Preparing for a New Class Behind the Scenes: Part II

October 04, 2021 00:25:44
Preparing for a New Class Behind the Scenes: Part II
USLawEssentials Law & Language
Preparing for a New Class Behind the Scenes: Part II
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Show Notes

Episode 19

The USLawEssentials Law & Language podcast presents Part II of a conversation between Stephen Horowitz and Daniel Edelson concerning preparation for an Introduction to US Law course for LLM students. Daniel taught this class for several years and now it’s Stephen’s turn. He will be teaching an intensive week of classes to international students beginning their legal education in the United States.

Stephen and Daniel discuss the Supremacy Clause, federalism, and preemption. In addition, they talk about ways to introduce students not just to the fundamentals of US law but also to how law students study law in the United States.

Plus Stephen and Daniel try to come up with cool nicknames for themselves and don’t do so well.

If you’ve ever wanted to hear some of the ways instructors get ready to teach US law and legal English you’ll enjoy this episode.

 

Below is the excerpt from the Supreme Court case, Arizona v. United States, that Stephen and Daniel discuss during this episode.

Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U.S. 452,457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (KENNEDY, J., concurring). From the existence of two sovereigns follows *399 the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council, 530 U.S. 363, 372, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000); Gibbons v. Ogden, 9 Wheat. 1, 210–211, 6 L.Ed. 23 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute **2501 containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U.S. 582, 592, 131 S.Ct. 1968, 1974–1975, 179 L.Ed.2d 1031 (2011).

State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 115, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (Souter, J., dissenting). The intent to displace state law altogether can be inferred from a framework of regulation “so pervasive … that Congress left no room for the States to supplement it” or where there is a “federal interest … so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947); see English v. General Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990).

Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372, 120 S.Ct. 2288. This includes cases where “compliance with both federal and state regulations is a physical impossibility,” Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–143, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), and those instances where the challenged state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,” Hines, 312 U.S., at 67, 61 S.Ct. 399; see also *400 Crosby, supra, at 373, 120 S.Ct. 2288 (“What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects”). In preemption analysis, courts should assume that “the historic police powers of the States” are not superseded “unless that was the clear and manifest purpose of Congress.” Rice, supra, at 230, 67 S.Ct. 1146; see Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009).

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Episode Transcript

Speaker 0 00:00:00 Welcome to the U S law essentials law and language podcast, the legal English podcast for non-native English speakers that helps you improve your English, listening, improve your legal English vocabulary and build your knowledge of American legal culture, Speaker 1 00:00:17 All the honorable. Speaker 0 00:00:22 Okay. So Steve, in a previous episode, we were talking about a course that you were going to be teaching and we left off with, uh, using the states act as a way of introducing the peculiarities of federalism in the United States. Speaker 2 00:00:39 And yeah, that was a good, you're giving a good summary of an episode in which we talked about summarizing. Speaker 0 00:00:45 That's right. That's right. Well, yeah. Um, that's why they call me the great summarizer. Anyway, Speaker 2 00:00:51 We really call you that. Who calls you that I don't worry about? Oh yes. That's of course they call it you up. Sorry. Yes, everybody. Speaker 0 00:00:59 Anyway, so, um, so usually after federalism, I started introducing other aspects of government in the United States and among other things, I'll introduce the supremacy clause from the constitution. So that might be something that you want to do. Speaker 2 00:01:14 Wait, the supremacy, what Speaker 0 00:01:16 The supremacy clause, Speaker 2 00:01:19 Uh, what's a clause. That's Speaker 0 00:01:21 A great question, Mr. Grammar, you know what, uh, w you know, what a clause is supposed to be? Speaker 2 00:01:29 Well, you're the great summarizer and I missed a grammar, our tag names or whatever. Speaker 0 00:01:37 Yeah. I'm not sure. I'm not sure that there's going to be a Marvel superhero movie about Mr. Grammar and Speaker 2 00:01:48 Saving the world by helping people with their grammar. Speaker 0 00:01:51 Okay. So I say, I would say a clause in the constitution is either a sentence or part of a sentence in the constitution. And often these clauses, especially clauses about which a great deal of case law develops, get a, get a special name. And the name is usually derived from key words from that sentence or that portion of a sentence. And, and as you know, in article six of the us constitution, there is a clause that says that the constitution shall be the Supreme law of the land. And there's, there, there's some words there that I admitted that I omitted, but in sum and substance, we learned that the constitution is the Supreme law of the land and federal law is going to essentially preempt or displace state law. If there is a conflict between federal law and state law. Speaker 2 00:02:58 Wait, so you, so a clause in the constitution is just kind of like, uh, a short phrase. It could be a phrase, or it could be a clause, or it could be a whole sentence. Uh, whereas a clause grammatically is, um, a group of words that has a subject in a verb. Um, but it was interesting. Cause then you kept doing the and thing, and each of those ants create new independent clauses, but that's different than the causes you're talking about in the constitution, which I think it has a broader sense of the word clause, but that's what we're here to help you about. Is it Speaker 0 00:03:36 Well seen? But now I feel like you're not only Mr. Grammy, you're also the great summarizer. Like I didn't, I'm not sure I did as good a job summarizing as I thought I would, but I'll make an excuse I recording. Right. Speaker 2 00:03:50 Maybe I can be the great grammar summarizer. So anyway, so yeah, you were mentioning the supremacy clause and I was thinking about, there's also the commerce clause and, uh, one of, some of the other, uh, top 40 clauses of the constitution, there's the ice cream club, Speaker 0 00:04:09 You know, Santa Claus, there's, um, Speaker 2 00:04:11 Santa Claus. That's everybody Speaker 0 00:04:13 Knows that one. Um, there's the establishment clause, which provides that government, that the government can not establish a religion. Speaker 2 00:04:24 There's the dormant commerce clause, which has kind of like the commerce clause, basically the same thing. Ooh, Speaker 0 00:04:31 That's, that's, that's really interesting because at the dormant commerce clause is almost, is actually implied, right? It's not actually explicitly, Speaker 2 00:04:41 It's part of the commerce clause, but then it's like this extra little wrinkle it's not actually there, but then we assume it's there because it's not there. Okay. Speaker 0 00:04:51 Another key clause is the due process clause. The due process clause comes up a lot. Yeah. The double jeopardy clause, Speaker 2 00:05:00 Not in my personal life, maybe. I don't know. So anyway, so we're back to the supremacy clause. Uh, so it it's the supremacy clause based on the word Supreme in that clause, which is says it's the Supreme law of the land. So we call it the supremacy clause because it says that federal law basically preempts all state laws. Right? Speaker 0 00:05:25 Right. So federal a federal law will preempt state law under certain circumstances. And so a whole body of case law has developed to determine under what conditions federal law should preempt state law. Speaker 2 00:05:46 Wait, can I, can I, can I challenge you? Sure. Okay. So we said it that federal law preempt state law, I want to challenge you to come up with a synonym and then I'll come back with another synonym. We'll go back and forth till we run out of synonyms. Speaker 0 00:05:59 Okay. And I, I assume that we're, that you want to send it in for us preempted? Yes. Speaker 2 00:06:03 Okay. Federal, federal law. Speaker 0 00:06:06 Okay. Displaces state law. Yeah. Yeah. I'm sorry. You do. What do you, do you want synonyms for federal and state or just federal, federal law? Federal law can displace state law. Speaker 2 00:06:22 Okay. Federal law. Can Trump state law, Speaker 0 00:06:27 Federal law wins over state law. Speaker 2 00:06:34 Federal law takes precedence over state law. Come on Dan. You can do it. Speaker 0 00:06:39 Federal law, overcomes state law. Speaker 2 00:06:43 Uh, boom. How about federal law? Supersedes state law. Speaker 0 00:06:50 Oh, that's great. That's great. Speaker 2 00:06:53 I think I'm out. I think that was my last one. It just, I just, I think I just barely edged you out. Did you, Speaker 0 00:06:59 Did you have a thesaurus handy? Speaker 2 00:07:01 No, I didn't. It. My brain, my <inaudible> is my brain. Okay. I thought Speaker 0 00:07:05 I heard clicking in the background side. I'm not sure, Speaker 2 00:07:10 But now I am also the great synonym miser synonymized anonymizer okay. So back to the supremacy clause. Speaker 0 00:07:20 Right. So what I do is, um, we, we read, we read that we read the supremacy clause, we summarize it. And then I pose the following question and I usually have sort of this, wait a second, wait a second. Wait a second moment, because we just talked about marijuana law and now the question is, does federal marijuana law preempt state marijuana law? So at the time that this recording is being made, generally speaking, federal law, criminalizes selling or using marijuana, some states have either legalized or decriminalized it. And so the question that I posed to the students is, well, does federal law preempt state law when it comes to marijuana. Speaker 2 00:08:18 Okay. And preempt means like, if you got to choose between, you know, if somebody is forced to choose between the two, the federal law is going to win, right. Federal law is going to apply. It will Speaker 0 00:08:31 Supersede state law. Speaker 2 00:08:34 Ooh. They sit it up for me. Right. So I probably stole that from you like a couple of years ago, but, Speaker 0 00:08:42 But you know, but in practice it would, it's a, it's a, it's a, it's rather significant because in the event that there's a conflict between these two laws, presumably a court will strike the state law because there's just no room for it. It's gotten pushed out by federal law, which is another synonym I could have used, right. Pushes out, knocks out the state loss. So that's the question that I pose to the students. Speaker 2 00:09:12 So another, so in other words, if I am in Colorado, which has legalized marijuana and I go and buy and use some marijuana from a legal estate sanctioned store, that's following all those Colorado guidelines, could a federal agent come up and arrest me? Well, Speaker 0 00:09:36 They could. Anyway, that's generally speaking. If you violated federal law anyway, you could still be prosecuted under federal law. But this question goes to, does Colorado have that power to legalize marijuana in the context of the supremacy clause? The shouldn't shouldn't that Colorado law be nullified based on Speaker 2 00:10:06 Nullified it validated, come on back. See if you can not. Speaker 0 00:10:12 Yeah. I, I w you know, I, I was, I was just sort of flying along with you before trying to make you feel good. And I figured I would just sort of started juicing all these others. I'm not, I'm not, I'm not, I'm not, I'm not the greatest in them sitting in them a nicer, um, but, but I'm slow and steady. Speaker 2 00:10:31 Uh, okay. So anyway, so it's really not about, so, so it's an, of course a federal agent could arrest me under federal law in Colorado if I go to a state sanction store. But the real question is, is the Colorado law Kennedy even exist? Should it be instantly vaporized? That's, that's kind of a stretch of a city. Speaker 0 00:10:57 I'm not, I'm not, I'm not sure. I'm not sure the framers of the constitution were thinking that, you know, We we're, we're, we're, we're going to vaporize, or we're going to vaporize conflicting state laws. But yeah, that laser, that, that that's the question. And so it was the question to the students. Speaker 2 00:11:16 Yeah. And what do they, what do they usually say it's Speaker 0 00:11:20 Um, Speaker 2 00:11:21 Do they understand the question or do they misunderstand it? Like I did the first time. Speaker 0 00:11:25 Um, in fact, in fact, many of them actually raise the question themselves based on their own background, studying us law. And so I asked the questions, some of them express opinions on it, some of them ask me, and, but that's really the, the, the segue for this is I say, well, great. Now let's try to answer the question. The way U S lawyer would answer the question, which is we would to the cases, and we would run to case law interpreting the supremacy clause. So we can get a better idea of whether or not federal marijuana law should preempt state that. Speaker 2 00:12:06 Oh, so the, so just because the law and the constitution says that the it's the Supreme law of the land, and there's the supremacy clause that doesn't tell us enough to sort of answer this question. We got a logo, go look at a whole bunch of cases. Yeah, Speaker 0 00:12:20 Yeah. I mean, I have, I have, I have the students look at one particular case, but, but you're, you're raising a really important point. You know, the, the us constitution on the one hand, it's the Supreme law of the land, but it's, it's a relatively short document and there's just this huge body of case law that's developed out of it. And it's a great introduction, I think, for international students to see how, even if we have something written in the constitution, they're still going to be really important case law interpreting it. And us attorneys are going to rely on that case law when presenting their arguments to court. Speaker 2 00:13:02 Yeah. And I guess that's with any, any statute, any, any sort of written out law, you got to go to the, to the case law to if, to really know what it means. Speaker 0 00:13:11 Absolutely. So what, Speaker 2 00:13:13 So what case do you like to go to? Speaker 0 00:13:14 The case that I choose for their reading is, and is called Arizona V United States. And it's, it's a relatively long decision. So I just asked them to read a certain portion of it. And I'll show you the portion that I asked the students to read, because it's, it's just a few paragraphs. Speaker 2 00:13:42 Oh, so Arizona versus United States, what Mr. Great summarizer, what was that case about? Speaker 0 00:13:48 The case was about <inaudible> now I want to vaporize you. The case was about whether it was constitutional for Arizona to empower its police officers to enforce immigration law. Speaker 2 00:14:10 Oh. Because Arizona is on the border with Mexico. Right. And, and so Arizona was trying to, they didn't, they cared a lot about people coming over the border, uh, not legally and being undocumented immigrants. And they said, well, if the government's not going to, if the us government or the federal, government's not going to stop this, we're going to pass our own law and we're going to send our police to go do it. Speaker 0 00:14:40 Right. So essentially it was Arizona police officers now being charged with enforcing aspects of federal laws and Speaker 2 00:14:52 Front with that. Right. Law enforcement. What's the big deal. Speaker 0 00:14:59 Yeah. Well that, that's, that's what, that's what Arizona said. And the fact that I think that's kind of what, uh, some Supreme court justices said, oh, oh great. Oh, great. Other summarizer. But essentially the, the Supreme court struck down quite a bit of the Arizona legislation saying, Nope, Arizona can't pass these laws because of this. Speaker 2 00:15:25 So when you say they struck down, like they said, that's not okay, this Arizona law is not acceptable. Speaker 0 00:15:32 Right. Right. The wall was vaporized using your, your, your legal terminology. Speaker 2 00:15:37 If you guys are listeners out there, if you're writing legal memo, don't, don't use vaporized. Speaker 0 00:15:43 Right. So that the law wasn't vaporized, but much of the Arizona state statute was struck down as unconstitutional. And the real value of the case for our purposes is the case provides a really clear explanation of when federal law will preempt state law and Speaker 2 00:16:02 Like a test sort of. Yeah. Well, Speaker 0 00:16:04 Um, yeah, I, it, they provide three circumstances under which federal level preempt state law. Speaker 2 00:16:12 And what are those circumstances? Speaker 0 00:16:15 Well, let me ask you, do you, do you, do, do you know that the circumstances Speaker 2 00:16:18 Do I know the circumstance? Well, of course I know the circumstance, I think, uh, let's see one of the circumstances. No, it's slipping my mind right now. I think this is going to be something else I steal from you. Speaker 0 00:16:32 Well, this is actually another really, um, great opportunity for the students to try to, to try to summarize something, but oh yeah. There's, um, there's express preemption. That's where the Congress passes a law, a federal law. And there's a provision in the statute that says it's preempting certain state laws, which might correct. Speaker 2 00:16:55 So her, like if Congress passed an immigration law and said only the federal government's allowed to deal with this states are prohibited from dealing with this immigration issue. So if there was something like that, that would be an express preemption. Speaker 0 00:17:12 That's exactly right. And the second way is it's called a M usually when I think when law students study this, it's, it's called the implied implied preemption. But the idea there is even if Congress doesn't say explicitly, oh, we're preempting state law. The idea is that Congress has passed laws that are so vast and wide, and it, Congress has shown that it wants to be the sole regulator of certain activity that now, okay, there's, there's no room, there's no more room for state law in this area. So the state law is going to be preempted. Speaker 2 00:17:55 Uh, okay. So they say were, they didn't say we're in charge of all of this, but they're acting like, you know, government's got a monopoly on this area of law, right. So, Speaker 0 00:18:07 Okay. No room for you. And finally, the third one, this is, this is where there's a conflict between the federal law and the state law. And this is sort of the trickier one. Well, I don't know if it's a trickier one, but th th th this can be a bit tricky because the idea is, well, what is, what is a conflict? And on the one hand, it would appear that I think it just sort of a common sense definition of conflict is anything that's different. Well, that sounds like a conflict. Right? Right. But the, the legal definition for purposes of preemption is that it's impossible to comply with both laws. And an example would be, let's say federal law, federal law required doctors to never administer marijuana as a pain medication, but then a state law required doctors to administer marijuana as a pain medication. And, uh, yeah. So, so these are the circumstances where a doctor would, it would, it would, would have to say, well, if I, if I comply with state law, that I'm automatically breaking federal law, but if I comply with the federal law, I'm automatically breaking the state law. So Speaker 2 00:19:36 That's like, damned if you do damned if Speaker 0 00:19:38 You don't or between, between a rock and a hard place. Speaker 2 00:19:42 Oh yeah. Speaker 0 00:19:44 Since that. So I think, I think that would be the, um, the type of conflict that the Supreme court is talking about. Speaker 2 00:19:54 Okay. So in the, in the, uh, Arizona case, which, which one of those three was the one that ended up, uh, applying to the Arizona law, or did any of them, Speaker 0 00:20:03 It was, uh, it was, it was implied. I think that there was this Congress had such a monopoly on immigration law and the enforcement of immigration law that the majority and the Supreme court said that the Arizona was simply interfering with the federal government's enforcement of immigration laws in the United States. And so that was it Speaker 2 00:20:32 Because the federal government has to deal with immigration at all borders. There's not this there's a lot of states that have entry points of borders. So if one, state's doing one thing that could end up being different from other states, other things, and Congress, I guess, has an interest in making sure that there's sort of a uniform application of the immigration law. So I guess Speaker 0 00:20:56 I think it's a good point. And it's, it's an interesting case to read, I think, for, for all sorts of reasons and, um, the, the center, as I don't recall exactly. But I think Scalia wrote justice Scalia who's who has since passed away, had a, a very strong dissent arguing that this is not, this is not a situation where there should be preemption. And, and it's an interesting case to read, just to get insights on the interplay between federal law and state law in the United States, Speaker 2 00:21:31 Tying it back to the marijuana, uh, state set marijuana-related states act. Um, how would this test apply? Do you think, Speaker 0 00:21:40 Well, this is, this is where I think you should have your students just walk through the analysis. And because one of the things that I try to tell the students is that this is a great opportunity to start practicing your own legal English in terms of taking a rule and then applying it to a set of facts. The, I think the general consensus would be that there is no conflict because no one's being required to violate federal law. In fact, there was another case called gamble V United States, where the sup the Supreme court essentially said that, of course states have the power to legalize marijuana if they want to, because we have, we can have two different sets of laws in the United States, federal law and state law. So that's, I think would be considered the right answer that preemption does it apply. But I think one of the things that you probably tell the students as well in this case, regardless of whether or not your answer is consistent with what most people would predict to be the correct answer. If you do the, if you do a good analysis, it's a great way of practicing your legal English. Speaker 2 00:22:54 Yeah. So like, if you do the analysis on the, the second, um, circumstance, uh, about implicit, uh, preemption, for example, where does that take you? Speaker 0 00:23:07 Right. And I think some students have really come out and said, oh, well look, um, it it's, it looks to us like, you know, the federal government has so many drug laws, well, maybe there's just no room for a state law that says something different. And I don't think that's necessarily the right conclusion, but it's, it's an analysis. And the students using the language from the case, they're rephrasing it and they're applying it to a, a set of a set of new facts. And it's great practice as you begin your us locker. Speaker 2 00:23:49 Yeah. It's, it's definitely asking the right questions. It's, it's thinking about the, the rules as presented or the laws presented by a court opinion and trying to apply it. Right. Speaker 0 00:24:00 Right. And I think, and I think students should feel really good if, no matter what answer they come up with, if in fact they can identify these different rules that they, they read an Arizona V United States, and then just try to apply these rules to these, to our circumstances. And, you know, even saying like, well, I don't know whether or not Congress has explicitly preempted state law, but I don't think it has. So assuming they haven't that, that first, that, that first prong is out. So we have to certainly get an, a prong two and three and, and that's, uh, that's, it's great to watch. Speaker 2 00:24:38 Uh, yeah, it seems like this is a really, I mean, I see now stepping back how this ends up being a really nice sort of, um, uh, mental journey through, um, federalism and the interplay between state and federal law, as well as between, um, sort of statutory and, and, uh, uh, common law. Speaker 0 00:25:04 Right. And I hope, I hope it's helpful in your class. I'm at my prediction is you're probably going to have students write these, uh, analysis, and then, then they'll, then you'll have them vote on which one they liked best and why. Speaker 2 00:25:17 Oh yeah. I do like to do voting and sending them challenges and things like, okay, well, thanks, Dan. I, I guess I'm going to, this is another idea that I got to steal. Speaker 0 00:25:29 Yes. It's still away. And I look forward to hearing how it goes. Speaker 2 00:25:33 Okay. Okay. I'll talk to you soon. Dan, stay essential Speaker 0 00:25:37 And everyone, please follow us on LinkedIn and on Facebook and talk to you soon. Stay essential.

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