407 (draft)

In this course, we will study the Supreme Court and constitutional law from a variety of perspectives.  We will study the court in its historical and political context, as one actor among many.  We will study the court as a unique institution, exploring its internal workings and the style of reasoning it applies.  We will also take a philosophical approach and explore the meanings and implications of the court’s jurisprudence on fundamental rights and liberties.

There are four objectives to this course. First, you should develop an understanding of the role of the judiciary in shaping our society and our system of government. Second, you should become familiar with the most important principles of constitutional law. Third, you should develop the ability to summarize court cases into concise legal briefs. Fourth, you should develop an ability to use precedents, logic and evidence to evaluate Supreme Court decisions.

Throughout the course, I would like you to think about this general question:  Does the law in America serve as a force for justice, democracy, and liberation or as a bulwark of privilege, oligarchy, and oppression?

Required Texts:

• Lee Epstein and Thomas G. Walker, Constitutional Law for a Changing America: A Short Course, CQ Press (4th edition)
• Robert McCloskey, The American Supreme Court, University of Chicago Press
• Stephen Breyer, Active Liberty, Knopf

Select texts are available on Blackboard.

Texts IN HARD COPY must be brought to class on the day they will be discussed.  Students will be considered absent if they do not bring the reading to class on the day it is discussed.

General Information:

This course will emphasize critical reading and analysis of the assigned texts.  Class meetings will be discussion-oriented, revolving around the presentation and adjudication of cases by all members of the class.  Two to four students will present cases, while the rest of us question them and decide the case.  All of this means that readings must be completed before the class meeting in which they will be discussed.  When you are doing the readings, keep in mind that you will be expected to participate in the debates outlined in the readings, reject some positions, embrace others, and defend the choices you make. During class discussion you are not expected to have fully developed points of view about the course materials. But you are expected to participate. No one will be penalized for being wrong or imprecise, for expressing uncertainty or frustration, for changing their minds. But it should be clear that you are trying, that you have done the readings and are working toward a mastery of the material.

Questions: None of us, myself included, knows everything about the topics of this class. It is our responsibility to ask others who may know the answer, either in class, in office hours, or over dinner. I expect that you are learning the material, not that you know it. As much as possible, try not to be shy or embarrassed about what you don’t yet know. The biggest failure in learning any material, in college or in life, is to fail to ask questions about things you do not know.

Availability:  I expect that all of you, either alone or in groups, will contact me throughout the semester. I am almost always available to discuss the course material or other life issues.

Laptops and Cell Phones: Laptops may not be used in class.  Cell phones must be turned off AND put away during class meetings.  Students who use laptops or cell phones without explicit permission to do so will be considered absent.

Evaluation Criteria:

Grades will be based on the following:

• Think Pieces
• Quizzes: 10&
• Two legal briefs: 10% each
• Midterm: 20%
• Final: 30%
• In-class participation: 10%

Both exams and both legal briefs must be completed to pass this course.

Think Pieces:  All students are responsible for writing one double-spaced page on one or more topics in that week’s readings (i.e. the readings scheduled for the following day’s class meeting).  The think pieces will be due by 7:00 pm on Wednesday (uploaded to SafeAssign on Blackboard).  This is a very firm deadline.  I need to have time to read the papers before we meet on Thursday.  No think piece is required for the first week of class or the weeks when written briefs are due.

The think pieces will be assessed on a scale of 1-5.  A “3” indicates that the student has accurately grasped the reading.  A “4” is indicative of a grasp of the readig with some critical reflection.  A “5” indicates critical reflection as well as specific reference to the text.  A “2” indicates that the answer misrepresents the text, while a “1” indicates that the question has not been answered.  At the end of the semester the grade for quizzes will be calculated as follows:

• mostly 4s and 5s = A
• mostly 3s = B
• mostly below 3s = C, D, or F

Quizzes:  Quizzes will be given at 4:50 and/or 6:30.  I will write one question on the board at the end of class.  This question will reflect our discussion and/or the assigned reading for the day.  Students will have ten minutes to answer this question.  The quizzes will be assessed on the same scale used for the think pieces.

Supersized Legal Briefs: Each student must prepare two legal briefs (for guidelines on how to write a brief, see pp. 760-761 of the casebook).  The briefs should be about 1500 words in length.

The cases we read are always abridged.  This means that, when you compose your legal briefs, you will generally need to go somewhat beyond the scope of the course materials.  See p. 766 of the casebook and our Blackboard site for internet resources.  You might also look at law school casebooks or secondary literature on the cases you are researching.

All legal briefs must be submitted to SafeAssign on Blackboard by 11:59 pm on the day the case is argued. Late papers will be penalized at the rate of one grade per day.

These briefs are “supersized” because, in addition to completing the standard elements of a legal brief, students must answer the following five questions.  You should devote approximately 500 words to the traditional brief and 1000 words to these questions:

1. What are the relevant passages from the Constitution?
2. Were separation of powers issues and/or federalism implicated in the case?  If so, how?
3. What method(s) of legal interpretation were applied in the case?
4. What were the relevant precedents and how were they interpreted?
5. What was being balanced? (rights v. public welfare, rights v. other rights, etc.)

For each case you brief, you will also make oral arguments in class. The other class members and I will sit as the court, hearing your arguments and asking questions.  For this assignment, students will sometimes work alone, sometimes in groups with two students arguing as a team on each side of the case.  You will be assessed both on your presentation skills and on the brief.  Attendance at the class sessions at which you will present is mandatory and cannot be rearranged or made-up if missed.

When cases are presented in class, each legal team will be given 5-8 minutes to present their principal arguments.  Following each presentation, there will be a 5-10 minute question and answer period where the court will pose questions.  After both initial presentations are complete, each side will be given 3-5 minutes for a rebuttal.  Following rebuttals, the court will deliberate and then decide the case.  Though you are required to write two briefs, you may be asked to make oral arguments for a third case.

Exams: Exams will be a combination of essay, short answer and multiple choice questions.

Attendance and Participation:  Attendance and punctuality are basic requirements for an effective discussion. Beyond that, each student’s frequency and quality of contribution to the class discussion will be assessed and reflected in the class participation score.  Students who miss more than four classes will automatically suffer a deduction of one-third of a grade (e.g. a B+ becomes a B).  Students who miss more than seven classes will suffer a full grade deduction (e.g. a B+ becomes a C+).  Students who are in class but do not have the assigned reading IN HARD COPY will be considered absent.

Schedule of Meetings and Required Readings:

Aug. 28

NO CLASS

Sept. 4

3:30-5:00: Introduction

5:10-6:40: Judicial Interpretation

Reading: Epstein and Walker, pp. 1-14, 20-26, 30-47, 607-614

Case—Gregg v. Georgia

Representing Mr. Gregg__________________________________________

Representing the state of Georgia_____________________________________

Sept. 11

5:10-6:40: Judicial Review

Reading: Epstein and Walker, pp. 729-742, and McCloskey, ch. 1

3:30-5:00: Judicial Review (cont’d)

Epstein and Walker, pp. 53-71

Case—Marbury v. Madison

Representing Mr. Marbury_____________________________________

Representing Mr. Madison____________________________________

Sept. 18

3:30-5:00: Judicial Review (cont’d)

Reading:  McCloskey, ch. 2, Breyer, Active Liberty, pp. 3-34

5:10-6:40: Judicial Review (cont’d)

Reading: Breyer, 37-101, 115-135

Sept. 25

3:30-5:00: Constraints on Judicial Power

Reading: Epstein and Walker, pp. 71-81,  McCloskey, ch. 3, Baker v. Tennessee (Blackboard)

Case—Baker v. Tennessee

Representing Mr. Baker________________________________________

Representing the state of Tennessee_______________________________

5:10-6:40: The Legislature

Reading: Epstein and Walker, pp. 83-98

Case—U.S. Term Limits v. Thornton

Representing the United States_____________________________________

Representing Mr. Thornton________________________________________

Oct. 2

3:30-5:00: The Legislature (cont’d)

Reading: Epstein and Walker, pp. 98-122

INS v. Chadha

Representing the INS______________________________________________

Representing Mr. Chadha____________________________________________

5:10-6:40: The Executive

Reading: Epstein and Walker, pp. 123-134, 138-148

Case—Clinton v. Jones

Representing Mr. Clinton___________________________________________

Representing Ms. Jones____________________________________________

Oct. 9

3:30-5:00: The Executive (cont’d)

Reading: Epstein and Walker, pp. 148-161, 164-173

Case—Hamdi v. Rumsfeld

Representing Mr. Hamdi_____________________________________________

Representing Mr. Rumsfeld___________________________________________

5:10-6:40: Federalism

Reading: Epstein and Walker, pp. 177-198, McCloskey, ch. 4

Case—Hammer v. Dagenhart

Representing the agribusinesses___________________________________

Representing the United States____________________________________

Oct. 16

3:30-5:00: Federalism (cont’d)

Reading: Epstein and Walker, pp. 209-15, 219-242

Case—United States v. Lopez

Representing the United States____________________________________

Representing Mr. Lopez__________________________________________

5:10-6:40: MIDTERM

Oct. 23

3:30-5:00: Commerce Power

Reading: Epstein and Walker, pp. 247-251, National Federation of Independent Business v. Kathleen Sebelius (Blackboard)

5:10-6:40: The Contract Clause

Reading: Epstein and Walker, pp. 279-99

Case—Home Building and Loan Association v. Blaisdell

Representing the home builders________________________________

Representing Mr. Blaisdell_______________________________________

Oct. 30

3:30-5:00: Substantive Due Process

Reading:  Epstein and Walker, pp. 300-23

Case—Lochner v. New York

Representing Mr. Lochner________________________________________

Representing the state of New York_________________________________

5:10-6:40: Substantive Due Process (cont’d)

Reading: McCloskey, chs. 5-6

Nov. 6

3:30-5:00: Religion (Free Exercise)

Reading:  Epstein and Walker, pp. 347-71, McCloskey ch. 7

Case—Oregon v. Smith

Representing the state of Oregon____________________________________

Representing Mr. Smith___________________________________________

5:10-6:40: Religion (Establishment)

Reading: Epstein and Walker, pp. 371-376, 392-409

Case—School District of Abington Township v. Schempp

Representing the School District______________________________________

Representing Mr. Schempp__________________________________________

Nov. 13

3:30-5:00: The Right to Privacy: Abortion

Reading: Epstein and Walker, pp. 511-538

Case—Roe v. Wade

Representing Ms. Roe_________________________________________

Representing Dallas County______________________________________

5:10-6:40: Gay Rights

Reading:  Epstein and Walker, pp. 538-554; McCloskey, Epilogue, Perry et al v. Schwarzenegger (https://ecf.cand.uscourts.gov/cand/09cv2292/files/09cv2292-ORDER.pdf), pp. 1-10, pp. 60-136

Case—Perry et al v. Schwarzenegger

Representing Mr. Perry______________________________________

Representing the state of California____________________________________

Nov. 20

3:30-5:00:  Rights of the Accused

Reading: Epstein and Walker, pp. 594-601, 604-614, McCloskey, ch. 8

Case—Gideon v. Wainwright

Representing Mr. Gideon____________________________________________

Representing Mr. Wainwright________________________________________

5:10-6:40: Civil Rights (Discrimination)

Reading: Epstein and Walker, pp. 625-647, 656-668, Shelby County v. Holder (Blackboard)

Case—Brown v. Board of Education

Representing the students___________________________________________

Representing the Topeka Board of Education_____________________________

Nov. 27: THANKSGIVING

Dec. 4

3:30-5:00: Civil Rights (Affirmative Action)

Reading:  Epstein and Walker, pp. 668-685, McCloskey, ch. 9; District of Columbia v. Heller (Blackboard)

Case—Grutter v. Bollinger

Representing Ms. Grutter__________________________________________

Representing the University of Michigan________________________________

5:10-6:40: Election Campaign Regulation

Reading:  Epstein and Walker, pp. 693-702, Citizens United v. Federal Election Commission (Blackboard)

Case—Citizens United v. Federal Election Commission

Representing Citizens United________________________________________

Representing the Federal Election Commission__________________________

Recent Cases Argued before the Supreme Court

Reading: Janus v. AFSCME: Amy Howe (SCOTUSblog) and Cornell Legal Information Institute; Gill v. Whitford: Amy Howe (SCOTUSblog) and Cornell Legal Information Institute; Trump v. Hawaii: Amy Howe (SCOTUSblog) and Cornell Legal Information Institute. All readings are on Blackboard.

On Janus v. AFSCME

• • • What is an agency fee? On what grounds does Janus argue they are unconstitutional? How does AFSCME respond?
    • What is the free-rider problem?
    • How might a ruling for Janus affect private sector unions?

On Gill v. Whitford

• • • What is partisan redistricting?
    • Is partisan redistricting justiciable?
    • On what grounds does Whitford argue that partisan gerrymandering is unconstitutional? How does Gill respond?

On Trump v. Hawaii

• • • What is being balanced in this case?
    • Does the travel ban include an invidious form of discrimination?
    • Is the ban narrowly tailored to achieve its goal?

FINAL EXAM: Dec. 11, 3:30 pm

Exam Proctoring Guidelines:

1. One seat space between students when possible.
2. No bathroom breaks except in the case of illness or emergency.  Student should discuss this circumstance with the proctor prior to the start of the exam.
3. No materials on the desk except for pens/pencils, bluebook or writing paper and exam.
4. Under no circumstances can students access electronic devices during the exam.
5. Exam proctors will note any violation of these rules and those will be considered in the final grade.

Grading:

Your work will be evaluated according to the following criteria:

A— designates work of extraordinarily high quality; reflects unusually thorough and comprehensive understanding of issues at hand; presents a clearly identifiable thesis and argument that demonstrates cogent and creative development and support of ideas.

B— designates work of high quality; reflects clearly organized and comprehensive understanding of issues and hand; presents substantive thesis and argument with evident development and support of ideas.

C— designates work which minimally meets requirements set forward in assignment; reflects some organization and development of ideas, but develops argument in superficial or simplistic manner; may only address part of the assignment or be otherwise incomplete.

D— designates work of poor quality which does not meet minimum requirements set forward in assignment; demonstrates poor organization of ideas and/or inattention to          development of ideas, grammar, and spelling; treatment of material is superficial and/or simplistic; may indicate that student has not done reading assignments thoroughly.

F— designates work that does not meet ANY of the standards set above or which is not handed in.

Plagiarism

A prevalent but highly unethical practice is plagiarism. Plagiarism will result in the immediate failure of this course and disciplinary action which could lead to expulsion from the University. If you are having problems in the course please come and talk to me about it rather than doing something that could put your entire college career in jeopardy.

Plagiarism includes, but is not limited to the following:

• The direct copying of any source, such as written and verbal material, computer files, audio disks, video programs or musical scores, whether published or unpublished, in whole or part, without proper acknowledgment that it is someone else’s.
• Copying of any source in whole or part with only minor changes in wording or syntax, even with acknowledgment.
• Submitting as one’s own work a report, examination paper, computer file, lab report or other assignment that has been prepared by someone else. This includes research papers purchased from any other person or agency.
• The paraphrasing of another’s work or ideas without proper acknowledgment.