Assignments


Last updated : 22/01/01

Handed out:    Tuesday, February 8, 2000

Due:                Thursday, February 17, 2000

1.        This assignment has been handed out in class on February 8th and is due by the end of business on February 17th. You must let me know before the paper is due if you are unable to meet the deadline, as there will be a penalty for unexcused late papers.

2.        Your paper should be typed and double-spaced. It should probably be somewhere between 12 and 15 pages long. Less is not enough and more is too much. Please remember that I am not looking for a research paper or for a comprehensive discussion of complex issues. What I would like to see is that you have taken a case or issue or perspective on some aspect of the materials we have considered, have given your topic some thought and analysis, and have presented a position or perspective in a short and well structured paper.

3.        You can read and refer to articles if you like, but it is not required. You can add endnotes following the text or use a simpler form of case citation in the body of the paper. The two primary rules, from my point of view, are, first, that you must attribute whenever appropriate and provide a page citation for direct quotes, and second, that your citations must be in reasonable compliance with our rules for citation. [This is not an LRW exercise but you are expected to understand and respect the purpose of standard forms of citation just the same.]

4.        I have asked Nancy Sperling in Student Affairs to assign a midterm examination number to each of you. Please identify your paper by this number and not by your name.

5.        As I have indicated, you may write this1st assignment on a no downside risk basis. If you are not pleased with the result or do not want to continue with assignment #2, assignment #1 will simply not count. Once you turn in assignment #2 you will be taken to have opted and your grade will be based on the two assignments, at 50% each. Anybody [graduate students excepted] who does not write the 2 assignments will be evaluated on the 100% examination.

Topics:

1.         A[T]he only check upon our own exercise of power is our own sense of self-restraint.@ United States v. Butler, 297 U.S. 1 (1936) (per Justice Stone, dissenting).

Do you agree? When has judicial restraint been exercised and when has it been ignored? When do you think it should be exercised and when not? Fashion a comment around the above quote. The questions posed are just there to get you started. Illustrate your answer with an example or examples from the materials.

2.         AAs a matter of fact, I have read the Constitution, and, frankly, I don=t get it.@ The New Yorker (date unknown); see attached.

What is it you don=t get? What riddles and paradoxes do you see in the materials we have read? Have you had any success in explaining or understanding them? Once again fashion a comment around the above quote; the questions are meant to initiate the thinking process. Give concrete examples from the materials.

3.        Write a comment on any case - or any group of cases - we have looked at thus far. Pick an aspect of the case or issue that you find interesting or troubling, and provide an analysis/critique. Or, pick your own quote and write about it.

4.        Write a comment on United States v. Lopez, 514 U.S. 549 (1995) [Casebook 142-59]. Are you sympathetic to the views expressed in the casebook [and excerpted below], or do you think judicial review has a valuable role to play on federalism issues? See, first, the comments at CB 112-3:

ANumerous structural aspects of the national political system serve to assure that states= rights will not be trampled, and the lesson of practice is that they have not been.... [C]onstitutional questions that concern the scope of national power vis-à-vis the states@ should be held Anonjusticiable@, because federalism issues, unlike individual liberties ones, are issues of Apracticality@ rather than Aissues of principle@.

and others made earlier at CB 88:

Does federalism retain substantial value in the 20th century, or is it an obsolete obstruction to be dismissed with minimal lip service? And should the Court rather than Congress be the predominant custodian of federalism? ... [Is federalism] a harmful brake on governmental responses to pressing social issues, a shield for selfish vested interests? Is federalism a theme that constitutional law must grapple with simply because it is there, in the Constitution?

5.         ALiberty finds no refuge in a jurisprudence of doubt@. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (per O=Connor J.). Write a comment on any aspect or aspects of the American Roe and post-Roe jurisprudence that bears on Justice O=Connor=s dramatic pronouncement above.

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ASSIGNMENT #2

Handed out:    Thursday, March 23, 2000

Due:                Tuesday, April 4, 2000

Please follow the same protocols as for assignment #1; that is to say, use your midterm examination number, hand the paper in to Student Services, and if some problem arises with the deadline, please let me know before the paper is due.  I should remind you that once assignment #2 is handed in, you will have opted and your grade will be based on the two assignments rather than on the final examination.

What follows are guidelines and instructions for this assignment.  You may find this assignment somewhat more structured than the first, and that is deliberately so.  The questions have been framed to limit the opportunities for "outside" research and keep attention focused on what we have actually discussed in the course.  The questions are therefore more specific, and your paper should accordingly provide a particular response to whatever question you decide to address.  I stress, again, that this is not a research assignment and that I much prefer for you to rely on Gunther & Sullivan, together with the "Library Reserve Package" [described below].

Can we be clear about conventions pertaining to citations, footnotes and "authority".  A citation must be provided whenever a case name is referenced in the text.  Ditto, a pinpoint reference must be given whenever words, phrases or sentences appear in "quotes".  These rules are not discretionary.  Whether and when a reference should be included to provide authority for a statement made in the text is more situational and, for that reason, represents a judgment call.  If you're not sure about your own judgment you can ask me for guidance.

Stay within the page limit, which includes foot- or endnotes [after all, why wouldn't a page limit include the notes?]  Bibliography doesn't count as it's not required.

As far as I am concerned, these assignments are about writing - the challenge of figuring out how to structure and communicate ideas.  There is no doubt in my mind that everyone has ideas.  Packaging those ideas in an effective piece of writing is much harder to do, and that is largely what you should be working on here.  It's worth remembering that good writing is far less a question of native ability than one of discipline and "self-critical awareness" [please forgive the use of this expression].

It's true that I pointed out certain "lapses" in writing on assignment #1 that are more stylistic than a matter of rules.  How any person writes is individual and I believe that individuality should be respected.  I raised questions on the papers anyway, not so much to devalue an effort, engage in gratuitous criticism or even because I think there is only one way.  Not so at all.  I did it because I believe that you should be aware, when you play fast and loose with grammatical and other conventions of writing, that you are taking a risk.  Not that I quibble with taking risks either; I simply wish you to be aware what you are doing when you test the limits of conformity.  The mavens and doyens of form are likely to be much less forgiving than me, and in fairness you should know that.  Do your best and enjoy assignments #2.

Questions:

The "Library Reserve Package" for this assignment comprises the following:

                Whitney v. California, 274 U.S. 357 (1927)
                West Virginia Bd. of Education v. Barnette, 319 U.S. 624 (1943)
                New York Times v. Sullivan, 376 U.S. 254 (1964)
                Cohen v. California, 403 U.S. 15 (1971)
                John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade" 82 Yale L.J. 920 (1973)

For this assignment I prefer that you stick to the package and the casebook.  Still, it would not be wise for me to try and enforce this direction [not to mention that it is profoundly anti-intellectual].  If you go outside the materials remember that attribution is important because it speaks to the ethics of writing.  Not only does proper attribution build the reader's confidence in the writer, it re-inforces the honesty and sincerity of the writer's effort.  If you go outside the casebook and the package, I would like to see who or what you consulted.

Question 1
Write a critique or a defence of John Hart Ely's article, above.  You might want to take into account post-Roe decisions, as well as other decisions not dealing with abortion.

Question 2
Pick any single sentence from any decision on our reading list, and write a paper about that one thought.  Please be sure to set the statement out and provide a reference at the beginning, so that I know what you are talking about.

Question 3
Tell me something about first amendment ideology: what is interesting, distinctive, annoying or whatever about it, to your mind.  Here I direct you to the Library Reserve Package and the quartet of cases included there.  You certainly do not have to comment on all four; you are free to choose one or more and to comment on what you find worthy of observation in any or all.

Question 4
In Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), Stevens J. stated, in his concurring opinion, that "our cases reflect a continuum of judgmental responses to differing classifications" [Gunther & Sullivan 728 at 731] and that the question in most cases is whether "the statute has a rational basis" [Ibid. at 732].  Is there any integrity to the American doctrinal framework for equal protection analysis?  Why or why not?  At this stage in your studies, are you able to suggest changes or improvements to U.S. equality doctrine?