Category: Education

ConLaw Class 21 – Individual Autonomy I

Class 21 – 3/30/17

Individual Autonomy I

  • Meyer v. State of Nebraska (883 – 886)
  • Pierce v. Society of Sisters (886 – 888)
  • Buck v. Bell
  • Griswold v. Connecticut (1041  – 1058)
  • Loving v. Virginia (Substantive Due Process) (1058 – 1059)

The lecture notes are here.

Pierce v. Society of Sisters

This is the Hill Military Academy, a private school shut down due to the compulsory education law.


Buck v. Bell

This is Carrie Buck. Why was she designated as “feebleminded”? Because she had an “illegitimate child,” and they charged her with “promiscuity.” The pregnancy resulted from a rape.


This is Carrie Buck with her mother, Emma Buck.


This is Dr. J. H. Bell, the superintendent at the Virginia State Colony for Epileptics.


This is the  courthouse in Amherst County, Virginia where Buck’s case was first “heard”:

This is the “State Colony for Epileptics and Feebleminded,” where Carrie Buck was sterilized in the wake of Buck v. Bell.


Here is a rendering of Carrie’s Buck family tree, as performed by Dr. Harry H. Laughlin. F stands for “feebleminded.” Notice That Carrie Buck is designated with an F, her mother Emma was designated with an F, and her daughter, Vivienne, was designated with an F. There you have three generations of imbeciles. Enough.


Haughlin, impressed that Nazi Germany adopted his ideas, had this to say:

The fact that a great state like the German Republic, which for many centuries has helped furnish the best that science has bred, has in its wisdom seen fit to enact a national eugenic legislative act providing for the sterilization of hereditarily defective persons seems to point the way for an eventual worldwide adoption of this idea.

In 1936, Laughlin was invited by the Nazis to receive an honorary degree of Doctor of Medicine at the University of Heidelberg for his work in the “science of racial cleansing.”


During the Nuremberg trials, attorneys for the Nazis read from Justice Holmes’s opinion to illustrate that the Germans did not invent eugenics.

 Here is Carrie Buck shortly before she died.


Here are several pieces of American propaganda about Eugenics.

This one says, “Some people are born to be a burden on the rest. Learn about heredity. You can help to correct these conditions.”


This piece of propaganda says “Eugenics is the self direction of human evolution.”


Speaking of social darwinism, and surivival of the fittest, here is Justice Oliver Wendell Holmes, Jr., who firmly believed that “Three generations of imbeciles are enough.”


Buck’s daughter, Vivian, was raised by foster parents, This is Vivian at 6 months old. She flunked her IQ test. So she was also deemed an imbecile:

It was Estabrook’s habit to photograph the subjects of his eugenical family studies, and one surviving photo shows Alice Dobbs holding Carrie’s baby. It appears that Mrs. Dobbs is holding a coin in front of Vivian’s face in an attempt to catch her attention. The baby looks past her, staring into the distance, apparently failing the test. Estabrook described that moment during his testimony at trial a few days later: “I gave the child the regular mental test for a child of the age of six months, and judging from her reaction to the tests I gave her, I decided she was below the average.”


In case you were wondering, the child was not an imbecile. Here is her report card from first grade. She was a solid B student, with an A in deportment, and on the honor roll.

Vivian died at the age of 8 due to intestinal diseases.


Despite her sterilizations, Buck would go on to be married, twice. First to William Eagle.


25 year after William’s death, Buck married Charlie Deatmore.


Here is Carrie Buck shortly before she died.


Here is a sign in Virginia to commemorate Buck v. Bell.

Griswold v. Connecticut

Here is Estelle Griswold, the lead plaintiff at the Planned Parenthood Center of New Haven, Connecticut.



Here is a photograph of Dr. C. Lee Buxton and Estelle Griswold after their arrest.

Dr Lee Buxton and Estelle Griswold

Estelle Griswold Cornelia Jahncke Planned Parenthood League CT

A penumbra is a partial shadow outside the complete shadow of an opaque body.


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Prop1 Class 21 – Leaseholds I: Leasehold Estates

Class 21 – 3/30/17

Leaseholds I: Leasehold Estates

  • Introduction, 441
  • The Term of Years, 443
  • The Periodic Tenancy, 444
  • Problems, 444
  • Tenancy at Will, 445
  • Garner v. Gerrish, 445-447
  • Questions, 447-449
  • Tenancy at Sufferance: Holdovers, 449-450
  • The Lease, 450-453
  • Selection of Tenants, 453-461

The lecture notes are here.

This is Lord Edward Coke, the Chief Justice of England. He is most famous for prosecuting Sir Walter Raleigh (whose inability to confront witnesses was the origin of our confrontation clause) and the Gunpowder Plot (remember, remember the 5th of November, or V for Vendetta). Coke is most famous for deciding Lord Bonham’s case, the case most famously cited for the proposition that a court could find a law unconstitutional. The King was subject to the laws, and the laws of Parliament were void if in violation of “common right and reason.” It was not John Marshall who created the concept of judicial review. However, after this case, he was transferred to the King’s Bench, where he had less power. He also famously wrote the Institutes of the Lawes of England.


And, for those interested, the South Texas College of Law Library has a 1607 English Dictionary. None other than Lord Coke ordered it censored for its seditious definition of the word liberty. Indeed Coke ordered the book to be burned!

The Texas Statute of Frauds provides:

Sec. 26.01.  PROMISE OR AGREEMENT MUST BE IN WRITING. (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is

(1)  in writing; and

(2)  signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(b)  Subsection (a) of this section applies to:

(1)  a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;

(2)  a promise by one person to answer for the debt, default, or miscarriage of another person;

(3)  an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation;

(4)  a contract for the sale of real estate;

(5)  a lease of real estate for a term longer than one year;

(6)  an agreement which is not to be performed within one year from the date of making the agreement;

(7)  a promise or agreement to pay a commission for the sale or purchase of:

(A)  an oil or gas mining lease;

(B)  an oil or gas royalty;

(C)  minerals;  or

(D)  a mineral interest;  and

(8)  an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code.  This section shall not apply to pharmacists.

I have an album of photos of the house from Shelley v. Kraemer here:

Here is the text of the 14th Amendment:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The 13th Amendment is the only Amendment to apply directly to individuals, and not the government:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

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Discussing House of Representatives v. Price on CNBC Nightly Business Report

Almost instinctively, I refer to the cost-sharing reduction litigation as House of Representatives v. Burwell, but indeed it is now House of Representatives v. Price. The GOP-controlled House has a still-pending lawsuit against the GOP-confirmed Secretary of HHS over the payment of subsidies to insurance companies. As I noted shortly after the AHCA died stillborn, the House litigation is on hold till May 22. At that point, the House will have to decide if it will (a) continue the litigation, (b) dismiss the litigation and let President Trump make the same illegal payments President Obama made, or (c) appropriate the funding for the CSR payments. Oh the choices!

Last night, I appeared (ever-so-briefly) on the CNBC Nightly Business Report. From 30 minutes in the chair, the producers found about 7 seconds of content, which is par for the course. Starting at 1:13:

I am quoted more at length in this article:

The big question is what happens now?

“Now we are in the Trump administration and as best as I can tell, these payments are still being made,” said Joshua Blackman, associate professor of constitutional law at South Texas College of Law in Houston, and author of “Unraveled: Obamacare, Religious Liberty, and Executive Power.”

“This puts the Republicans in a very strange spot, as they are making the same illegal payments that they were saying the Obama administration was making,” said Blackman, who also serves as an adjunct scholar with the conservative Cato Institute.

I was also asked about the risk corridor litigation–don’t forget that is still live:

A federal claims court judge ruled in favor of insurers in one of the lawsuits last month. The court award would now be paid out of the federal judgment fund for legal claims.

“But there is already movement afoot amongst Republicans to amend the judgment fund, saying ‘we don’t want companies getting this money that was never appropriated,'” explained Blackman.

“That is to say, if Congress never agreed to fund something and the government then defaults on that debt, you can’t get it through this judgment fund.”

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Another Possible, Procedural Reason Why The Government Has Appealed to the 4th Circuit and not the 9th Circuit

In Politico, Josh Gerstein writes:

Some attorneys believe the Justice Department is intentionally dragging its feet in the Hawaii case because the 9th Circuit rotates the three-judge panels assigned to motions every month, with the next swap-out due Saturday. The 9th Circuit also announces the panels publicly, although not in advance. This month’s consists of two Obama-appointed judges — Morgan Christen and John Owens — along with George W. Bush appointee Milan Smith.

There is another possible, procedural reason.

The district court in Hawaii issued a Temporary Restraining Order (TRO). Currently the parties are litigating how to convert the TRO into a Preliminary Injunction (PI). As a general rule, TROs cannot be appealed–appellate review is extremely narrow. For reasons I explained here, the 9th Circuit in Washington v. Trump ignored that rule. In any event, it is not in the government’s interest to appeal a TRO, as–traditionally at least–it bears a much higher burden than if it is appealing a PI. (There is a reason the Obama Administration did not seek a stay from the Supreme Court when the 5th Circuit denied a stay in the challenge to DAPA). Further, the District Court in Hawaii issued a very broad injunction, that even enjoined internal-looking aspects of the order, such as instructions to the Secretary of State to research other countries to add to the vetting list. The government has asked the court to narrow its scope. There is every reason to solidify the scope of the preliminary injunction before going up to the 9th Circuit. Indeed, if this is the case that goes up to the Supreme Court, I would much rather go up on a PI than a TRO.

In contrast, the federal district court in Maryland (almost certainly) issued a preliminary injunction. I hedge a bit because the court was cagey about the precise relief it was entering. However, the analysis itself suggests that the PI framework was being applied.

For example, on page 18, the court states:

To obtain a preliminary injunction, moving parties must establish that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest.

On page 39:

While Plaintiffs would likely face irreparable harm in the absence of an injunction, Defendants are not directly harmed by a preliminary injunction preventing them from enforcing an Executive Order likely to be found unconstitutional.

The government’s brief treats the opinion as a preliminary injunction, which I think is right.

Here, the government has promptly appealed the preliminary injunction, but has not appealed the TRO–the scope of which may be narrowed when it is converted to a PI.

As a result, when faced with a choice of appealing the temporary restraining order in Hawaii, which the government is trying to convert to a narrow preliminary injunction, or appeal a narrow preliminary injunction in IRAP, the prudent choice would be to focus on the latter.

I have no inside knowledge, and this is a non-cynical reason to explain the different litigation postures.

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ConLaw Class 20 – Economic Liberty II

Class 20 – 3/28/17

Economic Liberty II

  • West Coast Hotel v. Parrish (897 – 901)
  • United States v. Carolene Products (901 – 905)
  • John Hart Ely, Democracy and Distrust Excerpt (906)
  • Lee Optical of Oklahoma v. Williamson (910 – 915)
  • Williamson v. Lee Optical of Oklahoma (916 – 917)
  • Milnot Company v. Richardson (918 – 921)

The class notes are here.

West Coast Hotel v. Parish

This is the West Coast Hotel is Wenatchee, Washington.


United States v. Carolene Products

First, here is Carolene Product’s famous footnote four:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. See Stromberg v. California, 283 U.S. 359, 369-370Lovell v. Griffin, 303 U.S. 444, 452.

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536;Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v.Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722Grosjean v. American Press Co., 297 U.S. 233Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v.California, supra, 369Fiske v. Kansas, 274 U.S. 380Whitney v. California, 274 U.S. 357, 373-378;Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390Bartels v. Iowa, 262 U.S. 404Farrington v. Tokushige, 273 U.S. 484, or racial minorities,Nixon v. Herndon, supraNixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428South Carolinav. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

I have collected a fortune of information about Carolene Products, Charles Hauser (the President), and his return trip to the Supreme Court which resulted in an affirmed conviction, and a pardon by President Roosevelt. Three decades later, a district court in Illinois found the federal Filled Milk Act Unconstitutional.

As a result of United States v. Carolene Products (1938), the Carolene Products company changed the name of their product from “Carolene” to “Milnut” at some point in 1938. I previously acquired a Carolene Products Cookbook from 1939, labelled as “Milnut.”


Now, thanks to a successful eBay bid, I am the proud owner of a Carolene Products cookbook from 1937 (before the Supreme Court case!). It is labelled as “Carolene” with the same logo.

2014-03-09 13.13.57


Note how it is called a “Scientific Milk Product.” After 1938, the advertisements did not call it “Milk” to avoid problems under the Federal, and state Filled Milk Acts.


Who want’s some frizzled dried beef or baked ham slice?

As well, here is the history of the Carolene Products company from, with some interesting photos.






The Seneca plant that was built right on the border with Oklahoma, in a means to work around (literally) the Filled Milk Act. I have more details on the Seneca plant here. The plant is still in operation today, operated by the Sumker’s company (you can order Milnot online! – I have a case).


Here is a copy of FDR’s pardon of Charles Hauser, President of the Carolene Products company.

Here is a copy of the remission of imprisonment, which I received from Hauser’s granddaugther. Note that the year 1944 is printed, and someone scribbled over it 1945.

Charles Hauser pardon0001

Williamson v. Lee Optical

Here is how a lensometer works.

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Prop1 Class 20 – Marital Property III – Community Property

Class 20 – 3/28/17

Marital Property III – Community Property

  • Community Property, 410-412
  • Common-Law Concurrent Interests, 412-413
  • Problem, 413
  • Management of Community Property, 413-414
  • Problem, 414-415
  • Mixing Community with Separate Property, 415
  • Problems, 416
  • Migrating Couples, 416-417
  • Problem, 417-418
  • Texas Marital Property Law
  • Rights of Domestic Partners, 418-419
  • Notes on Same-Sex Marriage, 438-440

The lecture notes are here.

This is the section of the Texas code that governs equitable distribution of community property after a divorce:

Sec. 7.001.  GENERAL RULE OF PROPERTY DIVISION. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.

Sec. 7.002.  DIVISION AND DISPOSITION OF CERTAIN PROPERTY UNDER SPECIAL CIRCUMSTANCES. (a) In addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage:

(1)  property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or

(2)  property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

(b)  In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:

(1)  property that was acquired by the spouse while domiciled in another state and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition; or

(2)  property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse’s separate property if the spouse had been domiciled in this state at the time of acquisition.

(c)  In a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:

(1)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or

(2)  income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year.

Here is a recent story, similar to the W.C. Fields case,where a mistress is ordered to pay her dead lover’s wife:

Kathie O’Keefe, a former lounge singer turned political activist, spent two “happy” decades with another woman’s husband and now she’s being ordered to pay up.

When her former lover, Jack McCarthy, died 16 months ago at age 78, O’Keefe made a claim against the estate of the wealthy real estate broker.

O’Keefe, 69, wanted a watch and ring he had given her, and the $200,000 she said he promised her.

Not only was O’Keefe turned down, but McCarthy’s wife of 30 years, Margaret, turned the tables and sued.

Now, according to a court ruling in favor of Margaret McCarthy, O’Keefe owes $200,000, to her dead lover’s family.

“I was really shocked,” O’Keefe said on ABCNEWS’ Good Morning America. “I thought of it as a nuisance suit and I didn’t think they had a chance of actually getting a judgment against me,” she said.

McCarthy’s wife relied on an obscure 90-year-old Washington law that forced O’Keefe to account for all the gifts and money he’d ever given her — and pay it all back in cash.

“It doesn’t matter to me if it’s $200,000 or $2 million,” she said. “I didn’t do anything wrong. It was Jack who broke the law and I don’t think I should be punished for the sins of a dead man,” she said.

George Smith, O’Keefe’s lawyer, said the court’s ruling now exposes every extra-marital partner in the area to serious financial risk.

“The old law says, and it’s still in effect, that one spouse cannot gift community property to an individual without the consent of the other spouse,” Smith said. “I think the girlfriend should look at the heading on the check, and if it says, ‘the account of Mr. and Mrs.,’ she’s got problems coming down the road.”

The McCarthy estate demanded $400,000, but after the court ruling, both parties reached a settlement.

The McCarthy estate’s lawyer, Kurt Olson, said things might have been different for O’Keefe if she had what she claimed McCarthy promised in writing.

“If it were a legitimate claim that she was asking for, if she had some evidence that he had intended to give her the money, then obviously that would heve been very important to the estate,” Olson said. “If there was any writing if it had been in any estate planning documents that would have been very relevant but we had nothing except for her word about what a deceased person had said according to her,” he said.


Under California community property law, gifts given by the husband to a mistress, without the wife’s permission, can be set aside by the wife. This is precisely what happened to Donald Sterling, former owner of the Los Angeles Clippers, who gave millions of dollars of gifts to his mistress V. Stiviano. Shelly Sterling, Donald’s wife, sued Stiviano. In 2015, a court ruled that Stiviano was required to pay back more than $3 million to the Sterlings.

Former Los Angeles Clippers owner Donald Sterling had no right to spend millions of dollars to give luxury cars, a duplex and other gifts to his alleged mistress, V. Stiviano, an attorney for Sterling’s wife told a Los Angeles County judge Wednesday.

The lawyer’s assertion came during opening statements of a trial in which Shelly Sterling is attempting to recoup more than $3 million in gifts that she alleges Stiviano seduced Donald Sterling into giving her.

Stiviano was at the center of last year’s controversy that led to Donald Sterling being stripped of his ownership of the NBA team after she recorded him making racially charged remarks.

Attorney Pierce O’Donnell, who represents Shelly Sterling, told Superior Court Judge Richard L. Fruin Jr. that Donald Sterling used community property — assets he legally shares with his wife — to pay for gifts to Stiviano, including a Ferrari, two Bentleys, a Range Rover, a duplex near Beverly Hills and a Paris shopping spree.

“He’s an older, vulnerable man, susceptible to the wiles of a younger woman, like the defendant,” O’Donnell told the judge.

Stiviano, seated with her attorney in the downtown L.A. courtroom, glared and shook her head.

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