Baylor University
PSC 4342 Public Policy and the Courts
Spring 2011
Professor Brogdon
Department of Political Science
Office Location: Burleson 302B
Office Hours: M/F 2:30-5:00
Email: [email protected]
Course Description and Objectives:
Americans settle an uncommon proportion of policy questions through a legal process rather
than a political one. In effect, this means that courts play a substantial role in the making of
public policy. This course will explore the complex and controversial relationship between
public policy and courts of law in the United States. The course will approach this relationship
from both a normative and an empirical perspective. That is to say, we will examine the role that
courts should play as well as the role that they actually play in the making of public policy.
The principal objectives of the course are the following.
1. To familiarize students with the historical development of the courts’ involvement in several
major areas of public policy
2. To acquaint students with the major institutional constraints on judicial policy-making
a. Congressional regulation of court procedures and jurisdiction
b. Opposition from other governmental institutions
c. Opposition from lower courts
d. Want of enforcement power
e. Presidential appointment power
3. To familiarize students with alternative understandings of the constitutional role of courts in
the making of public policy, especially as these understandings rely upon different theories of
separation of powers, individual liberty, and constitutional democracy
Required Texts:
Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton)
Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago)
Bradford Wilson and Ken Masugi, eds., The Supreme Court and American Constitutionalism,
(Rowman and Littlefield)
Constitution of the United States of America (any pocket edition)
Robert McCloskey, The American Supreme Court (University of Chicago Press), any edition
Recommended Texts:
Jacque Barzun, Simple and Direct: A Rhetoric for Writers
Kate L. Turabian, Guide for Writers of Research Papers, Dissertations, and Theses
Course Requirements:
Participation (25%): Come to class prepared to discuss the assigned readings with your peers and
to answer any questions posed to you, verbally or in written form. Unpreparedness will be
detrimental to the participation grade.
Research Paper (25%): The research paper for the course will be completed in the stages
detailed below. The due date for each stage is listed at the left. Late assignments will only be
accepted under the most extenuating circumstances, subject to prior approval and a deduction of
points. Each assignment should be submitted as a Word document using the appropriate link in
the Assignments section of Blackboard. Formatting and citations should follow either the
Turabian manual (Chicago Manual of Style is acceptable as well) and should be double spaced
throughout in 12 point Roman font. You are free to use either the footnote/bibliography or the
in-text/works-cited method of citation. I have also recommended a short book on rhetoric by
Jacques Barzun. Reading even the first couple of chapters will improve your writing.
Fri. 1/28: Paper Proposal – Submit two or three possible research topics in a Word
document. Each question should include a research question followed by a brief
abstract. This assignment will be graded for both its rhetorical and substantive
quality, i.e., proper syntax, word choice, spelling, grammar, and punctuation will
be considered along with the substantive quality of the research question.
Fri. 2/18: Annotated Bibliography – Submit an annotated bibliography of the sources,
both primary and secondary, that you plan to use for your research paper. It
should include a properly formatted citation for each source. Each citation should
be followed by a brief explanation of the source's contribution to your research.
This assignment will be graded for proper formatting as well as rhetorical and
substantive quality.
Sat. 4/2: Research Paper – Submit a completed research paper not more than 12 pages in
length (exclusive of title page and bibliography). Inadequate papers will be
returned for revision and penalized half a letter grade. If you have any doubts
about the quality of your paper, make time to sit down with me well before the
deadline.
Midterm Exam (25%): No make-up exams will be administered. In truly exceptional cases (and
only for the most compelling reasons) a cumulative final may be substituted.
Final Exam (25%): If there is a scheduling conflict and you require an accommodation because
of numerous exams on the same day, please inform me well in advance.
Attendance Policy:
Students will be expected to attend every class meeting and to participate extensively in
discussion. For every absence after the third, two points will be deducted from a student’s final
grade for the course. Any student missing more than 25% of scheduled class meetings will fail.
Grading Scale:
A = 90 and above
B+ = 88 and above
B = 80 and above
C+ = 78 and above
C = 70 and above
D = 60 and above
F = less than 60
Readings:
The readings for the course will consist primarily of judicial opinions and secondary literature on
the role of the Courts in the policy process. Opinions can be found online from a number of
sources, two of which (Justia and LII) are listed below. Articles from scholarly journals and law
reviews can be easily obtained online through the Electronic Resources and Electronic Journals
sections of the Baylor libraries website. All other readings are available from one of the online
sources listed below, in which case the appropriate source for the document will be noted in the
schedule of readings, or will be posted on Blackboard as PDF files. Please bring all readings with
you to class.
I have recommended McCloskey’s history of the Supreme Court and I urge you to purchase it.
Any edition will do. This book will help to make sense of the historical development that can
sometimes get lost in a topically organized course. To facilitate this, I have recommended
chapters from the book in parentheses at various points in the schedule.
Online Resources:
Besides serving as sources for course readings, the following websites (in addition to the Baylor
libraries’ collections) are excellent research tools. The Founders’ Constitution is a collection of
primary sources illuminating the original understanding of the Constitution that is organized by
major themes and by constitutional provision. If your paper touches on the construction of
constitutional language, this will be immensely helpful. The Avalon Project and Teaching
American History also feature free collections of primary source materials. In addition, TAH has
free audio lectures on a plethora of topics by reliable constitutional scholars. Justia and the
Legal Information Institute both feature extensive collection of written judicial opinions and
other records relevant to American law. Just about any judicial or legislative document you will
need may be found on one of these two sites. Oyez is a unique resource that features both
summaries of court decisions and audio recordings of Supreme Court Oral Arguments.
BB = Blackboard
FC = The Founders’ Constitution (http://press-pubs.uchicago.edu/founders)
AP = The Avalon Project at Yale Law School (avalon.law.yale.edu)
TAH = Teaching American History (www.teachingamericanhistory.org)
Justia.com: Supreme Court Center (supreme.justia.com)
Legal Information Institute at Cornell Law School (www.cornell.law.edu)
The Oyez Project (www.oyez.org)
Course Schedule:
The Judicial Role
Mon 1/10: Introduction (McCloskey, The Supreme Court, chs. 1-2)
Article III of the U.S. Constitution
Article VI
The Federalist, no. 78 (AP)
The Federalist, no. 49 (AP)
Constraints on Judicial Power
Wed 1/12: Jurisdiction
Article III
Article I, section 8
Ralph Rossum, “Congress, the Constitution and the Appellate Jurisdiction of the
Supreme Court: The Letter and Spirit of the Exceptions Clause,” William and Mary
Law Review 24, No. 3 (April 1983)
Fri. 1/14: No Class (Moot Court Tournament)
Mon 1/17: No Class (MLK Holiday)
Wed 1/19: Institutional Constraints
Rosenberg, The Hollow Hope, Introduction and Ch. 1
Walter Murphy, “Lower Court Checks on Supreme Court Power,” APSR 53, no. 4
(1959): 1017-31
Civil Rights and Public Policy: Segregation
Fri 1/21: Reconstruction (McCloskey, ch. 5)
13th Amendment
14th Amendment, section 1
Civil Rights Act of 1866 (TAH)
Mon 1/24: Public Accommodations
Civil Rights Act of 1875 (TAH)
Civil Rights Cases (1883)
Heart of Atlanta Motel v. U.S. (1964) w/ Douglas’ concurrence
Wed 1/26: School Desegregation (McCloskey, ch. 7)
Plessy v. Ferguson (1896) w/ Harlan’s dissent
Brown v. Board of Education (1954)
Bolling v. Sharpe (1954)
Civil Rights and Public Policy: Judicial Remedies
Fri 1/28: Prescriptive Remedies (Paper Topics Due)
Brown v. Board II (1955)
Mon 1/31: Reapportionment
Baker v. Carr (1962) w/ Frankfurter’s and Harlan’s dissents
Reynolds v. Sims (1964) w/ Harlan’s dissent
Wed 2/2: Busing and Equitable Remedies
Swann v. Charlotte-Mecklenberg (1971)
San Antonio Independent School District v. Rodriguez (1973)
Fri 2/4: (In)glorious Litigation
Rosenberg, The Hollow Hope, chs. 2 and 4
Mon 2/7: Neglected Dr. King
Rosenberg, The Hollow Hope, chs. 5 and 12
The Institutional Integrity of Policy-Making: Taxation, Spending, and Commerce
Wed 2/9: “All legislative Powers herein granted…”
Article I, section 8
Article VI
10th Amendment
Gibbons v. Ogden (1824)
Fri 2/11: The New Deal Falters (McCloskey, ch. 6)
Schechter Poultry v. U.S. (1935)
U.S. v. Butler (1935)
Carter v. Carter Coal, 298 U.S. 238 (1936)
Mon 2/14: The Second New Deal
NLRB v. Jones & Laughlin Steel (1937)
Wickard v. Filburn (1942)
Wed. 2/16: The Switch in Time
McCloskey, The Supreme Court, ch. 6
Barry Cushman, “Rethinking the New Deal Court,” Virginia Law Review 80, no. 1
(1994): 201-61
Fri 2/18: Annotated Bibliography Due
South Dakota v. Dole (1987) w/ O’Connor’s dissent
U.S. v. Lopez (1995) w/ Kennedy’s and Thomas’ concurrences and Stevens’ dissent
Mon 2/21: Restoring Federalism I
Randy Barnett, Restoring the Lost Constitution, ch. 7
Wed 2/23: Restoring Federalism II
David Nichols, “Merely Judgment: The Supreme Court and the Administrative State,” in
Wilson and Masugi, 211-32
Robert George and Gerard Bradley, “Outer Limits: The Commerce Clause and Judicial
Review,” in Wilson and Masugi, 195-210
Fri 2/25: Midterm Exam
The Institutional Integrity of Policy-Making: The Administrative State
Mon 2/28: The Removal Power Revisited
Charles Thach, Creation of the Presidency, ch. 6 (BB)
Humphrey’s Executor v. U.S. (1935)
Wed 3/2: The Non-Delegation Doctrine
Schechter Poultry v. U.S. (1935)
Fri 3/4: No Class (Moot Court Tournament)
Mon 3/7 – Fri 3/11: No Class (Spring Break)
Mon 3/14: The Legislative Veto
Antonin Scalia, “The Legislative Veto: A False Remedy for System Overload,”
Regulation (Nov./Dec. 1979): 19-27
INS v. Chadha (1983) w/ Powell’s concurrence
Wed 3/16: Executive Functions and Presidential Control
Bowsher v. Synar (1986)
Morrison v. Olson (1988)
Fri 3/18: No Class (Moot Court Tournament)
Mon 3/21: Separated Powers Revived?
Nelson Lund, “Judicial Management of the Separation of Powers,” in Wilson and
Masugi, 233-54
Wed. 3/23: Restoration or Status Quo?
Free Enterprise Fund v. PCAOB (2010)
Fri 3/25: Administration and Judicial Policy-making
Barnett, Restoring the Lost Constitution, ch. 6
Massachusetts v. EPA (2007)
Economic Rights and Regulation
Mon 3/28: The Contracts Clause (McCloskey, chs. 3-4)
Article I, sections 9 and 10
Fletcher v. Peck (1810)
Wed 3/30: Corporate Charters
Dartmouth College v. Woodward (1819)
Fri 4/1: Bankruptcies
Ogden v. Saunders (1827) w/ Marshall’s dissent
Sat 4/2: Research Paper Due
Mon 4/4: Unenumerated Rights
9th Amendment
14th Amendment, section 1
Slaughterhouse Cases (1873)
Wed 4/6: Freedom of Contract
Munn v. Illinois (1877) w/ Field’s dissent
Lochner v. New York (1905)
Fri 4/8: Expansion and Contraction of Liberty
Meyer v. Nebraska (1922)
United States v. Carolene Products (1938), footnote 4 only
Mon 4/11: The Libertarian Synthesis
Barnett, Restoring the Lost Constitution, chs. 8-10
Wed 4/13: Originalism and the Living Constitution
Robert Bork, “The Constitution, Original Intent, and Economic Rights,” San Diego Law
Review 23, no. 4 (1986): 823-32
David Strauss, “Common Law Constitutional Interpretation,” University of Chicago Law
Review 63, no. 3 (1996): 877-935
Property Rights and Economic Regulation: The Takings Clause
Fri 4/15: Public Use vs. Public Purpose
Berman v. Parker (1954)
Midkiff v. Hawaii Housing Authority (1984)
Mon 4/18: Regulatory Takings
Nollan v. California Coastal Commission (1987)
Lucas v. South Carolina Coastal Council (1992)
Wed 4/20: Private Property and Progress
Kelo v. City of New London (2005) w/ O’Connor’s dissent
Fri 4/22 and Mon 4/25: No Class (Easter Holiday)
Wed 4/27: TBA
Fri 4/29: TBA
Fri 5/6 @ 4:30 pm: Final Exam