PLS 307 Constitutional Law II
Oral argument paper due: Wednesday, May 25, 2011, in class.
Professor Mark J. Richards
Format: Your paper should be word-processed and submitted on paper. It should be double-spaced and use page numbers. There is no need for a cover page. Just place your name at the top of the first page.
Page requirement: 4-7 pages. Anything less than four full pages will automatically receive an F. Anything written in excess of seven pages will not be graded.
You must participate in oral argument in order to receive a passing grade in the class. This simulation will be held May 23.
Readings on oral argument, conference deliberations, opinion writing, and opinion days: O'Brien, pp. 175-90
The case we will be covering is Schwarzenegger v. Entertainment Merchants Ass'n, 08-1488. This is a pending Supreme Court case. We will read the 9th Circuit opinion in the case and the briefs of petitioner and respondents, all of which may be retrieved via Westlaw (see directions below).
Video Software Dealers Association v. Schwarzenegger, 556 F. 3d 950, 2009, Court of Appeals, 9th Circuit
Brief of Petitioner Schwarzenegger, Schwarzenegger v. Entertainment Merchants Association, 2010 WL 2787546
Brief of Respondents Entertainment Software Association, Schwarzenegger v. Entertainment Merchants Association, 2010 WL 3535053
In addition, you should read the following cases in the O'Brien book:
The New York Times Company v. Sullivan (1964)
O'Brien, pp. 627-31
Red Lion Broadcasting Co. Inc. v. FCC (1969)
FCC v. Pacifica Foundation (1978)
Reno v. ACLU (1997)
Ashcroft. v. ACLU (2004)
You should also retrieve this case from Westlaw:
Ginsberg v. New York, 390 U.S. 629, 1968.
Grading: 25% of your overall course grade will be based on this exercise.
Your grade on this exercise will be comprised of the following:
5%: your verbal performance in oral argument exercise
5%: the accuracy of your portrayal of counsel or justice
90%: your use of legal reasoning to support your arguments and respond to the arguments of your opponents. You should include a statement of the issues, and (for justices) your holdings or (for counsel) your advocated holdings.
Oral Argument:
It is imperative that everyone shows up on time (or even early) for the days on which oral argument is scheduled.
Each attorney should take no more than 10 minutes. Attorneys can divide up their time according to the issues but they do not need to do so; overlap is inevitable.
Expectations for attorneys’ presentations: You should not merely read from your brief but be clear, concise and conversational. You should directly answer all of the justices’ questions. You will be interrupted, so be calm and polite. Also, be flexible enough to change your presentation in mid-flight so you will be able to incorporate everything you want to include. If you’ve already clearly answered questions on one issue in your speech, you may not need to present it again. Never talk when a justice begins to speak, or is speaking.
Justices are expected to come well prepared. Your questions should be relevant, demonstrate a familiarity with the issues, and reflect the style and ideology of the justice you are playing. Although the justices’ interruptions can be rude at times, you should strive to exhibit the dignity, stature and intellect of a Supreme Court justice.
The side listed first in the dispute, the petitioner, will speak first at oral argument. For example, in Machiavelli v. Augustine, attorneys for Machiavelli will speak first. Attorneys for respondent Augustine will speak last.
Grading Expectations for Brief and Opinion Writing:
These grading expectations are also expressed in the grading rubric.
Each justice will write his/her own opinion, but should indicate if it is a majority opinion or dissent. After OA is complete, the Chief Justice should take a vote so other justices know which type of opinion they are writing. The Chief should report this information to me, noting who voted which way, who will dissent, etc.
Attorneys should indicate which client they are representing. Attorneys may, if they wish, coordinate and divide up issues according to their time periods of oral argument, but each attorney should write his/her own brief which covers all of the issues.
Issues are stated in the form of a question. They should incorporate the actions (facts) in question and relevant statutes or constitutional clauses. There may be more than one issue in a case. Holdings (or for attorneys, your advocated holdings) are similar, but are presented in the form of statement.
You should use legal reasoning to support your arguments and respond to the arguments of your opponents. Legal reasoning is a complex and nuanced endeavor that typically involves four key components. The first is to identify relevant legal rules and offer your interpretation. These rules include clauses of the Constitution, statutes, and precedents. Interpretation may introduce questions regarding the text of the relevant constitutional clause or statute, original intent, and stare decisis (whether to follow precedent), as well as others. You will want to indicate why your interpretations are better than the ones offered by your opponents.
The second component of legal reasoning is intertwined with the first. It requires you to apply the rules to the facts. Here, you must decide which precedents are most relevant to the case, as well as whether (and how) the Constitution and statutes apply to the case. You will want to distinguish precedents which your opponents wish to apply by showing that other precedents are better or by indicating that your opponents’ precedents are not similar to the present case. Attorneys will want to present the facts and how they fit with the precedents to the advantage of their client, but should not lie or be inaccurate.
The third component involves your analysis of policy implications. What will be the policy effects of your (advocated) holding, if adopted? How will your (advocated) holding affect future cases? Analyze the policy implications of your opponents.
Finally, you will want to include relevant normative arguments, including morality, justice, liberty, democracy, and the rule of law.
1. Address the issues directly. Do not include information that is not directly relevant to the question.
2. Organize your paper.
3. Consider the best arguments that could be used against you, and respond to them.
4. Incorporate relevant information from lecture and readings, including brief direct quotes from the texts when useful.
5. Write with correct grammar, usage and spelling.
6. Write with clarity and concision. Although "legalese" can be confusing, well-written briefs and opinions clarify rather than muddle.
Citations: All GVSU policies and codes regarding academic honesty and plagiarism apply. You should cite any language or key ideas taken from sources such as legal opinions, texts or articles. Cite the name of the author, year, and page number. Case citations should include the name of the case, volume, reporter name, first page number of case, page from which the material was taken, and year, (e.g. Smith v. Jones, 100 U.S. 123, 144, 1999). If you cite it again, you can just use the name and key page number (e.g. Smith, 146). If you cite a case from the O'Brien casebook, use the name of the case, volume, reporter name, first page number of case, and year (and cite O'Brien and the page in O'Brien the first time you use it – e.g. Smith v. Jones, 100 U.S. 123, 1999, as cited in O'Brien, 1132; the second time, use the case name and page from O'Brien – e.g. Smith, 1132).
As a general rule, your main citation should be to the source you are reading. Be sure to cite a lower court opinion when you use it, even when you read a lower court opinion that is citing the Supreme Court. Example 1: If you have a direct quote from a lower court opinion that contains other citations (known as internal citations), you should include the internal citations and cite the lower court. Example 2: If you use an idea from an opinion called McDonaugh v. State that you read about in an opinion called Hogwallop v. U.S., you should use Hogwallop v. U.S. as your main citation, but mention McDonaugh v. State. Your sentence might look like this: McDonaugh v. State (98 U.S. 333, 335, 2001) established strict scrutiny as the standard of review (Hogwallop v. U.S., 100 U.S. 123, 144, 2002). Alternatively, you could phrase it like this: Hogwallop v. U.S. (100 U.S. 123, 144, 2002), citing McDonaugh v. State (98 U.S. 333, 335, 2001), noted that the standard of review is strict scrutiny.
Cite briefs the first time as: (name of party, case name, WL number, page), e.g.:
(Brief of Petitioner Schwarzenegger, Schwarzenegger v. Entertainment Merchants Association, 2010 WL 2787546, page).
(Brief of Respondents Entertainment Software Association, Schwarzenegger v. Entertainment Merchants Association, 2010 WL 3535053, page).
Second time:
(Brief of petitioner Schwarzenegger (or respondent ESA), page).
Legal Research using Westlaw and Findlaw
Westlaw is a better source than Findlaw for state, federal district and federal circuit court opinions. Findlaw does not require a GVSU login and has every U.S. Supreme Court opinion. You can also use Lexis if you prefer.
Westlaw: Westlaw is accessible from home but you need to login through GVSU.
1. Start at the GVSU homepage: www.gvsu.edu
2. Select "Library."
3. Scroll down to and click "Databases."
4. Click on "W."
5. Click on "WestLaw Campus."
6. Read the access agreement. If you consent, click "Go."
7. Click on the Law tab. Refer to the citation of the case you are retrieving. In the box titled: "Find a Document by citation" (located in the top left corner) enter the citation, including volume, reporter (or law review) name, and page number, e.g. 222 F. 3d 719 (or a WL number). Now click "Go."
8. If everything went right, you should only have one search result. Check to see that the citation and date are correct. If so, then save and/or print.
9. Note: When you use Westlaw it will provide multiple West keynotes at the top of the article. Just ignore those as they are not officially part of the opinion and are primarily designed for lawyers doing more in-depth research.
Findlaw: Findlaw does not require GVSU password and has U.S. Supreme Court opinions.
1. Navigate to http://www.findlaw.com/casecode/supreme.html
2. If you have the U.S. Reports number of the case (e.g. 100 U.S. 201), enter these numbers in the citation search box and click "get it."
For recent decisions, you may need to use the browsing by year function. For example, to get Bush v. Gore, 2000, click on "by year," then click on "2000," and then click on "Bush v. Gore." You can also use the party name search function.
