Contact Information
Email: arosenth@gustavus.edu
Phone: 933-7437
Office: Old Main 204H
Office Hours: Wednesdays, 10:30am-12:30pm, and by appointment
Course Description
The purpose of this course is to give the student an understanding of constitutional rights and liberties as the interpretation of them has evolved over time. It will treat the Constitution and the Supreme Court not as abstract islands unto themselves but as real entities shaping and being shaped by the times and the institutional context in which they exist.
Part 1 of this course examines the invention and development of American constitutional principles, specifically focusing on the relationship between the Supreme Court and the rest of the political system in the definition of political rights and liberties. We will focus on the overtly political rights and liberties protected by the Constitution and give primary attention to First Amendment, Eighth Amendment, and privacy concerns.
Part 2 of this course focuses on the Fourteenth Amendment and related case law. We will study the variety of specific guarantees for groups as well as the emergence of protection for fundamental rights. In particular, we will investigate the framework of equal protection for people of color, women, and the regulation of sexuality.
For the most part we will be reading and discussing written opinions of the United States Supreme Court. Your textbook also contains excellent explanatory material that provides the historical, political, social, and economic context for these opinions. Law schools typically focus on the doctrines and rationales of the opinions, and so will we, but we will also spend a good deal of time on their context, and their social and political effects. This enables us to have a more informed and realistic picture of the Supreme Court as a political institution.
Course Objectives
By the end of the semester, students will:Required Texts
Course Requirements and Assessment
I need to emphasize at the outset that this is a very demanding course. Plan to spend a minimum of 3 hours outside of class for each hour in class. That is the amount of time I estimate you should spend on reading, briefing cases, and preparing for class sessions. Weeks in which you have additional assignments due will require more time. At a minimum, I anticipate that you will spend 12 hours per week on this course.
Legal reasoning can be dense, complex, obfuscatory and at times non-existent. Consequently, class attendance, constant reading, and participation are essential and mandatory. I expect every student to attend virtually every class, to be on time, and to be prepared. Our agenda requires you to do a large amount of reading and to do it carefully and punctually.
If you do not feel that your schedule or interest will support such a heavy reading load and time commitment, please do not take this class.
Attendance
Consistent attendance is a minimum condition of class membership. Students do not receive credit for attending but failure to attend class will negatively affect grades. In a discussion-oriented class such as this one, missing class discussion is missing coursework that cannot be made up.
Participation (25%)
This is an upper-level seminar and we will proceed by means of discussion. Students should be prepared to raise questions and offer critical insights about the reading material and the issues that it raises. Vigorous class debate and discussion is both expected and desirable.
Presence alone does not earn participation credit: a passively silent and/or clearly unprepared student earns no credit for participation. You need not speak constantly to participate meaningfully in class. Attentive, thoughtful, respectful, and reflective listening to others constitutes one form of active participation. Come to class having read the material carefully and thoughtfully. Participate in class to the greatest extent you can. Speak when you have something to say. Ask questions when you have them. Listen carefully and respectfully to others. Engage in small group discussions. Come to my office hours. Send me e-mail.
Note, however, that although I construe course participation broadly, you cannot earn an A, B, or C for participation without speaking in class on a regular basis. At some point in your life, you will have to speak publicly. You might as well start now.
Late arrivals are distracting and disrespectful. Persistent tardiness will lower your participation grade.
Case Book (25% -- 10%, 10%, 5%)
Since the course will use the case method in examining court decisions, it is important that you be prepared to participate at each class meeting. This course rests upon the conviction that constitutional law is more than just a collection of legal rules. It is a blend of politics, history, and interpretation. Because the Supreme Court acts by deciding cases, students must acquire a talent for reading and comprehending cases as a means toward discovery of what the Supreme Court has done. Briefing individual cases and maintaining a casebook of those cases best accomplishes this. For information about how to brief a case, see the "How to Brief a Case" section of this syllabus.
Students must bring their casebooks to every class. Students are required to brief each case prior to the class for which it is assigned, and be prepared to present assigned cases for the class. In presenting the case, the student will summarize the facts and findings of the Court and will provide an analysis of the logic employed in reaching the majority opinion. A summary of any concurring or dissenting opinions is also necessary. I will collect each student's casebook twice during the semester and once at the end of the semester. These dates will not be announced ahead of time, so it is essential that your casebook is present at each class and is kept up to date. In addition, I may, on occasion, collect briefs due for a particular class. These "spot-checks" also count toward your casebook grade.
Students have two "free passes" regarding casebook collection that they may use during the semester. Use of the "free pass" option must occur before I announce whose casebooks are to be submitted that day. To use your free pass, simply hand me a sheet of paper with your name, the date, and the words "free pass" before class begins. You are still responsible for briefing the cases assigned for the date on which you use your free pass. Note: use of a free pass does not excuse you from a "spot-check" of briefs due on that day.
I will evaluate casebooks based on their overall completeness and the quality of the briefs within. Briefing cases can be challenging and I strongly encourage you to see me early in the semester to discuss your briefs.
Note that all the usual rules pertaining to academic honesty apply to case briefs. While you are encouraged to work with classmates on understanding the Court's opinions, your case briefs must ultimately reflect your own analysis and thought.
Case Presentations (10%)
Each student will present one case to the class. This will require you to 1. prepare a 12-15 minute presentation of the case to the class, and 2. field questions from class members (and me) about the content and significance of the case.
You may choose the case you would like to present from the list of cases we will be reading this semester. Look over the list of required briefs and then email me your top three choices. I will assign cases on a first-come, first-served basis. The following cases are not options for case presentations:
Your presentation should be based on the full court opinion rather than the edited versions in the O'Brien text. Note that cases range from very short (5-10 pages) to very long (230+ pages). Good sources for the full opinion include the Lexis-Nexis database available through the library and the Legal Information Institute at Cornell University. I must receive an email copy of your brief of the case you are presenting at least one class day before you present the case to the class. So, fr example, if you are presenting on Tuesday at 2:30pm, I must have your brief in my inbox by Monday at 2:30pm. I encourage you to consult with me regarding your presentation plans.
Essay (10%)
1000-1250 words; due in class on February 28th. Assignment specifics will be provided on a separate handout.
Moot Court Exercise (30%)
This semester, we will, as a class, conduct a moot court session that will simulate the appeal of Kennedy v Louisiana, a case that the U.S. Supreme Court will also be hearing this semester. Early in the semester, you will be assigned a role within that proceeding, either as attorneys representing the appellants, appellees, or as justices hearing the case. In whatever role you have, you will be expected to conduct research and to interact with your colleagues in such a way that will produce the strongest case or court opinion possible. This will involve scheduling and attending meetings throughout the semester with members of your group, conducting quality research, writing and revising drafts of legal briefs and opinions and engaging in constructive discussion with your colleagues.
You will be responsible for uncovering, reading, disseminating, and organizing as much material as possible related to the issues raised in Kennedy v Louisiana, court precedents related to it, and the arguments for and against the constitutionality of the policy at issue in the case. Justices, as well as attorneys, need to engage in such research. Otherwise, it will be difficult for them to weigh the merits of the briefs presented to them and to write their own opinions.
A note about the date for the moot court exercise: At our third class meeting on Tuesday, February 19, we will vote as a class for the date and time of the court's oral arguments. Attendance at this session is mandatory. Once we have settled upon the date, it is your responsibility to arrange your schedule so that you can attend the oral arguments. No excuses. No exceptions.
More specific information regarding the moot court exercise, assignment dates, and the responsibilities of each role will be provided on the "Moot Court Exercise" handout distributed in class.
Accommodations
Section 504 of the Rehabilitation Art of 1973 and the Americans with Disabilities Act (1990) work together to ensure 'reasonable accommodation' and non-discrimination for students with disabilities in higher education. A student who has a physical, psychiatric/emotional, medical, learning, or attentional disability that may have an effect on the student's ability to complete assigned course work should contact the Disability Services Coordinator in the Advising Center, who will review the concerns and decide with the student what accommodations are necessary. Upon receipt of documentation from Laurie Bickett, Disability Services Coordinator, I will be happy to work with you on appropriate accommodations.