Spring 2008 Professor Laura Oren M, T, W, 9-10:20 am, TUII 144 Office: TU II-228, (Ph.) 743-2170 Office Hours: tba Email: Loren@uh.edu Please sign on to the on-line course discussion for our class as soon as possible; it will be closed after the first couple weeks. Final 5/5, 9a.m-2 p.m. PLEASE NOTE the extra hour which is designed to give you breathing room. CONSTITUTIONAL LAW Assigned Texts: Stone, Seidman, Sunstein, Tushnet: CONSTITUTIONAL LAW (5 th ed. 2005) Supplement (2007) Pocket Guide to the Constitution of the United States (to be distributed free of charge courtesy of publisher). Handouts, tba On Reserve (treatises and hornbooks): GERALD GUNTHER, CONSTITUTIONAL LAW LAURENCE TRIBE, AMERICAN CONSTITUTIONAL LAW NOWAK AND ROTUNDA, CONSTITUTIONAL LAW Other paper back books, fyi, ERWIN CHEMERINSKY, CONSTITUTIONAL LAW, PRINCIPLES AND POLICIES CHRISTOPHER N. MAY AND ALLAN IDES, CONSTITUTIONAL LAW, NATIONAL POWER AND FEDERALISM ALLAN IDES AND CHRISTOPHER N. MAY, CONSTITUTIONAL LAW, INDIVIDUAL RIGHTS MICHAEL DORF, ED. CONSTITUTIONAL LAW STORIES Websites of Interest: The Supreme Court site includes pending cases, briefs, and transcripts of oral arguments, as well as information about the Court and the federal judicial system. The Supreme Court s website is http://www.supremecourtus.gov/index.html. 1
For a useful on-line presentation of the Supreme Court docket, see http://docket.medill.northwestern.edu/. The U.S. Supreme Court Monitor is a free service provided by American Law Media at Law.com. Users have to register to access the U.S. Supreme Court Monitor, but the registration is free. Users can register at http://www.law.com/. Oyez is a multimedia site about the Supreme Court (see for oral arguments): http://www.oyez.org/oyez/frontpage Cornell Law School s Legal Information Institute (LII) hosts a Supreme Court site: http://www.law.cornell.edu/supct/index.html University of Chicago has links to a number of useful sites: http://www.lib.uchicago.edu/e/law/supreme.html Hieros Gamos Legal Directory has information about the functions and powers of courts: http://www.hg.org/judges.html The American Bar Association does a Supreme Court Preview (which may cost), but also has free information at:www.abanet.org/publiced/preview/home.html Course Objectives: The objectives of this course are to teach the substantive law of the subject matter in a comprehensive manner, to consider ethical and professional questions related to the subject matter, and to integrate the subject matter with the analytical and practical skills necessary to the practice of law. Class Requirements: Panels: By the second day of class all students must become part of a panel consisting of four students. Each panel will have special responsibility for preparation for class discussion at designated times. You may be asked to assume particular roles, or simply to be extra ready to answer or to ask questions. In signing the seating chart for your permanent seats, please try to sit with your panel. On January 15, 2008, each panel will submit a 3X5 index card with the names of all members on it. If you are having trouble forming your panel, please let me know. Attendance and Participation Policy: I follow the Law Center's policy on attendance. All students are expected to be on time. Subject to the Honor Code, sign the roll only if you are actually there for the full time (not late, not leaving early, and not using your lap-top for non class related activities). Under the letter grading system, outstanding classroom participation may earn a single 2
grade step up from the grade based on the final examination. Poor preparation can cause a deduction of one grade step. Persistent problems with attendance and tardiness can result in a grade deduction or being dropped from the class rolls. On-line Discussion: There is a discussion board set up for this class. Access to the discussion board is restricted to our class (not public), BUT YOU MUST SIGN UP FOR IT ASAP. After a short initial period, the Webmaster will close the Board. I WILL POST COMMENTS, ASSIGNMENTS, SYLLABI, READING QUESTIONS, LINKS, etc. on it. YOU can read anything posted in it, and you can post anything related to this class in it. Please remember to be courteous and professional in your postings. If you feel shy about being identified even among our own class members, post comments or questions from your panel or any other group, and blend into the crowd. This is an excellent way to pose your own hypotheticals and to clarify the often very slippery concepts of constitutional law. If you would rather communicate directly with me, use my e-mail address and I will reply within the week. The following general postings are already on the Board under Spring 2008; Website of Interest on How Laws are Made Constitutional Law Timeline; Supreme Court Jurisdiction Exam Advice Maltz Article Consiitutional Influences Puzzle Other postings are on this syllabus in conjunction with a specific assignment; or will appear later (Remember, you can post too!): Review Sessions and Exam Policy: I will schedule two review sessions toward the end of the semester (outside of regular class hours). For one, I will distribute a "hypothetical" (an old exam question) for you to practice on. During the review session, we will go over it together. At the other review session, I will go over questions that have been submitted in advance in writing. The exam is in essay format. In order to ensure that you have enough time, I allow an extra hour. The exam is partial open book, which means that you may use the assigned books, and any material that you have prepared yourself (no commercially prepared outlines or outlines passed on from generations of students, but you may cooperate in producing an outline together with other members of this class). 3
Students with Disabilities: The faculty, staff and administration of the Law Center want to provide every reasonable accommodation to students with disabilities, including learning disabilities. For detailed information, please obtain a copy of the disabilities handbook available through Student Services. I will be happy to work with that office and you to make any necessary accommodations. Please make sure to anticipate before the exam period. You may also contact the University Center for Students with DisAbilities directly. They provide a number of helpful services. 4
Assignments and (Subject to revision--always check to see where we are.) The reading assignments are grouped by week, and, optimistically, by day. It is your responsibility to know where we actually are on the syllabus. BE SURE TO INCLUDE THE 2007 SUPPLEMENT PAGES in your reading ( SS ) Week #1: January 14, 15, 16 (2008) ASSIGNMENT FOR MONDAY, January 14, 2008: Stone (S), The Constitution of the US, AND pp. 1-29; Stone Supp. (SS),]; Handout, "Our Founding Mothers and Fathers, The Iroquois" Handout, "The Chronicle of the Constitutional Contradiction"( chapter from D. Bell, AND WE ARE NOT SAVED) The handouts are available from Sandra Hoffpauir, suite secretary in TUII, 2 nd floor, or in a box outside of my office (Room 228 TUII); they are also available as posted on the first day assignments website. For Tuesday, the 15 th, and Wednesday the 16 th, continue and ADD: ON THE ON-LINE DISCUSSION BOARD Constitutional Influences Puzzle or as hand-out. WHAT DO THE TERMS IN THE BOXES MEAN? WHAT RELATIONSHIPS CAN YOU DESCRIBE BETWEEN BOXES? ALSO (posted on discussion board), Earl M. Maltz, The Function of Supreme Court Decisions 37 Houston Law Review 1395 (2000). READING QUESTIONS: What is meant by "federalist," "antifederalist," "classical republicanism," "Madisonian republicanism," "Lockean liberalism," and "pluralism"? What views of human nature and the end or purpose of government are reflected in each of these philosophies? Are any of these views of constitutional government similar to the Great Law of the Iroquois? Which one(s)? How? What is the "Constitutional Contradiction" identified by Geneva Crenshaw in her fictional Chronicle? How would you describe your own philosophy of constitutional government? With Maltz: What does he mean by the legitimizing function of Supreme Court opinions? 5
the constraining function? the lawmaking function? What is the significance of the difference between a decision with an opinion, and summary action? How does a concurring opinion differ from one concurring in the judgment only? How does a holding differ from dictum? 6
Week #2: (No class Monday January 21) January 22-23 Tues. The Basic Framework: Marbury v. Madison & Martin v. Hunter s Lessee S, 29-60; SS, 3 On-line discussion board posting on Supreme Court Jurisdiction Wed.. The Basic Framework continued, Marbury and Martin v. Hunter s Lessee Continue. Week 2. The Basic Framework: Marbury v. Madison & Martin v. Hunter s Lessee What is the specific holding of Marbury v. Madison? What three questions did CJ Marshall ask in order to decide the issue of Marbury? What was the strongest argument CJ Marshall offered in support of judicial review? What kind of arguments did he use? Can you think of better arguments? What is the strongest argument in opposition to judicial review? What are the legitimate sources of Constitutional interpretation? What is the countermajoritarian difficulty? Is there any answer to that problem? Why is the Constitution binding on us today anyway? In Martin v. Hunter s Lessee, what arguments were made in support of supreme court review of state law? In opposition? What type of arguments were these? Is the case for review of state decisions stronger or weaker than the case for review of decisions by another branch of the federal government? (i.e. compared to Marbury) (Compare voluntary abstention or refusal to abstain, as in Marshall (2006), the Anna Nicole Smith no probate exception applies bankruptcy decision was that an important decision?) How binding is a decision by the Supreme Court? Is the Court the only branch that has the power to say what the Constitution means? Who is bound by the pronouncement of the Court on a particular case before it? Week #3: January 28, 29, 30 7
Mon: Sources of Judicial Decisions: McCulloch v. Maryland, pp. 61-77; and Political Control of the Supreme Court: McCardle & Klein 83-84 & 87-88. Tues: Case or Controversy Requirements and the Passive Virtues Standing: Allen v. Wright, 89-96; and Massachusetts v. EPA, SSupp. 4-14. Wed. Political Questions & Supreme Court Jurisdiction: Baker v. Carr, Bush v. Gore, and Vieth, 119-159; SSupp 15-16 (LULAC v. Perry) (focus on Baker & Vieth) The Sources of Judicial Decisions: McCulloch v. Maryland What are the issues to be resolved in McCulloch? What are the arguments used? Give examples of the following interpretative strategies in McCulloch: textual, structural, constitution-expounding, and representation-reinforcement. Political Control of the Supreme Court: McCardle & Klein Is it appropriate for the President to appoint or the Senate to confirm Supreme Court Justices based on adherence to a particular judicial philosophy? based on positions on particular issues? Would McCardle be good law today? Would it be good law if there was no other alternative route leading to Supreme Court review? What is the best structural argument that answers the plain language argument of McCardle? How would you use Marbury in that argument? the Klein case? Do you think it would be constitutional to severely restrict lower federal court jurisdiction under today's circumstances? Standing and Political Questions Allen and EPA; Baker and Vieth Standing doctrines are very fact-specific in their application. To the extent that it is reflected in these cases and notes, make yourself a chart of when standing is found and when it is denied, identifying the features or facts that seem to be dispositive for the Court. Standing has a constitutional and a prudential element. For each case, is the problem 8
constitutional or prudential, and why? What is the difference between the "standing" barrier to obtaining federal judicial review and the "political question" problem? Are they both about separation of powers concerns? or are there other concerns reflected too? Which? If you were drafting the Constitution anew for the United States would you include judicial review by a supreme court? What justification would you offer for including it? What would you worry about? In other words, is it a good thing that appointed judges with lifetime tenure can review the actions of an elected legislature? Week #4: February 4, 5, 6 See Webboard for Interstate Commerce Clause puzzle. [Figure out what the reminders on your commerce clause puzzle are about; plug in specific examples that you can bring to mind.] For more on crossing state lines, see on-line posting of egg and women cases. (See also Dormant Commerce Clause posting, which is the underside of the iscc, but which we will not study). Mon: Introduction; & Doctrinal Fundamentals (Federalism and Judicial Review) S, 163-185; Interstate Commerce Clause Puzzle Tues: The Evolution of Commerce Clause Doctrine: the Lessons of History S, 185-200 Wed. Evolution Continued S, 200-229; SSupp. 19-22 THE POWERS OF CONGRESS In dealing with old Commerce Clause cases, remember that some are still viable, some are not, some may represent the outer limits of what today s Court will accept. WHICH ONES ARE WHICH? WHY? What is the difference between external limits on the commerce clause power, and 9
internal limits? Which branch enforces limits on the commerce clause power (the political or the judicial branch(es))? Why or why not is it a good idea for the judiciary to actively enforce the limits on the commerce clause power? What is the "classical" view of the commerce clause power? Which of these commerce clause tests continue to retain vitality? Which are no longer valid? What can you do with overruled precedents? What is the difference between "formalism" and "realism" in commerce clause analysis? Is that the same as "conservative" versus "liberal"? What, if anything, changed from chicken and coal, to steel and wheat? Is it appropriate for the scope of the commerce clause power to change as the scope of the national economy broadens? Why or why not? Why is Darby a "bootstrap" or "superbootstrap" case? After reading Morrison, have chicken and coal returned? Do Lopez & Morrison undermine the basis of Darby or Heart of Atlanta? Which of the older cases testing the commerce clause power are reaffirmed by Lopez and which of them do you think are overruled? How much would you have to change the Lopez facts to uphold the exercise of the commerce clause power (what could fix it?) or, if you were Congress, what could you do in order to protect federal legislation from a Lopez-style attack? After reading Morrison, would you change any of your answers to the above questions? Week #5: February 11, 12, 13 Mon: Other Powers of Congress: War, Treaty, Tax & Spend S, 279-299; SS 25-29. Tues: The Power to Enforce the Reconstruction Amendments S, 299-330; SS, 29-30; On-line discussion board posting on Internal and External Limits of 14 th A. 10
Wed. Reconstruction Amendment Continued: Interaction with Eleventh Amendment S, 310-330. How is congressional exercise of the taxing, spending, or treaty power different than congressional exercise of the commerce clause power? Are there any effective limits on these exercises of power? What are they and how are they enforced? The Fourteenth Amendment expressly gives Congress the power to enforce its mandates; does this make a difference in interpreting what, if any, are the internal limits of this power? What are the remedial interpretations that can be derived from Katzenbach v. Morgan and what are the substantive interpretations of Congressional power under the 14th Amendment? What is the "one-way ratchet" and what happened to it? After Boerne which interpretations from Katzenbach survive, and which would not be supported by a majority of the current Court? How is the Court applying the congruence and proportionality test? What are the implications of Tennessee v. Lane? When will Congress succeed in creating a remedy for a Fourteenth Amendment violation? What external limits may exist to congressional power to enforce the Fourteenth Amendment and how is that different than the federalism issues raised above? Week #6: February 18,19,20 Mon: Implied Limits on Congress's Powers S, 330-356; SS, 30-39. [For the Tenth Amendment limits, see also the on-line discussion board Constitutional Law Drawings; Outer Limits of Federalism Puzzle; Articles III & I summary] What does Garcia tell us about the limits the Tenth Amendment may impose on congressional exercise of its otherwise valid power? 11
What are the three provisions of the low-level radioactive waste statute at issue in New York State and what does the Court decide about each one? What is particularly offensive to the majority about the "Take Title" provision? Should it matter to the Court's 10th Amendment (powers reserved to the states) analysis that the States wanted this legislation? (Compare, should it have mattered that the States wanted the federal legislation struck down in Morrison?) What is changed after New York State? [Compare "what is changed after Lopez"?] Is Usery on its way back? How does Printz affect your evaluation? And Reno v. Condon? Which national intrusions on the powers of the state do you find the most offensive to the principles of "federalism", and why? Does that mean that the intrusion is "unconstitutional"?: The broad exercise of Congressional power under the Commerce Clause? the exercise of Congressional conditional spending power; Congressional exercise of its enforcement power to ratchet up Fourteenth Amendment rights; a finding that Congress has violated the dormant or negative commerce clause power? a finding that Congress has "preempted" state regulation? If you were framing a Constitution for the States today, what powers would you entrust to the central government and what powers to the local governments [states? cities or counties?] Why? Is your answer any different than if you were drafting the Constitution in 1787? or after the Civil War? Tues: THE DISTRIBUTION OF NATIONAL POWERS Introduction; A Case Study: Presidential Seizure S, 357-375 (Read casebook through Youngstown Steel first); SS 41-42 Wed. Continued. Do you think that the Court should play a more or a less active role in policing the horizontal distribution of power rather than the vertical distribution of power (federalism)? Why? (Can you justify your view by reference to text, history, or structure?) Did Congress have the power to order the seizure of the steel mills in Youngstown Steel? What is the basis of the President's (Executive) claim to have the power to order the seizure of the steel mills? Are there any circumstances under which any of the Justices in the majority might recognize the presidential power claimed in Youngstown? What does each concurring opinion, especially Justice Jackson's, add to Justice Black's explanation? What is the significance of congressional "silence" in determining the scope of executive 12
power? After Dames & Moore, is Youngstown still good law? Does the war on terror change any of your views on the appropriate scope of Presidential power in domestic affairs? Why or why not? Week #7: February 25, 26, 27 Mon: Foreign Affairs: Executive Authority S, 375-398; [See on-line postings Habeas Statute for enemy combatants; and on Milligan, Quirin & Eisentrager; and on military tribunals], Tues: SS, 42-72; S, 398-405 Wed. (continued) Is the President's authority over foreign affairs broader than his authority over domestic affairs? Should it be? Why or why not? Does the war on terror change any of your views? Is the distinction between domestic and foreign affairs necessary to the result in Curtis- Wright? How does the Constitution allocate the war making power? Why is the War Powers Resolution a "framework" statute? What is Congress trying to do? Can it work? Does the War Powers Resolution apply to the war on terrorism? How? Are statutes on particular controversies more likely to be effective or to be upheld against constitutional attack than framework legislation? What do you think about the effectiveness of judicial review of Executive and legislative power in a post- 9/11 world?: Should the standards be different? In which of Justice Jackson s Youngstown categories does the President s designations of Mssrs. Hamdi and Padilla as enemy combatants and their indefinite detention fit? What difference does that make? Assuming that judicial review is central to the U.S. constitutional structure, what concerns, if any, do you have about the impact of the Hamdi case or others like it on the checks and balances between the branches of government? In which of Justice Jackson s Youngstown categories did the President s order setting up 13
military tribunals fall? What difference does that make? What did the Court find troublesome about the trial of Mr. Hamdan before a military tribunal? Why were the opinions so splintered? Why is it that no Guantanamo detainee has had a hearing in a U.S. Court to date, despite the mandates of the Supreme Court decisions? Does this trouble you? Why or why not? Week #8: March 3,4, 5 Mon: Domestic Affairs: Executive Authority S, 405-423 Tues: Domestic Affairs: Legislative Authority S, 423-445; SS,72. Wed. continued See posting on Individual agencies versus pure executive branch Do you accept the claim of executive privilege? in domestic affairs? in foreign affairs? What is your constitutional basis for accepting or rejecting it? What is your worst fear about the adverse effect of recognizing the claim of executive privilege? your fondest hope for the benefit to be gained by recognizing such a privilege? How is the President's claim of executive privilege in U.S. v. Nixon different than the claim made in Youngstown? Should it matter whether domestic or foreign affairs are involved? Why? How is the President's claim of executive privilege in U.S. v. Nixon different from or the same as the claim of executive privilege raised by President Clinton? What difference should that make to its disposition? What are the constitutional limits when Congress (and the President who either signs the legislation or has it passed over his veto) deliberately tries to experiment and redesign the allocation of powers between the legislature and the executive (including administrative agencies)? Can this ever be done? What challenges are made to the one-house veto statute in Chadha? How is this different than the "non-delegation" doctrine? How can you tell whether or not an action is "legislative"? What is the significance of that finding? Is there any way that Congress can retain some oversight or otherwise keep administrative agencies free of total presidential control? What works and what does not? Why? 14
Remember standing? Who has standing in Bowsher to challenge the disputed provision of the Gramm-Rudman Act? Week #9: March 10,11,12 See On-Line Discussion Board Postings on Sweatt v. Painter background and Equal Protection Tier Chart Mon: Race and the Constitution [Revisit your previous reading: "The Chronicle of the Constitutional Contradiction", ch. 1 of D. Bell AND WE ARE NOT SAVED] S, 447-64 (Background only); read together with (Sweatt v. Painter posting) &: 464-83 (Plessy to Brown, I & II, concentrate on the Brown cases); SS, 73-74; Tues: S, 483-500 Wed. SS, 74-105. Race and the Constitution: What does the Fourteenth Amendment's guarantee of equality ("equal protection of the laws") mean? According to the Plessy majority and dissent? According to Brown v. Board of Education, I? (can you find two readings of Brown?); which is more faithful to the "original intent" of the framers? According to Professor Bell (through his character Geneva Crenshaw)?; According to you? After reading the material on the reaction to Brown I & II, do you think any differently about what the guarantee of equality means? After reading Parents Involved, has the understanding of equality in Brown changed? How faithful is the concept of color-blindness, as embraced by some segments of the Court, to the constitutional meaning of equality? SPRING BREAK: March 17-19 Week #10: March 24, 25, 26 Mon: Equal Protection Methodology: Rational Basis Review: Beazer to Cleburne S, 501-523; SS, 105-6. [See Webboard for EP Tier chart] Tues: Equal Protection Methodology: Heightened Scrutiny and the Problem of Race S, 523-46; and 15
Equal Protection Methodology: The Washington v. Davis Problem S, 546-576; SS, 106-110. Wed. Continued Equal Protection Methodology: Rational Basis Review What does the guarantee of equal protection mean outside the context of race? (why does it apply outside of race anyway?) What is the tiered approach to equal protection methodology? Is it justified? What is the difference between means and ends analysis in equal protection methodology? and by contrast to the appropriate standard of review? Can you pick out some characteristic techniques for engaging in relaxed rational basis review;or, by contrast, rational basis review with bite? Heightened Scrutiny and the Problem of Race As early as The Slaughtercase Cases of 1873, the Court suggested that the guarantee of the Equal Protection Clause of the Fourteenth Amendment might be two-tiered, with racebased classifications invoking a different judicial response than other classifications. What are the justifications for heightened ("strict") scrutiny of race-based classifications under the Equal Protection Clause? What kind of state interest is required in order to satisfy "strict scrutiny"? How do the means chosen have to relate to that state interest? Why is strict scrutiny called strict in theory, but fatal in fact? How can you tell when a classification is based on race? What is the difference between a Washington v. Davis case and a Yick Wo or Gomillion v. Lightfoot case? How can you tell when a classification is based on race? Can you make an argument that classifications with disproportionate racial impact at least ought to be subjected to intermediate level scrutiny under the Constitution? Can we ever fully address racial harm so long as Washington v. Davis controls? Why or why not? Does Congress have the power to subject such classifications to heightened scrutiny by creating a statutory remedy? Why or why not? Week #11: March 31, April 1, 2 Mon: Affirmative Action: from Bakke to Gratz 16
S, 576-594 Tues: Affirmative Action: Grutter & Gratz, S, 594-622; SS, 110-20. Wed. Continued How is the issue of affirmative action different than the issue of Washington v. Davis? What does Bakke (which opinion?) indicate about whether the Equal Protection Clause guarantees individual rights or groups rights (or both)? What standard of judicial review applies to affirmative action? Is affirmative action "unconstitutional"? Ever? Always? Sometimes? (What is "affirmative action"?) What open issues of Bakke are settled by Grutter/Gratz? Does Parents Involved change your conclusions? Why or why not? Week # 12: April 7,8,9 Mon: Heightened Scrutiny and the Problem of Gender S, 622-650; SS 120. Tues: (and add Sexual Orientation) S, 650-689; SS, 120-24. Wed. Continued What standard of heightened scrutiny did the Supreme Court ultimately agree applied to gender? What is the constitutional harm that it safeguards against? What techniques of judicial review are characteristic of intermediate scrutiny? (do you understand underinclusive and overinclusive analysis?) Does VMI incorporate a new standard? After reading Nguyen v. INS, is your answer the same? Why should classifications based on gender be subjected to heightened scrutiny? Should classifications based on sexual orientation also be subjected to heightened scrutiny? Why or why not? Did Romer do this? Week # 13: April 14, 15, 16 17
See also Individual Rights and Liberties chart on web-board Mon: Due Process: Implied Fundamental Rights & The Incorporation Controversy; S, 717-724, 734-41, SS, 125 ( see especially Carolene Products) (read mostly for background) and Lochner, S, 741-768. Tues: Fundamental Interests and the Equal Protection Clause, S 768-777; 811-815; 815--821; 830-844 Wed. Substantive Due Process: Privacy, Sexual Autonomy, 845-857 (Griswold) & SS, 133; 930-949 (Bowers & Lawrence) & SS, 156-158. What is the difference between Justice Black's "total incorporation" position, the "fundamental fairness" approach, and "selective incorporation"? What is the best argument (originalist? textual? other?) that the Due Process Clause encompasses more than the rights listed in specific textual provisions of the Constitution? What is the best argument against this position? From where does the Court derive the liberties substantively enforced by the Due Process Clause? How does the Court recognize new "fundamental" liberties? What worries you the most about "generic" due process rights? What do you like most about them? Give examples of cases that illustrate the pros and cons. On what basis did Lochner invalidate state legislation? Because the ends were impermissible under the Constitution? or because the means were not sufficiently related to legitimate state purposes under the police power? (What kind of scrutiny was going on?) What was wrong with Lochner? What kind of substantive due process review of economic regulation is appropriate? Did the Court go too far in abdicating active review? What is the significance of Carolene Products and its famous Footnote Four? How can fundamental rights change, if they are fundamental? What is the difference between due process analysis of fundamental liberty interests, and fundamental interests and the equal protection clause? How can these cases be reconciled as to method or results? (Griswold on Due Process and privacy; Bowers & Lawrence on Due Process and homosexuality ; and Romer on equal protection and homosexuality?) Why was Lawrence a due process and not an equal protection decision? 18
Week #14: April 21, 22, 23 Mon: Due Process and Abortion: Sui Generis? S, 857-873; SS 133-134 Tues: The future of abortion jurisprudence? Gonzales v. Carhart, SS, 135-156 Wed.: Procedural Due Process versus Substantive Due Process: S, 967-986; SS, 159-165. Is there anything about the abortion decision that either removes it from ordinary substantive due process analysis, or, conversely, makes it quintessentially an example of appropriate due process analysis? What is the current status of the Court s abortion analysis? What are the implications of Carhart for abortion jurisprudence? For due process jurisprudence, generally? What are the triggering interests necessary for due process (either variety)? How does a court determine "what process is due"? How does procedural due process differ from substantive due process in methodology or result? What was going on in Castle Rock? Is this opinion unique to domestic violence or does it have more general implications for procedural due process jurisprudence? Week #15: Monday April 28 (last day of class); Tuesday (make-up day) Mon: Last regular class day Tues: Make-up day Wed. No Class 19