A Filled Milk Caste

About this Episode

Joe’s favorites case(s) part deux, Carolene Products, the filled milk case to end all filled milk cases. We talk about a case most famous for its fourth footnote. That’s right. This episode, alongside volumes upon volumes of legal scholarship, is almost entirely concerned with a footnote. But this one almost casually suggests a principle to divide the power of the federal government between courts and the political branches. Bonus content: an idea about returning to school later in life and follow-up on the monkey selfie.

This show’s links:

• Episode 28: A Wonderful Catastrophe, including discussion of the first of Joe’s favorite cases and our discussion of the case of the monkey selfie
• Draft Compendium of U.S. Copyright Practices, including at page 54 of the linked manual: “The Office will not register works produced by nature, animals, or plants. ... Examples: A photograph taken by a monkey.”
• United States v. Carolene Products Co.
• Hebe Co. v. Shaw
• About filled milk
• Josh Blackman, 60 New Recipes for Carolene Products Co.’s Milnut from 1939
• Lochner v. New York
• Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs
• Wickard v. Filburn
• Letter from Justice Robert H. Jackson to Chief Justice Harlan F. Stone on Wickard v. Filburn
• Jackson’s thoughts on the Wickard problem were put down most candidly in a memo to his law clerk (Robert Jackson, Memorandum for Mr. Costelloe, Re: Wickard Case 15 (July 10, 1942) (on file with the Library of Congress, Jackson MSS, Box 125). Perhaps you’ll have better luck finding this online than we did. It is described in many of the many, many articles about the famous footnote.
• David Strauss, Does the Constitution Always Mean What It Says?, video of a terrific lecture
• The text of foonote four
• Louis Lusky, Footnote Redux: A Carolene Products Reminiscence (note: Joe misspoke. Lusky was a Columbia, not Yale, prof.)
• Episode 27: My Favorite Case on Plessy v. Ferguson
• Lincoln Caplan, Ruth Bader Ginsburg and Footnote Four, which concerns this appearance by Justice Ginsburg at which she discusses Footnote Four and affirmative action (just after minute 36)
• David Strauss, Is Carolene Products Obsolete?