Class 15 - Assignment

Congratulations again to moot court teams 5 and 6 for their outstanding performance yesterday. I think that was our best moot court yet (although of course these teams had the advantage of seeing and learning from teams 1-4 first!).

Judging by student questions after the moot court, there is still some confusion about some of the tests and categories we apply to free speech. Tomorrow I intend to clarify the points made in my previous lecture and the moot court, so everyone should have a better understanding

I will also move on to discuss topics related to First Amendment protection of free press. Please read the following overview of free press law:

http://www.firstamendmentcenter.org/Press/overview.aspx

And at least skim over the short article about protecting confidentiality of sources:

http://www.firstamendmentcenter.org/Press/topic.aspx?topic=shield_laws

And also the article about bloggers or internet commentators, who perhaps have come to best illustrate the overlap between free speech and free press:

http://www.firstamendmentcenter.org/Press/topic.aspx?topic=blogging

Class 11 - Assignment

Today and Tuesday we will discuss the 14th Amendment's Equal Protection Clause. Racial conflict is among the longest running (and most shameful) narratives in American history, and we see the intersection between race and Constitutional law perhaps nowhere more than in equal-protection cases.

The abolition of slavery after the Civil War was but one important step in Black Americans' struggle for freedom, followed as it was by almost a century of segregationist policies in southern states. While I dearly wish the United States could have completely closed that chapter too by this point in history, just last week, news media reported on a case in Louisiana where a white judge refused to grant a marriage license to an interracial couple (http://news.yahoo.com/s/ap/20091015/ap_on_re_us/us_interracial_rebuff). Clearly, there is still some ways to go to abolish bigotry, notwithstanding the election of America's first Black president in 2008.

For the next two classes, please read textbook pages 223-247 and familiarize yourselves with affirmative action policy.

Moot Court #1 - Assignment

Although we will not have a lecture Thursday, I would advise each of you to read the excerpts from the Griswold v. Connecticut (1965) right-to-privacy case at the following link: http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/griswold.html

These excerpts are only about 5 pages, but they present most of the legal issues that will be argued in moot court. I think this will help a lot in advancing your understanding of substantive due process.

Class 7 - Assignment

Tuesday, we conclude the first section of our course as we move from the vertical complexity and tensions of federalism to the horizontal complexity and tensions of the separation-of-powers doctrine.

Please read textbook pages 289-303 and 319-335. Since so far we have dealt at some length with the judicial and legislative branch, I will focus discussion on executive branch powers, including the controversial implementation of the "unitary executive theory" under former Pres. George W. Bush, which is not addressed in your textbook.

Also, I will take a few minutes to address moot court topics. Please see posts below for the tentative list of judges and basic rules of procedure. If you have questions, by all means ask me Thursday!

Moot Court - Judge/Adviser List

Moot Court #1 (October 27)

14^th Amendment - Substantive Due Process

Lawrence v. Texas (anti-sodomy case)

Bun Sokseila

Duan Xiu Li

Zhu Yan

Huang Meng Ting

Moot Court #2 (November 5)

14^th Amendment - Equal Protection

Grutter v. Bollinger (affirmative action case)

Ang Kimchou

Du Jin

Yang Yu Yan

Ge Guang Tao

Moot Court #3 (November 12)

1^st Amendment - Freedom of Speech

Morse v. Frederick (Bong Hits 4 Jesus case)

Bun Sokseila

Wang Ya

Ung Radsorin

Huang Meng Ting

Moot Court #4 (November 19)

1^st Amendment – Freedom of Press

NY Times v. Sullivan (libel case)

Sun Rui

Liu Ling

Belle Sopoirvichny

Truong Thu Ngan

Moot Court #5 (November 26)

1^st Amendment – Church/State Separation

Lynch v. Donnelly (Christmas tree case)

Duan Xiu Li

Nguyen Cam Ninh

Tran Ngoc Hoang Phuong

Tian Ming Xi

Moot Court #6 (December 8)

2^nd Amendment – Right to Bear Arms

DC v. Heller (handgun ban case)

Tran Anh Hien

Sanya Khamsone

Phan Thi Hong Hanh

Liu Ling

Moot Court - Basic Rules

MOOT COURT – BASIC RULES OF PROCEDURE

(Note: Amendments and modifications to these rules are inevitable, particularly as this is my first time using this teaching technique, but I wanted to lay out some structure for you to get started. By all means, let’s all try our best to make moot court work, rather than quibble over details!)

(1) Parties shall present oral arguments according to the following order and time constraints (however, time may be added or subtracted at Court’s discretion):

Petitioner opening statement – 10 mins

Respondent opening statement – 10 mins

Cross-party questions and debate – 15-20 mins

Recess (Break) – 5 mins

Judge questions and discussion – 15-20 mins

Petitioner closing argument – 5 mins

Respondent closing argument – 5 mins

Judge and jury deliberations – 10-15 mins

Verdict – jury followed by judges

(2) Parties shall focus arguments on questions of LAW, not FACT, and only on the law in the assigned subject area (e.g. substantive due process, First Amendment, etc.). Naturally, the significance of certain facts may be questioned and argued over, and other legal questions may get into the mix. Indeed at the appellate level, a party’s “summary of facts” can be a highly persuasive tool. But I do NOT want our moot court to get sidetracked by peripheral issues or unverifiable factual assertions/denials. Parties may raise objections to any off-topic or “out-of-bounds” material during oral argument.

(3) Parties shall provide to the Court (email at cdcole9@gmail.com) and to opposing parties a list of any authorities (cases, law review articles, etc.) that they intend to use during arguments NO LATER THAN 5pm on the day before the preceding day of argument. In other words, if argument is scheduled for a Thursday, the list of authorities must be submitted by Tuesday 5pm. If argument is scheduled for Tuesday, the list of authorities must be submitted by Sunday 5pm. Failure to comply with this deadline will result in automatic disqualification!

(4) Parties shall engage with each other during oral arguments in a spirit of forceful, vigorous, but mutually respectful advocacy. No party may speak until he/she has raised his hand and is recognized by the Court, or is otherwise responding to a question that is directed to his/her side by the Court. No party shall attempt to interrupt any question or comment being made by any member of the Court. Finally, parties shall address their arguments to the Court, not the jury.

(5) In our modified moot court format, verdicts will be rendered by both the Court (a panel of 4 senior students, who will serve as Associate Justices, and 1 professor, who will serve as Chief Justice) and the jury (composed of non-party junior students). Both the Court and jury shall reach their verdicts by majority vote, but the Court and jury shall deliberate separately. In the event of a split verdict, the deciding vote shall be cast by the Chief Justice.

Class 6 - Assignment

For Thursday, we will transition from discussion of Commerce Clause power to the Supremacy Clause and federalism.

Please read textbook pages 258-268; the Fordham Law Review article (emailed to each of you as a PDF file); and Justice Kennedy's concurring opinion in the Lopez case.

Pay attention to the interplay -- which I previously mentioned in class -- between the principle of federalism and competing ideas of how to allocate power.