CONSTITUTIONAL LAW Law 590 §2 (Cohort B) Spring 2017 J.F. Acevedo Office Hours: M & W 10:00 a.m. - 12:00 p.m., and 2:00 to 5:00 p.m.; T 1:00-5:00 p.m. or by appointment. Office: 239 T & Th 9:00 – 11:30 a.m. Room 217 (909) 460-2032 [email protected] COURSE DESCRIPTION The Constitution of the United States is the oldest written constitution still in use. This course will examine the powers of the different branches of government as well as the interaction between the states. The limits on each branch of government will also be examined. In addition, the idea of equal protection under the laws will also be examined. However, this course will not cover the First Amendment or the amendments related to the rights of criminal defendants and criminal procedure. TEXTBOOKS Required Text Chemerinsky, Erwin. 2013. Constitutional Law, Fourth Edition. New York: Wolters Kluwer Law & Business (ISBN: 978-1-4548-1753-6). Recommended Text Chemerinsky, Erwin. 2015. Constitutional Law: Principles and Policies, Fifth Edition. New York: Wolters Kluwer Law & Business (ISBN: 978-1-4548-4947-6). OFFICE HOURS It is not necessary for you to make an appointment to see me during office hours, but it is recommended. There will be a sign-up sheet posted on TWEN where you can sign up for 30 minute slots. If you need more time, simply sign up for two slots. If the sign-up system is abused I reserve the right to see students on a first come first seen basis. If you wish to see me outside of office hours, you must contact me in advance to make an appointment. 1 ABA ATTENDANCE REQUIREMENT Attendance is a necessary but not sufficient requirement to ensure a high mark in participation. If you are not in class then you cannot participate. Furthermore, the ABA and the law school require regular attendance in class. The following are the ABA attendance standards in effect: I. Class attendance is mandatory; students are also expected to be in class on time. II. If a student is absent for more than 20% of the total hours of a course during the semester they will be automatically withdrawn from the course by the registrar’s office. III. A student who is late for class or leaves class early may be counted absent and/or dismissed from class for that day. IV. Students are required to track their own absences. Any questions regarding attendance may be directed to the registrar’s office or the Dean for Academic Affairs. Students who are absent should obtain notes from classmates. Conflicting Appointments Do not schedule any conflicting appointments; personal, professional, or school related. Likewise, do not schedule an appointment with me that would cause you to miss a portion of another class. If you need to change a meeting with me to avoid a conflict I will be happy to alter the appointment time. Attendance Roster It is your responsibility to sign the attendance roster. I will not honor after-class requests to mark the roster on a student’s behalf. With a large number of students in class, I will not always have an independent recollection of your being present in any particular session. GRADING Class Participation DVS Assignments Final Exam Grade Breakdown 10% 25% 65% Attendance Attendance in class is essential. I will grant one absence for any reason what so ever. After the first absence, your final grade will be deducted 0.5 points for each additional day absent. Once you have missed 20% of the course then you will be withdrawn from the course by the registrar in accordance with the ABA policy stated above. 2 Class Participation Attendance is a mandatory but insufficient requirement for participation. I expect you to be prepared to discuss the material in each class session. This includes both the material assigned in that day’s class and in all previous class sessions. I expect you to participate in class. Please do not be concerned about volunteering simply because you are unsure of your answer; it is better to speak and be incorrect than to not speak at all. Your class participation grade will be based on your answering of questions during our class session. Please be aware that I will be “cold calling” on students, which means that I will call on students without advance notice to discuss and answer questions regarding the assigned material. A student who is not prepared to answer a question can “pass.” Students will be allowed one “pass” before their participation grade is negatively affected. You do not need to explain why you are “passing” to me. You do not need to inform me ahead of time. Attendance is a necessary but not sufficient part of participation. If you are absent and called on it will count as a “pass,” unless the absence is for a valid medical or school related issue and you provide me with a satisfactory explanation by the next class session. A student who in my opinion is not sufficiently prepared will be counted as having “passed.” Participation assessments will take into consideration: (1) the degree to which the student’s responses reflect a working knowledge of the assigned reading, (2) whether the student listened attentively to classmates or was merely reiterating previous contributions, and (3) the degree to which the student’s expression of views evinces respect for classmates with whom they disagree. Volunteering to contribute in class discussion can help offset unpreparedness when called upon, but not completely. Feel free to use commercial outlines if you do not understand a case or to prepare for the exam, but do not simply read the outline in class in response to a “cold call.” I want your summary of the case, not another law professor’s summary. Students who I believe are simply regurgitating commercially prepared material will not receive participation credit for their response. DVS Assignment There will be six DVS assignments throughout the term. The due date for each assignment is listed both in the DVS Assignment Overview Schedule and on the Reading Schedule below. All assignments must be turned in at the start of class in hardcopy format on the Monday of the week they are due. Any assignment turned in late will be deducted ½ a point for every day late. No assignment will be accepted more than one class session late. The points available for each assignment are listed on the DVS Assignment Overview Schedule below. 3 Due Week 2 DVS Assignment Overview Schedule Assignment Description 1. Case Brief A full case brief of Youngstown Sheet & Tube Co. v. Sawyer using the model brief including concurring and dissenting opinions. This assignment is worth 3 points. Week 6 2. Outline Your outline for weeks 1 and 2 of the class. The outline should be in its final version in accordance with our discussion the week before. This assignment is worth 2 points. Week 7 3. Practice MBEs You will answer 5 sample MBE questions and provide a paragraph explanation of why you chose the answer you did. This assignment is worth 5 points. Week 8 4. Practice MBEs In Class 15 question quiz on the material covered up until this point in class. This assignment is worth 5 points. Week 9 5. Logical Reasoning Questions You will answer five logic questions and provide a brief explanation of your reasoning. The assignment is worth 5 points. Week 15 6. Practice Essay In class timed practice essay exam question done in 1 hour. This assignment is worth 5 points. Final Exam The exam will cover all material assigned or discussed during the duration of the course. The final exam will consist of two essay questions and 30 multiple choice questions. The multiple choice questions will be designed to replicate the MBE portion of the bar exam. The multiple choice section will be worth 15 percent of your grade and each essay is worth 25 percent. The exam is closed note and closed book. The final exam is graded anonymously. Please be sure to accurately write your exam number on your essay and multiple choice Scantron sheet. DO NOT put your name or any other identifying information on any portion of your exam. I do not expect you to cite to cases by name, but you must provide enough information that I can identify to which case you are referring. I expect students to identify the issues, state the appropriate rules or precedents, and analyze by applying the rules and cases to the exam hypothetical. It is highly recommended that students structure their answers in IRAC. Students should analogize or distinguish the exam hypothetical from the existing precedent. Students will receive credit for identifying the rules and cases only if they are relevant to the issues. Irrelevant discussions or recitations of rules will not improve your grade. I do not deduct points for misidentification of an issue, misstatements of rules or cases or other errors, but you will gain no points. However, if two exams receive the same score, the exam that contains fewer mistakes will likely receive a higher grade if doing so 4 is required to comply with the grade distribution. I will also not deduct for typos, spelling or grammatical errors unless they are so severe as to make your answer unintelligible. However, I do expect you to write in complete, grammatically correct sentences and not in abbreviations: exam answers are essays not text messages or tweets. Students are encouraged to spend at least 10 minutes outlining before they begin to write an essay answer. Answers must be written only on the front side of each page of the bluebook. Handwritten answers should be in ink, not pencil. No points will be awarded for any portion of a handwritten answer that is illegible. If your laptop breaks during the exam, you must immediately switch to handwriting your answer. ADA POLICY General Students with documented disabilities may contact Student Affairs to arrange for reasonable accommodations. Please do not request accommodation from me directly as I do not have the authority to grant them and will simply refer you to Student Affairs. Student Affairs can be reached by phone at (909) 460-2000. Exam Accommodations Students needing special accommodations should contact Dean Kevin Marhsall. Students are encouraged to ask for accommodations early in the semester to allow sufficient time for requests to be evaluated. If an emergency occurs and affects your ability to sit for an exam, or you have scheduling conflicts with other exams, please contact the Dean of Academic Affairs. In order to maintain anonymity and integrity of the exam process, please DO NOT disclose any information regarding your circumstances or accommodation to me. PROFESSIONAL CONDUCT Law school introduces students to expectations of professional conduct. If an act would be considered unprofessional in a legal setting, I ask students not to engage in it in the classroom. If I determine that a student is acting in an unprofessional or distracting manner I will ask the student to leave class and will mark them absent for the day. At all times, students are expected to be respectful of different viewpoints. Students need not agree with another’s opinion but must conduct themselves with professionalism. Students should feel free to contribute to the class discussion without fear of judgement in this course because a robust discussion enhances the material. I will always give more points for the best argued answer, which may not be the view I agree with. Argue logically from the law; do not engage in personal attacks, strawmen arguments or other logical fallacies. Cell phones, pagers, PDAs, iPads, tablets, Apple Watches, and all other electronic communication devices, except laptop computers, must be turned off and put away during class. 5 LAPTOP POLICY I allow laptops in the classroom. I will not monitor what you are using your laptops for, but expect you to engage in professional conduct as if you were in a law office. A student who uses their laptop for inappropriate purposes in class (e.g. watching movies, viewing pornography, viewing hate speech, etc.) will be reported for appropriate disciplinary action. I reserve the right to ban all laptops for the entire class at any time. If your classmates are engaging in behavior that is distracting or inappropriate please see me after class or at the break to report the issue, not during class. If you are distracted because of internet use and unprepared to respond when called upon, it will be treated as a “pass” (see above discussion in participation section). RECORDING CLASS No portion of the class may be recorded by audio or video without my express permission. Any student caught trying to record the class will be asked to leave. The only exception made to this policy will be in accordance with an approved ADA accommodation. I will be recording class sessions and will edit and post them on TWEN. The recording will be set to record my spoken word, the whiteboards, and any Powerpoint slides; it will not be recording you. CHANGES TO THE SYLLABUS I reserve the right to change or amend the syllabus. Any changes will be provided in writing by email and announced in class. 6 READING SCHEDULE Some assignments are longer because the cases could not be logically broken up or are better understood when read together. If I find that we need to slow the pace of class down, I will do so. An asterisk (*) indicates that you are not responsible for the dissenting opinion(s) for that particular case. You are still responsible for any concurring opinions. It is highly recommended that you read the unassigned dissents. However, if a dissent is marked as unassigned you will neither be responsible for them on the exam nor cold-called on them in class. Week 1: Judicial Power and Justiciability 10 January: Authority for Judicial Review and Justiciability limits; pp. 10-12 and 35-65 [32 pages]. Cases: Martin v. Hunter’s Lessee; Cohens v. Virginia; Ex Parte McCardle; United States v. Klein; Robertson v. Seattle Audubon Society; Hayburn’s Case; Plaut v. Spendthrift Farm Inc.; Nashville, C & St. L. Ry. v. Wallace; Allen v. Wright; Massachusetts v. Environmental Protection Agency; City of Los Angeles v. Lyons; Lujan v. Defenders of Wildlife*; United States v. Hays; and Federal Election Comm. V. Akins. DVS: Review of Federalism and the Structure of U.S. Government and How to Brief a Case; pp. 2-8 [6 pages]. Cases: Marbury v. Madison. 12 January: Justiciability Continued: Standing, Ripeness, Mootness and Political Question Doctrine; pp. 65-74, 81-100 and 105-113 [39 pages]. Cases: Linda R.S. v. Richard D.; Warth v. Seldin; Simon v. Eastern Kentucky Welfare Rights Organization; Duke Power Co. v. Carolina Environmental Study Group Inc.; Singleton v. Wulff; Barrows v. Jackson; Craig v. Boren; Gilmore v. Utah; United States v. Richardson*; and Flast v. Cohen*; Poe v. Ullman, Abbott Laboratories v Gardner; United Public Workers v. Mitchell; International Longshoremen’s & Warehousemen’s Union, Local 37 v. Boyd; Moore v. Ogilvie; Roe v. Wade; DeFunis v. Odegaard; Friends of the Earth, Inc. v. Laidlaw Environmental Services; United States Parole Commission v. Geraghty; Baker v. Carr; Vieth v. Jubelirer*; Powell v. McCormack; Goldwater v. Carter; and Nixon v. United States. 7 Week 2: Executive Power 17 January: Executive Power; pp. 318-338, 340-44, 354-358, and 419-425 [37 pages]. Cases: Youngstown Sheet & Tube Co. v. Sawyer; United States v. Nixon; Clinton v. City of New York; Morrison v. Olson; Myers v. United States; Nixon v. Fitzgerald; and Clinton v. Jones. DVS: Case Analysis: Rule Construction and Deconstruction Assignment 1 Due: Case Brief of Youngstown Sheet & Tube Co. v. Sawyer 19 January: Separation of Powers and Foreign Policy; pp. 370-377, 381-392, and 411-418 [27 pages]. Cases: United States v. Curtis-Wright Export Corp.; Dames & Moore v. Regan, Secretary of the Treasury; Hamdi v.Rumsfeld; and Ex Parte Quirin. Week 3: Necessary & Proper Clause and Commerce Clause 24 January: Intro to Legislative Power and Necessary & Proper Clause; pp. 116-129, 152-162, and 170-75 [31 pages]. Cases: McCulloch v. Maryland; United States v. Comstock; Gibbons v. Ogden; NLRB v. Jones & Laughlin Steel Corp.; and United States v. Darby. DVS: Theories of Constitutional Interpretation; pp. 13-33 Cases: District of Columbia v. Heller 26 January: Commerce Clause; 175-207 [33 pages] Cases: Wickard v. Filburn; Heart of Atlanta Motel Inc., v United States; Katzenbach v. McClung Sr. & McClung Jr.; Hodel v. Indiana; Perez v. United States; Garcia v. San Antonio Metropolitan Transit Authority; United States v. Lopez; and United States v. Morrison. Week 4: Court Observation Week 31 January: Court Observation – No Class (To be made-up on 17 April). 2 February: Court Observation - No Class (To be made-up on 2 May). 8 Week 5: 10th Amendment and Taxing & Spending Powers 7 February: 10th Amendment Limits on Commerce Power; 210-241 [31 pages]. Cases: Gonzales v. Raich; New York v. United States; Printz v. United States; and Reno v. Condon. DVS: Outlining Constitutional Law 9 February: Taxing and Spending Power; 241-266 [26 pages]. Cases: United States v. Butler; Chas C. Steward Mach. Co. v. Davis; Sabri v. United States; South Dakota v. Dole; United States v. Morrison; Katzenbach v. Morgan & Morgan; City of Boerne v. Flores. Week 6: Sebelius, Preemption, and Dormant Commerce Clause 14 February: Protecting States from Congress’s Powers pp. 129-151 [23 pages]. Case: National Federation of Independent Businesses v. Sebelius. DVS: Multiple Choice Test Strategies Assignment 2 Due: Outline of Weeks 1 & 2 16 February: Preemption and Dormant Commerce Clause; pp. 434-459 and 463-68 [32 pages]. Cases: Lorillard Tobacco Co. v. Reilly; Florida Lime & Avocado Growers Inc. v. Paul, Director, Department of Agriculture; Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission; Arizona v. United States; H.P. Hood & Sons v. Du Mond; Aaron B. Cooley v. Board of Wardens of Port of Philadelphia; South Carolina State Highway Department v. Barnwell Bros., Inc.; and Southern Pacific Co. v. Arizona ex rel. Sullivan. 9 Week 7: Preemption and Dormant Commerce Clause 21 February: Monday Classes Meet – No Class (To be made-up on 25 April). Assignment 3 Due: Practice MBE Questions (Turn in to Faculty Assistants) 23 February: Dormant Commerce Clause; 469-503 [34 pages]. Cases: City of Philadelphia v. New Jersey; Hughes v. Oklahoma; Hunt v. Washington State Apple Advertising Commission; Exxon Corp. v. Governor of Maryland; West Lynn Creamery, Inc. v. Healy, Commissioner of Massachusetts Department of Food and Agriculture; State of Minnesota v. Clover Leaf Creamery Co.; Dean Milk Co. v. City of Madison, Wisconsin; Maine v. Taylor & United States; Pike v. Bruce Church Inc.; Bibb, Director, Department of Public Safety of Illinois v. Navajo Freight Lines Inc.; Consolidated Freightways Corp. of Delaware v. Raymond Kassel; Western & Southern Life Insurance Co. v. State Board of Equalization of California; Reeves Inc. v. William Stake; and South-Central Timber Development Inc. v. Commissioner, Department of Natura Resources of Alaska*; Week 8: Privileges & Immunities Clause and State Action Doctrine 28 February: Privileges & Immunities Clause of Article IV, Privileges or Immunities Clause of 14th Amendment, and Incorporation pp. 506-516, 522-30, and 532-47 [34 pages]. Cases: Toomer v. Witsell; United Building & Construction Trades Council of Camden County v. Mayor & Council of City of Camden; Lester Baldwin v. Fish & Game Commission of Montana; Supreme Court of New Hampshire v. Kathryn A. Piper; SlaughterHouse Cases; Saenz v. Roe; Palko v. Connecticut; Adamson v. California; Duncan v. Louisiana; and McDonald v. City of Chicago. DVS: In Class MBE Practice Questions 2 March: State Action Doctrine and Public Function Exception; pp. 548-580 [33 pages]. Cases: United States v. Stanley; Marsh v. Alabama; Jackson v. Metropolitan Edison Co.; Terry v. Alabama; Evans v. Newton; Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza Inc.; Lloyd Corp. v. Tanner; and Hudgens v. NLRB; Shelley v. Kraemer; Lugar v. Edmondson Oil Co.; Edmonson v. Leesville Concrete Co.; Burton v. Wilmington Parking Authority; and Moose Lodge No. 107 v. Irvis. Spring Interregnum 10 Week 9: Economic Substantive Due Process and Contracts Clause 14 March: Entanglement Exception to State Action Doctrine and Economic Substantive Due Process; pp. 580-600 and 607-14 [28 pages]. Cases: Norwood v. Harrison; Rendell-Baker v. Kohn; Blum v. Yaretsky; Reitman v. Mulkey; and Brentwood Academy v. Tennessee Secondary School Athletic Association; Allgeyer v. Louisiana; and Lochner v. New York. DVS: Logical Reasoning/Thinking Like a Lawyer 16 March: Economic Substantive Due Process Continued: pp. 616-645 [30 pages]. Cases: Muller v. Oregon; Adkins v. Children’s Hospital; Weaver v. Palmer Bros. Co.; and Nebbia v. New York; West Coast Hotel Co. v. Parrish; United States v. Carolene Products Co.; Williamson v. Lee Optical of Oklahoma Inc.; BMW of North America, Inc. v. Gore; State Farm Mutual Automobile Insurance Co. v. Campbell; and Philip Morris U.S.A. v. Williams. Week 10: Contracts Clause and Takings Clause 21 March: Contracts Clause and Takings Clause: pp. 647-657 and 660-682 [33 pages]. Cases: Home Building & Loan Association v. Blaisdell; Energy Reserves Group, Inc. v. Kansas Power & Light Co.; United States Trust Co. v. New Jersey*; Loretto v. Teleprompter Manhattan CATV Corp.; Pennsylvania Coal Co. v. Mahon; Miller v. Schoene; Penn Central Transportation Co. v. New York City; Lucas v. South Carolina Costal Council; and Dolan v. City of Tigard. DVS: Essay Writing- Reasoning from Analogy 23 March: Takings Clause Continued, pp. 682-710 [29 pages]. Cases: Palazzolo v. Rhone Island; Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency; Hawaii Housing Authority v. Midkiff; Kelo v. City of New London; and Brown v. Legal Foundation of Washington. 11 Week 11: Equal Protection- Race and National Origin 28 March: Equal Protection; pp. 711-740 [30 pages]. Cases: Romer v. Evans; Railway Express Agency, Inc. v. New York; New York City Transit Authority v. Beazer; U.S. Department of Agriculture v. Moreno; and City of Cleburne Texas v. Cleburne Living Center Inc. DVS: Essay Writing- Common Logical Fallacies 30 March: Race and National Origin; pp. 740-771 [32 pages]. Cases: Dred Scott v. Stanford; Korematsu v. United States; Loving v. Virginia; Palmore v. Sidoti; Plessy v. Ferguson; Brown v. Board of Education; and Johnson v. California. Week 12: Equal Protection- Neutral Laws and Remedies 4 April: Facially Neutral Laws and Remedies; 771-791 and 794-804 [32 pages]. Cases: Washington v. Davis; McCleskey v. Kemp; City of Mobile v. Bolden; Palmer v. Thompson; Personnel Administrator of Massachusetts v. Feeney; Village of Arlington Heights v. Metropolitan Housing Development Corp.; Brown v. Board of Education; Swann v. Charlotte-Mecklenburg Board of Education; and Milliken v. Bradley. DVS: Essay Writing- Issue Spotting Assignment 5 Due: Logical Reasoning Questions 6 April: Remedies; pp. 806-824, 827-33, and 838-46 [35 pages]. Cases: Board of Education of Oklahoma City Public Schools v. Dowell; Parents Involved in Community Schools v. Seattle School District No. 1.; Richmond v. J.A. Croson Co.; and Grutter v. Bollinger*. 12 Week 13: Equal Protection- Classification Benefiting Minorities, Gender, and Alienage Classifications 11 April: Race Classification Benefiting Minorities and Gender; pp. 855-866 and 870-89 [32 pages]. Cases: Gratz v. Bollinger; Easley v. Cromartie; Frontiero v. Richardson; Craig v. Boren; United States v. Virginia; Geduldig v. Aiello; Orr v. Orr Mississippi; and University for Women v. Hogan. DVS: Essay Writing- Facts to Law 13 April: Gender Classifications Continued and Alienage; pp. 889-905 and 907-21 [32 pages]. Cases: Michael M v. Superior Court of Sonoma County; Rostker v. Goldberg; Califano v. Webster; Nguyen v. Immigration & Naturalization Service; Graham v. Richardson; Foley v. Connelie; Ambach v. Norwick; and Plyler v. Doe. Week 14: Equal Protection- Other Classifications, Family Autonomy, and Reproductive Autonomy 18 April: Non-marital Children, Age, and Family Autonomy; pp. 922-928, 939-67, and Obergefell Handout [35 pages]. Cases: Massachusetts Board of Retirement v. Murgia; Loving v. Virginia; Zablocki v. Redhail, Obergefell v. Hodges; Stanley v. Illinois; Michael H. v. Gerald D.; Moore v. City of East Cleveland, Ohio; Meyer v. Nebraska; Pierce v. Society of the Sisters of the Holy Names of Jesus & Mary; and Troxel v. Granville. DVS: Essay Writing- In Class Practice Essay 20 April: Reproductive Autonomy; pp. 967-1000 [33 pages]. Cases: Buck v. Bell; Skinner v. Oklahoma; Griswold v. Connecticut; Eisenstadt v. Baird; Roe v. Wade; and Planned Parenthood v. Casey. 13 Week 15: Government of Regulation of Abortion and Other Liberty Interests 25 April: (Presidents’ Day Make-up) Government Regulation of Abortion; pp. 1000-1030 [30 pages] Cases: Gonzales v. Carhart; Maher v. Roe; Harris v. McRae; Planned Parenthood v. Danforth; Planned Parenthood v. Casey; and Bellotti v. Baird. DVS: Essay Writing- Outlining your answer under exam conditions 27 April: (Court Make-up Day 1) Medical Care Decision, Sexual Orientation, and Education; pp. 1030-1058 and 1135-1141 [35 pages]. Cases: Cruzan v. Director, Missouri Department of Health; Washington v. Glucksberg; Vacco v. Quill; Lawrence v. Texas; and San Antonio Independent School District v. Rodriguez. Week 16: Procedural Due Process 2 May: (Court Make-up Day 2) Procedural Due Process; pp. 1144-1151, 1154-60, 1161-1163, 1165-68, 1179-86, and 1189-1194 [36 pages]. Cases: Daniels v. Williams*; County of Sacramento v. Lewis*; DeShaney v. Winnebago County Department of Social Services*; Town of Castle Rock v. Gonzales*; Goldberg v. Kelly*; Board of Regents v. Roth*; Sandin v. Conner; Mathew v. Eldridge*; and District Attorney’s Office for the Third Judicial District v. Osborne*. 14
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