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.

Class 5 - Assignment

For Tuesday, we are shifting from discussion of judicial branch power to legislative branch power under the Constitution's commerce clause. Please read textbook pages 207-234 and the majority opinion in U.S. v. Lopez (1995), available at:

http://www.law.cornell.edu/supct/html/93-1260.ZO.html

In reading the case, focus your attention on the Court's version of the commerce clause history and the "test" it applies to finding an activity falls within interstate commerce.

See you next week!

Class 4 - Assignment

On Thursday, we will conclude our discussion of justiciability with review of ripeness, mootness, and political question doctrines.

Please read textbook pages 135-151 and the Supreme Court decision in Nixon v. United States, 506 U.S. 224 (1993) at:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/nixonvus.html

Do NOT attempt to read the decision in Bush v. Gore (2000). I've changed my mind and decided it will be easier to discuss this decision through my own presentation and lecture since, in actuality, it is an opinion where the political question doctrine was avoided.

Group Assignments (Updated)

Please look over the following group assignments, and inform me of any problems or requests for reassignment by the end of the week. Also, during Thursday's class, I will ask each group to present its "alpha-wolf," or leader, who will be my primary point of contact for group communications.

Group 1

ZANG Jiaqing

WANG Qiao (junior)

MA Fei

FANG Xiao

HOUN Vannak

PHETSAVONG Ninthasene

Group 2

DOAN Thi Thuy Trang

PHAM Tran Yen Anh

XU Jing

CHEN Xiaodong

SI Yangyang

PHAM Xuan Hoan

Group 3

NOUSOVATH Chanvatey

CHAN Sokunthea

CHAO Yan

LI Shuo

LE Viet Anh

SOY Kimsan

Group 4

ZHOU Ni

LAI Jiaying

ZHANG Xian

UK Kosal

VU Minh Tuan

RA Sophannarith

Group 5

SHI Lingting

MIAO Qing

LU Wei

DANG Van Vuong

Kyaw Win Khine

Group 6

WANG Qiao (senior)

LI Chengcheng

BUI Tien Long

ZHANG Hanhui

NARUPHAY Aroune

SIRIBULY Atsany

Class 3 - Assignment

Your reading assignment for Class 3 - Justiciability is textbook pages 97-114, 135-142.

Our principal case for Tuesday's class session is Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Please read the edited (shortened) version of the opinion that is available at http://www.law.duke.edu/publiclaw/supremecourtonline/editedCases/lujvdef.html.

PLEASE don't feel overburdened by all of the legal complexities in the opinion, such as the actual procedures of filing a lawsuit, burden of persuasion, etc. Disregard all that. I'll address the necessary elements of civil procedure myself through lecture.

Just try to determine the key facts (who are the parties? what is the dispute?) and the key elements of the "standing" test that Justice Scalia articulates. These will be the areas that I question you on. Also, read the dissenting opinion and try to identify the points of interpretive difference among the Justices.

See you next week!

Class 1 - Syllabus

I have distributed our course syllabus by email, but I also post it here for your reference:

INTRODUCTION TO U.S. LAW I

Syllabus – Fall 2009

Professor Cole

Course Description

This course provides a substantive or doctrinal overview of core subjects typically covered during the first year of American law school, beginning this semester with two aspects of U.S. constitutional law: national powers and individual rights. Our challenge is to approach a large volume of material in a short period of time. You should expect to encounter a combination of teaching methods.

First, I will rely on a lecture format in order to present essential “black letter” and public policy aspects of U.S. law in as simple and straightforward a manner as possible. This is probably the style of instruction you all are most familiar with, and I hope it will provide a basic outline and structure for your class notes.

Second, we will devote a significant amount of class time to problem-solving and discussion based on the hypothetical examples included in your textbook and other questions and comments that I may post on the class website. Please keep in mind that we are aiming less for correct answers (whatever that might mean) than we are for persuasive arguments. Focus your efforts on applying given rules to new fact patterns, utilizing your legal imagination, and setting forth your ideas in clear, concise language.

Third, I will employ the so-called “case method.” This means I will distribute a representative or principal case, which I expect you to read and brief carefully. These cases are the building blocks of the common law, so be prepared to present the key facts, legal reasoning, and holding of these cases in response to Socratic-style questioning. I am not interested in intimidating or humiliating anyone. I do want to nudge you into thinking and speaking in the style of an American lawyer.

Fourth, following closely along the lines of the case method, we will hold a series of moot court sessions in which students will take opposing sides on landmark court decisions. I will divide the class into six groups, so that you will be responsible for preparing your moot court arguments on a rotating basis. I will provide more details in coming weeks, but I expect moot court to be the most fun and challenging assignment you will likely face in this course.

Finally, I have created a class website (http://uslawtlbu2009.blogspot.com/), on which I will post additional commentary and materials regarding class topics. You will find on most days, I always seem to forget something important during class time, so please check in at the website from time to time to supplement your notes.

Reading Assignments (TENTATIVE)

I. Constitutional Law – National Powers

Class 1 – Introduction to U.S. Legal System and Common Law

Class 2 – Judicial Review

Marbury v. Madison

Textbook Part I, pp. 10-18, 31-49

Class 3 – Justiciability

Lujan v. Defenders of Wildlife

Textbook Part I, pp. 97-114, 135-151

Class 4 – Justiciability (continued) - Ripeness, Mootness, Political Questions

Class 5 – Federal Powers – Commerce Clause

United States v. Lopez

Textbook Part I, pp. 207-248

Class 6 – Federalism & States’ Rights

Law review article (to be distributed by email)

Textbook Part I, pp. 258-268

Class 7 – Separation of Powers

“Unitary executive theory” (article to be distributed by email)

Textbook Part I, pp. 289-335

II. Constitutional Law – Individual Rights

Class 8 – Substantive Due Process

Griswold v. Connecticut

Textbook Part II, pp. 1-18, 55-81

Class 9 – Moot Court #1 - Lawrence v. Texas, 539 U.S. 558 (2003)

Class 10 – Equal Protection, Part I

Textbook Part II, pp. 197-247

Class 11 – Equal Protection, Part II

Class 12 – Moot Court #2 - Grutter v. Bollinger (affirmative action)

Class 13 – First Amendment: Free Speech

Brandenburg v. Ohio; Spence v. Washington

Textbook Part II, pp. 319-346

Class 14 – Moot Court #3 - Morse v. Frederick (Bong Hits 4 Jesus case)

Class 15 – First Amendment: Free Press

Law review article (to be distributed)

Class 16 – Moot Court #4 - Times v. Sullivan

Class 17 – First Amendment: Establishment Clause

Lemon v. Kurtzman

Textbook Part II, pp. 427-460

Class 18 – Moot Court #5 - Lynch v. Donnelly (Christmas tree case)

Class 19 – Fifth Amendment: Power of Eminent Domain

Tahoe case (to be distributed by email)

Textbook Part II, pp. 125-152

Class 20 – Second Amendment: Right to Bear Arms

Class 21 – Moot Court #6 - D.C. v. Heller (handgun ban)

Class 22 – Semester review

Class 23 – Semester review

Class 24 – FINAL EXAM

Examinations and Grading

Grades are based 75% on your performance on the final exam, which is tentatively scheduled for Thursday, December 17, and 25% on your classroom participation and performance, particularly during moot court sessions. However, as professor, I reserve the right to raise or lower any student’s grade by up to one letter grade (e.g., from a C+ to a B+, or vice versa) based on exceptional contributions or attitude.

Contact and Office Hours

I welcome students to stop by my office (Room 2-607) during early afternoon hours Tuesday and Thursday, but it will probably be easiest for both of us to arrange for individual appointments in advance. You may also submit brief, class-related questions directly to me by email at cdcole9@gmail.com or contact me by telephone at TLBU extension 1130. However, I encourage you to submit your written questions and comments through the class website, so that all students may benefit from our exchanges.

Class 2 - Assignment

For Class 2, please read pages 10-18 and 31-49 in your textbooks. Also, our principal case for discussion on Thursday is Marbury v. Madison, 5 U.S. 137 (1803), which is available at http://supreme.justia.com/us/5/137/case.html. You are not expected to read the complete opinion, but please examine and consider the following excerpts from Chief Justice Marshall's opinion prior to class:

_________________

[Facts of the Case -- The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court.]

[Question -- Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme Court the place for Marbury to get the relief he requests?]

[Conclusion -- Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.]

Opinion of the Court [by Marshall, Chief Justice].

When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be that, in one class of cases, its jurisdiction is original, and not appellate; in the other, it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to the obvious meaning.

To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that, if it be the will of the Legislature that a mandamus should be used for that purpose, that will must be obeyed. This is true; yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create that case. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper is, in effect, the same as to sustain an original action for that paper, and therefore seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this to enable the Court to exercise its appellate jurisdiction.

The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised.
* * *

If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.

This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction. ...

* * *

Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government? if it is closed upon him and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.

It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.

The rule must be discharged.

_____________________


FINALLY, for your reference (don't worry about reading or understanding in detail), Article III of the Constitution, pertaining to the judicial branch, follows:

Article III.
Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

See you all Thursday!

America's Court

Welcome to the Fall 2009 edition of "Introduction to U.S. Law." I am very pleased to have each and every one of you as my student!

Please check this site from time to time during the week, as I will use it provide supplementary comments and materials on our class topics, and also as a means to respond to student questions that I am not able to answer in depth during our class time

Above, you see a view of the United States Supreme Court building located in Washington, D.C. The inscription on the pediment over the main entrance reads: "EQUAL JUSTICE UNDER LAW," which we might accept as the guiding principle of the American legal system. Whether and to what extent that principle has applied in practice is something we may better judge ourselves by the end of our first semester together. Certainly, most court watchers hold opinions about the various high and low points in history, so I hope you will too.

At some point during the first week of class, please briefly look over the U.S. Constitution and 27 Amendments. Do not be concerned with reading or understanding this document in detail. I merely want you to have a mental reference point that includes the Constitution's appearance, organizational structure, and style of language.

Although, there are many, many places on the Internet where we might find the Constitution, Cornell University Law School's Legal Information Institute's page is an excellent resource:

http://www.law.cornell.edu/constitution/index.html

I also like the following commercial site, since the entire text can be viewed (and searched with CTRL+F function) as a single HTML page:

http://www.usconstitution.net/const.html

For the more romantic students among you, you can view a high-res photographic image of the actual document here (but good luck trying to read the Founding Fathers' handwriting):

http://www.archives.gov/exhibits/charters/constitution.html