Where Are We?...  Why Are We Here?... What Have We Done?
(dedicated to Admiral James Stockdale)

updated 2 December 2010

Soundclip from the 1992
Vice Presidential Debate 
(thanks to Michael Harms for technical assistance)

At the end of each week of the class, and sometimes during the week, I will briefly review where we are in the course and the readings, the major points we've covered, and what the next week will bring.  I will also post whatever idiosyncratic class information that pops up here.

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What has John Paul Stevens been doing?  Check the News and Notes page to see.

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REVIEW SESSION: 

The review session for the final exam will be Tuesday, 7 December, from 9-10 AM in the Tower Center Boardroom.  Sorry about the time, but I've got 3 meetings that day and this is the only time slot that worked.  Look at it this way, though... you'll have a nearly full "reading day" to prepare for your other exams when we are done.

I'll post office hours for Wednesday of next week (Monday hours will be as usual) later.

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1 December:  Jim Morrison sang it: "This is the end, my friend, the end."  Of class, at least.  We then turn to the next phase of our lives.  I've got to make my plans, but here are some guidelines for you for Friday's class:

Due Process Cases:  Holden, Lochner, Muller, Adkins, Nebbia, West Coast Hotel, Williamson,* Gore,* and Caperton.

Takings Cases:    Barron,* Causby,* Berman,* Penn Central, Hawaii, Nollan, Lucas, Kelo.

Eric Jacobsen was wrong at the end of class.  That's not 20 cases; it's 17.  That is a lot, but it's time to take off the training wheels.  There is a final exam around the corner.  Think thematically along the lines of the graphage I put up on the board at the beginning of class.  In addition, to help you out, the cases above with *'s after them will be treated quickly in discussion, and I will not pick up any briefs.  That said, it would be in your best interest to be very prepared for class.

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25 November:  A Happy Thanksgiving to all.  Once the turkey settles, your mind will naturally turn back to Constitutional Law.  Since you have been working on your papers all semester -- you got the prospecti back on 13 October, and it is called a term paper for a reason -- you will likely wonder about the cases I hope to cover in class next Wednesday (1 Dec.) and Friday (3 Dec.).  Your wonderings are herein address:

Wednesday, 1 Dec.: Finish Contract Clause cases, and move on to the "Substantive Due Process" cases.  For the latter, focus on the Court's initial rejection of this doctrine (The Slaughterhouse Cases) and its eventual endorsement.  This will take you through Adkins v. Children's Hospital (1923; remember, read the assigned cases chronologically).  On Friday, 3 December, we will finish the due process cases and tackle the last section of the syllabus: the "Takings Clause."  

Do not worry about reading/briefing Morehead v. Tipaldo (1936), and I may prune a takings clause case or two as well, depending on how far we get on Wednesday.  That said, don't go into "a stall" thinking that I'll radically cut back on the Takings cases.  I won't.  You'll just have to come to grips with them on your own.

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18 November:  Units, this is why you train.  The sprint has begun.  Friday, 19 November, we will finish all cases in section VII.C of the syllabus.  To quicken our treatment of them, I want you to focus on the development of doctrinal lines and their relationship to the other federalism cases we've treated.  We will then turn to the "Economic Liberties" section of the syllabus, and start in on the Contract Clause.  Read those cases chronologically, and be through Home Building and Loan v. Blaisdell (1934). 

Also, don't worry about reading Morehead v. N.Y. (1936) in the "Substantive Due Process" section of the syllabus.

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16 November:  Wednesday, 17 November, we will finish all cases in section VII.B. of the syllabus, and then turn to VII.C... the power to tax and spend.  Please have all the cases in that section of the syllabus prepared for this class, as well.

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10 November:  Friday we will finish section VII.A. of the syllabus -- attend to the Rehnquist Court quasi shift and think Eleventh Amendment -- and venture on to VII.B  For the latter, be through, reading in chronological order, Hunt v. Washington Apple (1977).

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9 November:  There is a minor typo in the syllabus.  Under VII.A. of the syllabus the E/W pages are listed as 40-71.  It should read 400-71 (which, given its position on the syllabus and the layout of the book, should be relatively clear but this should COMPLETELY clarify).

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6 November:  That's the tempo, homies.  Now let's really pick it up.  You know the general federalism baseline, and the constitutional considerations that inform it, so let's be through Wickard v. Fillburn (1942) -- maybe Heart of Atlanta Motel (1964), if we get a really good head of steam up -- by the end of class next Wednesday.

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3 November: And the beat goes on... and speeds up... appreciably.  Friday, we will extinguish Hibbs, Lane, and Katz in short order.  Be sensitive to 1) their relationship to previous decisions, and 2) coalitions.  Then we will briefly -- 17minutes, 30 seconds, tops -- handle pre-emption (it will pop up from time to time later in the class).  THEN we will turn to the Commerce Clause of Article I § 8.  To that end, be sure to be through these cases: Gibbons, Willson, E.C. Knight.  (Off the hook, Summer... 'til Wednesday, at least.)

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2 November: The class presentation page is updated.

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30 October: As promised, and I know that some of you have organized your weekend around this announcement, note the revised schedule for the remainder of the semester.  (I will adjust the presentation dates accordingly, as well.)

Wednesday, 3 November: Federalism ... remaining cases from VI.A. and all of VI.B.

Friday, 3 December: Economic Liberties and State Regulatory Power: Takings Clause (VIII.C)

As always, I will post more specific case information as we approach the relevant class days.

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28 October: Goal is to get exams back tomorrow.  Be through Part VI b of the syllabus.  If we don't get there tomorrow, we will do those cases very quickly on Wednesday next.  (Thanks to Eaton for the prompt.)

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23 October: Wednesday we will finish up most of "General Approaches to Federalism," so have 1) Federalist #39, 2) all the cases under section VI.A. in the syllabus, AND 3) U.S. v. Darby (1941) [E/W pp 439-41] in hand.  I originally assigned the latter during the Commerce Clause" section, but for reasons that will become apparent in class, it makes sense here.

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21 October: I have given quizzes the day after an exam.  Students sometimes think them unfair, but I think it unfair for students to come to class unprepared, even after an exam.  I mean, I'm supposed to be prepared, no?  So, too, you.

For class tomorrow, be prepared to consider the general conundrums posed by federalism.  To this end, have Chisholm v. Georgia, McCulluch, Scott, Hammer, National League of Cities, Garcia, New York, and Printz in hand.  The boat?  She's a-steaming out of port after the brief pause to have her engines evaluated.  Don't miss her departure.

Remember the Career Panel and the extra credit opportunity it represents!

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14 October: Tomorrow we run the table: Quirin, Hirabayashi, Korematsu, Endo, Youungstown (redux), Dames Moore, Hamdi, Rasul, Handan, and Boumediene.  They are thematic, and we will play off the themes.  Note, especially in the WOT cases, the coalitional structure of the Court.

Review Session:  Tuesday, 19 October, 6:30 PM, Tower Center Boardroom

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12 October: Tomorrow, 13 October: V.B. Separation of Powers: War and Emergencies.
15 October: V.C. Separation of Powers: War on Terror
20 October: Mid-Semester Exam

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6 October: On Friday, we will do all the cases in V.A. (on the syllabus), and the Civil War cases in V.B. ... Prize, Vallandigham, and Milligan.

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5 October: We will handle the Foreign Affairs powers of the Executive (Curtiss-Wright, Belmont, Youngstown, and Haig) in the first 30 minutes of the class tomorrow, 6 Oct, briefly frame three theories of Presidential Power (literalist, prerogative, and stewardship -- both its standard and "unitary" dimensions), and turn to V.A., "SOPs in Practice: Domestic).  For that discussion, have Hampton, Panama Refining, Chadha, and Bowsher in hand.

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30 September: We will finish Domestic Power (Train, Morrison, Clinton, and Clinton), and then turn to the cases in IV.B. of the syllabus, "Foreign Affairs and Emergencies."  Note that Belmont and Haig are on the CQ website, and that the other cases are in E/W.

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22 September: As the late, great, member of the House of Representatives, Sonny Bono once sang, "and the beat goes on."  We will handle Barenblatt and Katzenbach at the outset of class on Friday (think about the differences between Barenblatt and Watkins), and then turn to Executive Power.  To that end, have  Mississippi v. Johnson, Neagle, Grossman, Myers, and Humphrey's Executor in hand.  There is an outside chnace we'll get to U.S. v. Nixon (the Nixon case for those who were confused when we did big Walt), but it is an outside chance.

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18 September: On track, we are.  Finish cases in "III. Legis Power" for Wednesday, and turn to Executive Power on Friday.  Get on your prospecti.

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15 September: Well are pulling back to where we should be.  In fact, we might be ready to start the executive power early, but more on that after Friday's class.  On Friday, though, we will finish techniques of evasion and the judiciary, and scamper over to legislative power.  When you read the cases we will cover --McCulloch, Kagama, McGrain, Curtiss-Wright, and Barenblatt,  -- think about where the Court finds the powers that it ascribes to Congress, when and how it limits those powers, and what this suggests about ideas such as "limited government" and a "limited constitution."

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13 September: Excellent "make-up" class today, and thanks to the 22 (of 26!) of you who attended.  On Wednesday we will finish up technical barriers: all of the "political question" cases.  THEN, we will move on to legislative power.  For the latter, make sure you have McCulloch, Kagama, and McGrain in hand.

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12 September: Remember, like you could have forgotten, we have our make-up class tomorrow, from 2-3:20ish, in 302 Florence Hall.  We will finish the "technical barriers" section of the syllabus.  Wednesday we will move on to the "legislative power" section.  I will also have "make up" office hours from 3:30-4:30 tomorrow afternoon... for those who just can't get enough of me.

Approximate dates for presentations are now up and live.

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8 September: Okay, units... for Friday: first 40 minutes, Meese, Brennan, and Souter.  Hannah and Catherine will give me the high sign at 40 minutes, but I hope I'll get something like a 10, 5, 2 minute countdown so I can smooth the edges of our discussion.  I'm big on smooth edges.  Hate sloppiness.

THEN, we will turn to "technical barriers" -- judicially crafted tools that allow the Court (and then lower courts) to avoid cases on their merits by dismissing them on jurisdictional grounds or finding them non-justiciable.  We will start with ripeness and mootness, and move on to standing and close with political questions.  Our approximate schedule is below:

Friday, 10 September: Poe (1962); DeFunis (1974); Frothingham (1923), Flast (1968), Raines (1997), Hein (2006)

MONDAY, 13 SEPTEMBER MAKE-UP DAY: Luther (1849), Colegrove (1944), Baker (1962), Powell (1969), Goldwater (1979), and Nixon (1993).

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2 September: Smart-assed comments to the side, we are a tweak behind, but not too terribly so.  No class this Friday; make-up class Monday, 13 September, in 302 Florence Hall.  On Wednesday, 8 September (our next class meeting), we will dispatch with Hunter's Lessee, Cohens, Eakin, City of Boerne in the first 45 minutes of class.  [I need a volunteer to enforce that time limit.]  Then we spend 10-15 minutes on the congressional regulation of appellate jurisdiction cases, and the remainder of the class on the jurisprudential approaches pieces: Brennan, Meese, and Souter.  Read these carefully, as we won't describe but analyze them in our discussion.  Note where they are similar, different, and how so.

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28 August: As expected, most of the quiz grades were excellent.  Sadly, and also as expected, a number were not.  This is the only announced quiz that you will have this semester.  You need to 1) keep up with the work, and 2) be prepared -- not in a sorta but in a really sense -- for class.  It's not gonna get easier.  This is almost like college.  Don't be the fly, hovering, waiting for the windshield on the freeway. (Genesis, The Lamb Lies Down on Broadway, 1974: video/music, lyrics)

For Wednesday, 1 September:
1) bring the "Thoughts on the Judicial Role" handout
2) have Marbury, Hunter's Lessee, Cohens, Eakin, City of Boerne, McCardle, and U.S. v. Klein ready to discuss.

The "Consumers' Guide" is fixed and the location to purchase the E/W Supplement is here.

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26 August: A couple of things as we ready for Friday:

Be through the assigned Federalist Papers, and Marbury, Martin, and Cohens.  As the syllabus says, I want you to read the cases in each section in chronological order.  ("In general, you should read the cases – from both the texts and from secondary sources – in chronological order." p.1)

As to briefing, note both the handout on the Blackboard page and the discussion of it in one of E/W's appendices.  (I can't recall which, as I'm home and don't have access to the book.)  Kevin Eaton's brief of Cohens is up on Blackboard, so you can get a sense of what these things look like.  As you should know from your review of the Blackboard page, my "sample brief" of Marbury is up.  Work from the hand-out and the E/W discussion as you brief the cases, and check your briefs against what we say in class.

As to which cases to brief, let me quote what I told a student in an email last night:

"Note the syllabus:

"1) Case Briefing.  To assist in reading, analyzing, and remembering the assigned cases, I require you to “brief” cases as you read them.  Although this process may seem tedious, it will help you master the cases treated and will be of infinite value in preparing for examinations.  The basic components of a brief are the facts, the issues, rationale (RATIO DECIDENDI), the decision and, if present, the concurrences and dissents.  An outline of proper briefing form is found on the “Course Handouts” page on Blackboard.  Examine it, and we will go over the correct briefing form and style in class.  A sample brief of Marbury v. Madison (1803) is also posted on the “Course Handouts” webpage.  I suggest briefing all cases treated at length in E/W, its Supplement, and on the web.(p.5)

"Brief the cases that have long excerpts of opinions.  Not those that are simply mentioned.  If a case is just mentioned, what would you brief?  You have no opinions to brief.  Attend to what the text says about them, but don't brief them.  You don't have the info necessary to brief them.  For Friday, off the top of my head, you need to brief MARBURY, MARTIN v. HUNTERS LESSEE, and COHENS v. VIRGINIA."

Feel free to ask me questions about briefing when, as I told you I would on Wednesday in class, I answer your questions about the syllabus' contents at the beginning of the class tomorrow.

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23 August: Once the semester begins, I will post here information relevant to the conduct and progress of our class.

 Okay... the syllabus is posted and all is set save for the specific dates for the presentations.  (The clever among you will be able to figure out roughly when they will occur by adroit use of the syllabus.  The rest of you can wait until the weekend when I post them.)  Look at the presentation case page and follow the instructions at its bottom.

Read the syllabus, in its entirety, carefully before the first day of class.

As noted in the email I sent out today, class begins on Wednesday.  We will hit the ground running.  Read Federalist Papers 9, 10, 51, and 78 prior to the first class.  Get into the introductory readings in E/W, bring two copies of a signed student contract with you to class by Friday, 27 August.  The Blackboard class webpage is also up and functional.  Familiarize yourself with it as well.  You will spend a good deal of time there this semester.

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17 August:  Once the semester begins, I will post here information relevant to the conduct and progress of our class.  The student contract is now posted.  Please print up two copies, sign both, and turn them in to me in class no later than Wednesday, 27 August.

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