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Assignments:

First quarter -- Blogs
Second quarter -- Philosophy Talk,  Scalia-Strossen Debate, group presentation
Second Semester -- Supreme Court Simulation -- General Description
    Appellant brief
    Respondent brief
    Judge Questions
    Judge Decisions
        AB v Hypothetical High School 
        John Smith v State of Oregon
        Willamette River Reader Publishing v Jane Doe
        Janet Smith v Lake Mossweego School District
        John Smith v Jefferson School District

First Quarter-Blogs:

     Fallacies 

The purpose of this assignment is to have students consider the presence of fallacious or paranoid politics argumentation in our current political milieu.

            Directions: (choose one) Fallacies are due on Sept 11, Paranoid politics due on Sept. 15

                        1) Find and identify three fallacies (left or right) present in modern newspapers, magazines, or print advertising. Please include clippings from the three sources and an explanation (on a separate sheet of paper) of the fallacies you found and why you feel them to be faulty.

                        2) Find and identify three examples of paranoid politics (left or right) in modern newspapers, magazines, or print advertising. Please include clippings from the three sources and an explanation (on a separate sheet of paper) of the examples you found and why they meet the criteria that Hofstadter establishes.

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Philosophy Talk assignment of Separation of Power (due October 21)

Philosophy Talk, Mr. Koepping’s favorite radio program, recently aired a program on the Separation of Powers. It was wonderful. The link is at: http://www.philosophytalk.org/pastShows/SeparationPowers.html

You will listen to it and you will enjoy it. If it will not play, then monkey around with the volume control.  You will then answer the following questions on a typed, single sheet of paper:

1. What is the philosophical foundation of the separation of powers?

2. What did the Founding Fathers not take into account when they formulated the idea of separation of powers?

3. What informal check on power has emerged from the voters that has augmented the formal separation of power?

4. Why, according to Kathleen Sullivan, is separation of powers essential?

5. Why, according to Kathleen Sullivan and Congresswoman Anna Eshoo, is separation of powers in danger right now? What evidence do they offer?

6. What examples does Sullivan cite for times when separation of powers has worked?

7. Are they correct?

8. What is the downside of separation of powers?

Scalia-Strossen Debate (Due on December 1)

 In November 2006 there was a debate between Supreme Court Justice Antonin Scalia and the President of the American Civil Liberties Union, Nadine Strossen. It was wonderful. You will watch it. You will enjoy it. You will answer the following questions:

1) What decisions did Scalia make that are “liberal” and what was the rationale for them?

2) How does Scalia’s definition of democracy affect his judicial philosophy?

3) How do Strossen and Scalia differ over the Due Process clause?

4) How do Strossen and Scalia differ over the idea of the “evolving constitution”?

5) How did Strossen and Scalia differ over the Smith v Oregon decision?

6) Does Scalia believe International Law should guide the American courts? What is Strossen’s response to Scalia’s position?

7) How do Strossen and Scalia differ over the intent of the 8^th amendment?

8) How do Strossen and Scalia differ in their faith of an evolving Constitution?

The link to the debate can be found be going to http://www.c-spanvideo.org/program/194843-1

For those of you who have had problems with opening the link, C-span.org provides the following recommendation:

Presentations on past presidential elections:

  Base groups will provide short presentations (15 minutes minimum, 20-minute maximum) on a past presidential race. The purpose of these presentations is to examine how past elections have informed our current understanding of the electoral process. Students should pay close attention to whether the elections support or conflict with the arguments made by the courses’ assigned readings. Each class will have only one base group presenting on each election. Class time will be given for the base groups to organize its efforts but students shouldn’t expect any class time to do research.

The presentations should include:

·         A discussion of the key issues that were debated and discussed

·         The central campaign strategies of both major candidates

·         The impacts of the media, specifically the rising importance of television

·         What possible campaign crisis occurred and how the candidates handled them

·         Who won the race and why. Who voted for them.

·         How the election continues to inform our understanding of the political process.

Optional (but encouraged):

·         The roles that the major political parties played

·         The impact of third-party candidacies

·         Video or radio footage from debates, media coverage, or interviews.

   
The races eligible for presentations are:

Bush-Gore (2000)

                Bureauc’rats’

                Florida election results

                Ralph Nader

                Oprah, Letterman

Clinton-Bush (1992)

                ‘Bimbo eruptions’

                It’s the economy, stupid

Bush-Dukakis (1988)

                You’re no Jack Kennedy

                Willie Horton

                Riding in a tank

                Murdering Kitty Dukakis

Reagan-Carter (1980)

                Are you better off than your were four years ago?

                There you go again

                The Reagan revolution

Carter-Ford (1976)

                Playboy interview

                Pardons

Nixon-McGovern (1972)

                McGovern’s VP

                CREEP

Nixon-Humphrey (1968)

                The 1968 Democratic convention

                Silent Majority

                Law and Order

Johnson-Goldwater (1964)

                Daisy girl ad

                Extremism in defense of liberty is no vice

Kennedy-Nixon (1960)

                Candidate’s Catholicism

                First televised debates

Rubric for Presidential Presentation

Group score (   /30)

Key issues of the election were described accurately, fairly and in detail.

1………….2………….3………….4

Campaign strategies for both major candidates were portrayed accurately, fairly and in detail.

1………….2………….3………….4

The impact of media coverage and specifics ads was discussed accurately, fairly and in detail.

1………….2………….3………….4

Campaign crisis’ and how the candidates handled them were discussed accurately, fairly and in detail.

1………….2………….3………….4

Who won the race and why is explained clearly taking into account the demographics, issues, and tactics of the campaigns.

1………….2………….3………….4

How the election has influenced our understanding of politics was discussed accurately, fairly and in detail.

1………….2………….3………….4

Presentation was well prepared, with an interesting opening and conclusion. Each participant played an equal part and turn taking was rehearsed and smooth. Participants used good inflection, energy and eye contact.

1………….2………….3………….4………….5………….6

Peer assessment:

Please assess your presentation partners on a scale of 1 to 10 in terms of their preparedness and how well they assisted the group.

Name:________________ Score:_______ Explanation (optional)_____________________

Name:________________ Score:_______ Explanation (optional)_____________________

Name:________________ Score:_______ Explanation (optional)_____________________

Name:________________ Score:_______ Explanation (optional)_____________________

Individual score                    

Name                                       

Presentation                        

Content                        

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Supreme Court Simulation: 

Much of the second semester in this class will be consumed by an in-depth simulation of a hypothetical US Supreme Court case. This will be a challenging activity. Do not wait for the last minute to do these activities. Each role in this simulation will require research far beyond what the Internet has to offer. You may have to interview attorneys. You may have to spend a weekend in a law library. While I am willing to assist you, I will not be a source of more than limited information. This activity will be worth a substantial portion of your second semester grade. Students are responsible for handling scheduling conflicts.

   
Requirements for appellant attorneys: (no more than two for each position – each attorney will receive the same grade for the brief, but different grades for oral arguments)

·         A written brief (how many pages? The Kyollo brief was more than 40 pages long. I don’t want briefs that long, but let’s just say I will be surprised if a five-page brief can do the job) Provide copies of the brief to opposing attorneys, judges, and Mr. Koepping on February 22. Students should also email copies of their briefs to Mr. Koepping on the day they are due.

·         Participate in oral arguments (each side will have 30 minutes and I expect all attorneys to participate) Oral arguments (which are mandatory for your case) will be scheduled early in the semester.

Requirements for respondent attorneys: (no more than two for each position -- each attorney will receive the same grade for the brief, but different grades for oral arguments)

·         A written brief (respondent briefs are usually slightly shorter. In the Kyollo case they were around 30 pages.) Provide copies of the brief to opposing attorneys, judges, and Mr. Koepping on March 12. Students should also email copies of their briefs to Mr. Koepping on the day they are due.

·         Participate in oral arguments (each side will have 30 minutes and I expect all attorneys to participate) Oral arguments (which are mandatory for your case) will be scheduled early in the semester.

Requirements for justices: (grade will be based on the questions submitted and the decision written)

·         Read the briefs submitted by the appellant and the respondent

·         Submit five questions to be asked of the appellants or respondents before the oral arguments and explain why you are asking them. One copy of the questions (and their rationales) are due on March 18. Oral arguments (which are mandatory for your case) will be scheduled early in the semester.

·         Write a decision (Decisions can dictate the legal traditions of our noble republic. Think about that before you ask how long they should be) Six copies of the decisions are due on April 19. Students should also email copies of their decisions to Mr. Koepping on the day they are due.

Oral argument

Court called to order

Appellant – 25 minutes

Respondent – 25 minutes

Appellant rebuttal – five minutes

Respondent rebuttal – five minutes

Court will adjourn

The appellant and respondent will begin their 25-minute presentations but may not actually be able to end them. The justices traditionally grill both sides of a case and that grilling is counted against the speaker’s 30-minute time limitation. It is expected that each justice will ask at least one question of each side. The questions do not need to be hostile. The speaker must immediately address the question before they can return to their prepared remarks. Each attorney is expected to speak. Justices will not ask questions during the rebuttal periods. Oral arguments will be on April 3, 8 and 10.        

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Appellate:

Appellant briefs 

An appellant brief must include these elements in the order they are listed. Each section should have its own page. When you submit your briefs you need to provide individual copies for the justices, the opposing attorneys, and two for Mr. Koepping. Students should also email copies of their briefs to Mr. Koepping on the day they are due.

·        A cover sheet that lists the appellant (or petitioner) v. the opponent, then states “on writ of Certiorari to the United States Supreme Court,” and then states “Petitioner’s Opening Brief”

·        The next page should present the central question in the case. It should be expressed concisely without unnecessary detail. Try to keep it to one sentence. It should be phrased in the form of a question and not a statement.

·        A table of contents that includes all the sections and subsections in the brief and a table of authorities that lists all the cases and opinions you will be referring to.

·        The constitutional provisions, statutes, ordinances, and regulations relevant to the case. The relevant parts of these documents should be quoted verbatim in this part of the brief.

·        A Statement of the Case should describe the relevant facts of the case. This section would also normally include the decisions of lesser courts. Because these cases have not actually been reviewed you will not be able to discuss previous decisions. Instead you should focus on the facts of the case.

·        A Summary of Argument is a concise and direct argument that summarizes why the court should rule your way. In this section be sure to refer to precedent and why or why not certain precedents should be applied in this case.

·        Argument should be the longest section of the brief. It includes the details of why the court should find for you. Be sure to include discussions of precedent and why the court should care about the issues being discussed.

·        Conclusion should be a one to two sentence statement about why the court should find for you.

General issues:

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Respondent briefs:

   
A respondent brief must include these elements in the order they are listed. Each section should have its own page. When you submit your briefs you need to provide individual copies for the justices, the opposing attorneys, and two for Mr. Koepping. Students should also email copies of their briefs to Mr. Koepping on the day they are due.    

General issues:

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Guidelines for Judge’s Questions:

  Requirement: Judges are to write a series of questions in order to clarify their thinking before the oral arguments. Each judge needs to write at least five questions with a minimum length of five pages overall. The questions should be typed. There should be questions for both the respondent and appellant. The questions should include the exact wording of what the judge wants to ask the attorneys and an explanation for why the jurist is asking the question. Judges should formulate questions based on both the legal issues of the case and the practical consequences of possible decisions (ie hypotheticals).

Questions should be:

·         Clear and easy to understand for the attorneys. A question that is too complicated or takes too long to ask will often be misunderstood by the attorney.

·         The Questions should be on material that the attorneys can answer. You should not ask questions about the facts of the case if they were not provided by Mr. Koepping. The attorneys cannot conjecture and guess, and judges should not ask them to.

·         The questions should be general and not fixate on the attorney’s ability to recall the obscure detail. For instance, you can ask the importance of a decision, but not on a paragraph or subsection in a minority opinion.

·         The questions should focus on issues of relevant law and practical importance.

·         The questions should be narrow enough that attorneys are not being asked to restate their central arguments again and again. “Why should we vote for you?” is a question that the attorneys will be answering as part of their prepared arguments.

·         Judges should turn in work that is proofread for grammar and spelling. Sentences should be clear and easy to understand.

·         Judges should be careful to accurately quote decisions and other support material. Misquoting a decision calls into question the veracity and honesty of the entire work.

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Supreme Court Decisions:

  The purpose of writing a decision is not only to render a verdict but also to help guide lower-court justices in ruling on similar matters. For that reason, justices take great pains in explaining the rationale behind their decisions. Students should be careful to fully explain the logical steps they took to reach their decision. Those decisions should rely on previous verdicts to show how your analysis is consistent with previous precedent. You should look at previous decisions to get an idea what a legal decision should look like.

The decision should be organized in the following manner:

I – Statement of the facts of a case. The section should discuss the relevant facts of the case and summarize the arguments made by the respondents and the appellants.

II  -- A description of the relevant legal issues involved in this case. This section should clearly state the central legal issues that informed your decision. This section should be more general and philosophical than section III.

     III – A description of relevant laws and legal precedents. This section should describe what elements of the constitution, what legal statutes and what existing precedents were involved in your decision.  Remember that justices will rarely reverse earlier legal decisions so you need to show how your decision is consistent with prior Supreme Court decisions. If you are deciding to reverse a prior decision you must take great pains to explain why you are violating stare decisis. For the sake of your grade it had better be convincing.

IV – How the law applies to the facts of the case. This section should describe how your interpretation of the law coincides with the facts of the case to create your decision. In this part of the decision you should discuss the real-world impact of your decision or the negative result that would stem from an alternative interpretation of the law.

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Case 1:

AB vs Hypothetical School District

Key question: Is it a violation of the fourth amendment to drug test public high school students who have violated school rules?

Facts: Hypothetical high school instituted a program in 1998 in which students who committed detention-level offenses would be automatically required to submit to a urinalysis screening. The stated purpose of this policy was to help make the school atmosphere less disruptive. School officials have stated in previous affidavits that they suspected that most of the discipline problems in school were caused by students who were under the influence of drugs or alcohol. They were unable to prove the impact of drugs on behavior, however, because there was no policy allowing them to drug test students. That changed when administrators, DARE officers, concerned parents, and three students testified before the district’s school board. The board was told that some students were routinely stoned at school and some students smuggled alcohol into their water bottles. The board decided that it would be unfair to target those students who were probably not using drugs, so it instead only instituted mandatory drug tests on those students who committed offenses serious enough to earn after-school detention. After-school detention is a punishment for chronic tardiness, insubordination, fighting, or drug possession. If students refuse to take the tests they are suspended for five days. If a student’s drug test comes back positive they are required to attend mandatory drug and alcohol counseling. Their parents are also notified as is their homeroom teacher. The tests are conducted by the school nurse and the results analyzed by a for-profit lab with an impeccable reputation. About 25 percent of the students who have been tested so far have been found to have used drugs in the last 30 days.

A student in the school, hereafter referred to as AB, filed suit after he was asked to take a urinalysis exam after becoming regularly tardy to his first-period health class. AB refused to take the test saying it violated his constitutional rights. He was suspended.

Court action: AB’s parents filed a lawsuit demanding that AB’s suspension be removed from his transcript and the practice of drug testing students who receive detentions be stopped. The lower courts have always found for the school district. The case has made it all the way to the US Supreme Court.

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Case 2:

John Smith vs. State of Oregon

  Key question: Does a 75-month sentence for statutory rape constitute cruel and unusual punishment?

Relevant law: Oregon voters passed ballot measure 11 almost a decade ago. The law dramatically rewrote Oregon criminal procedures in a number of key areas. One of these changes allowed juveniles as young as 14 to be tried for serious crimes in adult courts and receive adult sentences, while still serving the time in juvenile facilities. The law also set mandatory minimums for serious felonies. Among those crimes was second-degree rape in which a 75-month sentence was required upon conviction. Existing Oregon law describes second-degree rape as, among other things, any time a child under 14 has sexual contact with anyone four years older.

Fact pattern: John Smith had just recently begun a relationship with a freshman girl at his high school. Smith, a Junior, was 17 years of age. The girlfriend, unbeknownst to him, was 13. One morning she arrived at Mr. Smith’s home, while his parents were away, let herself in with a key she knew was kept under a flower pot. She went to Smith’s room and the two had intercourse that morning. She turned 14 two days later. Her mother took the opportunity of her 14^th birthday to tell her about the birds and the bees. The mother was subsequently surprised when her daughter informed her that she and her new boyfriend had already “done it.” Upset, the mother went to the police hoping that they would have a serious talk with the boy. To her surprise they arrested the young man and he was charged with second-degree rape. At the trial both the mother and the daughter testified on the young man’s behalf. He was now 18. Prosecutors won convictions on both counts. The judge, noting that he had no choice in the matter, sent the young man to jail for 75 months. He would have been 24 upon his release from adult prison (juveniles are transferred to adult prison when they turn 21)

Instead the young man’s attorney issued an appeal and the young man has been out on bail ever since. He is now 20. The lower courts have consistently sided with the state. The case has now reached the US Supreme Court.

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Case 3:

Willamette River Reader Publishing vs  Jane Doe

  Key question: Does the government have the authority to restrain the media from publishing the names of women who have had abortions?

Fact pattern: The Willamette Valley River Reader is a weekly newspaper. It has been in publication for two years. Six months ago an anti-abortion group, The Truth Tellers, began placing regular advertisements in the newspaper. One day they submitted an ad that allegedly lists the names of women who received abortions at a local family planning clinic. The headline of the ad reads: “These are the murderers of our children” and goes on to describe that the 55 women listed below have “committed an unspeakable crime – the crime we know as abortion. It is your constitutional right to let them know how you feel about what they have done.” The ad stated that the women listed, all of whom lived in the area, received abortions at a local family planning clinic.

That clinic had recently been broken into and its records stolen. The clinic refuses to confirm or deny that the names listed were from the stolen records. But police have confirmed that the names correspond to the files that were stolen. The publisher of the newspaper decided to publish the ad, arguing that “the murder of unborn children is a matter of public record.”

One of the women whose name would be in the ad filed a restraining order against publication of the paper until it agrees to not publish the ad. She argues that the publication of her name will be an invasion of her privacy and could lead to harassment at her workplace or in public. She filed the order under the assumed name of Jane Doe. The paper has refused the pull the ad and the paper has not been published for the last month. Lower courts have so far enforced the restraining order, but the matter has raced through the courts as the paper attempts to get the order lifted. It has reached the Supreme Court.

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Case 4:

Janet Smith vs. Lake Mossweego School District

  Key Question: Does a school district have the right to censor student speech if the disruption they cause is minimal?

  Facts: Janet Smith is a junior at Lake Mossweego High School. She holds strong opinions including opposition to the war in Afghanistan. To protest the war she came to school one morning with a t-shirt that stated “4,000 New York dead is the price for our addiction to oil” on the front. On the back the shirt says “Declare war on SUVs, not the Third World.”

In Smith’s second class of the day her teacher objected to the shirt, noting that it was insensitive to those who had lost loved ones in the Sept. 11 attack. The teacher then sent Ms. Smith to the vice principal’s office. There the vice principal requested that Ms. Smith turn the shirt inside out. She refused, saying that she had a constitutional right to wear the shirt. The vice principal stated that the shirt was “disruptive to the learning environment” because students may become offended or distracted by the shirt. The vice principal noted that already one teacher had stated displeasure with the shirt, taking time away from classroom lessons. The administrator also noted that the shirt may make some students angry enough to pick a fight with Ms. Smith.

She was asked again to turn the shirt inside out and she again refused. She was suspended five days for insubordination and for violating the school’s dress code. While the dress code had no particular prohibition against political speech it did state that it was up to the administration to “protect the student body from dress that is distracting and disruptive.”

Ms. Smith’s parents filed a lawsuit against the school district arguing that their daughter’s rights had been violated. They sought a court order to remove the suspension from their daughter’s record and force a change in school policy.  The federal district court initially found for the school, but the federal appeals court found for the parents. The case has made it to the Supreme Court.

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Case 5:

John Smith v. Jefferson School District

Key Question: Is it a violation of the establishment clause to have a high school host a student-led pledge of allegiance?

Facts: Following the uncertainty of a recent 9^th circuit decision on the Pledge of Allegiance, Jefferson High School administrators decided to halt the practice of having teachers lead the pledge of allegiance every 2nd period class.  In its place the student-body government volunteered to have its activities director lead the Pledge of Allegiance over the school’s intercom. The school’s administrators agreed with the plan and instructed the 2^nd-period teachers that they had the right to accompany the pledge if they wanted but that it was not required. But John Smith, a Sophomore at the school whose father is the secretary of a local Atheist Association of America chapter, felt that the student-led pledge remained a violation. They filed a lawsuit demanding an immediate halt to the student-led pledge on the grounds that it is a violation of the first amendment prohibition against a government establishment of religion.

In Smith’s 2^nd period class, it was not required that students participate in the pledge but most students did so anyway. The teacher consistently participated in the pledge but did not encourage nor discourage students from also doing so.  Smith said that while there had never been an overt order to participate he felt pressured to do so by disapproving looks from peers.

Court action: Smith’s parents have been denied an injunction from Federal District Court and are seeking a permanent court order banning the school from hosting a student-led pledge. The Federal District Court and the Federal Appeals Court found for the school. The Supreme Court has agreed to take the case.

Case 6

James Clark vs Lewis School District

Key question: Can a student be punished by a school for posting a threat on an off-school website?

Fact pattern:  Lewis School District is located in an affluent suburb with little history of violent crime either inside or outside its schools. A recent fad among the students is the use of MyPlace pages, where people can post profiles and messages. While the creators of these web pages can restrict the access to these pages, the students generally allow anyone to access them. While the bulk of these pages contain nothing objectionable, some students have included photos of themselves drinking alcohol, inappropriately garbed, and committing acts of minor vandalism.

The Lewis School District had a policy that any student-athlete who drinks will be disciplined. On one occasion the district found a MyPlace posting that showed three Football players drinking beer. They were prohibited from playing in three games as a result of those images. There is no similar policy that applies to non-athletes.

Then a series of provocative postings began between a group of students generally identified as “goths” and another group of students heavily involved in athletics. The exchange began with a posting on James Clark’s MyPlace page that openly questioned the cognitive capacity of the football team. One member of the football team, Jim Davis, responded by questioning Clark’s sexual orientation.

The postings then became more aggressive as Davis and Clark began to exchange threats. The most specific threat came from Davis who wrote “you better watch it, or I am going to kick your . . .” Clark responded with, “You better be ready at school tomorrow.”

School officials were told of these postings by an alarmed parent the night they were posted. At the start of school the next day both Davis and Clark were suspended for the rest of the school year (about three weeks) because of threatening each other. Both students denied they really intended to fight and were merely posturing for the readers of their MyPlace pages. There is no evidence that any threats or violence occurred on school property, though there is a history of tension between the “goths” and “jocks.” That tension had never become violent but had led to a number of loud, public verbal altercations. The school argued that the suspensions are justified to maintain a safe environment and in stopping violence before it occurs. The school had previously blocked campus access to MyPlace pages.

Davis filed a lawsuit in state court arguing that the suspension is a violation of his free-speech rights. He has lost in both state and federal courts. The Supreme Court has granted cert. The other student who was suspended opted not to join Davis’ lawsuit and accepted the suspension.