Week 1, 7-11 Jan. 2013
PART 1: US JUDICIAL HISTORY
Lecture: introduction to legal concepts; hierarchy, writs, plain language v cong. intent, cons v libs, activism v restraint.
Constitution online at Cornell Law School, Index | Amendments (Bill of Rights)
Article I: Legislature | Article II: Presidency | Article III: Judiciary | Annotated version
Article IV: States | Article V: Amendment Process | Article VI: Legal Status of Constitution |
McCloskey, 1: The Genesis & Nature of Judicial Power | LectureWeek 2, 14-18 Jan. (No F)
To what degree did the Constitution establish the Court system?
What role did the Founders intend the Court to play in the separation of powers?
How did the Court establish its own power?
McCloskey, 2: The Establishment of the Right to Decide: 1789-1810 | LectureWeek 3, 21-25 Jan. (M=MLK)
How could the court establish independence, review and sovereignty?
McCloskey: 3: The Marshall Court and The Shaping of The Nation: 1810-1835 | Lecture [Local PPT]
What early statutes and cases helped establish the authority of the Court?
How did the chief justice work to build the Court's authority?
How did the Court build up federal power over the states?
Which clauses of the constitution gave the Court authority over the states -- and over regulation of business?
Nivola (ed), 36: Hamilton, Federalist 78 [Hunter]
Brutus, Anti-Federalist article notes
Is the judiciary an excessively powerful and undemocratic branch -- or really a weaker branch?
From what does the judiciary derive its authority?
Is the power of judicial review derived from the fundamental law; from the People; or from the early peace and prosperity?
Lecture: Briefing a Case
Nivola (ed), 39: Marbury v Madison, (1803) [Jeremiah]
Does the Supreme Court have the authority to review statutes for constitutionality?
Does the Supreme Court have the power to order the executive to take an action?
McCloskey, 4: The Court Under Taney: The Natural History of Judicial Prestige | Lecture on Taney [Local PPT]Week 4, 28 Jan-1 Feb. (No F)
Did Taney set out to overturn Marshall's rulings?
Did the Court restore states' rights over the federal government?
How did the Court tackle the thorny issue of slavery?
You may find the case briefs on http://www.casebriefs.com or Wikipedia to be helpfulDred Scott v Sandford (1854)[Reporter]Nivola (ed), 35: Corwin, Higher Law in Amer Const Law [Skye]
Did a slave in 1854 have a right to sue for his freedom?
Did it matter where the slave had lived and travelled?
What does it mean to be a citizen, and to have legal standing?
What should be the role of the judiciary in a democracy?
McCloskey, 5: Constitutional Evolution in The Gilded Age: 1865-1900 | Lecture
How did the Court shape economic relationships in the Gilded Age?
By what doctine can the federal government intervene in state regulation of trade?
Slaughter House Cases [Local PPT]
Gibbons v. Ogden (Steamboat monopoly cases) [Brief]NEW
Plessy v Ferguson 163 U.S. 537 (1896) [Notes]
Were racially separated railroad cars constitutional in 1896?
If segregated accommodations were constitutional, under what conditions?
President Obama's Second Inaugural address, 21 Jan. 2013, from NY Times, on YouTube, 18' [Local PPT]
Similarities in President Obama's two inaugural addresses, 2009 and 2013, CNN, 2'
McCloskey, 6: The Judiciary and The Regulatory State: 1900-1937Week 5, 4-8 Feb.
Would the Court accept an increase in federal programs in 1936?
By what constitutional clause or amendment does the US government have authority to regulate business?
Would the Court strike down federal programs to regulate business?
McCloskey, 7: The Modern Court & Postwar America: 1937-1959
Would the Court uphold federal treaties and foreign policy?
Does the government have a right to forcibly intern civilians in wartime?
Sample cases on presidential powers in wartime:
You may find the case briefs on http://www.casebriefs.com or Wikipedia to be helpful
Nivola (ed), 42: Korematsu v US [Notes] (1944)[Local PPT]
Is it constitutional, under presidential authority in time of war, to force citizens out of their property and into camps?If conflicting executive orders require citizens both to stay indoors (under curfew) and to leave their property, can they be punished [Hirabayashi v US, the preceding case]?United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)
Under what authority does the president sign executive orders that ban arms sales to foreign countries: inherent powers, enumerated powers, or statutorily delegated powers?
Are the President's powers in national security policy "plenary"?
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) [Brief]
Is it constitutional, under presidential authority in time of war, to order striking steel workers back to work?
If so, is that authority inherent to the Presidency, granted under the C-in-C role, or delegated by statute?
Can the president use such powers without exhausting his lesser powers under the Taft-Hartley Act to require a cooling-off period (temporary return to work) during an industrial strike?
McCloskey, 8: Civil Liberties, Civil Rights, & the Supreme Court ...Week 6, 11-15 Feb.
Does a freed slave have the rights of a citizen?
Can society forcibly separate the races in public accommodations and transport?
What rights should an accused person have under interrogation or in court?
What does "due process of law" mean, anyway?
Do congressional districts have to be the same size to ensure "one man, one vote"?
Is there a right of privacy -- even if it conflicts with a right to life?
See Dates page for Test 1, which may include multiple choice, short answer and essay questions on all the above.
Lecture on the background of the First Amendment [PPT]
You may find the case briefs on http://www.casebriefs.com or Wikipedia to be helpfulNivola (ed): 40: Brown v Board [Notes], 347 U.S. 483; 74 S. Ct. 686 (1954) [Case] [Jonathan]Map of educational separation in the US before Brown, (from Wikipedia, reliability unknown)
Bolling v. Sharpe, 347 U.S. 497 (1954) [Brief] NEW[Bailey X]
Brown v. Board II, 349 U.S. 294 (1955) [Brief] [Brian]
Sweatt v. Painter, 339 U.S. 629 (1950) [Brief] NEW[Hunter]
Does equal protection of the laws imply desegregated schooling?
How must desegregation be implemented?
What does "deliberate" mean in legal terms?
Classroom and study group scenes excerpted from the film, "The Paper Chase" - (Harvard Law School, fiction, 1973 -- if available) Climactic classroom scene, Youtube, 3' | Film notes on Wikipedia.
How does the Socratic method proceed? How does it contrast with the critical legal studies method?
How does it differ from the political science approach generally?
Should the political circumstances and policy consequences of a case be analyzed in a law school?
McCloskey, 8: continued ... and rights of criminal defendants, pp. 161-165 in 8eWeek 7, 18-22 Feb. (No F)
Legal glossary of terms used in class | definitions by student [scanty]
For AWAC speaker event and Presidential State of the Union message: check Dates page.
Review of sample civil rights cases of the Warren court:
You may find the case briefs on http://www.casebriefs.com or Wikipedia to be helpful
-- if discussed in class, may included on Test 2; check with instructorMapp v. Ohio, 367 U.S. 643; 81 S. Ct. 1684 (1961) [Brief] [Findlaw] [Jeremiah]When feasible: Test 1 returned, with exemplary written answers presented
Can a piece of evidence, obtained illegally, be used in court?
Baker v Carr (1962) [Brief] NEW [Trace]
Hypothetical, Equal State Districts Map, 2013
What does "one man, one vote" mean about the the average size of electorate in a district?
Should a court intervene in political questions?
Gideon v. Wainwright 372 U.S. 335 (1963) [Brief] [Findlaw][Nater]
short video, on Gideon and Miranda (if time permits)
Film, "Gideon's Trumpet" (with Henry Fonda, made for TV, if available)
Can a poor man defend himself effectively without a free lawyer?
Miranda v. Arizona 384 U.S. 436 (1966) [Brief] [Findlaw] [Local PPT]
Must a defendant be warned about his rights?
*In 2011, Test 1 includes the cases above this line, since they were discussed in week 5.
Additional case briefs on rights related to sodomy:
Bowers v. Hardwick 478 U.S. 186 (1986) [Brief] [Findlaw] [John]
Lawrence v. Texas 539 U.S. 558 (1993) [Brief] [Findlaw] [Casebriefs (not a good one)][Mike]
Does an adult have a right to privacy in his bedroom?
Can the police, when entering on a warrant for one alleged crime, arrest a citizen for another?
Can a state legislate a ban on specific ways of making love in private?
Does the Supreme Court ever reverse itself within a few years?
Can states legislate against any personal behavior regardless of federal doctine?
McCloskey, 9: Judicial Monitoring of Welfare StateWeek 8, 25 Feb-1 Mar.Plyler v. Doe, 457 U.S. 202 (1982) [Brief] [Zach]Completion of film, The Paper Chase, followed by discussion.
Do children of undocumented aliens have a right to public education?
Does the film depict a method that constructs students ability in legal reasoning -- or does it undercut their abilities as lawyers?
Does the film depict law students as learning anti-social behavior traits?
CNN TV coverage, Sen. Sessions in US Senate hearings, questions supreme court nominee Elena Kagan about her work as Dean of Harvard law school (and military recruiting on campus issue).
The following documentary videos may logically fit here, but may be shown when time permits, in later weeks:
PBS, "One Nation Under The Law: The Supreme Court" (documentary film)
PBS, "Case for Innocence" (documentary film) (Juvie. justice)
Outline of President Obama's Address to Congress, 24 Feb. 2009 (includes a confrontation over the Citizens United case)
Note: Owing to doctor's appointments on the two days, no classes on Monday 25 Feb. and Friday 1 Mar., 2013. Please be prepared on readings and term paper plans, to be questioned on my return.Week 9, 4-8 Mar.
O'Brien, 1: A Struggle for Power
What does the abortion issue tell us about the roles of the Court and Congress in policy?
O'Brien, 2: The Cult of the Robe
How are judges selected, nominated and appointed?
Is it legitimate to nominate justices for their political persuasions?
Sample cases on issues of reproductive rights:
You may find the case briefs on http://www.casebriefs.com or Wikipedia to be helpfulGriswold v. Connecticut, 381 U.S. 479 (1965) [Brief] [Brian]Additional case briefs on affirmative action:
Nivola (ed): 41: Roe v. Wade (1973) [Brief] [Hunter]
Additional case briefs on abortion issues:
Webster v. Reproductive Health Services, 492 U.S. 490 (1989) [Brief] [Findlaw] [Audio at Oyez] [Bailey]
Rust v. Sullivan, 500 U.S. 173 (1991) [Brief] [Audio at Oyez] [Jeremiah]
Planned Parenthood v. Casey, 505 U.S. 833 (1992) [Brief] [Findlaw] [Audio at Oyez] [Taylor]
Can the state ban a married couple from using contraceptives?
Can a state legislate a ban on abortions, and if so, under what conditions?
Does a woman have a right to privacy in her own body? If so, under what constitutional doctrine?
Does a foetus have any constitutional rights, and if so, under what doctrine?
Can a state require onerous conditions before a mother terminates her pregnancy?
Can the State ban doctors from discussing contraception or abortion options?
Are there any rights that have unlimited application?
You may find the case briefs on http://www.casebriefs.com or Wikipedia to be helpfulU. California Regents v. Bakke 438 U.S. 265 (1978) (Medical School) [Brief] [Findlaw] [Audio at Oyez] [Jon]The following documentary videos may logically fit here, but may be shown when time permits, in later weeks:
Gratz v. Bollinger. 539 U.S. 244. No. 02-516. (2003) (U. Michigan undergraduates)[Brief] [Findlaw] [Audio at Oyez][Victoria XX]
Grutter v. Bollinger. 539 U.S. 306. No. 02-516. (2003) (U. Michigan law school) [Brief][Findlaw] [audio at Oyez][Zack XX]
Center for Individual Rights USA, "Ending racial double standards: CIR's lawsuits against the University of Michigan NEW [Hunter]
Can scholarships be set aside for minority students? By what doctrine?
Can a university give either a reserved quota, OR points in admission, to minority students? By what doctrine?
If a university gives many points in admission to minority students, does that make it a quota system?
PBS video, "What Jennifer Saw" - (eyewitness testimony)
PBS video, "Mr. Justice Brennan" (profile of the justice who influenced public policy in the second half of the twentieth century)
O'Brien, 3: Life in the Marble Temple | LectureWeek 10, 11-15 Mar. (No W)
How does the Court function?
Does the Court have enough bureaucracy to keep it running properly?
O'Brien, 4: Deciding What to Decide
How does the Court decide whether to hear a case?
How can an individual petition the Court for redress?
What characteristics make a case justiciable?
What questions should the Court NOT consider?
How does the Court manage its case load?
Jan Crawford Greenburg, Stallworth Lecture at HC, Fall 2008, on book Supreme Conflict, notes [Reporter]
How successful was the religious right and the G.W. Bush administration, in securing conservative appointments to (or "stacking" to their detractors) the Court?
How does the appointment process work?
Should political views (or constitutional doctrines) be a factor in appointment to the Court?
Nivola (ed), 37: Murphy, "Marshalling the Court"[Reporter]
How can a justice seek power over opinions on the Court?
O'Brien, 5: Deciding Cases & Writing OpinionsWeek 11, 18-22 Mar.
Do oral arguments still have a role to play?
Is decision more an individual justice's choice or a collective choice?
Who gets to write the Court's opinion(s)?
O'Brien, 6: The Court & American Life
How can the Court enforce its opinions?
How does the Court communicate with the public?
Does the Court follow public opinion?
How does the Congress react to Court opinions?
How does the presidency respond to Court opinions?
Nivola (ed), 38: Shapiro, "Presidency & Federal Courts"
What are the political strengths and weaknesses of the Court?
What is the balance between judicial activism and restraint on the Court?
Brief video, APTV, Campaign '00: Roy Moore versus Sharon Yates (if time permits)
See Dates page for Test 2, which may include multiple choice, short answer and essay questions on all since Test 1.
Explore Curtis's index, and enjoy both the editor's introductions and the excerpted readings.Spring Break, 25-29 Mar. 2013
From Curtis v.1, section I: The Ancient Greeks
Plato,The Republic, from the Socrates-Adeimantus dialogue [Dr. Lewis]
What is the role of Justice in a State? [Plato]
What is the purpose of the State? [Plato]
How are social classes to be treated by the State? [Plato]
What are the three waves of reform? [Plato]
How should people be persuaded to accept philosophers as guardians? [Plato]
When feasible: Test 2 returned, with exemplary written answers presented
PBS video, "Mr. Justice Brennan" (profile of the justice who influenced public policy in the second half of the twentieth century) -- shown before spring break, 2013
From Curtis v.1, section I: The Ancient Greeks
Aristotle, The Politics [notes still needed] [Bailey XX & Brian]
How should a constitutional republic be constructed? [Aristotle]
Who should rule over a family? [Aristotle]
Is is right to own slaves? [Aristotle]
What are the three branches of government for? [Aristotle]
From Curtis v.1, section V: Mediaeval Life and Thought
St. Thomas Aquinas, life pp.177-8,; and Summa Theologica, works pp.196-210 [Jon]
Is government the result of sin -- or of man's social nature? [Aquinas]
What is the relationship between social laws and the Natural Law? [Aquinas]
Can we separate the two realms (or cities) of Man and God?
From Curtis v.1, section VII: The Renaissance
Niccolo Machiavelli, life pp.215-217; works pp.219-229 [Nater & Mike]
How does Machiavelli's thought differ between the Prince and the Discourses?
Does Machiavelli argue for a Prince or a Republic?
Is it better for a ruler to be feared -- or loved?
If a ruler must do damage to his subjects -- when should he do it?
Is the Prince immoral -- or amoral?
If a Prince should restrain himself out of prudence, is that also moral advice?
Is Machiavelli writing about a state founded on religion -- or a secular state?
What is Machiavelli's notion of virtue -- or Virtu?
Materials from Bradley Best, PhD, my former student, expert on judicial politics, Supreme Court Research HelpWeek 12, 1-5 Apr.
Explanation of research project: seeDates page and Requirements pageWeek 13, 8-12 Apr. (No F)
Explanation of the course rotation and courses offered for next term; and interviews with academic adviser for pre-registration advising.
Liberal versus communitarian Justice: a Discussion [Reporter]
From Curtis v.1, section VIII: Vico & Hume
David Hume, life pp.391-92; and works pp.397-411 [Will]
From Curtis, V.1, section XI: Hobbes and Spinoza
Baruch Spinoza, life pp.328-9; and works pp.350-356[Hunter]
From Curtis v.2, section 1: Rousseau, Condorcet and Kant
Immanuel Kant, life pp.17-18; and works pp.40-47 [Jeremiah]
[You should have read Hobbes, Locke and Paine in American government classes; if not, enjoy here]
From Curtis v.2, section IV: Utilitarianism
Adam Smith, works pp.108-117 [Brandon]
Curtis v.2, section IX: Social Darwinism, History and Neo-Idealism
Herbert Spencer, life pp.254-5; and works pp.257-67[Hunter X]
Walter Bagehot, life pp.255-6 and works pp.267-72 [notes still needed] [Bailey XXX]
What are the virtues of competition in the market?
To improve the human breeding stock, should the poor be allowed to die off? [Spencer]
Training for research project, with references and audiovisual presentation; see Dates page & Requirements pageWeek 14, 15-19 Apr.
[You should have read Jean-Jacques Rousseau in 302 or other classes; if not, enjoy here]
From Curtis v.2, section V: Early Socialism and Positivism [notes needed]
Pierre Joseph Proudhon, life p.131 and works pp.133-140[Will XX]
Can people work together in equality within a community? [Socialists]
Are there times when the needs of the community should override the needs of selfish indivuals? [Socialists]
From Curtis v.2, section VI: Marxism
Karl Marx, life pp.155-8; and works pp.158-80, [Jon]
[Karl Marx bio from Lucid Café web]
From Curtis v.2, section XII: Anarchism, Democratic Socialism and Marxism
Vladimir Illyich Ulyanov, known as Vladimir Lenin, life p.350; and works pp.362-373[Hunter]
Lev Bronstein, known as Leon Trotsky, life p.350-1; and works, pp.373-9[Brian]
Is the capitalist system based on the exploitation of man by man? [Marx]
Will the capitalist system inevitably collapse, and why? [Marx]
If capitalism is bound to collapse, why is a revolutionary party necessary? [Lenin]
Once a revolution is achieved, will the state wither away [Marx]
Do we need a permanent revolution? [Trotsky]
Franz Kafka, The Trial (1925, film 1963). [Reporter]
Book notes on The Trial
Film notes on The Trial
What does Kafkaesque mean? A discussion
Illustrated presentations by students of their research projects, followed by interrogation and critical thinking discussion
Presentations timetable | Advice | NEW
Examples from past seniors' capstone presentations (see Rainey, McCollum and Pierce for model PPT files)
[19-20 April 2013, No PSC classes Friday & Saturday: ALaPSA conference]
From Curtis v.2, section XIV: Sociology, Psychology and PluralismSee Dates page for Comprehensive Exam.
John Rawls, life p.426; and works pp.457-67 [outline from LAS Justice reading] [Jon]
Why would an individual choose to give up some freedom in return for government benefits? [Rawls]
Under what conditions would a modern social contract be accepted?
From Curtis v.2, section IV: Utilitarianism:
Jeremy Bentham, life p.105-8; and works pp.117-120[Bailey]
James Mill, life p.105-8; and works pp.120-4[Taylor]
John Stuart Mill, life p.105-8; and works pp.125-9[Nater]
How does the division of labour improve the productivity of firms? [Smith]
What is the role of the guiding hand of God in the market? [Smith]
How can "the greatest good for the greatest number" actually be applied to government services? [Utilitarians]
Is it ethical to achieve happiness for the greatest number of individuals?
Is societal happiness different from that of all individuals?
Does quality of happiness matter, or only quantity? [JS Mill]
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