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American Legal History
Stetson University School of Law
Fox, James W.

American Legal History Final Outline
Spring 2008
Professor Fox
Exam Information
A.      Times to see him
a.      Tues Morning?
b.      Wed afternoon
c.      Can just email him questions
d.      After Friday evening 5pm no more emails
B.      Exam Sunday
a.      Multiple choice
b.      Short answer – identify the significance in a paragraph
c.      Short essays – focus on particular topic or time period or a book – 30-40min range
d.      Long essay – major themes of the course, able to draw the major concepts together
                                                               i.      For the essays: be sure you can
1.       State some sort of thesis of yours about the topic
2.       Develop that with some details from the class – have you been able to incorporate enough form the class to be able to intelligently answer an essay question
3.       and how you connect the two
                                                             ii.      be sure to give a lot of details to support
                                                            iii.      show how the details are connected
C.      Closed book
D.      Can bring in one sheet of paper where you write in whatever notes you want to put in front and back
E.      Will have a choice with the essays so we can pick the one we have stronger themes for
Week 1 and 2 (George)
–         Founding Era stuff
–         Coursepack 1-117
–         MM – 3-8, 49-50, 57-60, 64-66, 67-74, 74-84,
A.      Introduction
a.      John Philip Reid’s Law & History
                                                               i.      Decries lawyers use of history because lawyers have an adversary ethic and selectively pick and choose facts favorable to their cause and minimize or ignore contradictory data
                                                             ii.      Argues that lawyers pick the answer they want and then search for historical facts to support it
                                                            iii.      Argues that the Supreme Court instead of following history actually made history because subsequent courts would just follow the first court’s version of history without subsequent inquiry
                                                           iv.      Justice Brandeis may have been the first to use history to illustrate the complexity of a problem and not to try to show there was a simple answer
                                                             v.      Argues that there is always contradictory evidence and that a lot of the old evidence is unreliable anyways
                                                           vi.      Historical evidence is not applicable to modern problems
b.      William Brennan’s Construing the Constitution
                                                               i.      Judges have to give definitive answers to constitutional questions because all their cases involve real disputes between parties
                                                             ii.      Since coercive force is used to enforce these rulings judges must render “legitimate” decisions
                                                            iii.      Counter-majority difficulty is that in a representative democracy we allow judges to overturn the will of a majority
                                                           iv.      Originalism is arrogance cloaked as humility because it assumes that judges today can ascertain the original meaning of a textual provision and apply it to a present-day problem
                                                             v.      Blind faith in democracy is a problem because the constitution embodies certain substantive value judgments that have to be protected

tect liberty
d.      Subscribed to the natural law theory that in order for positive law to be legitimate it had to be in accord with certain inalienable fundamental principles
e.      Sovereign authority for governing comes from the consent of the governed
f.         Social compact theory said the people enjoyed the right of revolution against a despotic ruler
                                                            iii.      Wanted actual representation not virtual representation
a.       Virtual representation was the theory that every member of Parliament represented everyone
                                                           iv.      DOI
a.       Articulated a view of natural law and social compact theory
                                                             v.      Colonial period was first experience with federalism although not true federalism because the colonies did not exercise any powers unchecked by Parliament
                                                           vi.      Articles of Confederation
a.       Weak central government compared to the Constitution
b.      Derived its authority from the states which in turn derived their legitimacy from the people
c.       Did not give federal government true sovereignty as the Congress could not even pass laws, only resolutions
Several problems that arose due to excessive state power were jurisdiction over interstate matters, disunion, and internal challenges to state governments that the federal government was powerless to stop