Memorandum
To:
Freedom of Speech & Association Students
From: Professor Wells
Re:
Critique Writing Assignment
Date: January 15, 2015
As noted in the syllabus, 70 percent of your final grade consists of your written critique
of a Supreme Court opinion in the First Amendment area. This memorandum contains
information pertaining to the assignment.
Due Dates:
The due dates for those drafts are as follows:
1st draft due:
2d draft due:
March 9, 2015
May 1, 2015
As part of the critiquing assignment, each student will also be required to critique another
students’ first draft. Those drafts will be distributed and critiqued anonymously. The
following dates apply to the student-student critiques.
I will forward a draft to be
critiqued by another student
no later than:
March 16, 2015
Student-Student critique due:
April 8, 2015
Grading:
This assignment will include two drafts of your critiques. The first draft is worth 40% of
your critique grade. The second draft is worth 60% of your critique grade. The portion
of the assignment in which students critique another student’s writing is not assigned a
specific grade weight but I do want you to take that aspect of the critique seriously.
Thus, I reserve the right to adjust the final critique grade of a student + 2 points
depending upon their critique of another student’s paper.
List of Cases:
The following is a list of cases about which you may write your critiques (with a brief
description of case topic and issues). You are limited to picking one of these cases.
Unless otherwise indicated, your critiques should focus on the majority opinion of these
cases. You may, of course, look to other opinions in the decision in writing your critique
(or other cases) but you should limit your paper to analyzing only the majority (or other
indicated) opinion:1
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You should read a complete version of the original opinion – not a version excerpted in a casebook.
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Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting) (seditious
speech & free speech values)
Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring) (seditious
speech and free speech values)
New York Times v. Sullivan, 376 U.S. 254 (1964) (libel and free speech values)
United States v. O’Brien, 391 U.S. 367 (1968) (symbolic speech)
Brandenburg v. Ohio, 395 U.S. 444 (1969) (incitement)
Tinker v. Des Moines Independent Community School District, 393 U.S. 503
(1969) (students’ free speech rights)
Cohen v. California, 403 U.S. 15 (1971) (offensive speech & fighting words)
Branzburg v. Hayes, 408 U.S. 665 (1972) (reporters’ privilege)
Miller v. California, 413 U.S 15 (1973) (obscenity)
Virginia State Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S.
748 (1976) (commercial speech)
Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983)
Hustler Magazine v. Falwell, 485 U.S 46 (1988) (intentional infliction of
emotional distress and offensive speech)
Frisby v. Schultz, 487 U.S. 474 (1988) (intermediate scrutiny, content-neutral
speech and privacy)
Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988) (student
curricular speech)
Texas v. Johnson, 491 U.S. 397 (1989) (flag burning, offensive speech, contentbased/content-neutral distinction)
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (symbolic speech, low value
speech, content-based discrimination, hate speech)
Hill v. Colorado, 530 U.S. 703 (2000) (content-neutral laws, intermediate
scrutiny, privacy rationales)
Virginia v. Black, 538 U.S. 343 (2003) (symbolic speech, application of RAV)
United States v. Stevens, 130 S. Ct. 1577 (2010) (low value speech, vagueness,
content-based discrimination re depictions of animal violence)
Snyder v. Phelps, 131 S. Ct. 1207 (2011) (intentional infliction of emotional
distress by funeral protestors)
Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) (commercial speech standards
applied to law prohibiting disclosure of prescriber identifying information)
Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729 (2011) (violent video
games ban and content-based discrimination/low value speech)
United States v. Alvarez, 132 S. Ct. 2537 (2012) (autobiographical lies and
content based discrimination/low value speech)
McCullen v. Coakley, 134 S. Ct. ____ (2014) (content-neutral law regulating
abortion protestors around clinic)
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Formatting, Collaboration, Research, Etc.:
1.
What is a critique?
The purpose of this exercise is to give you an opportunity to engage in sustained
critical thinking and analysis about an area of the law and, specifically, about how
judges reason and whether their opinions reflect quality reasoning and
argumentation. The best method for approaching this exercise is by writing a
critique.
The dictionary defines “critique” as “a serious examination or judgment” of
something. See http://dict.die.net/critique/. Note that the term “critique” does not
necessarily mean “to criticize” although criticism is often a part of any critique.
Rather, for our purposes the term critique means to analyze a writing, identifying
both the positive and negative qualities, and expostulating on whether the writer
(in this case, a Supreme Court justice) has successfully accomplished his or her
goals.
Thus, writing a critique of an opinion involves four main questions:
(1)
(2)
(3)
(4)
What is the author of the opinion trying to accomplish?
How did the author go about trying to accomplish that goal?
How effectively did the author accomplish that goal?
Was the author’s overall product worth the effort?
There are a number of subsidiary questions that you should also consider when
reading your opinions (many of which overlap but which allow you slightly
different ways of getting at an issue):
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Is the author of the opinion’s premise clear, well-argued and
effective? Why/why not?
Is this premise appropriate given the facts of the case before the
Court?
Does the author provide sufficient background information and/or
discussion of law and facts or other source (e.g., philosophy)?
Is the author’s premise supported by clear reasons? Are those
reasons sufficiently supported by law, facts or other legitimate
source?
Do the author’s reasons fit logically together? Are they consistent
with one another and/or existing precedent or jurisprudential
concepts? If not, does the author effectively distinguish past
precedent or other sources and satisfactorily explain away
inconsistencies?
Does the author use unstated, generalized assumptions or otherwise
take something for granted?
Are the author’s assumptions questionable? Does the author address
weaknesses in his or her assumptions?
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(8)
Does the author effectively engage dissenting (or otherwise
disagreeing) justices?
(9) Is the author sensitive to the likely implications and consequences of
his or her opinion?
(10) Are the author’s conclusions convincing? Do they logically follow
from the author’s discussion and premise(s)? Does the author
adequately deal with alternative conclusions?
(11) Do you find the opinion convincing? What would you add or omit?
I will be looking to see if you have also successfully made such connections and
arguments in your critique with your premises and argumentation – see accompanying
grade sheet.
Materials that you may find useful when writing your critique are:
James Boyd White, Judicial Criticism, 20 GA. L. REV. 835 (1986)
Robert L. Ferguson, The Judicial Opinion as Literary Genre, 2 YALE J.L.
& HUMANITIES 201 (1990)
Ray Forrester, Supreme Court Opinions -- Style and Substance: An Appeal
for Reform, 47 HASTINGS L.J. 167 (1995)
Robert A. Leflar, Honest Judicial Opinions, 74 NW. U. L. REV. 721 (1979)
Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric:
Judicial Writings, 62 U. CHI. L. REV. 1371 (1995)
2.
Organization & Content
There is no set organization to your papers. However, you can generally consider
organizing them according to the four main questions identified above in “What is
a critique?” That organization logically flows for anyone setting out to critique
another’s writing. Each one of you must, however, decide for yourselves the
appropriate order of your paper given your individual focus.
It would be helpful to the reader for you to use headings for various parts of the
paper. Often those headings aid organization as well.
I am posting two sample papers online. These are critiques from long ago that
received A grades but which took different approaches and are on different cases.
They should give you an idea of the basic kinds of things to do in a paper but you
needn’t be wedded to them.
Note that cases often have several issues on which you could write. Your critique
need not deal with every aspect of a case. Rather, a good critique will often have
a specific theme that it carries through the entire paper. Rather than deal with
every single possible small argument, it will discuss the Court’s decision with that
overarching theme in mind. Of course, you must deal with all of the issues that
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are relevant to that theme and to your critique. This can be a difficult balancing
act but that is why there is a second draft.
3.
Collaboration & Writing
These critiques will not be anonymously submitted. I encourage each of you to
talk with me and others regarding the opinion about which you choose to write a
critique. Feel free to discuss and argue as much as you want. The best method
for developing your own ideas is to discuss with others.
However, when sitting down to write your critiques, you must do so alone.
Working with another person on the actual writing of your critique will be
considered an Honor Code violation.
4.
Research
Your critique may or may not require research. There are many ways to approach
a critique and whether your paper involves research versus simple, critical
argumentation will depend on the type of critique one wants to perform.
For example, if you wish simply to critique an opinion as using faulty logic, you
may need little in the way of research. Rather your paper will primarily dissect
arguments and explain why they do not support the author’s opinion.
On the other hand, if you choose to critique an opinion as failing to account for
historical factors that should have affected the Court’s opinion, you may need to
research the legal, social or political history surrounding those decisions.
Given the length of the papers (see below), I don’t expect any of the critiques to
be heavily researched and documented. However, you are likely to need to credit
others or to cite to other cases. You should do the research necessary to
satisfactorily make your arguments. You should also choose an approach to your
critique that will allow you to do justice to the opinion critiqued in the space
allotted.
5.
Formatting and Citation
(a)
Your papers should be approximately 11-13 pages in length but in no
event can they be longer than 13 pages.
(b)
They should be typed on standard sized paper and double spaced. You
should use a font no smaller than Times Roman 12 point.
(b)
Use a title page that consists only of the title of your critique and your
name. Your paper should begin on the next page. Repeat the title on that
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page but not your name. (The title page will not be considered as part of
your paper for page length requirements.)
6.
(c)
You should use citations whenever you need to cite to cases or the written
works of others (e.g., law scholars, historians, philosophers, etc). Rather
than putting citations in the text, you should use footnotes. A brief review
of any law review article will give you an idea of the format I’m looking
for here. Citations should follow the Uniform System of Citations (i.e.,
the Bluebook) or ALWD. Your footnotes may be single spaced and in a
smaller font than the text – but no smaller than Times Roman 10 point.
(d)
Be careful to avoid all possibility of plagiarism (roughly defined by the
Honor Code as “the act of copying literally or without substantial
variations the written work of another and passing it off as one’s own”).
While you are not prohibited from using the language or ideas of another,
you must accurately credit the source. For a more in-depth discussion of
the Law School’s definition of plagiarism, see the School of Law Student
Handbook and materials posted on the law school’s website.
Student-Student Critique
The purpose of this exercise is to allow you to learn from those who critique you
and to aid another with your feedback. Thus, your student-student critiques
should roughly address the same sorts of questions as do the four organizing
questions in part 1 above.
That said, I nevertheless expect these critiques to be much more informal than
those you write of a Supreme Court opinion. I do not expect you to do additional
research although you should read the Supreme Court opinion that is the subject
of the critique. Your student-student critiques are to be no longer than three (3)
pages double spaced. Other than length, all of the formatting and citation
requirements listed in part 5 above also apply.
ADA Notification
The information in this syllabus is available in alternative formats upon request. If you
need accommodations because of a disability, if you have emergency medical
information to share with me, or if you need special arrangements in case the building
must be evacuated, please inform me or the Associate Dean for Academic Affairs
immediately.
To request academic accommodations, students must register with the Office of
Disability Services, (http://disabilityservices.missouri.edu), S5 Memorial Union, 8826
4696, which is the campus office responsible for reviewing documentation provided by
students requesting academic accommodations, and for accommodations planning in
cooperation with students and instructors, as needed and consistent with course
requirements. You may also discuss this issue with the Associate Dean for Academic
Affairs at the Law School.
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