MASSACHUSETTS SCHOOL OF LAW at ANDOVER
SYLLABUS for CONSTITUTIONAL LAW – Fall 2014
Professors Peter M. Malaguti and Maxine Winig
Instructors: Professor Peter M. Malaguti
Professor Maxine Winig
Email:
malaguti@mslaw.edu
Email: maxinewinig@verizon.net
REQUIRED READING
Phone: 978.681.0800 ext. 116
Casebook: Chemerinsky, CONSTITUTIONAL LAW (4th Ed. 2013, Wolters Kluwer Pub.) This
casebook will serve as the main reference for the course.
Workbook:
Brannon P. Denning, DEVELOPING PROFESSIONAL SKILLS: CONSTITUTIONAL LAW
(West Pub. 2014)(ISBN: 978-0-314-28974-2). This is a workbook on which
writing assignments will be based. This book costs $24.12 on Amazon; I can put in an
order through the book store if you would prefer (although the cost likely would be a
bit higher). As the syllabus shows below, I will make my first assignment from the
book on Thursday, August 28, so you will need to have it in hand by then.
NON-REQUIRED SUPPLEMENTAL READING
May & Ides, CONSTITUTIONAL LAW: NATIONAL POWER AND FEDERALISM – EXAMPLES &
EXPLANATIONS (3rd Ed. 2004, Aspen Pub.)
May & Ides, CONSTITUTIONAL LAW: INDIVIDUAL RIGHTS – EXAMPLES & EXPLANATIONS
(3rd Ed. 2004, Aspen Pub.)
Chemerinsky, CONSTITUTIONAL LAW – PRINCIPLES AND POLICIES (3rd Ed. 2006,
Aspen Pub.)
We will make available a “Primer” on Constitutional Law that we have created, at no charge.
Although not a comprehensive statement of the entirety of American Constitutional law, we hope
that it will serve as a nuts and bolts guide to the rules and provide some direction for Constitutional
Law students.
Reading Assignments from Casebook
Because the classes are highly interactive, the assignments are estimates only. The
students are expected to attend every class and keep track of the pace. The students
should also understand that, due to the complex nature of the issues and policy
questions involved, and the sometimes lengthy Supreme Court cases, the reading load in
Constitutional Law is higher than in most classes.
GOALS AND OBJECTIVES OF THE COURSE
This is an introductory survey course of constitutional law. Successful students will master the
complicated structure and functions of the doctrines, legal methods, legal reasoning and legal
analysis employed by lawyers when practicing “constitutional law,” the process by which our
American legal system orders our government and protects the individual rights of its citizens. It is
expected that students achieving a grade of “C” or better will have mastered the law and legal
processes sufficiently to pass the constitutional law sections of the bar examination. It is also
expected that successful students will achieve an understanding of the fundaments of constitutional
law that is sufficient to enable them to take the first steps to handle constitutional law issues upon
graduation from the Massachusetts School of Law. Students who fail to master the law and legal
processes sufficiently enough to pass the constitutional law sections of the bar examination, or who
lack the fundamental knowledge requisite to handle constitutional law issues upon graduation, will
receive a grade below that of “C.”
GRADING
Your final grade shall be composed of two (2) components:
1. The seven writing assignments given during the course of the semester; and
2. Your final exam given during exam week.
Each component of your grade will count as follows:
Final Exam:
Writing Assignments:
65%
35%
Old exams, back to 2004, are on my website. They will be very useful study tools when
you reach crunch time at the end of the semester. We will not put my 2013 exam up until
early November.
THE WRITING ASSIGNMENTS
The writing assignments referred to in this syllabus will be due at the beginning of the
designated class. If you will not be in class, or plan to be late, you will have to make
arrangements to submit your assignment prior to class. I WILL NOT ACCEPT LATE
ASSIGNMENTS, just as courts do not accept late filings. I WILL NOT PERMIT MAKEUPS OF
MISSED ASSIGNMENTS. Just as lawyers face dire consequences for failing to file
documents timely, so will you.
You are to submit your writing assignment under your student identification number
rather than your name, and shall not put your name on the document in any place. If you
use your name, I will not grade the assignment, and you will receive no credit for it.
We will score each writing assignment from 0-5, and shall employ the following rubric in
grading:
Instructions
Facts &
Information
Excellent
Good
Fair
Poor
The student has
clearly taken time
to read the
instructions given
in the problem and
by the professor,
and has been
careful to adhere
to them in his/her
written product
The student has
made some minor
mistake in
following the
instructions
The student has
made a number of
mistakes in
following the
instructions
The student has
failed to follow the
instructions is a
substantial way
(0.25)
The student has
carefully gleaned
the facts and
information of the
problem, and fully
understands the
situation
presented
(0.2)
The recitation of
facts and/or
information is
almost entirely
accurate, but the
student has
presented minor
mistakes in facts
and/or information
(0.1)
The recitation of
facts and/or
information
contains a number
of mistakes
(0-0.05)
The recitation of
facts and/or
information
contains a
substantial
mistakes and
demonstrates a
lack of
understanding of
the facts and
information
presented
Value
0.25
2
0.25
Points
Earned
Relevance
Law
Analysis
Writing
Mechanics
(0.25)
The student has
employed only law
and facts that are
relevant to the
questions posed,
and has not
interjected
irrelevant material
(0.2)
The body of the
work is almost
entirely relevant,
but the student
has presented
some minimallyirrelevant facts
and/or law
(0.1)
The body of the
work is mostly
relevant, but the
student has
presented one or
more significantlyirrelevant fact(s)
and/or law
(0-0.05)
The student has
presented fact(s)
and/or law that
are irrelevant in a
major way
(0.5)
The student has
presented the
applicable rules of
law thoroughly
and accurately
(0.4)
The student has
demonstrated
minimal errors in
articulating the
applicable rules of
law
(0.2)
The student has
demonstrated a
number of errors
in articulating the
applicable rules of
law
(0-0.1)
The student has
demonstrated
major errors in
articulating the
applicable rules of
law
(1)
The student has
thoroughly and
thoughtfully
applied correct
principles of law to
the facts
presented in order
to form proper
conclusions
(0.75)
The student has
almost entirely
applied correct
principles of law to
the facts
presented in order
to form proper
conclusions
(0.5)
The student’s work
contains a number
of misapplied
principles of law
and/or facts,
and/or has failed
to form a number
of proper
conclusions
(0-0.25)
The student’s work
almost entirely
misapplied
principles of law
and/or facts,
and/or has almost
entirely failed to
form proper
conclusions
(2)
The work is free of
grammar, spelling,
syntactical or
stylistic errors.
(1.5)
The work has
minimal errors in
grammar, spelling,
syntax and/or
style.
(1.0)
The work contains
a number of errors
in grammar,
spelling, syntax,
and/or style.
(0-0.5)
The work contains
major errors in
grammar, spelling,
syntax, and/or
style.
(1)
(0.75)
(0.5)
(0-0.25)
0.5
1
2
1
Comments:
5
READING
WEEK
CHAPTER/SECTION
PAGES
Week One
Monday, August 18
Introduction to course and discussion of
class expectations.
Thursday, August 21
Chapter 1: The Federal Judicial Power
The Authority For Judicial Review : Marbury;
Martin
Mini-Lecture: Article III and
Article I Courts; Limits On The
Federal Judiciary (Interpretive
limits, Congressional Limits
& Advisory Opinions)
The Exceptions and Regulations Clause
(Congress’ authority to limit Supreme Court
appellate jurisdiction): McCardle; Klein;
Notes on Klein
3
xli-lvii
1-11
11-13
34-40
Week Two
Monday, August 25
Mini-Lectures: Appeals to the
Supreme Court; Jurisdiction of
Lower Courts; Justiciability Limits
(Advisory Opinions, Standing, Ripeness,
Mootness & the Political Question
Doctrine)
Advisory Opinions: Opinion of the
Justices; Hayburn’s Case; Plaut;
Notes on Advisory Opinions
(Wallace)
Standing
Constitutional Standing (Injury,
Causation & Redressibility):
Allen; Mass. v. EPA; Notes on
Constitutional Standing
Requirements (Lyons; Lujan
Hays; Akins; Linda R.S.; Warth; Simon;
Duke Power)
Prudential Standing: Singleton;
Barrows; Craig; Gilmore; Elk Grove;
Richardson; Flast; Hein, Winn
Thursday, August 28
40-45
45-67
67-80
1st Writing Assignment: On Thursday, August 28,
you will receive your second assignment, Chapter One
(Judicial Review and Congressional Control of
Jurisdiction) from the Denning book. It is due on
Thursday, September 4, at the beginning of class.
Ripeness: Poe, Abbott, Mitchell,
Boyd, R.R. Reorg. Act Cases,
MacMullen
81-86
Mootness: Moore, Roe, DeFunis,
Laidlaw, Geraghty
86-91
The Political Question Doctrine:
Baker, Veith, Powell, Goldwater, Nixon
91-113
Mini-Lecture: The Adequate and
Independent State Grounds
Doctrine
September 1 – Labor
Day
No Class
---
Week Three
Thursday, September 4
2nd Writing Assignment: On Thursday, September
4, you will receive your second assignment, Chapter
4
(1st Writing
Assignment Due)
Two (Standing and Justiciability) from the Denning
book. It is due on Thursday, September 11, at the
beginning of class.
Chapter 2: The Federal Legislative Power
Introduction: Congress and the
States: McCulloch, Sebelius
115-151
The Necessary & Proper Clause: Comstock
151-158
The Commerce Power
The Initial Era: Gibbons, Houston
158-168
1937-1990s: Broad Federal
Commerce Power: Jones &
Laughlin Steel Corp.; Darby;
Wickard
168-177
Meaning of “Commerce Among the
States:” Heart of Atlanta;
Katzenbach; Hodel; Perez
177-184
The Tenth Amendment Between
1937 and the 1990s: Garcia
184-190
What is Congress’s Authority to
Regulate “Commerce Among the
States”?: Lopez; Morrison; Raich;
Printz
190-220
Does the Tenth Amendment
Limit Congressional Powers?:
New York, Printz, Reno
220-241
Taxing and Spending Power:
Butler, Steward Machine, Sabri,
Dole
241-250
Congress’s Power Under the PostCivil War Amendments: Civil
Rights Cases and other
introductory material, Morrison,
Katzenbach, Flores
251-266
Week Four
Monday, September 8
Thursday, September 11
(2nd Writing
Assignment Due)
Week Five
Monday, September 15
3rd Writing Assignment: On Monday, September 15,
you will receive your third assignment, Chapter Three
(Powers of Congress: Commerce, Taxing, and
5
266-316
Spending) from the Denning book. It is due on
Monday, September 22, at the beginning of class.
Congress’s Power To Authorize
Suits Against State Government -Eleventh Amendment Immunity: Bitzer,
Union Gas, Seminole Tribe, Florida
Prepaid, Kimel, Garrett, Hibbs, Lane, U.S.
v. Georgia, Alden, S.C. Port Auth.
Thursday, September 18
Chapter 3: The Federal Legislative Power
Mini-Lecture: The Executive
Powers Enumerated Under Article
II of the Constitution
Mini-Lecture: The So-Called “Take
Care” Clause of Article II, § 3
(Also, So-Called “Signing
Statements” and habeas corpus)
Inherent Presidential Power:
Youngstown Sheet & Tube (The
Steel Seizure Cases)
317-333
Executive Privilege: U.S. v. Nixon,
Cheney v. Dist. Ct.
327-334
The Authority of Congress To
Increase Executive Power: Clinton
v. NY
333-338
Week Six
Monday, September 22
(3rd Writing
Assignment Due)
The Constitutional Problems Of
The Administrative State
The Non-Delegation Doctrine
and Its Demise: Schechter
Poultry, Panama Refining,
Whitman
338-344
The Legislative Veto and Its
Demise: Chadha
344-353
Checking Administratve Power;
The Appointment and
Removal Powers: Morrison,
Myers, Humphrey’s Executor,
Wiener, Bowsher, Morrison
Redux, Free Ent. Fund
353-369
Separation of Powers and Foreign
Policy
6
369-370
Thursday, September 25
Are Foreign Policy and
Domestic Affairs Different?:
Curtiss-Wright, Notes on
Curtiss-Wright
370-373
Treaties and Executive
Agreements: Dames & Moore
373-376
War Powers: War Powers
Resolution
Presidential Power and the War
on Terrorism: Hamdi,
Boumediene; Ex Parte Quirin;
Hamdan
Checks on the President
377-381
381-419
419-425
Suing and Prosecuting the
President: Nixon v. Fitzgerald;
Clinton v. Jones
Impeachment
425-429
Week Seven
Monday, September 29
4th Writing Assignment: On Monday, September 29,
you will receive your fourth assignment, Chapter Five
(Separation of Powers) from the Denning book. It is
due on Monday, October 6, at the beginning of class.
Chapter 4: Limits on State Regulatory and
Taxing Power
Preemption of State and Local
Laws
Thursday, October 2
431-432
Mini-Lecture: The Supremacy
Clause
432-434
Express Preemption: Lorillard, Riegel,
Whiting
434-441
Implied Preemption
441
Conflict Preemption: Florida
Lime
441-442
Impeding Federal Objective:
Pacific Gas & Electric
442-446
Occupying the Field: Hines, Arizona
446-455
The Dormant Commerce Clause:
H.P. Hood; Notes following H.P.
Hood; Barnwell Bros.; Southern
7
455-496
Pacific; Philadelphia v. New Jersey,
Hughes, Hunt; Exxon; West Lynn
Creamery; Clover Leaf Creamery; Dean
Milk, Maine v. Taylor; Pike; Kassel
Exceptions to the Dormant
Commerce Clause
496-516
Congressional Approval:
Western & Southern Life
Ins.
Market Participant
Exception: Reeves; White;
South-Central Timber
The Privileges & Immunities
Clause of Article IV, § 2: Toomer;
United Building; Baldwin; Piper
Week Eight
Monday, October 6
(4th Writing
Assignment Due)
Thursday, October 9
Catch-Up Class (Nothing scheduled for the
purpose of using the class to catch up to
syllabus. If the catch-up class is not needed,
the professor will issue a modified syllabus.)
5th Writing Assignment: On Thursday, October 9,
you will receive your fifth assignment, Chapter Four
(Dormant Commerce Clause) from the Denning book.
It is due on Thursday, October 16, at the beginning of
class.
Chapter 5: The Structure of the
Constitution’s Protection of Civil Rights and
Civil Liberties
Introduction
517-518
Application of Bill of Rights to the
States: Barron, Slaughter-House Cases,
Saenz,
Skim through
pages 518-553
Incorporation of the Bill of Rights into the
Due Process Clause of the 14th
Amendment
530-548
Application of the Bill of Rights to
Private Conduct (State Action)
October 13 – Columbus
Day
No Class
548-553
---
8
Week Nine
Thursday, October 16
(5th Writing
Assignment Due)
Exceptions to the State
Action Doctrine
The Public Functions
Exception: Marsh;
Jackson; Terry; Evans; Logan
Valley, Lloyd Corp.,
Hudgens
553-567
The Entanglement
Exception: Shelly; Lugar;
Edmonson; Burton;
Moose Lodge; Norwood;
Rendell-Baker; Blum;
Reitman; Brentwood
Academy
567-600
Week Ten
Monday, October 20
Chapter 6: Economic Liberties
Economic Substantive Due Process
Introduction & Early History:
Allgeyer, Lochner; Muller; Adkins;
Weaver; Nebbia
601-623
Economic Substantive Due
Process Since 1937; West Coast
Hotel; Carolene; Williamson
623-630
Rebirth of Economic Due
Process?: Gore; State Farm;
Philip Morris
630-646
The Contracts Clause: Blaisdell;
Energy Reserves Group;
Spannaus; U.S. v. N.J
Thursday, October 23
646-658
The Takings Clause: Loretto; Penn.
Central; Lucas; Dolan; Palazzolo;
Tahoe- Sierra; Midkiff; Kelo;
Brown
658-710; (skip
Penn Coal Co. v.
Mahon, Miller v.
Schoene)
Please note that, at this point, we are
skipping ahead in the casebook.
1197-2005
Week Eleven
Monday, October 27
---------------
9
Chapter 9: First Amendment Freedom of
Expression
1206-1235
Introduction
Free Speech Methodology
The Distinction Between
Content-Based and ContentNeutral Laws: Turner
Broadcasting; Boos;
Republican Party; City of
Renton; Finley, Summum
1235-1243
1243-1273
Vagueness & Overbreadth
1273-1274
Prior Restraints: Near, New
York Times; Nebraska Free Press;
Alexander; Lovell; Watchtower Bible;
City of Lakewood; Thomas; Z.L.
Gifts
Thursday, October 30
What Is an Infringement of
Freedom of Speech?
Compelled Speech: Barnette;
Wooley; Rumsfield; McIntyre,
Buckley
1277-1290
1290-1302
1304-1305
1305-1313
Unconstitutional Conditions:
Speiser, Rust; Velazquez
Unprotected and Less Protected
Speech
(skip Gitlow,
Whitney,
Dennis)
1325-1337
Incitement/Clear and Present
Danger: Schenck; Frohwerk; Debs;
Abrams;
1337-1350
(skip Feiner);
1354- 1365
Brandenburg, Holder
1365-1366
Fighting Words and Racist
Speech: Chaplinsky; Gooding;
R.A.V.;
1366-1387
Beauharnais; Black
Sexually-Oriented Speech
Obscenity: Roth; Paris Adult
Theatre; Miller; Ferber;
Ashcroft
10
1387-1406 (skip
Stanley)
Protected But Low-Value
Speech: Young; Pap’s A.M
1387-1406 (skip
Stanley)
Week Twelve
Monday, November 3
Thursday, November 6
Catch-Up Class (Nothing scheduled for the
purpose of using the class to catch up to
syllabus. If the catch-up class is not needed,
the professor will issue a modified syllabus.)
Profanity and Indecent
Speech: Cohen; Pacifica
Foundation; Reno; Stevens; Brown;
1399-1427
Commercial Speech: VA State Bd.;
Bolger; Central Hudson
1427-1441;
Torts and the First
Amendment
Defamation: Sullivan;
Gerz; Dun & Bradstreet
What Places Are Available for
Speech: Hague; Schneider; Mosley;
Hill; Ward; Christial Legal Society;
Int’l. Soc. For Krishna
1461-1477
1545-1582
Week Thirteen
Monday, November 10
6th Writing Assignment: On Monday, November 10,
you will receive your sixth assignment, Chapter Nine
(First Amendment – Free Speech 2) from the Denning
book. It is due on Monday, November 17, at the
beginning of class.
Chapter 10: First Amendment Freedom of
Religion
Introduction: Seeger; Ballard
Thursday, November 13
The Free Exercise Clause
1673-1693;
1697- 1701;
1704-1708
The Establishment Clause: County
of Allegheny; Lemon; Doe;
McCreary County; Van Orden; Lee
1708-1713;
1719-1725;
1730-1760
----------
11
Please note that, at this point, we are
jumping back in the casebook.
Week Fourteen
Monday, November 17
(6th Writing
Assignment Due)
Chapter 7: Equal Protection
711-717
Introduction
The Rational Basis Test: Romer;
Fritz; Ry. Express; Beazer; Moreno; City
Of Cleburne
717-740
Race and National Origin (Strict
Scrutiny)
740-866
Gender Classifications
(Intermediate Scrutiny)
866-905
Alienage Classifications
(Sometimes Strict Scrutiny,
Sometimes Rational Basis):
Graham; Foley; Ambach; Plyer
905-921
Non-Marital Children
(Intermediate Scrutiny)
921-924
Other Classifications: Age; Disability
Wealth; Sexual Orientation
Thursday, November 20
7th Writing Assignment: On Thursday, November 20,
you will receive your seventh and final assignment,
Chapter Ten (First Amendment – Establishment and
Free Exercise Clauses) from the Denning book. It is
due on Monday, December 1, at the beginning of class.
Chapter 8: Fundamental Rights Under Due
Process and Equal Protection
Introduction
933-939
Family Autonomy
939-967
The Right to Marry: Loving;
Zablocki
The Right to Custody of One’s
Own Children: Stanley; Michael
H
The Right to Keep the Family
Together: Moore
12
The Right to Control the
Uprbringing of Children: Myer;
Pierce; Troxel
Reproductive Autonomy
967-1030
The Right to Procreate: Buck;
Skinner
The Right to Use
Contraceptives: Griswold;
Eisenstadt
The Right to an Abortion: Roe;
Casey; Gonzales; Maher; Harris;
Casey; Bellotti
Week Fifteen
Monday, November 24
Thursday, November 27
Right to Make One’s Own
Medical Decisions: Cruzan;
Glucksberg; Vacco
1030-1046
Sexual Orientation and Sexual
Activity: Lawrence
1046-1058
The Right to Travel: Saenz
1062-1069
The Right to Vote: Kramer; Ball;
Crawford; Reynolds; Bush
1069-1119
The Right to an Education:
Rodriguez
1135-1142
No Class -- Thanksgiving
----------
Wrap-Up Class
----------
Week Sixteen
(6th Writing
Assignment Due)
Monday, December 1
CLASS EXPECTATIONS
Anticipated Due Dates
WE CALL ON STUDENTS RANDOMLY, AND YOU ARE EXPECTED TO BE PREPARED FOR
EVERY CLASS. The Constitutional Law section of the bar exam is largely based on the most
13
important Constitutional Law cases that we will read in class. It is essential that you read
these cases closely, and understand them.
Because the classes are intended to be highly interactive, the listed anticipated due dates
are to be considered aspirational. At times, especially at the beginning of the semester,
we may fall behind of the anticipated due dates; it is also possible that we will move more
quickly at times than anticipated. You therefore should continuously match those dates to
what we have actually completed in class. Please be prepared for every class by staying
slightly ahead of the anticipated due dates and by adjusting and readjusting as the
semester progresses.
If you have read ahead substantially, we expect you to review what you have already
ready just before class. It is no excuse to state, “I read the case too long ago to remember
it.” Lawyers often write briefs months before they argue in court and, like you, are
expected to know the material when they are called on to discuss the legal issues.
Notes And Tape Recorders In Class
We test what we teach, and we teach by the syllabus. This means that, if you do all the
reading and come to all the classes, you will see no surprises on the final exam. We am
told by former students that those who fail to come to class tend not to do very well on
the final exam. You therefore should come to class and develop an effective method of
recording what goes on. Since the classes are interactive and it is not always possible to
take copious notes on every point, we recommend the use of tape/digital recorders in
class. A recorder should assist in rounding out, or filling gaps in, notes. It also can serve
as a “safety net” in a fast-paced class.
Some students take notes on a laptops or netbook, and this is fine. One caveat, however:
we sometimes notice that students are more consumed with typing out what is said in
class word-for-word than with listening and participating. The purpose of class is not for
you to be a scribe; it is for you to develop analytical skills, and this cannot be achieved if
you are single-mindedly typing. You will always be able to supplement the law we discuss
in class with outside reading.
Frequent Absences
We call on students randomly and will have the pleasure of speaking with each of you
several times this semester. Obviously, you must be present in class to participate.
Professors at MSL are authorized to lower the grades of frequently-absent or frequentlyunprepared students by one-third of a grade. By way of illustration, this means that a final
grade of C will be lowered to a C- if the student is absent from class an inordinate number
of times; a B- will be lowered to a C+, and so on. If we call on you, and you are either
absent or unprepared three (3) or more times, we will lower your grade as described
above.
Being Prepared
We expect you to be prepared for every class and treat an unprepared student as an
absent student. This is not college, and old college tricks like skimming, cramming and
pretending to be prepared simply will not work. Here is what we expect of you before,
during and after class:
Before Class
1. Read, reread, study and THINK thoroughly about the assigned cases and materials;
14
2. Do not leave a case or other reading until you are confident that you thoroughly
understand the facts sufficiently to restate them if asked to do so in class;
3. Do not leave a case or other reading until you are confident that you understand
why the case book author placed the case in the book;
4. Do not leave a case or other reading until you are confident that you can recite the
legal issue(s) presented in the case;
5. Do not leave a case or other reading until you are confident that you know and
UNDERSTAND each rule of law, and its elements, presented in the case;
6. Do not leave a case or other reading until you are confident that you understand the
policy reasons for the adoption of each rule of law implicated in the case;
7. Read, reread, study and THINK thoroughly about the relevant “hypotheticals” or
problems pertaining to the subject matter being studied in each class;
8. Do not leave a hypothetical or problem until you are confident that you understand
why the professor assigned it;
9. Do not leave a hypothetical or problem until you are confident that you can recite
the legal issue(s) presented in it;
10.Do not leave a hypothetical or problem until you are confident that you know and
UNDERSTAND each rule of law, and its elements, implicated in the hypothetical or
problem.
11.Do not leave a hypothetical or problem until you are confident that you understand
the policy reasons for the adoption of each rule of law implicated by the
hypothetical or problem.
During Class
1. Be prepared well enough to be able to provide an accurate recitation of the facts
and holding of each assigned case, hypothetical or problem.
2. Be prepared well enough to be able to provide a concise recitation of the issue(s)
presented in each case, hypothetical or problem.
3. Be prepared well enough to be able intelligently discuss the legal issues and rules
of law presented or implicated by the assigned reading.
4. Be prepared enough to be able to intelligently discuss any factual variations the
professor and/or other students propose during class.
5. Be prepared enough to be able to intelligently discuss flaws and strengths in the
court’s reasoning or in the applicable rule of law;
6. Be prepared enough to be able to intelligently discuss alternative arguments that
might have better resolved the dispute at issue in each case;
7. Be prepared enough to be able to intelligently discuss the policy issues relevant to
the each case, hypothetical or problem.
15
After Class
1. Identify and clarify anything confusing about the law or application or law covered
in class. If necessary, work with classmates collaboratively to achieve mastery and
understanding;
2. Rework your class notes and case briefs to reflect a more accurate picture of the
cases, issues and rules of law.
3. Think about how the lesson covered in the particular class fits into the overarching
body of property law.
You will be expected to read each assignment in its entirety. Reading “case notes,”
“canned briefs,” Westlaw briefs and other shortcut aids, at the expense of the actual
cases, will fail to prepare you adequately and will result in you being marked as
unprepared.
RULES ON CLASSROOM DECORUM
we expect you to observe the following rules in class. I don’t believe any of these rules
are unreasonable:
1.
Please Stay Put. Once class begins, no one is to leave until it ends. Please go to the
bathroom or satisfy your nicotine habit before and/or after class. If you have a
medical excuse for being unable to remain in class for the entire time, please
provide us with the appropriate explanation and we will make an exception (to the
extent possible, without drawing attention to you). If you become sick and need to
leave, or otherwise feel compelled to leave class, please don’t return until the class
is over.
A constant trail of students in and out the door is disruptive, and we won’t tolerate
it. Lawyers are expected to sit through trial without break for entire mornings and
afternoons.
2.
Timeliness. Please arrive on time. Late arrivals are disruptive to the class. We
understand that some of you will be slightly late because of minor overlap with
other classes. But, absent that exception, tardiness should be the exception rather
than the rule. If we take attendance it will be at the beginning of the class. Late
students will be marked absent, and we won’t change this designation if you come
in later.
If tardiness becomes an issue, i.e., if it starts to cause disruptions, we will impose a
hard-and-fast rule that those arriving late will not be allowed into the classroom.
3.
Cell Phones and Messaging. There will be no cell phone use in class. Please turn off
your cell phone before the class begins. If you want to use your cell phone as a
recorder, place it flat on your desk and do not use it for other than recording.
If there is some emergency requiring you to be immediately reachable, you must
approach one of us before class and inform us of the situation, in which event we
will allow you to keep your cell phone on if it has a “vibrate” only option.
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There will be no text messaging, instant messaging, or other forms of electronic
communication in class. This is disruptive and rude. Students doing so will be asked
to leave the class immediately, and will be marked as absent for the entire class.
4.
Laptop Computers. While we believe that laptop computers are an invaluable
classroom tool, lately their use sometimes has become troublesome in several
ways. Like cell phones, they beep and make noises when starting up. Please arrive
early enough to start your laptop prior to class so the start up noises won’t be
disruptive.
It is never appropriate to use computers to play computer games, send and receive
instant messages, surf the net, or perform other computer functions not related to
the task at hand.
You will be asked to leave class for violations of this directive.
5.
Study Aides and Irrelevant Material. While attending class, you may have on your
desk a casebook, various notebook(s), and your required supplemental reading
book(s). Although I cannot control what you read outside of class, while you are in
class you are not permitted to have “canned briefs,” “case notes,” “published
outlines,” “Emanuel’s,” “Gilbert’s,” “Law in a Flash,” or any other so-called “study
aides.” Please also refrain from bringing to class newspapers, magazines or any
other reading material not related to what we are covering in class that day. I do
tend to walk around the classroom and often will see if you bring such materials to
class.
6.
Talking in Class. This will be an interactive class, and it is normal for there to be a
bit of a “buzz” while we are discussing a case or “hypothetical.” We don’t usually
get upset if the class is analyzing a hypothetical, and some students do a little
“kibitzing” in the process. However, we still expect you to listen while others are
talking so you can respond if called upon, and, most importantly, to respect others
by not talking over them. We will not tolerate talking that doesn’t involve the
subject matter at hand.
7.
Eating/Drinking in Class. We generally don’t approve of anything that might divert
your focus from the class discussion, and eating and drinking in class certainly falls
into that category. On the other hand, we do understand that stressed-for-time
students, especially evening students, often are unable to take meals at normal
hours, and therefore need some sustenance to get them through. Generally,
therefore, we tolerate small snacks and drinks during class. We will not tolerate
full meals, full “submarine” sandwiches, or anything of the like. We also will not
tolerate undue noise while eating, e.g. stubborn plastic wrappers, crunchy foods,
etc. We will ban all foods and drinks in class if I think they are becoming a
distraction.
8.
Stand, Name, Project. When you speak in class, whether it’s while volunteering or
after being called on, please stand, state your first name, face the rest of the class
(not me), and project your voice so as to be heard. Please do this for the entire
semester. Speaking in public is uncomfortable at first, but even those of you who
intend to practice transactional law, as opposed to litigation, must realize that the
practice of law is a performance art as well as an intellectual endeavor.
9.
Civility Above All Else. There is often “intellectual tension” is a law school
classroom. Students and professors can differ -- sometimes widely – in their views
on morals, ethics, society, politics and ways of life. It is my intention to treat each
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of you with the utmost courtesy and respect, even when we disagree. In turn, I
expect that each of you will also treat each other with respect and courtesy.
Passionate argument is terrific if kept civil and respectful. Remember: argue the
issues, not the personalities!
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