Free Speech Politics

Oral Argument Preview FCC v. Fox 2012

2012-01-30T10:47:00.000-08:00

FCC v. Fox 2012 Supreme Court Simulation Oral ArgumentPreview

I. Facts

Basic policy (from Fox v. FCC, 613 F.3d 317, 330, 2010, quoting IndustryGuidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464, 16F.C.C.R. 7999, 2001):

The FCC set forth its indecency policy in its 2001 IndustryGuidance, in which the FCC explained that an indecency finding involved thefollowing two determinations: (1) whether the material “describe[s] or depict[s] sexual or excretory organs or activities”; and (2) whether the broadcast is“patently offensive as measured by contemporary community standards for thebroadcast medium.” . . . Under the policy, whether a broadcast is patentlyoffensive depends on the following three factors: (1) “the explicitness orgraphic nature of the description or depiction”; (2) “whether the materialdwells on or repeats at length” the description or depiction; and (3) “whetherthe material appears to pander or is used to titillate, or whether thematerials appears to have been presented for its shock value.”

Focus on Remand Order of November 6, 2006 (p. 323-324) andpolicy statements and events leading up to this point.

Be familiar with the following incidents and the FCCresponses:

Bono, Golden Globes, 2003 – puts networks on notice

*Cher, Billboard Music Awards 2002

*Nicole Richie, Billboard Music Awards 2003

NYPD Blue – dismissed on procedural grounds

Early Show interview with Survivor contestant

Saving Private Ryan

(Note: FCC abandoned its defense of the “profanity” policy.

II. Issue:

Does the FCC's policy on fleeting expletives as expressed inthe Remand Order of November 6, 2006, which includes notices of apparentliability against two Fox programs, violate the freedom of expression protectedby the first amendment?

(Note we are focusing on first amendment, not fifthamendment.)

III. Holding

Justices voting with the majority should indicate theirholding (as if they were writing the majority opinion). Dissenting justices andattorneys should indicate their advocated holding.

IV. Reasoning (from Fox's point of view – pro-speech)

A. Standard of review

1. Content-based regulation of expression invokes strictscrutiny (see Reno v. ACLU).

Policy must be the least-restrictive means of achieving acompelling government interest.

Explain why FCC policy is content-based.

2. Alternatively, broadcast media have been regulatedaccording to intermediate scrutiny (see FCC v. League of Women Voters, 468 U.S.364, 1984, cited in Fox v. FCC, 17).

Policy must be narrowly tailored to achieve a substantialgovernment interest.

See also, Pacifica, Red Lion for rationale of treatingbroadcast media differently):

scarcity of airwaves

public licensing

duties to public

broadcast media are “uniquely pervasive” and “accessible” tochildren

treated differently than print, cable, Internet.

Response of broadcasters:

Most people get broadcast networks through cable orsatellite.
With video via Internet, cable and satellite, broadcast media are no longer “uniquelypervasive” or “uniquely accessible.”
Ratings system, V-chip and other blocking devices make broadcast media lessaccessible to youth.

B. Government Interest

Does the government have a substantial (or compelling)interest in regulating fleeting expletives?

Protecting children from indecent material (see Reno,Pacifica, Brown v. EMA) could be seen as compelling in theory, but . . .

Where is the evidence of harm?

Are fleeting expletives more or less harmful than otherallowed expletives?

How does exposure of children to fleeting expletives compareto exposure to violent content or sexual content?

C. Narrowly tailored

1. Does the FCC policy restrict more expression than isnecessary to achieve its interest? (Is the FCC policy the least restrictivemeans of achieving its interest?)

2. Vagueness in definitions of indecency. Too much power inhands of FCC but FCC’s determinations are subjective. FCC does not provideadequate notice. See discussion on pp. 330-332. E.g. F-word not always sexualin meaning.

Arbitary enforcement. Why are some uses of expletivesacceptable? Compare Saving Private Ryan or a news interview. Exceptions are notapplied consistently.

Vagueness also raises the risk of discriminatoryenforcement.

3. Creates chilling effect – leads to self-censorship ofprotected speech. Generates fear amonglocal affiliates. E.g. 9/11 documentary not shown because of swearing byfirefighters, Pat Tillman memorial service, candidate debate, etc. Could chillsports broadcasts. Chills discussion of sex as well, even when no expletivesare mentioned.

4. Delay system with bleeping is not always effective forlive broadcasts.

5. Vagueness indicates policy is not narrowly tailored.

6. Community standards test is oppressive in a nationalcontext.

7. What are less restrictive alternatives?

-Compare to previous policy that focused on repetitiveutterances.

-Should be exceptions for non-literal uses (e.g. Bono atGolden Globes)

-Exceptions based on merits of works? (e.g. Saving PrivateRyan) Doesn't this become subjective?

V. Reasoning from FCC's point of view – pro-government)

A. Standard of review – intermediate scrutiny. See IV. A. 2above.

Pacifica still applies:
Broadcast media are most easily accessible to children.
Availability of video via cable and Internet means adults have other avenues toaccess indecent material.
V-chips don’t always work for TV and don’t work for radio at all.

B. Substantial government interest

Protecting children from exposure to indecent and profanematerial (Reno, Pacifica)

Courts sometimes concede this point for the sake ofargument.

C. Narrowly tailored. New policy does not restrict morespeech than is necessary.

1. Not vague: F-word and s-word are presumptively indecent. F-word:inescapable sexual connotation, extremely, graphically vulgar. S-word:Excretory connotation, etc. Fox knew the words were indecent and edited them outof broadcasts shown later in other time zones.

2. Flexible policy is better than a list. Allows for more speech by enablingexceptions and discretion. An inflexible approach would be underinclusive; asimple list makes it easier to evade the policy.

3. Fair notice was provided. Networks put on notice but notfined after Bono incident.

4. Exceptions can be made as needed: bona fide news andartistic necessity (e.g. news, Saving Private Ryan). FCC will consistentlyevaluate context.

5. Questionable material can be shown during safe harborperiod (after 10 p.m.)

6. V-chip wouldn’t have worked in for the awards showbroadcasts.

VI. Policy and normative implications – pro & con

Freedom of expression vs. community standards, morals

Censorship – effect on creators, viewers, business

Paternalism – should government decide for us?

Vagueness of test leading to self-censorship of protectedspeech

If this policy is overturned, are there no limits onbroadcast TV short of obscenity?

Are there other ways for parents to address indecency? (E.g.blocking technology)

Financial consequences for affiliates

Others?

Fourth Amendment

2012-01-26T07:26:00.000-08:00

Fourth Amendment

Professor Mark J. Richards

2012

I. Text of the fourth amendment

"The right of the people to be secure in their persons,houses, papers, and effects, against unreasonable searches and seizures, shallnot be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to besearched, and the persons or things to be seized."

II. The shift to a less libertarian view of the fourthamendment

A. Probable cause

1. Generally, probable cause is required for a search andseizure to pass constitutional muster. Aguilar v. Texas (378 U.S. 108, 1964)established two independent requirements for probable cause in cases involvinginformants. Police must explain how informants know what they know, and why thepolice believe that the information is accurate. The police need to proveprobable cause on both prongs of the test. Prior to 1983, a failure on the partof the government to meet either one of these requirements meant that the searchlacked probable cause and would most likely be held unconstitutional.

2. However, the 1983 Illinois v. Gates (462 U.S. 213)decision began the move toward a new legal regime by holding that the tworequirements were no longer independent. In a closely related 1984 decision(Massachusetts. v. Upton, 466 U.S. 727), the Court held that the "totalityof the circumstances" is enough to justify a finding of probable cause,and stated that more deference should be given to findings of probable cause bylower courts and magistrates.

B. Exclusionary rule

1. Previously, the Court had established that evidence whichwas obtained through searches based on defective warrants lacking probablecause was to be excluded from consideration in a defendant’s conviction becausethe means of obtaining such evidence violated the fourth amendment (see Weeksv. U.S., 232 U.S. 383, 1914, and Mapp v. Ohio, 367 U.S. 643, 1961). This is theexclusionary rule, and it served as a major check on police violations of thefourth amendment until it was eviscerated by Leon and Sheppard.

2. Good faith exception

Two 1984 companion cases, United States v. Leon (468 U.S.902) and Massachusetts v. Sheppard (468 U.S. 981). Leon and Sheppardestablished a good faith exception to the exclusionary rule. The exclusionaryrule no longer applies to situations where the police, acting in good faith,seize evidence in the context of reliance on a warrant which lacks probablecause. Good faith means that the police reasonably believe that the warrant wasproperly issued. In other words, the police can seize evidence based on awarrant that lacks probable cause, but the evidence can still be used againstthe defendant if the police acted in good faith.

3. Inevitable discovery exception

Two additional 1984 cases also carved out exceptions to theexclusionary rule. If the police would have inevitably discovered (Nix v.Williams, 467 U.S. 431) the illegally obtained evidence or obtained it throughother independent sources (Segura v. U.S., 468 U.S. 796), it does not need tobe excluded.

4. Bottom line

The good faith and inevitable discovery exceptions to theexclusionary rule indicate that the Court will be generally less sympathetic tothe claims of the accused in search and seizure cases. See: Herbert M. Kritzerand Mark J. Richards. 2005. "The Role of Law in the Supreme Court's Searchand Seizure Jurisprudence." American Politics Research 33(January): 33-55.

III. Exceptions to warrant requirement (See Epstein andWalker 2010, 460-462)

A. Consent

B. Terry searches

1. Terry v. Ohio (1968) permits an officer to frisk anindividual under investigation when the officer has a reasonable suspicion thatthe individual is armed and dangerous.

2. Terry searches are limited to weapons that could be usedto harm officers or others nearby.

C. Plain-view, plain-feel exceptions

1. In conducting a stop or a Terry search, if the officerobserves an object that plainly appears to contraband, the officer mayconstitutionally seize the contraband (Michigan v. Long 1983). This is the plain-viewexception. The rationale is that no reasonable expectation of privacy has beeninvaded, so this does not constitute an additional, independent search.

2. The plain-feel exception is analogous to the plain-viewexception. "If a police officer lawfully pats down a suspect's outerclothing and feels an object whose contour or mass makes its identityimmediately apparent, there has been no invasion of the suspect's privacybeyond that already authorized by the officer's search for weapons" Minnesotav. Dickerson (508 U.S 366, 1993).

D. Search incident to arrest

E. Preventing loss of evidence

F. Hot pursuit

G. Drug dogs

H. Areas where there is no reasonable expectation of privacy(e.g. airport security screening)

IV. U.S. v. Leon (468 U.S. 902, 1984) and Massachusetts v.Sheppard (468 U.S. 981, 1984)

A. Facts

What was the problem with the warrant issued in the Leoncase?

Lacked probable cause

B. Issue

Should the fourth amendment exclusionary rule be modified soas not to prohibit the prosecutor's use of evidence "obtained by officersacting in reasonable reliance on a search warrant issued by a detached andneutral magistrate but ultimately found to be unsupported by probablecause"?

Should the unconstitutionally obtained evidence used againstLeon be excluded?

C. Holdings (White)

1. The fourth amendment exclusionary rule does not prohibitthe prosecutor's use of evidence "obtained by officers acting inreasonable reliance on a search warrant issued by a detached and neutralmagistrate but ultimately found to be unsupported by probable cause."

2. Exclusion is appropriate when:

-The judge issuing the warrant was misled by information onan affidavit that the officer "knew was false or would have known wasfalse except for his reckless disregard for the truth."

-The officer relies on a warrant issued by a judge whofailed to act in a neutral and detached manner.

-The officer unreasonably believes that probable causeexists.

-"A warrant is so fatally deficient - i.e. in failingto particularize the place to be searched or the things to be seized - that theexecuting officers cannot reasonably presume it to be valid."

3. The unconstitutionally obtained evidence used againstLeon should not be excluded.

D. Reasoning

1. There are costs to imposing the exclusionary rule; itundermines truth-finding and allows some guilty criminals to go free or pleabargain to reduced sentences.

2. The exclusionary rule is justified by its effect ondeterring unconstitutional police searches. However, if the officer is actingreasonably and in good faith, then the rule does not have a deterrent effect inthat situation.

3. The exclusionary rule does not deter judges who issuewarrants, because judges have no stake in the outcome of particular criminalprosecutions. Therefore, the police should not be punished when judges issuefaulty warrants.

4. The text of the fourth amendment does not require theexclusionary rule.

5. Officer Rombach acted reasonably and in good faith,despite the finding of the Court of Appeals that there was not sufficientprobable cause to support the warrant.

E. Concurrence

Blackmun argues that if the effect of the ruling is todiscourage police compliance with the fourth amendment, the Court mayreconsider the ruling.

F. Dissent (Brennan and Marshall)

1. "The right to be free from the initial invasion ofprivacy and the right of exclusion are coordinate components of the centralembracing right to be free from unreasonable searches and seizures." (SeeWeeks and Mapp.)

2. The fourth amendment restrains the government as a whole,not just the police, so the majority's distinction between the deterrenteffects on the police and judges is not textual. Also, both the police and thejudiciary are involved in the singular government action of the search.

3. Weighing the costs of exclusion of evidence due tounconstitutional searches and seizures is improper. Such actions arecategorically prohibited by the fourth amendment.

4. 1979 GAO study indicates that only 0.4% of all casesdeclined by federal prosecutors were declined due to illegal search problems.

5. The ruling will encourage police ignorance of the law,and discourage paying careful attention to constitutional warrant requirements.The holding will also discourage careful judicial review of warrant decisions,because even if the judge improperly issues a warrant, the decision will not beoverturned if the police acted in good faith.

V. Safford Unified School District v. Redding (2009)

A. Facts

Who was Redding?

Why was she searched?

How was she searched?

B. Issue

C. Holding

D. Reasoning (Souter)

1. What is the standard in a school setting for level of suspicion needed tojustify a search?

2. Was there enough evidence to justify a limited search? Whatcould be searched?

3. Why does a search of her bra and underpants go too far?

E. Thomas, concurring in judgment and dissenting in part

1. Why would he hold that the search did not violate thefourth amendment?

2. Why does the dangerousness of the drug not matter?

3. What are the negative policy implications of the Court’sdecision

Oral Argument Rubric

2012-01-23T10:42:00.001-08:00

PLS307 Oral Argument Assignment - Professor Mark Richards

NAME:

CRITERIA (based on assignment handout)	A Excellent: thorough accurate persua-sive	B Very good but room for improve-ment	C Fair to good, but room for significant improve-ments	D Poor perfor-mance, shows significant deficien-cies	F Fail. Did not address criteria, severe deficien-cies
Framing of issue and holding
Use precedent and law; use brief, relevant quotations
Apply law to facts
Make policy and normative arguments in support of your position
Directly address issues and include only relevant information
Organization
Clearly explain opposing views
Respond to opposing views
Write with correct grammar, usage, & spelling
Write with clarity and concision
Citations – follow guidelines

TOTALPOINTS (___/100) , includes oral argument (__/5), & role portrayal (__/5)

Oral Argument Exercise Winter 2012

2012-01-23T10:06:00.001-08:00

PLS 307 Constitutional LawII

Professor Mark J. Richards

Oral argument paper due: Tuesday, February 14,2012, in class.

Format:Your paper should be word-processed and submitted on paper. It should bedouble-spaced and use page numbers. There is no need for a cover page. Justplace your name at the top of the first page.

Pagerequirement: 4-7 pages. Anything less than four full pages will automaticallyreceive an F. Anything written in excess of seven pages will not be graded.

Youmust participate in an oral argument simulation and attend another one in orderto receive a passing grade in the class. The simulations will be held Thursday,February 2 – Thursday, February 9.

Readings on case selection, briefs, oralargument, conference deliberations, and opinion writing: Epstein and Walker,pp. 10-21

The case we will becovering is F.C.C. v. Fox Television Stations, 10-1293. This is a pendingSupreme Court case. We will read the Second Circuit opinion in the case and thebriefs of petitioner and respondents, all of which may be retrieved via Westlaw(see directions below).

Fox Television Stations v. F.C.C., 613 F. 3d 317, 2010, Second Circuit Court ofAppeals

Brief of Petitioners F.C.C.,Federal Communications Commission v. FoxTelevision Stations, 2011 WL 3947561

Brief of Respondents Fox, Federal Communications Commissionv. Fox Television Stations, 2011 WL 5373702

In addition, you should read the following material in the Epstein and Walker book:

Epstein and Walker,pp. 310-312, 336, 358-9, 363-364.

Reno v. ACLU (1997)

Also, from the CQ Press online archiveor Westlaw:
Federal Communications Commission v.Pacifica Foundation, 438 U.S. 726 (1978)

http://college.cqpress.com/sites/clca/rights.aspx

Grading: 25% of your overall course grade will be based on this exercise.

Your grade on this exercise will be comprisedof the following:

5%: your verbal performance in oral argumentexercise

5%: the accuracy of your portrayal of counselor justice

90%: your use of legal reasoning to supportyour arguments and respond to the arguments of your opponents. You shouldinclude a statement of the issues, and (for justices) your holdings or (forcounsel) your advocated holdings.

Oral Argument:

Itis imperative that everyone shows up on time (or even early) for the days onwhich oral argument is scheduled.

Eachattorney should take no more than 15 minutes. Attorneys can divide up theirtime according to the issues but they do not need to do so; overlap isinevitable.

Expectationsfor attorneys’ presentations: You should not merely read from your brief but beclear, concise and conversational. You should directly answer all of thejustices’ questions. You will be interrupted, so be calm and polite. Also, beflexible enough to change your presentation in mid-flight so you will be able toincorporate everything you want to include. If you’ve already clearly answeredquestions 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.

Justicesare expected to come well prepared. Your questions should be relevant,demonstrate a familiarity with the issues, and reflect the style and ideologyof the justice you are playing. Although the justices’ interruptions can berude at times, you should strive to exhibit the dignity, stature and intellectof a Supreme Court justice.

Theside listed first in the dispute, the petitioner, will speak first at oralargument. For example, in Machiavelli v. Augustine,attorneys for Machiavelli will speak first. Attorneys for respondent Augustinewill speak last.

Grading Expectations for Brief and OpinionWriting:

These grading expectations are also expressed in the gradingrubric.

Eachjustice will write his/her own opinion, but should indicate if it is a majorityopinion or dissent. After OA is complete, the Chief Justice should take a voteso other justices know which type of opinion they are writing. The Chief shouldreport this information to me, noting who voted which way, who will dissent,etc.

Attorneysshould indicate which client they are representing. Attorneys may, if theywish, coordinate and divide up issues according to their time periods of oralargument, but each attorney should write his/her own brief which covers all ofthe issues.

Issuesare stated in the form of a question. They should incorporate the actions(facts) in question and relevant statutes or constitutional clauses. There maybe more than one issue in a case. Holdings (or for attorneys, your advocatedholdings) are similar, but are presented in the form of statement.

Youshould use legal reasoning to support your arguments and respond to thearguments of your opponents. Legal reasoning is a complex and nuanced endeavorthat typically involves four key components. The first is to identify relevantlegal rules and offer your interpretation. These rules include clauses of theConstitution, statutes, and precedents. Interpretation may introduce questionsregarding the text of the relevant constitutional clause or statute, originalintent, and stare decisis (whether to follow precedent), as well as others. Youwill want to indicate why your interpretations are better than the ones offeredby your opponents.

Thesecond component of legal reasoning is intertwined with the first. It requiresyou to apply the rules to the facts. Here, you must decide which precedents aremost relevant to the case, as well as whether (and how) the Constitution andstatutes apply to the case. You will want to distinguish precedents which youropponents wish to apply by showing that other precedents are better or byindicating that your opponents’ precedents are not similar to the present case.Attorneys will want to present the facts and how they fit with the precedentsto the advantage of their client, but should not lie or be inaccurate.

Thethird component involves your analysis of policy implications. What will be thepolicy effects of your (advocated) holding, if adopted? How will your(advocated) holding affect future cases? Analyze the policy implications ofyour opponents.

Finally,you will want to include relevant normative arguments, including morality,justice, liberty, democracy, and the rule of law.

1. Address the issuesdirectly. Do not include information that is not directly relevant to thequestion.

2. Organize your paper.

3. Consider the best argumentsthat could be used against you, and respond to them.

4. Incorporate relevant information from lecture andreadings, 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 beconfusing, well-written briefs and opinions clarify rather than muddle.

Citations: All GVSU policies and codes regarding academic honesty andplagiarism apply. You should cite any language or key ideas taken from sourcessuch 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). Ifyou cite it again, you can just use the name and key page number (e.g. Smith, 146). If you cite a case from theEpstein and Walker casebook, use the name of the case, volume, reporter name,first page number of case, and year (and cite Epstein and Walker and the pagein Epstein and Walker the first time you use it – e.g. Smith v. Jones, 100 U.S. 123, 1999, as citedin Epstein and Walker, 1132; the second time, use the case name and page from Epsteinand Walker – 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 alower court opinion that is citing the Supreme Court. Example 1: If you have adirect quote from a lower court opinion that contains other citations (known asinternal citations), you should include the internal citations and cite thelower court. Example 2: If you use an idea from an opinion called McDonaugh v. State that you read about in an opinion called Blues v. U.S., you should use Blues v. U.S. as your main citation, but mention McDonaugh v. State. Yoursentence might look like this: McDonaughv. State (98 U.S. 333, 335, 2001)established strict scrutiny as the standard of review (Blues v. U.S., 100 U.S. 123, 144, 2002). Alternatively, you couldphrase it like this: Blues v. U.S. (100U.S. 123, 144, 2002), citing McDonaughv. State (98 U.S. 333, 335, 2001),noted that the standard of review is strict scrutiny.

Citebriefs the first time as: (name of party, case name, WL number, page), e.g.:

(Briefof Petitioners F.C.C., FederalCommunications Commission v. Fox Television Stations, 2011 WL 3947561, page).

(Brief of Respondents Fox, FederalCommunications Commission v. Fox Television Stations, 2011 WL5373702, page).

Second time:
(Brief of Petitioners FCC (or Respondents Fox), page).

Legal Research using Westlaw and Findlaw

Westlawis a better source than Findlaw for state, federal district and federal circuitcourt 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 throughGVSU.

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 citationof the case you are retrieving. In the box titled: "Find a Document bycitation" (located in the top left corner) enter the citation, includingvolume, reporter (or law review) name, and page number, e.g. 222 F. 3d 719 (ora WL number). Now click "Go."

8. If everything went right, you should onlyhave one search result. Check to see that the citation and date are correct. Ifso, then save and/or print.

9. Note: When you use Westlaw it will providemultiple West keynotes at the top of the article. Just ignore those as they arenot officially part of the opinion and are primarily designed for lawyers doingmore in-depth research.

Findlaw: Findlaw does not require GVSU password and has U.S. Supreme Courtopinions.

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), enterthese numbers in the citation search box and click "get it."

For recent decisions, youmay need to use the browsing by year function. For example, to get Bush v. Gore, 2000, click on "byyear," then click on "2000," and then click on "Bush v. Gore." You can also use theparty name search function.

First Amendment: Print, Broadcast, Cable, Internet, & Video Games

2012-01-05T04:33:00.000-08:00

First Amendment: Print, Broadcast, Cable, Internet, &Video Games
Professor Mark Richards

I. Introduction

A. Varying levels of first amendment protection by type ofmedia, with broadcast media (TV and radio) subject to more governmentregulation.

B. Standard of review matters. Content-based regulations ofbroadcast media are typically treated according to intermediate scrutiny, whilemost other content-based types of media regulations are evaluated according tostrict scrutiny.

C. Exceptions exist, depending on type of speech, or type ofregulation. Although print media are generally strongly protected, libel ofprivate figures not for presumed orpunitive damages is subject to a lower level of protection. Time, place andmanner regulations or general regulations that have an incidental burden on themedia are subject to intermediate scrutiny.

D. The court of public opinion and industry self-regulationmay be the greatest censors. Industries like interactive software (videogames), television and movies all use ratings to inform consumers, but theseratings schemes are voluntary. Congress threatens mandatory controls from timeto time, but such laws would likely be unconstitutional.

Net-neutrality issues:

discriminating against content (e.g., P2P)

retaliation against users: bandwidth throttling, accounttermination

mobile phone carriers and discrimination againstapplications, retaliation, etc.

II. Print media

A. Do the words "freedom of . . . the press" havea unique meaning or is the press just another speaker? Should the press betreated as the "fourth estate?"

B. Many aspects of print media law, including:

1. Presumption against prior restraints

2. Libel

3. Incidental regulations

4. Media shields

5. Time, place and manner

6. Publication of classified information and/or informationthat is alleged to threaten national security

7. Newsroom searches

8. Obscenity and indecency

9. Free press v. fair trial

10. Press access

11. School newspapers

B. The New York TimesCompany v. Sullivan, 376 US 254, 1964

Emblematic of strong protection for print media.

1. Facts

Who was Sullivan, and what did he claim?

What was the content of the ad?

What did Alabama libel law state?

2. Holding

Court overturned the half-million dollar judgment, noting the Alabamalaw was unconstitutional, and the evidence was insufficient under the newstandard of actual malice.

3. Reasoning

a. Debate on public issues should be robust:

"We consider this case against the background of a profoundnational commitment to the principle that debate on public issues should beuninhibited, robust, and wide-open, and that it may well include vehement,caustic, and sometimes unpleasantly sharp attacks on government and publicofficials." New York Times Co. v. Sullivan, 270.

b. Factual error and defamatory content are not enough to warrantwithdrawing first amendment protection. Why not?

-Cannot put burden of proving truth on the newspaper. Would lead toself-censorship.

-Even if speech hurts the reputation of public officials, it shouldstill be protected. The first amendment should protect speakers against claimsof seditious libel.

c. Multiple claims for damages could be awarded for each story.

d. What is the actual malice standard?

In order to recover damages for libel, the plaintiff must prove that thechallenged statement was made with either knowledge of falsity or with recklessdisregard for whether it was false or not.

e. Why was the evidence insufficient in this case?

Didn't meet actual malice standard, and the evidence didn't supportfinding that the statements concerned Sullivan.

f. Black and Douglas would completely prohibit the reach of libel law incases like this one.

C. What are the problems with the actual malice standard?

- It doesn't protect reputations.

- Easy to get cases to jury, requires extensive discovery (Herbert v.Lando, 1979), which entails large legal fees.

D. Development of libel law:

Plaintiff bears burden of proof.
Evidence of actual malice must be clear and convincing, not preponderance ofevidence.

Later extended to public figures.

Also, speech on matters of public concern is more protected than speechon private matters.

III. Broadcast Media

A. Red Lion Broadcasting Co. Inc. v. FCC, 395 US 367, 1969

1. This is an access case. It deals with the FCC's fairnessdoctrine.

Access cases usually have first amendment arguments on bothsides. Broadcast media stations assert first amendment rights to make editorialdecisions. Speakers seeking access assert first amendment rights to makemessage heard, and assert public right to receive information. Government(usually FCC) can be on either side.

2. In Red Lion, Justice White expresses the traditionaljustification for why the expression of the broadcast media is less protected.

a.The scarcity of the airwaves available for television and radio broadcastrequires the government to license those who desire to broadcast.

b.The Court has traditionally recognized the free expression rights of the publicto receive information and maintain some access to the broadcast media.

c.Question: Should economic scarcity or market dysfunction be justifications?

B.Intermediate scrutiny

The doctrine for regulation of the broadcast media was setforth in Federal Communications Commission v. League of Women Voters ofCalifornia (468 U.S. 364, 1984), which established an intermediate form ofscrutiny as the governing analytic standard and reaffirmed that the expressionsof the broadcast media are less protected. The Court held that in order to beconstitutional, content-based government regulations of the broadcast mediamust be "narrowly tailored to further a substantial government interest,such as ensuring adequate and balanced coverage of public issues" (FederalCommunications Commission v. League of Women Voters of California, 468 U.S.364, 380, 1984).

C. FCC v. Pacifica Foundation, 438 US 726, 1978

1. What happened?

2. Court upholds the FCC's declaratoryorder against Pacifica.

3. Reasoning

Is the FCC decision content-based? (Yes– Court admits it is. FCC called it indecent and patently offensive. Courtnotes that content of broadcast was vulgar, offensive and shocking.)

Does the fact that it is broadcastmedia make a difference? Why? (Yes. Media is pervasive. Prior warnings notalways effective because people tune in and out. Also, broadcast media isuniquely accessible to children.)

4. Dissents

a. Individuals can turn off theirradios

b. Court gives no weight to listenerswho want to hear the broadcast

c. Material is not obscene

d. Effect of ruling is to reduce theadult population to hearing only that which is fit for children.

D. Recent application: FCC regulationof fleeting expletives upheld on an administrative law (not a constitutional)basis in FCC v. Fox (2009). (E.g at Billboard Music Awards: Cher and Nicole Ritchie; compare to ruling onSaving Private Ryan)

IV. Cable

A. Why is cable different?

What is standard of review?

Ct. says it depends on whether the regulation iscontent-based or neutral. E.g. US v. Playboy Entertainment Group (2000) holdsthat a law regulating signal bleed on cable TV is content-based; Court strikesdown the law as not the least restrictive means.

B. Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,1994

Ct. upholds must carry rules. Do you agree they arecontent-neutral? (Trying to promote freedom of expression – avoid havingprivate interests restrict it).

C. Denver Area Educational Telecommunications Consortium,Inc. v. Federal Communications Commission, 116 S. Ct. 2374, 1996

Breyerleaves open standard of review, noting rapid technological changes.

V.Internet

A. Supreme Court Internet rulings have primarily focused on indecency.

Net-neutrality issues raise import questions about freedom of access toinformation and the the freedom to make information available.

B. Reno v. ACLU (1997)

1. Facts

Concerns two sections of CDA: 223a(prohibiting knowing transmission of obscene or indecent material to minors)and 223d (prohibiting sending or displaying patently offensive material tominors).

Affirmative defense for ageverification exists.

2. Issue

Does the Communications Decency Actviolate the first amendment?

3. Holding

CDA violates the first amendment.

4. Reasoning (Stevens)

a. The Internet is different, so oldprecedents such as FCC v. Pacifica do not apply.

Why? Users are not likely to encounteroffensive material as easily as with broadcast media. The Internet is lessinvasive. Also, it hasn’t traditionally been regulated, and it is vast anddemocratic.

b. The law is content-based.

c. The two sections are vague

What is indecent compared to patentlyoffensive?

It leads to uncertainty amongpublishers.

It is not a precise regulation (it isnot carefully tailored).

It suppresses a large amount of adultspeech. The government cannot reduce adults to viewing only that which is fitfor children.

d. less restrictive alternatives

Tagging of indecent material to allowparental control

Exceptions for work of scientific,literary and artistic value

Treat the commercial web differently.E.g. Do not punish a parent for sending email about birth control.

These less restrictive alternativesexist, so the CDA is not narrowly tailored.

C. Ashcroft. v. ACLU, 542 US 656, 2004.

Following Reno v. ACLU, Congress passesCOPA.

Supreme Court (5-4) upholds a rulingenjoining the statute, following Reno.

Regulating material that is harmful tominors is content-based, so strict scrutiny applies.

Filtering is a plausible, lessrestrictive alternative, so the ACLU is likely to prevail on the merits.

VI.Interactive software (video games)

A. Introduction

ESRB rating system is voluntary,industry self-regulation.

Video games are a popular target forpoliticians.

The past decade saw a wave of statestatutes regulating so-called "violent" video games, all of whichwere struck down.

B. Brown v. Entertainment Merchants Association(2011)

1. Facts

What did California attempt toregulate?

How did the state attempt to define“violent” video games?

How did the regulations work?

2. Issue

3. Holding

4. Reasoning of Scalia’s majorityopinion

a. Is the law content-based? Why?

b. How does he respond to California’sargument that there should be a “wholly new category of content-basedregulation that is permissible for speech directed at children”?

c. Does it matter that video games areinteractive?

d. What is the standard of review?

e. Is there a compelling interest?

f. Is California’s law narrowly drawnto achieve a compelling interest? Explain how it is underinclusive andoverinclusive.

5. Reasoning of Alito’s concurringopinion

a. Why doesn’t he join the majority opinion?

b.Why does Alito find the law impermissibly vague?

c. Why is this case different than an obscenity case?

6.Reasoning of Thomas’ dissenting opinion

Why does he think the Court’s decision departs from the original understandingof the Constitution?

7.Reasoning of Breyer’s dissenting opinion?
a.Why does he find a compelling government interest?

b.Why does the he find the restriction on speech to be “modest” (i.e. the leastrestrictive means) on its face?

c.How does the law compare to regulations of minors’ access to materialsdepicting nudity?

Winter 2012 Office Hours and Contact Information

2012-01-04T11:47:00.000-08:00

Winter 2012 Office Hours and Contact Information

Office hours: Tu 10-11:15; 1-2, 1106 AuSable, or by appointment. I will also have office hours Th 9:30-11:15 in the PERL faculty office, first floor Murray Living Center 104 (PERL is GVSU's pre-law residence hall, located next to Honors and the Connection)
E-mail: richardm@mail.gvsu.edu

Legal Reasoning

2012-01-04T11:44:00.000-08:00

Legal Reasoning
Professor Mark J. Richards
Constitutional Law II

I. Four elements of legal reasoning

A. Facts

B. Law

C. Policy implications

D. Normative and political implications

II. Why do legal actors engage in legal reasoning?

Lawyers

Juries

Judges

III. Legal positivism vs. legal realism

A. Legal positivism – argued that judges need only discoverthe law and apply it to the facts of the case.

B. Legal realism

1. Recognizes that judges make the law through the commonlaw process

2. Judges are human and take a variety of factors intoaccount, including normative and policy implications.

3. Interpretation. Indeterminacy of law.

4. Realism opened up the policy dimension of legalreasoning. Louis Brandeis’ brief from Mullerv. Oregon (1908) was comprised mainly of statistics and data supporting the lawlimiting working hours for women.

5. Realists on the Supreme Court included Oliver WendellHolmes and Louis Brandeis

C. Legacies include pragmatism, the attitudinal model andpolitical jurisprudence.

IV. Stare decisis

A. Definition: We let the prior decision stand. Theprinciple is to follow precedent.

B. Vertical. No lower court should ignore a decision of a higher court whichcontrols it. In the federal system, the U.S. Supreme Court controls all of theCourts of Appeals and District Courts. Each Court of Appeals controls all ofthe District Courts in its circuit.

C. Horizontal. Courts at the same level. Should the SupremeCourt apply its own precedents?

D. Justification of Stare Decisis. Why is it important?

E. Legal change
How and why does the law change?

What are the advantages of flexibility in the law?

Disadvantages?

Reading List By Date Winter 2012 Constitutional Law II

2012-01-04T11:15:00.001-08:00

COURSE OUTLINE AND READING LIST
Look up cases in the case name index in Epstein and read the bold pages. Cases marked with a *are in the CQ Press online case archive at:
http://college.cqpress.com/sites/clca/rights.aspx

Tu 1/10
Introduction
U.S. Constitution and Amendments (Appendix 1) – focus on Amendments I-X, XIII, XIV, XV, XIX
Begin reading Tushnet, The NAACP's Legal Strategy against Segregated Education, entire, to be completed by 3/20. Details on related NAACP paper TBA.
I. Legal Reasoning and Constitutional Interpretation

Th 1/12
II. Constitutional Interpretation: Theories and Politics
Epstein 21-44
Via JSTOR (go to GVSU home quick links, then library, then databases, then JSTOR):
-Jeffrey A. Segal and Albert D. Cover, "Ideological Values and the Votes of U.S. Supreme Court Justices," The American Political Science Review, Vol. 83, No. 2 (Jun., 1989), pp. 557-565
-Mark J. Richards and Herbert M. Kritzer, "Jurisprudential Regimes in Supreme Court Decision Making," The American Political Science Review, Vol. 96, No. 2 (Jun., 2002), pp. 305-320

Tu 1/17
III. First Amendment: Freedom of Expression
Fundamental Principles
Epstein 223-227
Texas v. Johnson (1989)
Cohen v. California (1971)

Th 1/20
First Amendment: Print, Broadcast, Cable, Internet, & Video Games
Epstein 291-292, 310-312, 338, 358-9
The New York Times Company v. Sullivan (1964)
Reno v. ACLU (1997)
*Brown v. Entertainment Merchants Association (2011) – available via CQ Press online archive:
http://college.cqpress.com/sites/clca/rights.aspx

Tu 1/24
First Amendment: Advocacy of Illegal Action
Epstein 194-196
Schenk v. United States (1919)
Gitlow v. New York (1925)
Dennis v. United States (1951)
Brandenburg v. Ohio (1969)
*Introduce oral argument assigment

Th 1/26
IV. The Fourth Amendment Guarantee Against Unreasonable Searches and Seizures
Epstein 444-451, 460-464, 472-473, 476-478, 484-485
Terry v. Ohio (1968)
United States v. Leon (1984)
Safford v. Redding (2009)

Tu 1/31
V. Oral argument preview: Reading assignments to be announced in oral argument assignment handout

Th 2/2 – Th 2/9
V. Oral Argument – mandatory attendance

Tu 2/14
*ORAL ARGUMENT PAPER DUE
VI. Race, the Death Penalty, and the Eighth Amendment

Th 2/16
Race, the Death Penalty, and the Eighth Amendment
Epstein 550-553, 559-562, 568-570
The following two cases are available in the CQ Press online case archive at:
http://college.cqpress.com/sites/clca/rights.aspx
*McCleskey v. Kemp (1987)
*Roper v. Simmons (2005)

VII. First Amendment: Religious Liberties
Tu 2/21
Free Exercise Clause
Epstein 95-100, 114-116, 122-123
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
*Church of the Lukumi Babalu Aye v. City of Hialeah (1993) - in the CQ Press online case archive at:
http://college.cqpress.com/sites/clca/rights.aspx

Th 2/23
Establishment Clause
Epstein 129-130, 135-139, 143-147, 163-165, 183-186
Lemon v. Kurtzman (1971)
Zelman v. Simmons-Harris (2002)

Tu 2/28 EXAM ONE

Th 3/1

VIII. The Fifth Amendment Guarantee Against Self-accusation
Epstein 497-499, 509-513
Miranda v. Arizona (1966)
*Dickerson v. U.S. (2000) - in the CQ Press online case archive at:
http://college.cqpress.com/sites/clca/rights.aspx

SPRING BREAK – no class March 6 & 8

Tu 3/13

IX. Equality: Race, Gender and the Fourteenth Amendment Equal Protection Clause

Introduction
Racial Discrimination and State Action
Epstein 585, 616
*The Civil Rights Cases (1883) - in the CQ Press online case archive at:
http://college.cqpress.com/sites/clca/rights.aspx
Shelley v. Kraemer (1948)
Moose Lodge v. Irvis (1972)

Th 3/15
School Desegregation
Brown v. Board of Education of Topeka, Kansas I (1954)
Brown v. Board of Education of Topeka, Kansas I (1955)
Parents Involved in Community Schools v. Seattle School District #1 (2007)

Tu 3/20
Discuss Tushnet, The NAACP's Legal Strategy against Segregated Education
*NAACP PAPER DUE

Th 3/22
Equal Protection and Gender Equality
Start on readings for 3/27

Tu 3/27
Equal Protection and Gender Equality
Epstein 624-626
United States v. Virginia (1996)
Craig v. Boren (1976)

Tu 3/29
Affirmative Action
Epstein 659-661, 668-670, 675-676, 685-688
Adarand Constructors, Inc. v. Pena (1995)
Grutter v. Bollinger (2003)

Tu 4/3
X. Substantive Due Process: Privacy, Autonomy and Reproductive Freedom (Fifth and Fourteenth Amendments)

Abortion
Epstein 385-388, 393-396, 408-409, 416-418
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Gonzales v. Carhart (2007) – covered on 416-418

Th 4/5
Privacy and Autonomy
Epstein 418-422, 642
Lawrence v. TX (2003)
Romer v. Evans (1996)

XI. Second Amendment
Epstein 374-377
District of Columbia v. Heller (2008)

Tu 4/10 EXAM TWO

Th 4/12 Presentation Panels
Tu 4/17 Presentation Panels
Th 4/19 Presentation Panels

W 4/25 Analytic research paper due by 1:00 pm

Constitutional Law II Syllabus Winter 2012

2012-01-04T11:12:00.000-08:00

American Constitutional Law II (Civil Rights and CivilLiberties)
Winter 2012 Syllabus
Dr. Mark J. Richards
Political Science (PLS) 307 - 1, Tu/Th 11:30-12:45 MAK B-2-118

Office hours: Tu 10-11:15; 1-2, 1106 AuSable, or byappointment. I will also have office hours Th 9:30-11:15 in the PERL facultyoffice, first floor Murray Living Center 104 (PERL is GVSU's pre-law residencehall, located next to Honors and the Connection)

E-mail: richardm@mail.gvsu.edu
Website: http://freespeechpolitics.blogspot.com
Voice mail: 331-3457
Prerequisites: PLS 102 or junior standing

COURSE OBJECTIVES

Constitutional Law Objectives
-Understand legal reasoning and theories of constitutional interpretation
-Comprehend the Supreme Court's most important rulings on civil rights andcivil liberties
-Analyze the disputes that the Supreme Court is currently considering
-Identify how politics and normative controversies are relevant toconstitutional law
-Articulate opposing viewpoints and respond to them

General Education Theme Skill Objectives

-Speaking and Writing: Students will write three papers.Lecture will be supplemented by in-depth class discussions.
-Critical and Creative Thinking: In the papers, students will be expected toanalyze how the Supreme Court's civil rights decisions apply to contemporarycases. In essays and exams, the students will think about how to apply thecases they have studied to hypothetical controversies. In addition, thestudents will engage theories of constitutional interpretation, and apply thosetheories to practical areas of law.
-Locating, Evaluating and Using Information: All of the required components ofthe course require students to evaluate and resolve problematic situationsthrough the location and use of the theories and cases presented in the course.Two papers also require students to use electronic legal databases.
-Integrating Knowledge and Viewing Ideas from Multiple Perspectives: In all oftheir written work and in class discussions, students are encouraged to analyzekey Supreme Court decisions from at least two perspectives, and often more. Thecourse also promotes student understanding of cases from social, political,philosophical, psychological, normative and legal perspectives.

Civil and Human Rights Movements Theme Objectives
-Looking at the Supreme Court's decisions on civil rights will help thestudents to understand the evolution and influence of legal, political andsocial discourses opposing the practice of racial segregation in America.
-Analysis of the Court's key civil rights decisions regarding affirmativeaction and segregation of neighborhoods, educational institutions and publicaccommodations will also promote student understanding of race as a contestedsocial, psychological and political construct that defined citizenship andcivil rights and continues to shape group relations in post-Civil RightsAmerica.
-The course will address the ideals advocated by Civil Rights Movement leaderssuch as Thurgood Marshall, how those ideals led the Court to recognize civilrights, and whether the Court's decisions played a role in mobilizing Americansfrom diverse racial and social backgrounds to participate in the Civil RightsMovement and in spurring the development of other social justice movementsnationally and internationally.

COURSE REQUIREMENTS

Grades: Grades will be determined by the following:
25%: oral argument exercise and paper
10%: exam one
10%: exam two
10%: participation in class discussions
5%: attendance
10%: NAACP paper
30%: analytic research paper

You must complete all components to receive a passing grade.I do not allow make-up exams. Late work will lose 20% the day it is due and 20%each additional day, unless you contact me in advance of the due date to makealternate arrangements. In case of an emergency conflicting with a due date, Iask that you contact me as soon as possible.

Grading policy:

The grades of "+" and "-" reflectvariation among these categories.

A: The grade of A indicates the student has made anexcellent effort, demonstrated thorough knowledge of the lecture materials andreadings, and integrated knowledge in an analytic, concise, and cogent manner.The grade of A reflects that the student's work was superior with respect toall of these considerations, as compared to nearly everyone else in the class.

B: The grade of B indicates that the student has made anexcellent effort, demonstrated solid knowledge of the lecture materials andreadings, and integrated knowledge in an analytic, concise, and cogent manner.The grade of B reflects that the student's work could have been significantlyimproved with respect to at least one of these considerations.

C: The grade of C indicates that the student has made anaverage effort, demonstrated acceptable knowledge of the lecture materials andreadings, and showed some integration of knowledge in an analytic, concise, andcogent manner. The grade of C reflects that the student's work could have beensignificantly improved with respect to at least two of these considerations

D: The grade of D indicates that the student has a seriousdeficiency in terms of at least one of the following factors: effort, knowledgeof lecture materials and readings, and integration of knowledge.

F: The grade of F indicates that the student has a seriousdeficiency in terms of at least two of the following factors: effort, knowledgeof lecture materials and readings, and integration of knowledge.

Grading scale

93-100 A
90-92 A-
87-89 B+
83-86 B
80-82 B-
77-9 C+
73-76 C
70-72 C-
67-9 D+
60-66 D
0-59 F

Preparation and Participation: You should have the day'sreadings completed before you attend lecture, and should be prepared to discussthe readings. The reading load is quite reasonable, and you will be able tobetter understand lectures if you are prepared. I reserve the right toinstitute pop quizzes if student discussion is inadequate.

Grading for participation is based on the quantity andquality of participation and assessed according to the professor's discretion.Attendance is graded separately. A complete absence of participation results ina grade of zero for the participation component of the course. A generalguideline is that students seeking an average grade for participation (B-)should participate meaningfully at least once per lecture topic.

Classroom Etiquette:

When we are present in the classroom we are here to learnabout the course subject and participate in the class. I have found that sometypes of behavior can be detrimental to your own learning or that of yourpeers. In order to foster an atmosphere of participation and learning, I havedeveloped the following guidelines:

1. Use of any electronic device (e.g. computer, phone, etc.)is permitted for purposes of this class only.
2. Please be polite and do not talk or whisper when other people are talking.
3. Please do not do any work or activity not related to the course (e.g.reading newspaper or doing work for another course).
4. If you need to leave the class early, please let me know in advance.
5. Please do your best to arrive on time.

Failure to comply with these guidelines will negatively impact yourparticipation grade, determined at my discretion.

Lecture outlines: Outlines of lectures will be available atmy website:
http://freespeechpolitics.blogspot.com

Keep in mind that these are only outlines, and you are stillresponsible for taking supplementary notes. The outlines are meant tofacilitate your note taking and understanding, but are not a substitute forreading and participating in class.

Honesty: I expect full compliance with all GVSU policies andregulations regarding academic misconduct and plagiarism (see the GVSU Catalogand the Student Code). Please talk to me if you are having a problem. Don'trisk your reputation. I reserve the right to use Turnitin (available via the307 Blackboard site) or other plagiarism software for your assignments.Additional instructions will be provided when assignments are made.

Accommodations: If there is any student in this class whohas special needs because of learning, physical or other disability, pleasecontact me and Disability Support Services (DSS) at 616.331.2490. Furthermore,if you have a disability and think you will need assistance evacuating thisclassroom and/or building in an emergency situation, please make me aware so Ican develop a plan to assist you.

Pre-law advising: I am a pre-law advisor for GVSU. Anystudents interested in attending law school should consult the pre-law FAQ onmy website.

Attendance policy: Attendance is an integral part of youruniversity education. Interacting with your instructor and your peers isessential to your education. Attendance is worth 5% of your overall coursegrade, unless you miss 6 or more courses (resulting in an F for the course),and is determined by the policy elaborated here.

Certain assignments may require your mandatory attendance.

I will pass around an attendance sheet at the beginning ofeach class. Sign it when you are present. There is no need to provide a reasonor excuse for your absence as all absences affect your attendance grade. Keepin mind you can miss two classes and still get an A for attendance so try tosave those two absences for anything important.

Absences for events related to GVSU athletics, studentorganizations, etc. must be supported by signed documentation from, asappropriate, a coach, designated staff, or faculty advisor.

The grading scale for attendance:

0 absences: 100
1-2 absences: A (95)
3 absences: B (85)
4 absences: C (75)
5 absences: D (65)
6 or more absences: FAIL THE COURSE

COURSE MATERIAL

The following two required books will be available at thebookstore:

Lee Epstein and Thomas G. Walker. Constitutional Law for aChanging America: Rights, Liberties and Justice. 2010.

Mark Tushnet. The NAACP's Legal Strategy againstSegregated Education.

COURSE OUTLINE AND READING LIST
Look up cases in the case name index in Epstein and read the bold pages. Casesmarked with a *are in the CQ Pressonline case archive at:
http://college.cqpress.com/sites/clca/rights.aspx

Tu 1/10
Introduction
U.S. Constitution and Amendments (Appendix 1) – focus on Amendments I-X, XIII,XIV, XV, XIX
Begin reading Tushnet, The NAACP's Legal Strategy against SegregatedEducation, entire, to be completed by 3/20. Details on related NAACP paperTBA.
I. Legal Reasoning and Constitutional Interpretation

Th 1/12
II. Constitutional Interpretation: Theories and Politics
Epstein 21-44
Via JSTOR (go to GVSU home quick links, then library, then databases, thenJSTOR):
-Jeffrey A. Segal and Albert D. Cover, "Ideological Values and the Votesof U.S. Supreme Court Justices," The American Political ScienceReview, Vol. 83, No. 2 (Jun., 1989), pp. 557-565
-Mark J. Richards and Herbert M. Kritzer, "Jurisprudential Regimes inSupreme Court Decision Making," The American Political ScienceReview, Vol. 96, No. 2 (Jun., 2002), pp. 305-320

Tu 1/17
III. First Amendment: Freedom of Expression
Fundamental Principles
Epstein 223-227
Texas v. Johnson (1989)
Cohen v. California (1971)

Th 1/20
First Amendment: Print, Broadcast, Cable, Internet, & Video Games
Epstein 291-292, 310-312, 338, 358-9
The New York Times Company v. Sullivan (1964)
Reno v. ACLU (1997)
*Brown v. Entertainment Merchants Association (2011) – available via CQ Pressonline archive:
http://college.cqpress.com/sites/clca/rights.aspx

Tu 1/31
V. Oral argument preview: Reading assignments to be announced in oralargument assignment handout

Th 2/2 – Th 2/9
V. Oral Argument – mandatory attendance

Tu 2/14
*ORAL ARGUMENT PAPER DUE
VI. Race, the Death Penalty, and the Eighth Amendment

VII. First Amendment: Religious Liberties
Tu 2/21
Free Exercise Clause
Epstein 95-100, 114-116, 122-123
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
*Church of the Lukumi Babalu Aye v. City of Hialeah (1993) - in the CQ Pressonline case archive at:
http://college.cqpress.com/sites/clca/rights.aspx

Th 2/23
Establishment Clause
Epstein 129-130, 135-139, 143-147, 163-165, 183-186
Lemon v. Kurtzman (1971)
Zelman v. Simmons-Harris (2002)

Tu 2/28 EXAM ONE

Th 3/1

SPRING BREAK – no class March 6 & 8

Tu 3/13

IX. Equality: Race, Gender and the Fourteenth AmendmentEqual Protection Clause

Tu 3/20
Discuss Tushnet, The NAACP's Legal Strategy against SegregatedEducation
*NAACP PAPER DUE

Th 3/22
Equal Protection and Gender Equality
Start on readings for 3/27

Tu 3/27
Equal Protection and Gender Equality
Epstein 624-626
United States v. Virginia (1996)
Craig v. Boren (1976)

Tu 3/29
Affirmative Action
Epstein 659-661, 668-670, 675-676, 685-688
Adarand Constructors, Inc. v. Pena (1995)
Grutter v. Bollinger (2003)

Tu 4/3
X. Substantive Due Process: Privacy, Autonomy and Reproductive Freedom (Fifthand Fourteenth Amendments)

Abortion
Epstein 385-388, 393-396, 408-409, 416-418
Roe v. Wade (1973)
Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Gonzales v. Carhart (2007) – covered on 416-418

Th 4/5
Privacy and Autonomy
Epstein 418-422, 642
Lawrence v. TX (2003)
Romer v. Evans (1996)

XI. Second Amendment
Epstein 374-377
District of Columbia v. Heller (2008)

Tu 4/10 EXAM TWO

Th 4/12 Presentation Panels
Tu 4/17 Presentation Panels
Th 4/19 Presentation Panels

W 4/25 Analytic research paper due by 1:00 pm

Health Care Law Upheld with Opinion Written by Noted Conservative

2011-11-09T16:25:00.000-08:00

In light of our debate on the constitutionality of the Affordable Care Act, you may find this article to be of interest. One of the nation's most conservative judges authored an opinion for the D.C. Circuit upholding the act.

Here is what Lyle Denniston wrote on Scotusblog.com:

For the second time, a federal judge with undoubted credentials as a conservative jurist has concluded that Congress had ample authority to enact the new federal health care law, giving the Obama Administration a new and significant victory just as the Supreme Court is about to take up the constitutional controversy. Senior U.S. Circuit Judge Laurence H. Silberman of the D.C. Circuit Court, who is among the most conservative of all federal judges, expressed some misgivings on Tuesday about the breadth of the key part of the new law, but nevertheless took only 13 pages of brisk argument to declare that provision to be constitutional.

http://www.scotusblog.com/2011/11/big-boost-for-health-care/

Constitutional Law I Exam II Review Sheet

2011-11-07T12:18:00.001-08:00

Constitutional Law I Exam II Review Sheet

This exam is worth ten percent of your overall course gradeand will be comprised of 25 multiple choice questions.

For each case listed (unless otherwise indicated by “focuson”), I expect you to be familiar with the facts, issues, holdings, and keyparts of the reasoning of the opinion of the Court, concurring and dissentingopinions

Federalism
Definition of Federalism
Why is the US a federal system, according to James Madison in Federalist39? Supremacy clause makesnational government supreme by enumerated powers limit national government.States gain representation in three ways: election of House by population, selection ofSenate by state (two Senators per state), and selection of president by ElectoralCollege.
Confederal systems: Allow greater member sovereignty that a federal system.Examples: UN, EU, and US under Articles of Confederation
Advantages of federalism: Hamilton and Brandeis
Alexander Hamilton: States control local, internal affairs. National governmenthandles diplomacy, defense, national economy (e.g. currency)
Louis Brandeis: States are laboratories of democracy
Disadvantages of federalism: National government may grow too powerful. Statesmay use their power to resist civil rights.

Tenth Amendment
Text of tenth amendment
National League of Cities v. Usery (1976)
Garcia v. San Antonio (1985)
Printz v. U.S. and Mack v. U.S. (1997)

Eleventh Amendment
Citizen diversity jurisdiction
Citizen state jurisdiction
Text of eleventh amendment took away citizen state jurisdiction
Federal question jurisdiction
Sovereign immunity
Abrogation of sovereign immunity
Seminole Tribe of Florida v. Florida (1996)
Alden v. Maine (1999) (remember this is more of a tenth than aneleventh amendment case )
Nevada Department of Human Resources v. Hibbs (2003)

The Scope of National Power
McCulloch v. Maryland (1819)
Necessary and proper clause
Supremacy clause

National Commerce Power
Contrast NLRB v. Jones & Laughlin Steel Co. (1937) with pre-1937 period
Wickard v. Filburn (1942)
Heart of Atlanta Motel v. U.S. and Katzenbach v.McClung (1964)
United States v. Lopez (1995)
United States v. Morrison (2000)
Gonzales v. Raich (2005)
Class of activities
Rational basis test
Jurisdictional hook or jurisdictional element (e.g. advertising to interstatetravelers)
Substantial effects test from Lopez
Economic activity
Raich combines substantial effectsand rational basis tests

Commerce Power and State Power
Four theories: concurrent power,dormant power, mutual exclusiveness, selective exclusiveness (and know whichone Marshall used in Gibbons v. Ogden)
Gibbons v. Ogden (1824)
Cooley v. Board of Wardens (1851)
Pike v. Bruce Church (1970)
Granholm v. Heald (2005)

Takings Clause and Just Compensation
Know relevant portion of text of fifthamendment
Hawaii Housing Authority v. Midkiff (1984)
Kelo v. City of New London, Connecticut (2005)

Voting Rights and Race
Shaw v. Reno (1993) and Shaw v. Hunt (1996)
Hunt v. Cromartie (2001)

Campaign Finance
Buckley v. Valeo (1976). Focus on: Court strikes down restrictionson expenditures but upholds restrictions on contributions. Government has a compellinginterest in preventing corruption or the appearance of corruption. The greatestrisk of corruption comes from large contributions.
McConnell v. FEC (2003): Focus on: Court upholds restrictions onsoft money.

PLS 306 Analytic Research Paper Fall 2011

2011-11-05T19:58:00.000-07:00

PLS 306 Writing Assignment and Presentation
Fall 2011
Dr. Mark J. Richards

Youhave been issued a special invitation to participate in a conference from11/29– 12/8. The theme of the conference is “Major Rehnquist and Roberts CourtRulings on Government Power in the New Millennium.”

Paperis due Monday 12/12 at 1pm via email (richardm@mail.gvsu.edu).

Grading

Theproject will count for 30% of your grade in PLS 306.

95% ofyour grade on this assignment will be based on the final version of your paper.

5% ofyour grade on this assignment will be based on your oral presentation for theconference panel

In grading your final paper, the maincriteria I will take into account will be:

How well did the paper demonstratethorough preparation and research?

How well written was the paper in termsof style, organization, and mechanics?

Did the paper take into account majorcounterarguments and respond to them?

Oral Presentationfor conference panel

Prepare a 4-5 minute presentation basedon your research. The presentation should highlight your main findings. Youwill be graded based on length and quality of presentation. Do not just readfrom your paper. You should prepare a presentation of appropriate length andpractice it to make sure that you are within the time limit. Cutting andpasting portions of your paper and adapting this material to the panel formatis encouraged. You can use PowerPoint, but it is not required. I will serve asthe discussant for the panel, and offer feedback on each paper. I willgroup the panels according to topic. You will be encouraged to offer questionsand comments on your peers’ presentations.

Page limit andFormat

6 double-spaced pages minimum (to avoidan F). 10 double-spaced pages maximum.

Use page numbers. I do not need a coverpage. Just type your name on the first page.

AllGVSU policies and codes regarding academic honesty and plagiarism apply. Pleaseuse parenthetical citations. I do not need a bibliography page. You should citeany language or key ideas taken from sources such as legal opinions, texts orarticles. Cite the name of the author, year, and page number. Case citationsshould include the name of the case, volume, reporter name, first page numberof 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 justuse 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'Brienthe first time you use it; e.g. Smithv. Jones, 100 U.S. 123, 1999, citedin O'Brien 2008); for additional citations it would be: (Smith 123).

As ageneral rule, your main citation should be to the source you are reading. Besure to cite a lower court opinion when you use it, even when you read a lowercourt opinion that is citing the Supreme Court. Example 1: If you have a directquote from a lower court opinion that contains other citations (known asinternal citations), you should include the internal citations and cite thelower 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., youshould use Hogwallop v. U.S. as your main citation, but mentionMcDonaugh v. State. Your sentence might look like this: McDonaugh v. State (98U.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 itlike 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 reviewis strict scrutiny.

Citingbriefs. Use Petitioner's Brief, Respondent's Brief, or Amicus Brief of (GroupY), and page number (indicated by * in Westlaw).

Citebriefs the first time as: (name of party, case name, WL number, page), e.g.:

(Briefof Petitioner Schwarzenegger, Schwarzenegger v. Entertainment MerchantsAssociation, 2010 WL 2787546, page).

(Briefof Respondents Entertainment Software Association, Schwarzenegger v.Entertainment Merchants Association, 2010 WL 3535053, page).

(Brief of amicus ACLU, Schwarzenegger v. Entertainment Merchants Association,2010 WL 3555555, page)

Second time:
(Brief of petitioner Schwarzenegger (or respondent ESA or amicus ACLU), page).

Choosing a case
Everyone willanalyze one of the major cases decided during the recent time period, based onthe attached table. I will pass around a sign-up sheet in class so you can pickyour case. There will be a maximum of two people who can choose the same case.Everyone must do his/her own work, including research.

Finding your case:

Westlaw: Westlaw is accessible from home.

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 thecitation of the case you are retrieving; you will find the citation in thespreadsheet I handed out in class. Note if there is 0 at the start of the pagenumber in the page citation, omit the 0 in your search. E.g. If the US columnlists 528/0377, the citation would be 528 U.S. 377.) In the box titled:"Find a Document by citation" (located in the top left corner) enter thecitation, including volume, reporter (or law review) name, and page number,e.g. 222 F. 3d 719. Now click "Go."

8. If everything went right, you should onlyhave one search result. Check to see that the citation and date are correct. Ifso, then copy and paste to MS Word and/or print.

Writing

Essentiallyyou are analyzing one case in great depth. Your required research is to readand analyze your case. You will also be referring to key precedents. Inanalyzing your case, here are some of the questions you should consider:

Whatare the main issues in the case? I encourage you to check with me to make sureyou have the issues correct.

Howdid the justices vote on the issues? Make a table something like this:

Justice	Attitudes (Appointing President)	Issue 1 (briefly describe)	Issue 2 (briefly describe)	Issue 3
Rehnquist	(RN, RR)	Pro-government	Pro-government	If necessary
Stevens	(GF)	Anti-government	Pro-government
O’Connor	(RR)	Pro-government	Pro-government
Scalia	(RR)	Anti-government	Pro-government
Kennedy	(RR)	Pro-government	Pro-government
Souter	(GB)	Anti-government	Pro-government
Thomas	(GB)	Pro-government	Pro-government
Ginsburg	(WC)	Anti-government	Anti-government
Breyer	(WC)	Anti-government	Anti-government
Roberts	(GWB)	If necessary
Alito	(GWB)	If necessary
Sotomayor	(BO)	If necessary
Kagan	(BO)	If necessary

Besure to get the voting alignments correct per issue. Please note in the textwhich justices wrote an opinion and which justices joined each opinion.

Didthe majority opinion apply a standard of review? (If there is not a majority,use the plurality opinion.) If so, what standard did they apply? Why? Did theconcurring or dissenting justices apply a different standard? Why? How did thestandard apply, and was there disagreement? (E.g. If the justices appliedstrict scrutiny, explain whether they found a compelling government interestand whether they found the government used the least restrictive means toachieve that interest.) If there is not a dissenting opinion, use the view ofthe party that lost instead.

Whatare the main precedents used by the majority? Did the dissenting justices applythe same precedents or different ones? How did the precedents apply? Was theredisagreement over how the precedents applied? (Note on citation: Be sure toattribute sources correctly. If you are quoting the precedent as you read itfrom your case, be sure to cite both sources, otherwise it gives the falseimpression that you read the precedent directly.)

Didthe politics of the justices matter in their decision making? What evidence do youhave based on the voting pattern (refer to your table) or from the justices’written opinions?

Analysisof Briefs: In Westlaw, after you have found the case and opened it, at the topof the page, immediate after the citations, click on the link “Briefs and OtherRelated Documents.” Read the petitioner’s brief and the respondent’s brief. Thepetitioner is the party listed first in the Supreme Court opinion and is theparty challenging the ruling of the highest court that took the case prior toit coming to the Supreme Court. There may also be a number of briefs labeled“amicus curiae,” which means friend of the court. Count how many are in favorof petitioner and respondent, and note that in your paper; if there are none,note that instead. Also note whether there was an amicus brief filed by theUnited States, and which side the U.S. supported. If the U.S. is a party to thecase the U.S. brief would be either a petitioner or respondent brief. Read oneamicus curiae brief, if available, and note which one you read in your paper.In your analysis of the petitioner, respondent and amicus curiae briefs,discuss the following: Did you find any legal, policy, or normative argumentsin any of the briefs that were not addressed by the Court’s opinion(s)? In yourview, which side wrote a better brief, and why? For the amicus brief, why doyou think this group filed the brief? E.g., did the group filing the brief makeany normative or policy arguments that seemed to reflect the perspective of thegroup? Did you find these arguments persuasive and did they matter to theCourt?

Didthe majority make the right decision, in your view? (This should be a majorportion of the paper.) In answering this, think about the relevance of law,precedent, politics, normative values, and policy. By policy I mean the effectit will have on future cases and on how policy is made or how people behave. Asyou answer this, be sure to explain the best arguments of the opposing side,and why you think they are wrong.

Whatissues did the justices leave unresolved, if any? What additional issues arelikely to arise in the future as a result of the Court’s decision?

Constitutional Law I Exam I Review Sheet

2011-10-05T12:37:00.000-07:00

Constitutional Law 1 Exam 1 Review Sheet

This exam is worth ten percent of your overall course gradeand will be comprised of 25 multiple choice questions.

Judicial Review and Democracy
Marbury v. Madison (1803)
Why is judicial review in tension with democracy?

Liberty of Contract
Lochner v. NY (1905)
West Coast Hotel Co. v. Parrish (1937)
Liberty of contract theory
Laissez-faire economics
Why do elected officials have a better institutional capacity than thejudiciary to make economic policy?

Theories of Constitutional Interpretation
Legal reasoning – fourelements
Judges make the law
Legal realism
Stare decisis
Interpretivism
Noninterpretivism
Textualism
Originalism – Scalia’s view
Brennan on adaptability of constitutional principles to current problems
Activism and restraint, with respect to precedent and/or the decisions ofelected officials
Supreme Court decision making: attitudinal model

Jurisdiction and Justiciable Controversies
Elk Grove Unified School District v.Newdow (2004): Focus on the Court using standing to avoid ruling on the constitutionalityof requiring students to say the Pledge.
Baker v. Carr (1962) – Focus on Brennan’s outline of thecontours of the political question doctrine
Goldwater v. Carter (1979)
Jurisdiction – two main paths of review to Supreme Court
Adverseness and advisory opinions
Standing
Ripeness
Mootness
Political question doctrine

President and Foreign Affairs Power
U.S. v. Curtiss-Wright Corp. (1936)
Sole organ theory
Powers of external sovereignty do not depend on the Constitution.
Youngstown Sheet and Tube v. Sawyer (1952) aka the Steel Seizure case
Jackson’s three-part framework
Jackson’s response to the argument that the president has undefined emergencypowers
Dames and Moore v. Regan (1981)
Dames and Moore adopts Jackson’sframework but rules in favor of president.

War-Making Powers
The Prize Cases (1863)
War Powers Resolution : How is it supposed to work? What are theproblems with it?

Emergency Powers and Civil Liberties
Ex Parte Milligan (1866)
Significance of courts being open in Indiana.
Korematsu v. U.S. (1944)

Recent Issues in the War on Terror
Hamdi v. Rumsfeld (2004): Focuson: Court held detention of Hamdi was authorized and “enemy combatants”have a right to challenge such a classification.
Rasul v. Bush (2004): Focus on: Habeasstatute confers power of judicial review of alien detained at Guantanamo Bay.
Hamdan v. Rumsfeld (2006): Focuson: Court ruled against military commissions.

Presidential Accountability and Immunities
US v. Nixon (1974)
Nixon’s claim of absolute privilege
Limited privilege for presidential communications
Judicial need for fact finding and fair administration of justice
Clinton v. Jones (1997)
Immunity is based on function of office, not identity of official

Congressional Power
INS v. Chadha (1983)
Legislative veto
Bicameral requirement and presentment clauses
Clinton v. City of New York (1998)
Line item veto
Difference between cancellation and return (veto) of a bill
Presentment clauses

Drone Strike Kills al-Qaeda Leader, US Citizen

2011-10-04T07:19:00.001-07:00

We will discuss this article in class today:

http://www.washingtonpost.com/world/national-security/aulaqi-killing-reignites-debate-on-limits-of-executive-power/2011/09/30/gIQAx1bUAL_story.html

Oral Argument Assignment Fall 2011

2011-09-26T14:05:00.000-07:00

PLS 306 Constitutional LawI

Oral argument paper due: Thursday, October 20,2011 at 1 p.m. in class

Professor Mark J. Richards

Format: Your paper should be word-processed and submitted onpaper. It should be double-spaced and use page numbers. There is no need for acover page. Just place your name at the top of the first page.

Page requirement: 5-8 pages. Anything less than five full pageswill automatically receive an F. Anything written in excess of eight pages willnot be graded.

You must participate in oral argument in order to receive apassing grade in the class. You are also required to attend one additional oralargument session.

Readings on oral argument, conferencedeliberations, opinion writing, and opinion days: O'Brien, pp. 176-86; (votingalignments: p. 185)

Relevant case law and readings:

Marbury v. Madison (1803)

Baker v. Carr (1962)

Goldwater v. Carter (1979)

U.S. v. Curtiss-Wright Corp. (1936)

Youngstown Sheet and Tube v. Sawyer (1952)

Dames and Moore v. Regan(1981)

The Prize Cases (1863)

War Powers Resolution (pp.302-307)
You are expected to work each of the above readings into your opinion or brief.

Although the followingcases are not as directly relevant as the others, they may offer insight intothe politics and jurisprudence of the justices.

Hamdi v. Rumsfeld (2004)

Rasul v. Bush (2004)

Hamdan v. Rumsfeld (2006)

Treat the following hypothetical scenario as ifit is real.

Nugent v. Clooney

Responding to attacks inDecember 2021 on U.S. embassies in Canada, Peru and Germany that were linked tothe People's Liberation Front (PLF) headed by M.T. Python, in March 2022,Democratic President George Clooney sent 100,000 U.S. troops to Iranistan, acountry which is known to harbor and sponsor the PLF. The President assertedthat he did not need the approval of Congress to deploy the troops. In January2022, a bill to declare war on the PLF and Iranistan failed in the House by 10votes and failed in the Senate by three votes.

Other facts:

- 142 U.S. troops workingsecurity at the embassies were killed in the attacks, along with 73 governmentemployees.

- It is now September 2022.519 troops have died in the six months since troops were deployed to Iranistan.The U.S. military has air superiority and is the dominant force on the groundin the capitol and the two other large cities, but the Iranistanis and the PLFmembers have been employing guerilla tactics to minimize the technologicaladvantage of the U.S. military. In the past two months, 210 members of the U.S.military have died. Estimates on civilian casualties range from 2,000 to10,000, and an estimated 3,000 PLF and Iranistani soldiers have died.

- The War Powers Resolutionwas repealed by Congress and the President in 2012.

- In 2011, the Congresspassed and the President signed the Rapid Response to Terrorism Act, whichstated in part: "This act gives the full support of the U.S. Congress tothe President of the U.S. to rapidly deploy U.S. troops to respond to orpre-empt acts of terror. Congress still retains the power to declare war and/orwithdraw support for particular military actions." In February 2022, theIranistan War Opposition Bill passed the Senate by three votes and passed theHouse by 10 votes. The bill was vetoed by President Clooney.

The bill:

1. States that Congress doesnot support the President's deployment of troops to and actions of war inIranistan

2. Terminates congressionalfunding for the war

3. Requires the Presidentto call the troops home within 90 days, with an extension of up to 30 days formilitary necessity

- Republican Senator of MI,Ted Nugent, and four other members of the U.S. Senate, including Senators fromboth major parties, brought suit in U.S. district court asking for declaratoryand injunctive relief. Specifically, the Senators claim that the President'swar in Iranistan violates Congress's constitutional authority to declare war,and ask for the judicial system to issue an injunction that will call thetroops home within 90 days, with an extension of up to 30 days for militarynecessity. The U.S. District Court for the District of Columbia dismissed theclaim as a political question. The Court of Appeals for the D.C. Circuitaffirmed.

- The case is now beforethe U.S. Supreme Court, which, amazingly, has not changed in composition sinceJustice Kagan joined the Court. Justices will write an opinion explaining howthey voted in the oral argument. Attorneys will write briefs justifying theirclients' positions. In your opinion/brief, you must decide all of the followingissues (regardless of whether you declare the case not to be justiciable):

1. Is the dispute ripe?
2. Is the dispute a political question?

3. Does the President's war in Iranistan violateCongress's constitutional authority to declare war? In answering this, refer tothe following:

a. Does the President posses an inherent, emergencypower that establishes his power to conduct war in Iranistan?

b. Using Justice Jackson's tripartite frameworkfrom the Steel Seizure case, does the President have a justified power toconduct war in Iranistan?

Be sure to write a holding for each issue anddiscuss opposing viewpoints in the context of providing the reasoning for yourholdings (for justices) or your advocated holdings (for attorneys).

Grading: 30% of your overall course grade will be basedon this exercise.

Your grade on this exercisewill be comprised of the following:

5%: your verbal performancein oral argument exercise

5%: the accuracy of yourportrayal of counsel or justice

90%: your use of legalreasoning to support your arguments and respond to the arguments of youropponents. 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 15 minutes. Attorneys candivide 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 merelyread from your brief but be clear, concise and conversational. You shoulddirectly answer all of the justices’ questions. You will be interrupted, so becalm and polite. Also, be flexible enough to change your presentation inmid-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, youmay not need to present it again. Never talk when a justice begins to speak, oris speaking.

Justices are expected to come well prepared. Your questions shouldbe relevant, demonstrate a familiarity with the issues, and reflect the styleand 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 speakfirst at oral argument. For example, in Machiavelliv. Augustine, attorneys forMachiavelli will speak first. Attorneys for respondent Augustine will speaklast.

Grading Expectations forBrief and Opinion Writing:

These grading expectations are also expressed in the gradingrubric.

Each justice will write his/her own opinion, but should indicateif it is a majority opinion or dissent. After OA is complete, the Chief Justiceshould take a vote so other justices know which type of opinion they arewriting. The Chief should report this information to me, noting who voted whichway, who will dissent, etc.

Attorneys should indicate which client they are representing.Attorneys may, if they wish, coordinate and divide up issues according to their10 minute periods of oral argument, but each attorney should write his/her ownbrief which covers all of the issues.

Issues are stated in the form of a question. They shouldincorporate the actions (facts) in question and relevant statutes orconstitutional clauses. There may be more than one issue in a case. Holdings(or for attorneys, your advocated holdings) are similar, but are presented inthe form of statement.

You should use legal reasoning to support your arguments andrespond to the arguments of your opponents. Legal reasoning is a complex andnuanced endeavor that typically involves four key components. The first is toidentify relevant legal rules and offer your interpretation. These rulesinclude clauses of the Constitution, statutes, and precedents. Interpretationmay introduce questions regarding the text of the relevant constitutionalclause or statute, original intent, and stare decisis (whether to followprecedent), as well as others. You will want to indicate why yourinterpretations are better than the ones offered by your opponents.

The second component of legal reasoning is intertwined with thefirst. It requires you to apply the rules to the facts. Here, you must decidewhich 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 distinguishprecedents which your opponents wish to apply by showing that other precedentsare better or by indicating that your opponents’ precedents are not similar tothe present case. Attorneys will want to present the facts and how they fitwith the precedents to the advantage of their client, but should not lie or beinaccurate.

The third component involves your analysis of policy implications.What will be the policy effects of your (advocated) holding, if adopted? Howwill your (advocated) holding affect future cases? Analyze the policy implicationsof your opponents.

Finally, you will want to include relevant normative argumentsincluding democracy and the rule of law.

1. Address the issuesdirectly. Do not include information that is not directly relevant to thequestion.

2. Organize your paper.

3. Consider the best argumentsthat could be used against you, and respond to them.

4. Incorporate relevant information from lecture andreadings, including brief direct quotes from the texts when useful.

5. Write with correct grammar,usage and spelling.

6. Writewith clarity and concision. Although "legalese" can be confusing,well-written briefs and opinions clarify rather than muddle.

Citations: All GVSU policies and codes regarding academichonesty and plagiarism apply. You should cite any language or key ideas takenfrom sources such as legal opinions, texts or articles. Cite the name of theauthor, year, and page number. Case citations should include the name of thecase, volume, reporter name, first page number of case, page from which thematerial was taken, and year, (e.g. Smithv. 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 theO'Brien casebook, use the name of the case, volume, reporter name, first pagenumber of case, and year (and cite O'Brien and the page in O'Brien the firsttime 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 alower court opinion that is citing the Supreme Court. Example 1: If you have adirect quote from a lower court opinion that contains other citations (known asinternal citations), you should include the internal citations and cite thelower 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., youshould use Hogwallop v. U.S. as your main citation, but mentionMcDonaugh v. State. Your sentence might look like this: McDonaugh v. State (98U.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 itlike 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 reviewis strict scrutiny.

Legal Research using Westlawand Findlaw

Westlaw is a better source than Findlaw for state, federaldistrict and federal circuit court opinions. Findlaw does not require a GVSUlogin and has every U.S. Supreme Court opinion.

Westlaw: Westlaw is accessible from home but requires aGVSU login.

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 "WestLawCampus."

6. Read the accessagreement. 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) enterthe citation, including volume, reporter (or law review) name, and page number,e.g. 222 F. 3d 719. Now click "Go."

8. If everything wentright, you should only have one search result. Check to see that the citationand date are correct. If so, then save and/or print.

9. Note: When you use Westlawit will provide multiple West keynotes at the top of the article. Just ignorethose as they are not officially part of the opinion and are primarily designedfor lawyers doing more in-depth research.

Findlaw: Findlaw does not require GVSU password and hasU.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 "getit."

For recent decisions, you may need to use the browsing by yearfunction. For example, to get Bush v. Gore, 2000, click on "by year,"then click on "2000," and then click on "Bush v. Gore." Youcan also use the party name search function.

Constitutional Law I Debates

2011-09-14T11:25:00.000-07:00

Constitutional Law I Debates
Fall 2011
Mark Richards, Ph.D.

This exercise will count for a total of 5 percent of yourcourse grade, with the paper and the oral component each making up 50 percentof this assignment. Everything is graded individually.

Debate: The debate will proceed as indicated below, witheach speech being 3 minutes. Grading criteria and expectations are contained inthe debate rubric. Members of each team are encouraged to work with theirpartner to cover the widest range of arguments in the first and secondspeeches. You should make one legal, one policy and one normative argument infavor of your position. In the first and second speeches, you are just taskedwith articulating your position. In the rebuttals, you should focus on respondingto your opponents' best arguments and also reinforcing your main contentions.

Format: 3 minutes each speech

First affirmative:
Second affirmative:
First negative:
Second negative:
1A rebuttal:
1N rebuttal:
2A rebuttal:
2N rebuttal

Paper: Two pages, double-spaced, minimum font size 11.Papers are due in class the day of your debate. You should make one legal, onepolicy and one normative argument in favor of your position. You should alsobriefly articulate one of your opponents' best arguments and respond. Gradingcriteria and expectations are contained in the paper rubric.

Audience: The audience will vote (in favor of affirmative,negative or unsure) before and after the debate. Members of the audience willalso submit a question.

Dates:

9/27: 1 & 2

10/6: 3 & 4

11/8: 5 & 6

11/15: 7 & 8

Resolutions:

1. U.S. v. Curtiss-Wright (1936) is a better framework than YoungstownSheet & Tube Co. v. Sawyer (1952) for the Court to use to guide itsdecisions on presidential foreign affairs power.

2. The President is not constitutionally required to consultwith Congress prior to engaging in a significant armed conflict.

3. The Suspension Clause (pertaining to habeas corpus) is infull effect at Naval Station at Guantanamo Bay. (Affirmative means you want torequire the government to respect habeas corpus rights at this location.) (Boumedienev. Bush, 128 S.Ct. 2229, 2008)

4. Aliens detained as enemy combatants at Naval Station atGuantanamo Bay are entitled to privilege of habeas corpus to challenge legalityof their detention. (Boumediene v. Bush, 128 S.Ct. 2229, 2008)

5. The requirement of the new federal health care law thatindividuals must purchase insurance exceeds the federal government's powerunder the commerce clause.

6. Arizona's new immigration laws are preempted by federallaw and therefore violate the Supremacy Clause.

7. Taking property for economic development satisfies thepublic use requirement of the fifth amendment. (Kelo v. City of New London,CT., 2005)

8. The Bipartisan Campaign Reform Act’s strict regulation ofsoft money does not violate the first amendment. (McConnell v. FEC, 2003)

Readings:

O'Brien pp. 232-240
U.S. v. Curtiss-Wright Corp. (1936)
Youngstown Sheet and Tube v. Sawyer (1952)
Dames and Moore v. Regan (1981)

O'Brien pp. 264-269
The Prize Cases (1863)
War Powers Resolution (pp. 325-330)
Baker and Christopher, "Put War Powers Back Where They Belong," NYT,July 8, 2008:
http://www.nytimes.com/2008/07/08/opinion/08baker.html?scp=1&sq=war%20powers%20consultation%20act%20of%202009&st=cse

3 & 4.

Boumediene v. Bush, 128 S.Ct. 2229, June 12 2008:
http://laws.findlaw.com/us/000/06-1195.html

O'Brien pp. 269-276
Hamdi v. Rumsfeld (2004)
Rasul v. Bush (2004)
O'Brien, pp. 330-337
Hamdan v. Rumsfeld (2006)

Lyle Denniston, Doubts on New Health Law, SCOTUSblog.com,August 2, 2010:
http://www.scotusblog.com/blog/2010/08/02/doubts-on-new-health-law/

Virginia v. Sebelius, Memorandum Opinion on Motion toDismiss, Civil Action 3:10CV188HEH, U.S.D.C. E. Dist. Of VA., August 2, 1010: http://www.scotusblog.com/wp-content/uploads/2010/08/Hudson-ruling-on-health-care-8-2-10.pdf

Lyle Denniston, Health Insurance Mandate Struck Down,SCOTUSblog, August 12, 2011:
http://www.scotusblog.com/2011/08/health-insurance-mandate-struck-down/

Lyle Denniston, Circuit Sets Alien Law Review, SCOTUSblog,July 30, 2010:
http://www.scotusblog.com/blog/2010/07/30/u-s-asks-fast-alien-law-review/

U.S. v. Arizona, Preliminary Injunction, CV 10-1413-PHX-SRB,U.S.D.C. Dist. Of AZ, July 28, 2010:
http://www.scotusblog.com/wp-content/uploads/2010/07/Bolton-prelim-inj-ruling-7-28-10.pdf

Appellants (AZ) Opening Brief, before Ninth Circuit:
http://azgovernor.gov/dms/upload/AppellantsOpeningBrief.pdf

O'Brien, pp.1054-1059, 1077-1079
Hawaii Housing Authority v. Midkiff (1984)
Lucas v. South Carolina Coastal Council (1992)
Kelo v. City of New London, Connecticut (2005)

O'Brien pp. 906-914
Buckley v. Valeo (1976)
McConnell v. FEC (2003)
FEC v. Wisconsin Right to Life (2007)

Theories of Constitutional Interpretation

2011-09-07T13:56:00.000-07:00

Theories of Constitutional Interpretation
Professor Mark J. Richards
Constitutional Law I

I. Four elements of legal reasoning

A. Facts

B. Law

C. Policy implications

D. Normative and political implications

II. Why do legal actors engage in legal reasoning?

Lawyers

Juries

Judges

III. Early American approaches to legal reasoning

A. What was Joseph Story’s perspective?

B. What is the plain meaning rule?

C. Explain the theory of legal positivism

D. Legal realism

What factors did judges take into account according toOliver Wendell Holmes?

Explain the significance of acknowledging that “judges makelaw.”

What was a Brandeis Brief and how did it signify anempirical approach to legal reasoning?

Which members of the US Supreme Court were associated withlegal realism?

What did Justice Frankfurter write in a letter to Justice Black about judges making the law?

IV. Stare decisis

C. Horizontal. Courts at the same level. Should the SupremeCourt apply its own precedents?

D. Justification of Stare Decisis. Why is it important?

E. What are the advantages and disadvantages of flexibility in the law?

V. Dimensions of Constitutional Interpretation

A. Textualism v. more expansive readings of text

Interpretivism v. noninterpretivism: "Broadly speaking, interpretivistshold that constitutional interpretation should be limited solely to the textand historical context of particular provisions of the Constitution and theBill of Rights. By contrast, noninterpretivists maintain that constitutionalinterpretation frequently requires going beyond the text and historical contextof specific provisions to articulate and apply broader principles ofconstitutional politics." - (O'Brien 2008, 73)

1. textualist approaches

strict constructionism

literalism

2. more expansive readings of the text

Ronald Dworkin's moral reading: Lawyers, judges & citizens interpretabstract, principled clauses in the Constitution with the understanding thatthey invoke moral principles about political decency and justice. This bringspolitical morality to the heart of constitutional law.

Justice William Brennan : "The genius of theConstitution rests not in any static meaning it might have had in a world thatis dead and gone, but in the adaptability of its great principles to cope withcurrent problems and current needs" (O'Brien 2008, 78).

B. Activism v. restraint

C. Liberalism and conservativism

D. Originalism and framers' intent

1. Originalism: Justice Antonin Scalia sees it as a form of textualism thatapplies specifically to constitutional interpretation. The starting point forinterpretation should be the constitutional text, but he will refer to thewritings of the founding fathers, or framers of particular amendments. Theirwritings "display how the text of the Constitution was originallyunderstood" (Scalia 1997, A Matter of Interpretation, 38). (However,Scalia does not consider framers' intent when looking at legislation ratherthan the Constitution.)

2. Justification of originalism:

a. Concerned that common law (judge-made law) is incompatible with democracy.Constitution and amendments were approved by the people. If justices limitthemselves to original understanding of Constitution, judicial review isjustified (and limited).

b. Avoids problems of seeking current meaning. This is a common law or LivingConstitution approach, where Constitution morphs and evolves over time,according to needs of society and decisions of the Supreme Court. Avoids thejustices imposing their political values.

E. Criticisms of originalism

1. Dworkin: We should not consider framers’ concreteapplications of the principles, because constitutional amendments are writtenat a general level, allowing for adaptation over time

2. Brennan: Originalism feigns deference to the framers."But in truth it is little more than arrogance cloaked as humility."

Who are the framers? Did the framers agree? Can we discerntheir intent?

We look to the history, and to historical interpretation,"but the ultimate question must be, what do the words of the text mean inour time" (O'Brien 2008, 78).

3. Lawrence Tribe: Many of Scalia's decisions cannot beexplained by originalism (for example, Fourteenth Amendment incorporation,First Amendment flag-burning and R.A.V. cases).

a. Scalia's response: Stare decisis is an exception tooriginalism. Purpose of originalism is not to roll back established rights, butto prevent new rights (e.g. right to physician-assisted suicide).

b. Tribe's response: Your choice of when to use staredecisis is not determined by originalism - it is your choice.

c. Scalia's response: I admit that my choice of when toapply stare decisis leaves me open to the charge that I use my own values todecide. "I have never claimed that originalism inoculates againstwillfulness, only that (unlike aspirationism) it does not cater to it" (140).

Judicial Review and Democracy

2011-09-01T09:31:00.000-07:00

Judicial Review and Democracy

Constitutional Law I
Dr. Mark J. Richards

Marbury v. Madison, 1803

I. Why is this case important?

A. Americans tend to take the power of judicial review for granted in the U.S.

Judicial review is the power of courts to judge the constitutionality of government actions, and overturn those actions if they violate the Constitution.

B. Why is it controversial?

In Marbury, Chief Justice John Marshall claims power of judicial review for Supreme Court. Many people believe that the Constitution gives the courts the power of judicial review, but that is not the case.

C. Tension between liberalism and democracy

This case illustrates the tension between liberalism and democracy in the U.S. The practice of an unelected body of nine justices overturning legislation passed by democratically elected Congresses, Presidents, state legislatures, and governors violates the ideal of democracy. However, the Constitution embodies certain principles of liberalism (such as rights and due process) which are not necessarily consistent with democracy.

II. Facts

Discuss:

Who was the President at the time of this case?

What was his party affiliation?

Who was the previous President, and what was his party affiliation?

What did the Federalists do before Jefferson took office?

What did the Circuit Court Act do?

What was the purpose of the Organic Act?

What happened to the commissions?

Who was Marbury? What was his claim?

III. Issues

A. How to frame an issue in a court case

The issue should be phrased in the form of a question, and should incorporate the relevant legal rule(s) and the action that is relevant to the legal rule.

B. Issue #1

Does the failure of Madison to deliver the commission to Marbury violate Marbury's legal right, based on the Organic Act, to possess the commission?

C. Issue #2

Does the Supreme Court have the constitutional power of judicial review to refuse to issue a writ of mandamus as provided for by section 13 of the 1789 Judiciary Act if that provision violates the Constitution?

This involves two related issues.

1. Does the provision section 13 of the 1789 Judiciary Act regarding writs of mandamus violate Article III of the Constitution, which defines the Court's jurisdiction?

2. If so, does the Supreme Court have the power to overturn that act as unconstitutional? Does the Supreme Court have the power of judicial review?

IV. Holdings

A. How to state a holding

The holding should restate the issue in the form of a statement, rather than a question. The purpose is to state the court's definitive answer regarding the issue.

B. Holding #1

The failure of Madison to deliver the commission to Marbury violates Marbury's legal right, based on the Organic Act, to possess the commission.

C. Holding #2

The provision of Section 13 of the 1789 Judiciary Act regarding a writ of mandamus violates Article III of the Constitution. The Supreme Court has the power of judicial review, so it can refuse to issue a writ of mandamus.

(Analysis: Why would Chief Justice John Marshall even decide the first issue if the delivery of a writ of mandamus is unconstitutional, as he holds with regard to issue #2? He does it to spite Jefferson.)

D. Why are these holdings politically savvy? Discuss.

V. Reasoning

A. What is legal reasoning?

There are four key elements of legal reasoning.

1. Facts

2. Law

3. Policy

4. Politics and normative values
Lief Carter - Good reasoning harmonizes these elements, but they do not always fit together well. Judges need to justify their decisions, so this is why they engage in legal reasoning.

The reasoning in Marbury is politically astute, but is poor legal reasoning

B. On Holding #1, that Marbury has a right to the commission.

His commission was passed by appropriate legal procedures. The President appointed him, and the Senate confirmed him. It is a non-revocable 5-year appointment.

This point is reasonable, but it was unnecessary to decide this issue in light of the Court's other holdings.

C. On section 13 of the 1789 Judiciary Act being unconstitutional

1. Article III of the Constitution establishes original and appellate jurisdiction, and says that Congress can change appellate jurisdiction, but not original jurisdiction.(Original jurisdiction involves cases that go directly to the Supreme Court initially, rather than going to the Supreme Court on appeal. In original jurisdiction cases, the Supreme Court acts as a trial court.)

2. Section 13 of the 1789 Judiciary Act enlarges the original jurisdiction of the Court by allowing for writs of mandamus in cases based on original jurisdiction.

3. Analysis: This is not good legal reasoning. He could have viewed the provision regarding writs of mandamus in section 13 of the 1789 Judiciary Act as either:

a) Not enlarging but specifying original jurisdiction

b) Applying only to appellate jurisdiction

These are both reasonable interpretations that would have made the Act constitutional. Instead, he reads it in a way that makes it unconstitutional.

D. On the Court's power of judicial review

1. Article III of the Constitution states: "The judicial power shall extend to all cases . . . arising under the Constitution."

Analysis: What is wrong with this argument?

2. Judges and justices take an oath of office in which they swear to uphold the Constitution of the U.S.

Analysis: Why is this not a satisfactory reason?

3. Article VI says that the "Constitution . . . shall be the supreme law of the land."

Analysis: Why is this not a satisfactory reason?

4. "It is emphatically the province and duty of the judicial department to say what the law is."

Analysis:

VI. Discussion

A. Implications

B. Functional arguments for having the Supreme Court possess the power of judicial review

VII. Models of Supreme Court decision making

A. Attitudinal model

Jeffrey Segal and Harold Spaeth

1. Justices vote based on their political attitudes, also known as their policy preferences.

2. Why?

B. Strategic model

Walter Murphy. Later, Lee Epstein and Jack Knight, among others.

1. Attitudinal model assumes sincere voting behavior, but justices may need to depart from pursuing their sincere policy preferences due to :

a. Internal strategy

b. External strategy

C. Jurisprudential regime theory

Mark Richards and Herbert Kritzer

1. Attitudinal model is too simplistic, and so is a mechanistic legal model.

2. Incorporates attitudinal and strategic insights, but adds a jurisprudential dimension, following Martin Shapiro's concept of "political jurisprudence."

3. Justices use jurisprudential regimes to establish relevant case factors and/or how to weigh those factors (e.g. level of scrutiny). After a regime is established, the justices will evaluate those case factors differently.

Fall 2011 Office Hours and Contact Information

2011-08-26T08:08:00.000-07:00

Fall 2011 Office Hours and Contact Information

Tu 10-1 in 1106 AuSable Hall
Th 11-1 in faculty office, 104 Murray Living Center first floor (next to Honors)

E-mail: richardm@mail.gvsu.edu
Blog: http://freespeechpolitics.blogspot.com
Voice mail: 331-3457

Constitutional Law I Reading List By Date Fall 2011

2011-08-22T08:25:00.000-07:00

*REVISED*

Course Outline and Reading List
Notes: All Supreme Court case names refer to case opinions in the O'Brien texts (see table of contents or index of cases, bold font). I will also assign additional readings from the O'Brien texts that are not limited to particular cases, and these are indicated by page numbers.
All other readings are found on the course website under lecture outlines.

I. Judicial Review and Democracy

Tu 8/30: Introduction
The U.S. Constitution, O'Brien pp. 1-21

Th 9/1: Judicial Review and Democracy
Marbury v. Madison (1803)

Tu 9/6: Labor Day Holiday (no class)

Th 9/8: Liberty of Contract
O'Brien pp. 1020-1032
Lochner v. NY (1905)
West Coast Hotel Co. v. Parrish (1937)

Tu 9/13: Theories of Constitutional Interpretation
O'Brien pp. 23-27, 66-97, 174

Th 9/15: Jurisdiction and Justiciable Controversies
O'Brien pp. 102-128
Hein v. Freedom from Religion Foundation, Inc. (2007)
Elk Grove Unified School District v. Newdow (2004)
Baker v. Carr (1962)
Goldwater v. Carter (1979)

II. President and Foreign Affairs Power
Tu 9/20: Two Views
O'Brien pp. 232-240
U.S. v. Curtiss-Wright Corp. (1936)
Youngstown Sheet and Tube v. Sawyer (1952)
Dames and Moore v. Regan (1981)

Th 9/22: War-Making Powers
O'Brien pp. 264-269
The Prize Cases (1863)
War Powers Resolution (pp. 325-330)

Tu 9/27 Legal Policy Debates 1 and 2

Th 9/29: Emergency Powers and Civil Liberties
Ex Parte Milligan (1866)
Korematsu v. U.S. (1944)

Tu 10/4: Recent Issues in the War on Terror
O'Brien pp. 269-276
Hamdi v. Rumsfeld (2004)
Rasul v. Bush (2004)
O'Brien, pp. 330-337
Hamdan v. Rumsfeld (2006)

Th 10/6 Legal Policy Debates 3 and 4

III. Oral ArgumentReadings on oral argument, conference deliberations, opinion writing, and opinion days: O'Brien pp. 181-190
Tu 10/11 – Tu 10/18

IV. Presidential Accountability and Immunities

Th 10/20: Presidential Accountability and Immunities
Oral Argument Paper Due
O'Brien, pp. 453-460
US v. Nixon (1974)
Clinton v. Jones (1997)

V. Separation of Powers
Tu 10/25: Congressional Power
O'Brien pp. 416-424
INS v. Chadha (1983)
Clinton v. City of New York (1998)
*EXAM 1

VI. Federalism

Th 10/27: Federalism
O'Brien pp. 681-691
James Madison, Federalist 39 (find it on the Internet)

Federalism: Tenth and Eleventh Amendments
O'Brien pp. 728-735
Garcia v. San Antonio (1985)
Printz v. U.S. and Mack v. U.S. (1997)
Seminole Tribe of Florida v. Florida (1996)
Alden v. Maine (1999)
Nevada Department of Human Resources v. Hibbs (2003)

VII. National and State Power

Tu 11/1: Finish Federalism
The Scope of National Power
O'Brien pp. 542-553
McCulloch v. Maryland (1819)

National Commerce Power
O'Brien pp. 585-591
Wickard v. Filburn (1941)
Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964)
United States v. Lopez (1995)
United States v. Morrison (2000)
Gonzales v. Raich (2005)
Gonzales v. Oregon (2006)

Th 11/3: Finish National Commerce Power

Commerce Power and State Power

O'Brien pp. 691-697

Gibbons v. Ogden (1824)

Cooley v. Board of Wardens (1851)

Tu 11/8 Legal Policy Debates 5 & 6

Th 11/10

VIII. Takings Clause and Just Compensation

O'Brien, pp. 1054-1059, 1077-1079
Hawaii Housing Authority v. Midkiff (1984)
Lucas v. South Carolina Coastal Council (1992)
Kelo v. City of New London, Connecticut (2005)

Tu 11/15
Work on Analytic Paper assignment
Email me with a list of the legal issues in your case (richardm@mail.gvsu.edu)

Th 11/17: Legal Policy Debates 7 and 8

Tu 11/22:IX. Voting Rights and Electoral Politics
Voting Rights and Race
O'Brien pp. 833-844; 855-864
Grovey v. Townsend and Smith v. Allwright (see O'Brien p. 876)
Shaw v. Reno (1993)
Shaw v. Hunt (1996) (see p. 897)
Hunt v. Cromartie (2001)

Campaign Finance
O'Brien pp. 906-914
Buckley v. Valeo (1976)
McConnell v. FEC (2003)
FEC v. Wisconsin Right to Life (2007)

Th 11/24 Thanksgiving Holiday

X. Research paper panels

Tu 11/29 - Th 12/8 (Exact schedule to be determined)

Exam 2: Thursday, 12/1

Research paper due: Monday, December 12, 1 p.m.

Constitutional Law I Syllabus Fall 2011

2011-08-22T08:23:00.000-07:00

PLS 306 Constitutional Law I: Federalism and Separation of Powers

Mark J. Richards, Ph.D.

Fall 2011, TR 1-2:15, D1233 MAK

Office Hours in 1106 ASH: Tu 10-1, or by appointment. I will also have office hours Th 11-1 in PERL/International House, first floor faculty office, 104 Murray Living Center (GVSU's pre-law & international residence hall, located in Murray Living Center, next to Honors.)
E-mail: richardm@mail.gvsu.edu
Blog: http://freespeechpolitics.blogspot.com
Voice mail: 331-3457

Course Description: Federalism and separation of powers. This course examines the constitutional foundations of the power relationship between the federal government and the states, among the three branches of the federal government, and between the government and the individual, with special emphasis given to the role of the Supreme Court in a democratic political system. Prerequisite: PLS 102 or junior standing.

Course Objectives
- Understand how the U.S. political system and the Supreme Court relate to the concept of democracy
- Understand how the constitutional foundations of separate powers and federalism
- Understand the constitutional sources of presidential, congressional, state and national power
- Understand how the Constitution structures voting rights and electoral politics
- Make logical and consistent arguments
- Think critically and analytically
- Clearly express your opinions, both orally and in writing
- Articulate opposing viewpoints and respond to them

Course Requirements

Grades: Grades will be determined by the following:
5%: debate
30%: oral argument paper
10%: participation in class discussions
5%: attendance
30%: analytic research paper
10%: exam 1
10%: exam 2

You must complete all components, including the oral and written components of the oral argument and debate, to receive a passing grade.

Grade penalties will be imposed for late assignments. Make-up exams will not be given unless exceptional circumstances prevail. Leaving town early for vacation does not qualify as an exceptional circumstance.

Democracy Theme: This course is part of the Democracy General Education Theme.
Democracy Theme Objectives:
-Explore various definitions and concepts of democracy. The student will be able to explain how U.S. Supreme Court rulings have shaped the types and aspects of American democracy, such as varying conceptions of federalism and the separation of powers among the legislative, executive and judicial branches.
-Examine the role of the individual in democracies. The student will be able to evaluate the effect of U.S. Supreme Court rulings on the role of the individual in American democracy in areas such as voting rights.
-Analyze how social institutions embody democratic ideals, for example, legal, economic, civic, scientific, and educational institutions. The student will be able to analyze the extent to which democracy is embodied in the U.S. Supreme Court, Congress, the presidency, and state governments.

General Education Objectives:

This course is part of GVSU’s General Education Program.

The goal of the program is to prepare you for intelligent participation in public dialogues that consider the issues of humane living and responsible action in local, national, and global communities.

The program is designed to increase your knowledge and skills in the following areas:

Knowledge Goals
1. The major areas of human investigation and accomplishment - the arts, the humanities, the mathematical sciences, the natural sciences, and the social sciences.
2. An understanding of one's own culture and the cultures of others.
3. The tradition of humane inquiry that informs moral and ethical choices.

Skills goals
1. To engage in articulate expression through effective writing
2. To engage in articulate expression through effective speaking.
3. To think critically and creatively.
4. To locate, evaluate, and use information effectively.
5. To integrate different areas of knowledge and view ideas from multiple perspectives.

Grading policy:
The grades of "+" and "-" reflect variation among these categories.
A: The grade of A indicates the student has made an excellent effort, demonstrated thorough knowledge of the lecture materials and readings, and integrated knowledge in an analytic, concise, and cogent manner. The grade of A reflects that the student's work was superior with respect to all of these considerations, as compared to nearly everyone else in the class.
B: The grade of B indicates that the student has made an excellent effort, demonstrated solid knowledge of the lecture materials and readings, and integrated knowledge in an analytic, concise, and cogent manner. The grade of B reflects that the student's work could have been significantly improved with respect to at least one of these considerations.
C: The grade of C indicates that the student has made an average effort, demonstrated acceptable knowledge of the lecture materials and readings, and showed some integration of knowledge in an analytic, concise, and cogent manner. The grade of C reflects that the student's work could have been significantly improved with respect to at least two of these considerations
D: The grade of D indicates that the student has a serious deficiency in terms of at least one of the following factors: effort, knowledge of lecture materials and readings, and integration of knowledge.
F: The grade of F indicates that the student has a serious deficiency in terms of at least two of the following factors: effort, knowledge of lecture materials and readings, and integration of knowledge.

Grading scale
93-96 A
90-92 A-
87-89 B+
83-86 B
80-82 B-
77-9 C+
73-76 C
70-72 C-
67-9 D+
60-66 D
0-59 F

Preparation and participation: You should have the day’s readings completed before you attend lecture, and should be prepared to discuss the readings. The amount of reading is quite reasonable for a 300-level political science course. You will be able to better understand lectures if you are prepared.

Grading for participation is based on the quantity and quality of participation and assessed according to the professor's discretion. Attendance is graded separately. A complete absence of participation results in a grade of zero for the participation component of the course. A general guideline is that students seeking an average grade for participation (B-) should participate meaningfully at least once per lecture topic, although this will vary depending on the nature of a particular class session.

Classroom Etiquette: When we are present in the classroom we are here to learn about the course subject and participate in the class. I have found that some types of behavior can be detrimental to your own learning or that of your peers. In order to foster an atmosphere of participation and learning, I have developed the following guidelines:
1. Use of any any electronic device (e.g. computers, phones, etc.) is permitted only for the purposes of this class.
2. Please be polite and do not talk or whisper when other people are talking.
3. Please do not do any work or activity not related to the course (e.g. reading newspaper or doing work for another course).
4. If you need to leave the class early, please let me know in advance.
5. Please do your best to arrive on time.
Failure to comply with these guidelines will negatively impact your participation grade, determined at my discretion.

Lecture outlines: Outlines of lectures will be available at the course blog:
http://freespeechpolitics.blogspot.com
Keep in mind that these are only outlines, and you are still responsible for taking supplementary notes. The outlines are meant to facilitate your note taking and understanding, but are not a substitute for reading and participating in class.

Honesty: I expect full compliance with all GVSU policies and regulations regarding academic misconduct and plagiarism (see the GVSU Catalog and the Student Code). Please talk to me if you are having a problem. Don’t risk your reputation.

Access: If you have questions about anything related to the course, please visit or call during office hours, send e-mail, or set up an appointment.

Accommodations: If there is any student in this class who has special needs because of learning, physical or other disability, please contact me and Disability Support Services (DSS) at 616.331.2490. Furthermore, if you have a disability and think you will need assistance evacuating this classroom and/or building in an emergency situation, please make me aware so I can develop a plan to assist you.

Attendance policy: Attendance is an integral part of your university education. Interacting with your instructor and your peers is essential to your education. Attendance is worth 5% of your overall course grade, unless you miss 6 or more courses (resulting in an F for the course), and is determined by the policy elaborated here.

Certain assignments may require your mandatory attendance.

I will pass around an attendance sheet at the beginning of each class. Sign it when you are present. There is no need to provide a reason or excuse for your absence as all absences affect your attendance grade. Keep in mind you can miss two classes and still get an A for attendance so try to save those two absences for anything important.

Absences for events related to GVSU athletics, student organizations, etc. must be supported by signed documentation from, as appropriate, a coach, designated staff, or faculty advisor.

The grading scale for attendance:
0 absences: 100
1-2 absences: A (95)
3 absences: B (85)
4 absences: C (75)
5 absences: D (65)
6 or more absences: FAIL THE COURSE

Pre-law advising: I am a pre-law advisor for GVSU. Any students interested in attending law school should consult the pre-law FAQ on my course blog:

http://freespeechpolitics.blogspot.com

This pre-law FAQ is also available via:
http://gvsu.edu/prelaw

Course Material:
The following required book will be available at the bookstore:
1. David M. O'Brien. 2008. Constitutional Law and Politics, vol. one: Struggles for Power and Governmental Accountability. 7th Edition.

Some additional reading material in electronic form will be assigned during the semester.

Course Outline and Reading List
Notes: All Supreme Court case names refer to case opinions in the O'Brien texts (see table of contents or index of cases, bold font). I will also assign additional readings from the O'Brien texts that are not limited to particular cases, and these are indicated by page numbers.
All other readings are found on the course website under lecture outlines.

I. Judicial Review and Democracy

Tu 8/30: Introduction
The U.S. Constitution, O'Brien pp. 1-21

Th 9/1: Judicial Review and Democracy
Marbury v. Madison (1803)

Tu 9/6: Labor Day Holiday (no class)

Th 9/8: Liberty of Contract
O'Brien pp. 1020-1032
Lochner v. NY (1905)
West Coast Hotel Co. v. Parrish (1937)

Tu 9/13: Theories of Constitutional Interpretation
O'Brien pp. 23-27, 66-97, 174

Th 9/15: Jurisdiction and Justiciable Controversies
O'Brien pp. 102-128
Hein v. Freedom from Religion Foundation, Inc. (2007)
Elk Grove Unified School District v. Newdow (2004)
Baker v. Carr (1962)
Goldwater v. Carter (1979)

II. President and Foreign Affairs Power

Tu 9/20: Two Views
O'Brien pp. 232-240
U.S. v. Curtiss-Wright Corp. (1936)
Youngstown Sheet and Tube v. Sawyer (1952)
Dames and Moore v. Regan (1981)

Th 9/22: War-Making Powers
O'Brien pp. 264-269
The Prize Cases (1863)
War Powers Resolution (pp. 325-330)

Tu 9/27 Legal Policy Debates 1 & 2

Th 9/29: Emergency Powers and Civil Liberties
Ex Parte Milligan (1866)
Korematsu v. U.S. (1944)

Tu 10/4: Recent Issues in the War on Terror
O'Brien pp. 269-276
Hamdi v. Rumsfeld (2004)
Rasul v. Bush (2004)
O'Brien, pp. 330-337
Hamdan v. Rumsfeld (2006)

Th 10/6 Legal Policy Debates 3 & 4

III. Oral Argument
Readings on oral argument, conference deliberations, opinion writing, and opinion days: O'Brien pp. 181-190
Tu 10/11 – Tu 10/18

IV. Presidential Accountability and Immunities

Th 10/20: Presidential Accountability and Immunities
Oral Argument Paper Due

O'Brien, pp. 453-460
US v. Nixon (1974)
Clinton v. Jones (1997)

V. Separation of Powers

Tu 10/25: Congressional Power
O'Brien pp. 416-424
INS v. Chadha (1983)
Clinton v. City of New York (1998)
*EXAM 1

VI. Federalism

Th 10/27: Federalism
O'Brien pp. 681-691
James Madison, Federalist 39 (find it on the Internet)

Federalism: Tenth and Eleventh Amendments
O'Brien pp. 728-735
Garcia v. San Antonio (1985)
Printz v. U.S. and Mack v. U.S. (1997)
Seminole Tribe of Florida v. Florida (1996)
Alden v. Maine (1999)
Nevada Department of Human Resources v. Hibbs (2003)

VII. National and State Power

Th 11/3: Finish National Commerce Power

Commerce Power and State Power

O'Brien pp. 691-697

Gibbons v. Ogden (1824)

Cooley v. Board of Wardens (1851)

Tu 11/8 Legal Policy Debates 5 & 6

Th 11/10

VIII. Takings Clause and Just Compensation

O'Brien, pp. 1054-1059, 1077-1079
Hawaii Housing Authority v. Midkiff (1984)
Lucas v. South Carolina Coastal Council (1992)
Kelo v. City of New London, Connecticut (2005)

Tu 11/15 Legal Policy Debates 7 & 8

IX. Voting Rights and Electoral Politics

Th 11/17: Voting Rights and Race
O'Brien pp. 833-844; 855-864
Grovey v. Townsend and Smith v. Allwright (see O'Brien p. 876)
Shaw v. Reno (1993)
Shaw v. Hunt (1996) (see p. 897)
Hunt v. Cromartie (2001)

Tu 11/22: Campaign Finance
O'Brien pp. 906-914
Buckley v. Valeo (1976)
McConnell v. FEC (2003)
FEC v. Wisconsin Right to Life (2007)

Th 11/24 Thanksgiving Holiday

X. Research paper panels

Tu 11/29 - Th 12/8 (Exact schedule to be determined)

Exam 2: Thursday, 12/1

Research paper due: Monday, December 12, 1 p.m.

Privacy and Autonomy

2011-06-06T15:01:00.000-07:00

Privacy and Autonomy

Professor Mark Richards
I. Substantive due process, comparing Scalia to Tribe

A. Does fourteenth amendment due process clause encompass rights not mentioned in the Constitution?

1. Originalist (Scalia): no, unless that right is included within the meaning established by the framers of the fourteenth amendment.

2. Tribe: yes (but note his recent declaration that he will avoid substantive due process arguments).

B. Is the right a fundamental right?

1. The originalist is inclined to think that new rights are not fundamental rights, because in most cases, the behavior that would be protected by a new right has traditionally been regulated.

2. Tribe would be more likely to argue that the new right is fundamental, but it depends on the case.

C. What is the appropriate standard of review?

1. Originalist: Rational basis test. The law must be reasonably related to a legitimate government interest, in order to be constitutional.

2. Tribe: Strict scrutiny standard. The law must be necessary to achieve a compelling government interest, in order to be constitutional. "Necessary" is sometimes referred to as "narrowly tailored." The idea is that the policy should be the least restrictive means of achieving the government interest. If there is another policy that could achieve the government interest to the same extent, but be less restrictive of the liberty involved, then the government's chosen policy is NOT narrowly tailored.

3. Standard of review is likely to determine whether the law is found to be unconstitutional. Strict scrutiny is a very difficult standard for the government to meet to prove constitutionality, while the rational basis test is fairly easy to meet. It is sometimes said that strict scrutiny is strict in theory, but fatal in fact.

II. Bowers v. Hardwick (478 U.S. 186, 1986)

A. Facts
Officer enters Hardwick's bedroom to serve him with a warrant on an unrelated charge. Hardwick's roommate had allowed the officer to enter. Upon seeing him in bed with another male, the officer arrested him based on Georgia's sodomy statute. The local prosector declined to prosecute, but Hardwick and the ACLU filed a lawsuit challenging the constitutionality of the law. The 11th Circuit Court of Appeals overturned the sodomy law.

B. Background
According to O'Brien, Justice Brennan reversed his vote to hear oral argument in the case because he was fearful of how the Court would decide. However, after Brennan changed his vote regarding whether to grant certiorari, Chief Justice Burger reversed his vote, which gave the Court the four votes necessary to grant cert.
Laurence Tribe represented Mr. Hardwick. Tribe pitched his arguments at Justice Powell, as Tribe anticipated that Powell would be the swing vote in the case. (Tribe was right. In conference deliberations after oral argument, Powell had leaned toward overturning the law. Later, Powell reversed course. After Powell retired, he publicly admitted that he regretted his final decision in the Bowers case.)

C. Issue:

1. Majority (White): Does the liberty component of the due process clause of the fourteenth amendment protect an individual's fundamental right to homosexual sodomy?

2. Dissent (Blackmun): Does the liberty component of the due process clause of the fourteenth amendment protect an individual's fundamental right to control the nature of his or her intimate associations with others?
Note that the dissent frames the issue at a more abstract level.

D. Holding: The due process clause of the fourteenth amendment does not protect an individual's right to engage in homosexual sodomy.

E. Reasoning

1. Homosexual sodomy is not a fundamental right. It can not be said that the right to engage in homosexual sodomy is so fundamental that neither justice or liberty would exist if it was sacrificed. Nor can it be said that the right is deeply rooted in the history and tradition of this nation.

2. Georgia's law easily passes the rational basis test. Morality/decency and protecting public health and welfare are all legitimate state interests.

3. The Court should not create new rights that are not grounded in the Constitution.

F. Powell's concurrence
The potential 20-year sentence raises a possible eighth amendment cruel and unusual punishment issue, but since Hardwick was not actually prosecuted, this issue is not before the Court.

G. Dissents

1. Blackmun: This case is not about a right to homosexual sodomy. It is about the right of an individual to control the nature of his or her intimate associations with others. Sexual intimacy is "a sensitive, key relationship of human existence central to family life, community welfare and the development of human personality," according to Paris Adult Theatre I. V. Slaton. This right is also encompassed by the idea of a right to be let alone.

2. Blackmun: The Georgia law is not specifically targeted at homosexuals. It could be used against heterosexuals as well.

3. Blackmun: The state interests are not sufficient to justify the law. No evidence is offered on public health. Private sex acts do not affect public morality. There is no harm done to others.

4. Stevens: See Griswold and Eistenstadt for the proposition that married and unmarried couples alike have the right to control intimate sexual decisions. If the state is acting only against unmarried homosexuals, this raises a selective enforcement claim (under the fourteenth amendment equal protection clause).

III. Lawrence v. TX (2003)
A. Facts

Tx. Penal Code 21.06: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."

(21.01 Deviate sexual intercourse: "any contact between any part of the genitals of one person and the mouth or anus of another person; or . . . the penetration of the genitals or anus of another person with an object.")

B. Issue(s)
"We granted certiorari to consider three questions:

1. Whether petitioners' criminal convictions under the Texas Homosexual Conduct law which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples violate the Fourteenth Amendment guarantee of equal protection of laws?

2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment?

3. Whether Bowers v. Hardwick should be overruled?"

C. Holding
Majority holds that the convictions violate the liberty component of the due process clause of the fourteenth amendment, and Bowers is overruled.

D. Reasoning (Kennedy, 6-3)

1. Bowers overruled

Misunderstood claim of liberty

Mistaken view of history

Casey and Romer cast doubt on Bowers

2. Meaning of liberty - spatial and transcendent (autonomy) dimensions

3. Stigma of conviction is not trivial: subject to registration laws in four states

4. Must protect minority from majority tyranny

5. Meaning of due process clause is open

E. O'Connor's Concurring opinion
Focus on equal protection

F. Dissents
Scalia

Majority violates stare decisis.

There is a legitimate state interest. "The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion."

Misc.:
"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

"One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed."

Thomas: This law is uncommonly silly, but there is no right of privacy in the Constitution.

IV. The equal protection clause of the 14th Amendment and homosexuality

A. Romer v. Evans (116 S.Ct. 1620, 1996): Does a Colorado state constitutional amendment that forbids localities from enacting ordinances outlawing discrimination against homosexuals violate the equal protection clause of the fourteenth amendment?

B. Court holds that it does violate the fourteenth amendment. Justice Kennedy reasons that the amendment can not even pass the rational basis test, because there is no legitimate government interest. The only interest is discrimination against gays and lesbians, and that is not a legitimate interest.

C. Scalia dissents. His rationale is that Colorado is merely making it harder for homosexuals to receive special protection. Colorado is merely trying to preserve traditional sexual morality. This is no different than a constitutional amendment banning polygamy.

307 Analytic Paper Spring 2011

2011-05-24T08:28:00.001-07:00

PLS 307 Analytic Research Paper and Presentation
Spring 2011
Dr. Mark J. Richards

You have been issued a special invitation to participate in a conference M 6/20. Your paper is due via email at 6 pm on W 6/22. The theme of the conference is “From Rehnquist to Roberts: Freedom of Expression in the New Millennium.” The conference will examine the major free expression decisions of the Rehnquist and Roberts Courts.

Grading (assignment counts for 30% of your PLS 307 grade)
95% of your grade on this assignment will be based on your paper
5% of your grade on this assignment will be based on your oral presentation for the conference panel
In grading your final paper, the main criteria I will take into account will be:
How well did the paper demonstrate thorough preparation and research?
How well written was the paper in terms of style, organization, and mechanics?
Did the paper take into account major counterarguments and respond to them?

Oral Presentation for conference panel
Prepare a 7-10 minute presentation based on your research. The presentation should highlight your main findings. You will be graded based on length and quality of presentation. Do not just read from your paper. You should prepare a presentation of appropriate length and practice it to make sure that you are within the time limit. Cutting and pasting portions of your paper and adapting this material to the panel format is encouraged. You can use PowerPoint, but it is not required. I will group the panels according to topic. I will serve as the discussant for the panel, and offer feedback on each paper. You will be encouraged to offer questions and comments on your peers’ presentations.

Page limit and Format
6 double-spaced pages minimum (to avoid an F). 10 double-spaced pages maximum.
Use page numbers.

Your research should be written in American Political Science Association (APSA) format, unless indicated otherwise here (see section on case citation below). Information on APSA format for citations, references can be found at:
http://www.wisc.edu/writing/Handbook/DocAPSA.html

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.

Citing briefs. Use Petitioner's Brief, Respondent's Brief, or Amicus Brief of (Group Y), and page number (indicated by * in Westlaw).

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).
(Brief of amicus ACLU, Schwarzenegger v. Entertainment Merchants Association, 2010 WL 3555555, page)

Second time:
(Brief of petitioner Schwarzenegger (or respondent ESA or amicus ACLU), page).

Choosing a case
Everyone will analyze one of the major cases decided during the 2000-2009 terms (the years 2001-2010), based on the attached tables. I will pass around a sign-up sheet in class so you can pick your case. Everyone will do a different case.

Finding your case
Westlaw Directions:
1. Start at the GVSU homepage: www.gvsu.edu
2. Select "Library."
3. Scroll down to and click "Databases A-Z."
4. Click on "W."
5. Click on "WestLaw Campus." May next require logon if at home.
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 S. Ct. 719. 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 - be careful, these can be very long documents. You may want to copy and paste the file to MS Word.
9. Note: When you use Westlaw it will provide multiple West keynotes at the top of the cases. These are not officially part of the opinion.

Writing
Essentially you are analyzing one case in great depth. Your required research is to read and analyze your case and related briefs. You can refer to key precedents. I do not want law review commentary or any other sources. In analyzing your case, here are some of the questions you should consider:

What are the main free expression issues in the case? If there are other issues beyond freedom of expression, you should mention them briefly, but do not spend any more time on them. I encourage you to check with me to make sure you have the issues correct. There may be more than one issue.

How did the justices vote on the free expression issues? Make a table something like this:

Justice, Appointing President as indicator of attitudes, Issue 1 (briefly describe), Issue 2
Rehnquist (RN, RR) Anti-speech Anti-speech
Stevens (GF) Pro-speech Anti-speech
O’Connor (RR) Anti-speech Anti-speech
Scalia (RR) Pro-speech Anti-speech
Kennedy (RR) Anti-speech Anti-speech
Souter (GB) Pro-speech Anti-speech
Thomas (GB) Anti-speech Anti-speech
Ginsburg (WC) Pro-speech Pro-speech
Breyer (WC) Pro-speech Pro-speech
Roberts (GWB) If necessary
Alito (GWB) If necessary
Sotomayor (BO) If necessary
Kagan (BO)If necessary

Pro-speech votes are those in favor of the speaker. Anti-speech votes are those in favor of the government or against the speaker. If it is not a speech issue, you can label the vote pro- or anti-government. Be sure to get the voting alignments correct per issue. Please note in the text which justices wrote an opinion and which justices joined each opinion.

Did the majority opinion apply a standard of review? (If there is not a majority, use the plurality opinion.) If so, what standard did they apply? Why? Did the concurring or dissenting justices apply a different standard? Why? How did the standard apply, and was there disagreement? (E.g. If the justices applied strict scrutiny, explain whether they found a compelling government interest and whether they found the government used the least restrictive means to achieve that interest.) If there is not a dissenting opinion, use the view of the party that lost instead.

What are the main precedents used by the majority? Did the dissenting justices apply the same precedents or different ones? How did the precedents apply? Was there disagreement over how the precedents applied? (Note on citation: Be sure to attribute sources correctly. If you are quoting the precedent as you read it from your case, be sure to cite both sources, otherwise it gives the false impression that you read the precedent directly.)

Did the politics of the justices matter in their decision making? (Refer back to table. Is there anything in the written opinions that could be considered as support for the proposition that the politics of the justices mattered?)

Analysis of Briefs: In Westlaw, after you have found the case and opened it, at the top of the page, immediate after the citations, click on the link “Briefs and Other Related Documents.” Read the petitioner’s brief and the respondent’s brief. The petitioner is the party listed first in the Supreme Court opinion and is the party challenging the ruling of the highest court that took the case prior to it coming to the Supreme Court. There may also be a number of briefs labeled “amicus curiae,” which means friend of the court. Count how many are in favor of petitioner and respondent, and note that in your paper; if there are none, note that instead. Also note whether there was an amicus brief filed by the United States, and which side the U.S. supported. If the U.S. is a party to the case, the U.S. brief would be either a petitioner or respondent brief. Read one amicus curiae brief, if available, and note which one you read in your paper. In your analysis of the petitioner, respondent and amicus curiae briefs, discuss the following: Did you find any legal, policy, or normative arguments in any of the briefs that were not addressed by the Court’s opinion(s)? In your view, which side wrote a better brief, and why? For the amicus brief, why do you think this group filed the brief? E.g., did the group filing the brief make any normative or policy arguments that seemed to reflect the perspective of the group? Did you find these arguments persuasive and did they matter to the Court?

Did the Supreme Court majority make the right decision, in your view? In answering this, think about the relevance of law, precedent, politics, normative values, and policy. By policy I mean the effect it will have on future cases and on how policy is made or how people behave. As you answer this, be sure to explain the best arguments of the opposing side, and why you think they are wrong.

What issues did the justices leave unresolved, if any? What additional issues are likely to arise in the future as a result of the Court’s decision?

NAACP Paper

2011-05-24T08:27:00.000-07:00

Tushnet NAACP Paper
Mark J. Richards, Ph.D.
Constitutional Law II

This paper will count for 10 percent of your overall course grade. Please include your name on the first paper but do not use a cover page. The paper should be a minimum of two full pages and a maximum of three full pages.

The paper covers The NAACP's Legal Strategy Against Segregated Education, 1925-1950 by Mark V. Tushnet. The paper will be due Monday, June 13 and we will hold a discussion of the book on that day. Your attendance is required.

Grading criteria (I will grade using a rubric based on these criteria):

Demonstrate understanding of the book's concepts.

Demonstrate that you read the book by citing it correctly and using brief, relevant quotations.

Answer the questions directly.

Write with correct grammar, usage and spelling.

Write with clarity and concision.

Citations:

The primary source will be the Tushnet book so you can cite key ideas and direct quotes with parenthetic cites as (Tushnet page number), e.g. (Tushnet 123). If you are citing a secondary source contained within the book then you should cite as: (case name or author name, year, page, as cited in Tushnet page), e.g. (Brown v. Board of Education 1954, 513, as cited in Tushnet 123) or (Martin Luther King 1960, 513, as cited in Tushnet 123). I do not need a reference page.

Content of paper.

Part I. Each student will sign up to answer a particular question from the book. Your answer should be about 1 page. You will be expected to explain your answer to the class during the discussion of the book.

Part II. (about 1 page; everyone writes on this question), Chapter 4: Thurgood Marshall and the Maryland Connection

14. What factors led to success or failure in litigation? (You may focus on 1-2 factors.)

Part III. (about 1 page; everyone writes on this question, focusing on either Sweatt or McLaurin), Chapter 7: The Strategy of Delay and the Direct Attack on Segregation

23. How did the justices' opinion in Sweatt or McLaurin (choose one only) pave the way for a direct attack on the constitutionality of segregation?

To guide your reading of the book, I am including all of the questions below, even though you are not responsible for answering all of them in your paper. Please circle the one you signed up for in part I.

The NAACP's Legal Strategy Against Segregated Education, 1925-1950

Mark V. Tushnet

Questions for PLS 307, Professor Mark Richards

Introduction

1. What are the guiding theories of Tushnet's approach?

Chapter 1: Setting the Course: The Grant from the Garland Fund

2. Why was W.E.B. DuBois critical of litigation?

3. How did advocates of litigation respond to the "economic instrumentalist" perspective?

4. How did political skills and resources affect the NAACP in the early years?

Chapter 2: The Legal Background: From Margold to Houston

5. What was the strategy of the Margold Report?

6. Why didn't they focus on equalization of resources?

7. How was the strategy shaped by the legal environment?

8. Why did the NAACP prefer black lawyers?

9. Why was Houston appointed as special counsel?

10. How did Houston change Margold's strategy?

Chapter 3: The Influence of the Staff

11. How did the need to organize the NAACP membership and strengthen it against Communist competition influence the litigation strategy?

12. Why did Houston pursue a flexible strategy of litigation?

13. Why did Thurgood Marshall get a full-time NAACP position?

Chapter 4: Thurgood Marshall and the Maryland Connection

14. What factors led to success or failure in litigation?

Chapter 5: Securing the Precedents: Gaines and Alston

15. What was the significance of the Gaines case?

16. How did it enable a shift in strategy?

17. What were some of the difficulties encountered in the pay equalization cases?

Chapter 6: The Campaign in the 1940s: Contingencies, Adaptations and the Problem of Staff

18. What were some of the problems with the university cases?

19. What problems did they encounter with salary suits?

20. How did this lead to a change in strategy?

21. How did the NAACP change institutionally in the 1940s? Why?

Chapter 7: The Strategy of Delay and the Direct Attack on Segregation

22. What factors led Marshall to seek a direct attack?

23. How did the justices' opinions in Sweatt and McLaurin pave the way for a direct attack?

24. What was the relevance of the sociological argument?

25. What was the relevance of legal realism?

Conclusion: Some lessons from the campaign

26. Ethics: Did the NAACP solicit and/or manipulate clients?

27. Did the NAACP represent the black community?

28. Why is the internal explanation of the NAACP's legal actions better than the external explanation?

Oral Argument Assignment Spring 2011

2011-05-11T13:34:00.000-07:00

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 9^th 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.

office hours spring 2011

2011-05-02T12:43:00.000-07:00

Spring/summer 2011 Office Hours and Contact Information

Spring: M & W 5-6 pm in 410 Eberhard Center (downtown), or by appointment (please email me)
Summer: By appointment (please email me)
E-mail: richardm@mail.gvsu.edu
Blog: http://freespeechpolitics.blogspot.com
Voice mail: 331-3457

Constitutional Law II Reading List By Date Spring 2011

2011-05-02T12:41:00.001-07:00

COURSE OUTLINE AND READING LIST:

M 5/9

Introduction
U.S. Constitution and Amendments

Begin reading Tushnet, The NAACP's Legal Strategy against Segregated Education, entire, to be completed by 6/14. Details on related NAACP paper TBA.

I. Legal Reasoning and Constitutional Interpretation
O'Brien, pp. 125-26, 66-74.

II. Race, the Death Penalty, and the Eighth Amendment

W 5/11

continue section II.
O'Brien, pp. 1168-78
McCleskey v. Kemp (1987)
Roper v. Simmons (2005)

III. Constitutional Interpretation: Theories and Politics
O'Brien pp. 23-27, 75-97, 174
Via JSTOR (go to GVSU home quick links, then library, then databases, then JSTOR):
-Jeffrey A. Segal and Albert D. Cover, "Ideological Values and the Votes of U.S. Supreme Court Justices," The American Political Science Review, Vol. 83, No. 2 (Jun., 1989), pp. 557-565
-Mark J. Richards and Herbert M. Kritzer, "Jurisprudential Regimes in Supreme Court Decision Making," The American Political Science Review, Vol. 96, No. 2 (Jun., 2002), pp. 305-320

*Introduce oral argument exercise

M 5/16

IV. First Amendment: Freedom of Expression
Fundamental Principles
Texas v. Johnson (1989)
Cohen v. California (1971)

First Amendment: Print, Broadcast, Cable, Internet, & Video Games
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)

V. Oral Argument preview:
Reading assignments to be announced in oral argument assignment handout

W 5/18

Continue IV. First Amendment: Advocacy of Illegal Action
O’Brien, pp. 419-447

M 5/23 Continue section V.
Oral Arguments – mandatory attendance

W 5/25

ORAL ARGUMENT PAPER DUE

*Introduce paper assignment

VI. First Amendment: Religious Liberties

Establishment Clause
O’Brien, pp. 718-728
Lemon v. Kurtzman (1971)
Zobrest v. Catalina Foothills School District (1993)
Zelman v. Simmons-Harris (2002)

Free Exercise Clause
O’Brien, pp. 819-825
Employment Division, Department of Human Resources of Oregon v. Smith (1990)
Church of the Lukumi Babalu Aye v. City of Hialeah (1993)

M 5/30 MEMORIAL DAY
*NO CLASS*

W 6/1

*Exam 1*

VII. The Fourth Amendment Guarantee Against Unreasonable Searches and Seizures
O'Brien pp. 870-78, 914-15
Minnesota v. Dickerson (1993)
United States v. Leon and Massachusetts v. Sheppard (1984)

VIII. The Fifth Amendment Guarantee Against Self-accusation
O'Brien, pp. 1028-45
Miranda v. Arizona (1966)
Arizona v. Fulminante (1991)
Dickerson v. U.S. (2000)

M 6/6

VIII. Substantive Due Process: Privacy, Autonomy and Reproductive Freedom (Fifth and Fourteenth Amendments)

Abortion

O'Brien, pp. 1236-46

Roe v. Wade (1973)

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)
Gonzales v. Carhart (2007)

Post-Roe rulings on Abortion, pp. 1266-69

Privacy and Autonomy

O'Brien, pp. 1232-35, 1296-99, 1548-49
Bowers v. Hardwick (1986)

Lawrence v. TX (2003)

W 6/8
IX. Equality: Race, Gender and the Fourteenth Amendment Equal Protection Clause

Introduction
O'Brien, pp. 1334-43

Racial Discrimination and State Action
O'Brien, pp. 1344-58
The Civil Rights Cases (1883)
Shelley v. Kraemer (1948)

M 6/13

*NAACP Paper Due*

Discuss Tushnet, The NAACP's Legal Strategy against Segregated Education

School Desegregation
O'Brien, pp. 1388-1400
Brown v. Board of Education of Topeka, Kansas I (1954)
Brown v. Board of Education of Topeka, Kansas I (1955)
Parents Involved in Community Schools v. Seattle School District #1 (2007)

W 6/15

Affirmative Action
O'Brien, pp. 1456-63
City of Richmond v. J.A. Croson (1989)
Adarand Constructors, Inc. v. Pena (1995)
Gratz v. Bollinger (2003)
Grutter v. Bollinger (2003)

Equal Protection and Gender Equality
O’Brien, pp. 1513-16
United States v. Virginia (1996)
Craig v. Boren (1976)

M 6/20

*Exam 2*

XII. Second Amendment

Westlaw: District of Columbia v. Heller, 128 S.Ct. 2783, 2008.

PRESENTATIONS

W 6/22 *ANALYTIC RESEARCH PAPER DUE*