congress cannot regulate non-economic intrastate activity on the ground of its cumulative effect, I don't think it would be much of a stretch for the court to find that health care is in fact an economic activity with serious interstate effects (i.e. a Florida resident vacationing in California where he falls gravely ill after attending a party at the Playboy mansion). I think they would be more likely to apply the Wickard or Heart of Atlanta rationale (I'm not sure if this is the correct name, but the case involving the Civil Rights act and discriminatory hotel)

[DaydreamBeliever]

Can anyone give me an example of how this would be applied to the healthcare debate? It seems it may be easier to comprehend with an issue that has not yet been decided so I can further understand how the arguments are being made and stop looking at it so narrowly.

I believe the application to the health care law is whether, via the Commerce Clause, Congress can require the "individual mandate," which essentially means if you don't have the required minimum of health coverage, you have to pay a kind of fine.

To test yourself on it, pull up the individual mandate part of the law, work through the Commerce Clause analysis under Lopez and other recent cases. Is it economic activity? Is it even activity? Etc.

Then you can compare your analysis to the D. Ct. opinions. Four courts have addressed the issue already, two saying it's constitutional, and two saying it's not.

Yeah... pretty much this. You look at the legislation... So, for it to be constitutional, the federal government must have been granted the power to do it, since everything not granted to fed. is reserved to the states. So here it is claimed to be under the commerce clause... so they have to be regulating commerce among the states. What type of activity is it? Well, Congress said that the aggregate of the activity has substantial effect on commerce. Thus, they are using the Wickard rationale. So.. the question becomes—how far does Wickard extend? Well.. we have, really, 3 cases that discuss this. You've got Raich, which upheld it w/r/t growing pot, under the same rationale as Wickard, where even if the growing is for private use, it still could make its way into the stream of commerce, and at an aggregate level, that has a substantial effect. However, Lopez and Morrison have come down and said that, if nothing else, there IS a limit to commerce clause power. So where is that limit? You'd then try to pull out the reasoning from those cases... What makes healthcare unique? Well it is unique because they aren't attempting to regulate a specific positive action, which is different than all the other cases. So this is where your factual analysis and application would come in. Is the healthcare individual mandate more like Wickard/Raich, or more like Lopez/Morrison?

Ok. I'm beginning to see this in a clearer light. Now since this has not yet been decided. The analysis is more important than the answer, correct?

[solidsnake]

look for the tests used in each case;
look for and trace the evolution of case law building up to the current test;
look for and identify tension among various tests as case law evolved up to the current test;
look for the political-philosophical theories of governance and ideological underpinnings that motivated each test along the way.

I'm too much a legal realist to think that Con Law actually has anything much to do with the Constitution (without getting into whether it should or shouldn't be that way). Judges will interpret Constitutional text in to jive with #4 above. The most interesting part about Con Law is when they must confront and choose between seemingly consistent but ultimately conflicting values.

[BeenDidThat]

I thought Lopez/Morrison combine to say Congress cannot regulate non-economic intrastate activity on the ground of its cumulative effect, I don't think it would be much of a stretch for the court to find that health care is in fact an economic activity with serious interstate effects (i.e. a Florida resident vacationing in California where he falls gravely ill after attending a party at the Playboy mansion). I think they would be more likely to apply the Wickard or Heart of Atlanta rationale (I'm not sure if this is the correct name, but the case involving the Civil Rights act and discriminatory hotel)

The counter-argument is often that not having health insurance is not an action and hence cannot be regulated under a commerce clause regulating activity.