Agenda for 1 st Class

1. Agenda for 1st Class • Distribute Finders handout • Administrative Stuff • Newspapers & Public Radio • Clerking • Johnson v. M’Intosh

2. Assignment for Next Class • Review any questions or materials we didn’t cover in class today • Read Finders packet • Think about the questions on the last few pages of the Finders packet • We will discuss them in class on Friday • Writing assignments • Q1 (WG1), Q2 (WG2), Q4 (WG3), Q5 (WG4), Q6 (WG5), Q7 (WG6), Q8 (WG7) • Q9 is an optional assignment for everyone • You are encouraged to submit written answers to all questions. • You may be called on in class to answer a question, even if it was not assigned to your writing group.

3. Administrative Stuff • Everyone receive at least one email from me? • Everyone receive writing group and web # from Chris Emerson? • Everyone successfully access the website? • See www.klerman.com. Click on “Property” • You are responsible for the policies posted there • Everyone get (optional) book for class? • Blackboard quizzes • Nameplates -- Bring to class every day • First & Last name, front and back: Write first name you want me to use • Seating Chart -- Put name you want me to use on chart • Office Hours • Mondays 4-5PM, Rm. 101 then Rm. 460 • Audio recording posted to Portal • Attendance and participation are mandatory • May be included in grading • Email dklerman@law.usc.edu if absent or unprepared • Not advisable to read ahead or do writing assignments in advance • Exam will be open book; MC in class + 8-hour take-home

4. Socractic Method • Starting next class I will call on you, even if you don’t raise your hand • Much of what you do in the law practice will be oral • Arguing your case to a judge or jury • Responding to a client's legal questions • Negotiating with opposing counsel • Discussing a case with a supervising attorney or partner in a law firm • Many of those situations will be ones in which others will be asking you questions and you will be expected to answer • Judges, partners, and clients set the agenda, and they will expect you to answer their questions • You can't say "I pass" to a judge • If you say it to a partner you may not be at the firm much longer • If you say it to a client, you are not likely to have many clients • I will sometimes try to argue you out of your position • Even if I think you are right • Good lawyer knows when and how to defend position, when to give in • Can be frustrating, but important

5. Clerking • I also strongly advise everyone to apply for a clerkship • Clerking for a judge is the very best job you can take after the law school • Learn more about practice of law, more quickly, than at any other job • Best way to make good first impressions at next job • So can acquire good mentors and supporters • Apply in summer between 1L and 2L year • Judicial externships and internships also good • But not a substitute

6. Newspapers • I strongly advise you to keep up with the news • Major Newspaper: New York Times, Wall Street Journal, or Financial Times • Online or hard copy • Hardcopy available in library • Public Radio: 89.3 KPCC, 89.9 KCRW • Law is in the news nearly every day • More generally, you will be a much better lawyer if you are up on current events • Also you will interview much better • Not to mention, you will be a better citizen

7. Johnson v M’Intosh • In 1775, Johnson’s father purchased land directly from Native American tribes. • In 1795, the US Government purchased land from Native American tribes. • In 1818, M’Intosh purchased land from the US Government. • Johnson sued M’Intosh. • Supreme Court ruled for M’Intosh. • Holding. Title derived from purchase from US government is superior to title derived from private purchase from Native Americans.

8. Questions on Johnson v M’Intosh • How do you feel about this case? Do you think it reached a just decision? What arguments do you think Chief Justice Marshall would make in response? • Do you think Chief Justice Marshall had any moral or other qualms about his decision? Can you find evidence in the opinion that Marshall thought the denial of Native American property rights may have been unjust? Can you find evidence to the contrary? • Can you argue that this case isn’t really about Native American property rights, but only about the rights of white settlers? Can you think of counter-arguments? • Private land purchases from Native Americans … were prohibited by the … the Proclamation of 1763 and the Indian Intercourse Act (1790). Can you formulate a legal argument based on the Proclamation of 1763 and/or Indian Intercourse Act to resolve Johnson v. M’Intosh. Do you think that argument is stronger or weaker than the one formulated by Chief Justice Marshall in the case? Can you think of a reason that Chief Justice may have chosen not to rely on arguments based on the Proclamation of 1763 and/or Indian Intercourse Act?

9. Questions on Johnson v M’Intosh • The land at issue in this case was purchased by the U.S. government from Native Americans in 1803. Is that fact mentioned in Chief Justice Marshall’s opinion? If not, why do you think he doesn’t mention it? • Chief Justice Marshall’s opinion essentially holds that title based on purchase by the U.S. government from Native Americans is superior to title whose root is purchase by private parties from Native Americans, even if the private party purchase was earlier. Can you argue that that rule benefits Native Americans? Can you argue that recognizing title based on private purchases from Native Americans would have been better for Native Americans? • William Cronin, a distinguished historian, has analyzed Native American views of property and property rights. He concluded that Native American tribes had relatively fixed territories that they controlled. Within the territories, sachems (chiefs) controlled and distributed land… In general, Native American individuals and families possessed land only for a few years and then moved on to other land... Does this historical understanding of Native American property rights support or contradict the reasoning and/or outcome of Johnson v. M’Intosh?

10. Questions on Johnson v M’Intosh • Given Native American views about property rights in land mentioned above, what do you think Native Americans thought they were doing when they sold land to whites, whether it was to private individuals or governments? Does your view affect your opinion of the correct outcome in Johnson v. M’Intosh? Given their different views of property rights in land, how should land have been allocated between whites and Native Americans? Should Native Americans have been barred from selling their land? Should whites have been barred from any settlement in North America? Should whites have been allowed only the sort of temporary occupancy that Native American chiefs customarily allocated to Native American individuals and families? • Under modern international law, when sovereignty over a territory is transferred from one sovereign to another, whether by conquest or some other process, the new sovereign is legally required to respect private property rights of the inhabitants, but may take title to public lands held by the prior sovereign. If that rule applied in 18th and 19th century America, how would Johnson v. M’Intosh be resolved? Does Chief Justice Marshall address a similar argument? If so, how does Marshall respond to it?

11. Questions on Johnson v M’Intosh • Stuart Banner argues that, for roughly the first two hundred years of European settlement in what is now the eastern United States and Canada, nearly all land was, in fact, acquired by purchase from Native Americans… How could you use that fact to argue for a result different from that in Johnson v. M’Intosh? Does Chief Justice Marshall address a similar argument? If so, how does he respond to it?   • The opinion refers to title founded on “discovery” and on “conquest.” What is the difference? Does it matter? • The plaintiffs first purchased the land from the Illinois tribes. By the time of the purchase, the tribes’ numbers had fallen roughly ninety percent as a result of exposure to European diseases and warfare with other Native Americans. At the time they sold their land, the Illinois tribes were probably about to lose them to neighboring tribes. The plaintiffs also purchased land from the Piankeshaw, whose numbers and strength had also been depleted by disease and war. Do these facts change your view of the case?