Syllabus
PS 541: Special Problems in Public Law - The Courts and Public Policy
San Diego State University - Spring 2013
Dr. Madhavi McCall
Office: AH 4143
Phone: 594-5050
Class Time: T/Th 12:30-1:45pm, AH 3150
Email: mccall@mail.sdsu.edu
Office Hours: T/Th 11:00am-12:15pm
appointment.
or
by
Course Description: Most people think laws consists of immutable rules for society to follow. We hold
that the law is black and white and the individuals responsible for implementing the law clearly
understand its meaning. The truth, however, is far from so clean and neat. Although legislatures may
attempt to detail legislation sufficiently to close gaps, they cannot anticipate every possibility and
therefore the law is open to interpretation. In the United States, it is generally understood that the courts
and the judiciary will be involved in the process of applying and interpreting the constitution and the
laws.
Indeed, the Constitution, especially the federal constitution, is even more vague and consequently even
more open to judicial interpretation. For instance, the Founding Fathers used less than 500 words to
provide individual rights to religion, speech, press, assembly, a fair trial, and due process and to protect us
against cruel and unusual punishment, takings, self-incrimination and illegal searches and seizures. In less
than 500 words they could not delineate the meaning of those protections but rather left it to future
generations to determine their application. The process of interpretation requires personal judgment and
calls into question the role the courts should play in protecting minority interests in a country built on
majority rule.
Because the courts are central to our system of government, many judges, lawyers, politicians, academics
and interest groups have questioned the proper role judges should (or should not) play in the policy
making process and it is the question we take up in this course. Should judges, particularly those that are
appointed, use their powers to overturn legislation passed by the elected branches of government? Or, is
the role of the courts to check the powers of the majority, using constitutional protections to aid minority
view points? There are difficult questions, and questions on which there is still not consensus as to the
answers. We get to spend a semester evaluating the role of the courts in the creation of public policy and
debate the legitimacy of court action.
Required Text:
Readings from Murphy, Walter, C. Herman Pritchett, and Lee Epstein. 2002.
Courts, Judges, and Politics. 5th Edition, 2002. McGraw Hill. This text is listed
as MPE below. ALL THE READINGS FROM THIS TEXT ARE ON
BLACKBOARD – YOU DO NOT NEED TO BUY THIS BOOK.
Bosworth, Matthew. Courts as Catalysts. This text is listed as Bosworth below.
ALL THE READINGS FROM THIS TEXT ARE ON BLACKBOARD – YOU
DO NOT NEED TO BUY THIS BOOK.
Tushnet, Mark. A Court Divided. This text is listed as Tushnet below. ALL
THE READINGS FROM THIS TEXT ARE ON BLACKBOARD – YOU DO
NOT NEED TO BUY THIS BOOK.
Walker, Samuel, Cassie Spohn and Miriam DeLone, The Color of Justice. This
text is listed as Walker, Spohn and Delone below and as Walker on blackboard.
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ALL THE READINGS FROM THIS TEXT ARE ON BLACKBOARD – YOU
DO NOT NEED TO BUY THIS BOOK.
O,Brien, David. Judges on Judging. This text is listed as O’Brien below. ALL
THE READINGS FROM THIS TEXT ARE ON BLACKBOARD – YOU DO
NOT NEED TO BUY THIS BOOK.
Gillman, Howard. The Votes That Counted: How the Court Decided the 2000
Presidential Election. Book is available on Amazon for less than $10
shipped/used.
Lewis, Anthony. Gideon’s Trumpet. Book is available for about $10 on
Amazon, shipped with Amazon Prime/new.
Ball, Howard. The Bakke Case. Book is available for $12.95 on Amazon new
or used for under $5.
Other articles and court cases located on blackboard. Readings listed on the
syllabus are on blackboard. In addition, you are expected to read the national
section of a major daily newspaper.
Course Requirements: The majority of your grade from this class will come from writing and
participation; however there is a significant exam component. In total, 60% of your grade comes from
writing assignments while 40% comes from examinations. First, there will be a two short midterm
examinations and a final. The two midterm examinations are scheduled for class time and are worth 10%
of your grade each. The final examination is scheduled as per the university calendar and is worth 20% of
your grade. You are required to complete a research paper (due May 2nd, 2013) that will account for
35% of your grade. Finally, the remaining 25% of your grade will be based on class participation and
weekly assignments.
The midterm examinations (scheduled for February 21st and April 9th) will not be cumulative. Each
midterm examination will contain long and short essay questions. I will cover material in examinations
from the readings and the lectures - studying only the notes or doing only the readings and missing class
will not be sufficient preparation for examinations. I will not give makeup examinations. The final
examination (on May 16th, 2013) is cumulative and will integrate the entire semester work into questions.
The final examination will only consist of essay questions. Again, to reiterate, all exams will cover both
reading and lecture. I will not attempt to cover everything in lecture already covered in the texts - but all
the reading material is fair game for examinations. I do not, as a general policy, provide study guides.
Please bring the smaller blue books to the midterm examinations and the larger blue book to the
final.
I have assigned a considerable amount of reading and in order to ensure that you have done the reading, I
am using 25% of your grade for presentation and completion of the assigned readings. For each class
day, you are required to write down the main point of each article or of each case. For court cases, you
are required to understand the dissenting points of views as well. Additionally, you will tell me, in ½ of a
page (typed, single spaced) why the readings were grouped together for that day. I will then randomly
call on individuals to provide the class with an explanation of the main point of an individual reading
assignment or the main point of the grouping of readings. If you can explain the reading, you get credit
for the day. If you cannot – you don’t. I will not judge how well you presented in terms of style, but I
will judge the content of your presentation. If you are not adequately prepared, you will be graded
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accordingly. If you are absent from class or are wholly unprepared to present an article - your
presentation score for that day will be a zero. Do not think that there is any pattern to who will present just because you presented in the last class period does not mean you will not be called upon again
immediately the following class period. I may ask you to present twice in one day - these things are
random and you should view them as such. The class presentation portion of this assignment is worth
15% of your final score. Everyone starts with 150 points. Failure to be prepared on any given day results
in a loss of 15 points. If I deem it necessary, I will also, randomly throughout the semester, ask you to
turn in your assignments. Failure to produce the assignments will also result in a loss of 15 points. At the
end of the semester, you are required to turn in your notes on all the assigned readings and 10% of your
score will be based on the quality of the notes. Please turn these notes in the day of the final examination.
The final 35% of your grade will be based on the quality of a final, research paper that is expected to be at
least 15 pages in length (Graduate students are required to write 20-25 pages). If you feel it appropriate,
papers can be longer – 15 pages is the minimum required. Exact formatting requirements follow this
syllabus. I have listed paper topics at the end of this syllabus. Each of you will, by January 24, 2013,
pick a topic from the list. Only two students may pick any one topic (first come, first serve) and so if you
are the third person to choose a topic, you will be required to choose again. This is a class on the court
and public policy and I expect the papers to reflect that theme. For each paper, I expect you to look up
the relevant cases, evaluate the court’s decision (either state or federal), research the response to the
court’s decision, and determine if you feel the court was correct in acting. For instance, you might
consider evaluating some or all of the following questions:
1. What social factors lead up to the decision?
2. What legal reasoning did the court use to justify its opinion?
3. What alternative reasoning did the dissenters consider?
4. What was the social and legal response to the court decision?
5. Does the constitution permit the court’s behavior?
6. Would justice have been better served if the courts’ would have stayed out and allowed the
elected branches of government to act?
7. What constraints might there have been on court action, particularly in the context of elected
courts?
8. How did other players react (other courts, other politicians) to the decision?
9. Is the issue resolved? Or are there other aspects of the cases left unanswered?
10. What are the political ramifications of the court’s decision?
Graduate students, as noted, are required to produce a 20-25 page final paper and that paper will be
graded using a more rigorous grading standard than the one used for undergraduates.
This paper will be evaluated in stages. I want to see your work as you go along so I can ensure that you
are on the right track. As noted, by January 24, 2013 you and I will have finalized a topic for your paper.
I then expect that you will take the next month to review cases and research the topic. By February 19th ,
2013 you will turn in a relatively detailed outline of your paper as well as a preliminary bibliography. On
March 21st, 2013, you will turn in a draft of the paper. The final, edited papers for undergraduates and
graduate students are due on May 2nd, 2013. Papers turned in on May 7th, 2013 (the next class period)
will incur an automatic 15% penalty. You may not turn in papers in my mailbox or by email. Turn in
your paper on May 2nd in class or take the penalty and wait until May 7th. Time permitting, students will
present the central findings of their papers the last two class sessions.
One more thing – papers will not be accepted after May 7th, 2013. I do not mean the papers will be
counted late and you will receive a larger than 15% penalty – I mean that they will not be accepted and
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you will get a 0 for the assignment.
To summarize:
Final Paper - 35%
Final Examination - 20%
First in Class Examination – 10 %
Second in Class Examination- 10%
Class Participation through reading assignments – 15%
Written class assignments – 10%
Evaluation and Grading: Grades are assigned on a straight scale with exact grade translations from
numeric values delineated below. I do not believe in grading on a curve. I believe your performance
overall is based in large part on cooperative classroom efforts and grading on the curve can discourage
this cooperative effort. I encourage you to study together, talk about class and current events and for this
reason, I will not implement a curve at the end of class.
94-100 - A
90-93 - A89-88 - B+
87-83 - B
82-80 - B79-78 - C+
77-73 - C
72-70 - C69-68 - D+
68-60 - D
59 and Below - F
Student Learning Objectives: In this class, students will learn how to read and interpret Supreme Court
cases and will learn to apply past precedent to new situations. Additionally, students will also learn about
the judicial structure in the United States generally and about the differences between state and federal
judicial systems. Students will be able to read and critically evaluate academic articles regarding judicial
behavior at the end of the course. Finally, students will be able to identify and define principles like
judicial activism and judicial restraint, judicial independence and judicial accountability, institutionalism
and behavioral analysis.
Class Attendance: Regular class attendance is essential to doing well in this class. I have not made
class attendance a mandatory part of the grading scheme for the very simple reason that I strongly believe
that showing up for class is a responsibility. You are expected to be here - and anything less will simply
mean that your grade and what you learn and benefit from this class will greatly suffer. Please also keep
in mind two very important points about attendance in this class: 1) If you are absent on a day when you
are called upon to present your reading assignments 15 points will be subtracted from your presentation
grade and 2) lectures will involve material no covered in the text.
If you do miss class for reasons most individuals would not consider “legitimate,” please do not expect
me to get you up to speed during office hours. Do not ask me for my notes - I will not give them to you.
Do not ask me to go over the class lecture - I will not comply. For those RARE occasions when a student
misses class for a legitimate reason, I will be happy to help - but otherwise you are on your own.
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Missed Assignments and Tests: There are no make-up exams. If a student is absent for legitimate
documentable reasons detailed in the following sentences, I will enter an exam grade that is the average of
your other two exam scores, weighing each exam equally. The following are examples of legitimate
documentable absences: illness requiring the aid of a medical doctor, death in the family, mandatory
military duty, a conflicting university-sponsored activity such as a sports team competing out of town or
an emergency which can be documented, such as a car accident or required military or job duty which
cannot be rescheduled. Family occasions are not excused absences. Examples of family occasions which
are not excused absences include but are not limited to the following: sister’s wedding, father’s chance of
command ceremony, brother’s family gives birth to a child, grandparents’ fiftieth wedding anniversary,
family reunion, planned vacation, etc. Be sure to check with your friends and family regarding these
matters before you decide to remain in this course. Exams missed for non-legitimate reasons will be
scored as a 0. Papers may not be turned in for any type of credit past May 7th, 2013.
Exceptionally Severe and Unusual Problems: Occasionally, students request exceptions to late
penalties etc. due to problems which they perceive to be exceptionally severe or problems which do not
fall within the general guidelines given above. Sometimes these involve grief, addictions, accidents or
other problems. In any such case, the student will be asked to take advantage of a free advising service
offered to students at the office of Counseling and Psychological Services. Their phone number is 5945220 and you will be asked to make an appointment with them and to have the counselor you met with
send me a letter making a recommendation for appropriate action to be taken in your case.
Course Website: There is currently a course website for this course on Blackboard. In addition to
posting many course materials, I will use Blackboard’s email function to send announcements to the
class. Thus, I strongly encourage you to create a blackboard account if you do not already have one (just
go to the SDSU homepage, follow the link to blackboard, and follow the instructions for creating an
account). If you already have a blackboard account, be sure that the email address used to create the
account is still current.
Cheating and Plagiarism: SDSU’s academic senate defines plagiarism as:
“2.2 Plagiarism shall be defined as the act of incorporating ideas, words, or specific substance of
another, whether purchased, borrowed, or otherwise obtained, and submitting same to the
University as one’s own work to fulfill academic requirements without giving credit to the
appropriate source. Plagiarism shall include but not be limited to (a) submitting work, either in
part or in whole, completed by another; (b) omitting footnotes for ideas, statements, facts, or
conclusions that belong to another; (c) omitting quotation marks when quoting directly from
another, whether it be a paragraph, sentence, or part thereof; (d) close and lengthy paraphrasing of
the writings of another; (e) submitting another person’s artistic works, such as musical
compositions, photographs, paintings, drawings, or sculptures; and (f) submitting as one’s own
work papers purchased from research companies.”
My take on this is very simple - if you cheat, you will fail my course. You will fail the entire course - not
just the assignment on which you cheated. You may not, apart from what is listed above, turn in any
work for this class that was submitted for another class, or that you intend to use in another class. If you
submit work from other classes (or from high school classes) as work for this class, I will also consider
that cheating and will fail you for the semester. Finally, cheating on examinations will result in
immediate course failure. You may not, during examinations, use cell phones, leave the class room, use
notes, keep calculators out, use the book, or receive help from a nearby colleague. You may wear a ball
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cap during the examinations, but it must be turned backwards. If I suspect cheating, I will immediately
file a course of action with the University Committee on Student Rights and Responsibilities.
For those of you planning to go on to graduate school (especially law school), you will have a much more
difficult time getting in to graduate school with a mark of academic dishonesty on your record. The
graduate students risk expulsion for the graduate program for cheating.
Syllabus Changes: This syllabus is subject to change at the discretion of the instructor to accommodate
instructional and/or student needs. It is the student's responsible to keep abreast of such changes.
Reading Assignments: Listed below are the reading assignments for this semester. I reserve the right to
add to these assignments as needed throughout the semester. Please note that you are expected to
complete the reading assignment listed for that day before class. Please look up cases with an * on
lexis/nexis or findlaw. The rest of the readings are on blackboard or need to be purchased.
January 17: Introduction
The Role of Courts in the American Governing System
January 22: The Constitution, Framers’ Intent and Marbury v. Madison
Read: MPE 21-35 – Blackstone, Hamilton, De Tocqueville, Holmes, Cardozo, Baer
MPE 58-63 – Marbury v. Madison (1803), Eakin v. Raub (1825)
O’Brien, 13-32
January 24: Judicial Power
Read: MPE 239-258
Research paper topic due
January 29: The Judiciary in the United States; Organization and Structure
Read: MPE 79-100 – Judicial Organization
MPE 137- 155 - Judicial Elections
January 31: Constitutional Interpretation and other Determinants of Judicial Behavior
Read: MPE 526-543 – Constitutional Interpretation
MPE 330-337 – Segal et al., Epstein and Knight
O’Brien, 182-192, 244-249, 223-236
February 5: Judicial Accountability v. Judicial Independence
Read: MPE 64-76 – Dahl, Casper, Newman
Minnesota v. White
Caperton v. Massey
February 7: Judicial Elections vs. Judicial Appts cont.
Read: Bright
Shepherd
McCall and McCall
February 12: Structural Limits on Judicial Power
Read: MPE 310-323, 338-362 – Limitations on Judicial Power, Jackson, Roosevelt, Clinton,
Yeltsin, Ex Parte McCardle, Eskridge, Kuklinski and Stanga, Gibson et al.
MPE 419-429 - Precedents and Legal Reasoning
O’Brien, 171-181
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February 14: Limitations of Judicial Power: Implementation
Read: TBA
February 19: Judicial Players – the role of diversity in state court decisions
Read: TBA – will be posted on blackboard
Outlines and Preliminary Bibliography due for paper
February 21: First Midterm Examination
The Courts and Public Policy
February 26: Defining Marriage
Read: Perez v. Sharp
Loving v. Virginia
Goodridge v. Department of Public Health
February 28: Same-Sex Rights
Read: Tushnet, 156-179
Articles regarding new USSC cases as listed on blackboard
March 5: Right to Die
Read: In Re Quinlin
Cruzan v. Missouri
Chemerinsky, Sections 1 and 2
March 7: Abortion
Read: Harris v. McRae
Alaska v. Planned Parenthood
Tushnet, 204-222
March 12: School Funding
Read: San Antonio School District v. Rodriguez
Texas School Funding Case – Edgewood v. Kirby
March 14: School Funding
Read: Bosworth, 59-109, as listed on Blackboard
March 19:
Gun Control
Read: DC v. Heller
Readings as listed on blackboard
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March 21:
The 8th Amendment
Read: Walker, Spohn and DeLone, 250-290
Atkins v. Virginia (2002)*
Roper v. Simmons (2005)*
Graham v. Florida (2010)*
Miller v. Alabama (2012)*
Draft of paper due
March 26: The Courts and Criminal Justice
Read: Chemerinsky, Sections 3 and 4
Walker, Spohn, and Delone, 143-198
March 28: The War on Crime as a Political Issue
Read: Campaign commercials from 2008 State Supreme Court Elections
Zola Advertisement
Weiss – Tough on Crime
Other readings TBA
April 1-5 – Spring Break – University Closed
April 9: Second Midterm Examination
April 11: The 2000 Election – A Case Study
Read: Bush v. Gore
Gillman, The Votes that Count
April 16: The 2000 Election – A Case Study cont.
Read: Gillman, The Votes that Count
April 18: Affirmative Action – A Case Study
Read: The Bakke Case
April 23: Affirmative Action cont.
Read: The Bakke Case
Tushnet, 223-246
April 25: Affirmative Action cont.
Read: Johnson v. Transportation Agency, Santa Clare County (1987)*
Adarand Constructors, Inc. v. Pena (1995)*
Grutter v. Bollinger (2003)*
UT. v. Fisher as presented on blackboard
April 30: Right to Counsel – A Case Study
Read: Gideon v. Wainwright
Lewis – Gideon’s Trumpet
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May 2: Right to Counsel – A Case Study
Read: Lewis – Gideon’s Trumpet
Final Research Paper Due
May 7: Discussion of research papers
Final Research Paper will be accepted with a 15% penalty immediately attached.
May 9: Discussion of research papers/Review
Final due as per the university schedule on Thursday May 16th, 10:30-12:30
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Research Paper Instructions
1. Topic: You are required to pick a topic dealing with the courts and public policy from the list
provided below. The paper topic can be narrowed from the broad parameters provided below so that the
topic can be thoroughly covered in 15 pages. You must clear your topic with me before you start your
paper. We will talk a great deal about the paper topics in the next week. Graduate students – please
remember that you are required to produce a 20-25 page paper.
2. Format: I have some very specific formatting requirements listed below.
Paper must be at minimum 15 pages long. More is fine, but I will deduct points for less. The
bibliography, endnotes and title page do not count in the 15 pages – I am expecting 15 pages of text (2025 page paper for graduate students without endnotes, title page, and bibliography).
Margins on all sides must not exceed one inch. Make sure and check your word processing program’s
default settings – I will deduct points for large margins. I would also watch this if you use Word – the
program will shift entire paragraphs to the following page and thus this would enlarge your margins. If
this happens and you cannot fix it, I would just make sure that there is no doubt that you made the page
requirements.
Papers must be double-spaced. Do not try and change the spacing – I know what 2.5 spaces looks like
and I will deduct points if there is too much room between lines.
Indent each paragraph and do not skip an extra line between paragraphs. Paragraphs are typically at least
3 sentences long.
Use Times New Roman, 12 point font. If your computer does not have Times New Roman, come see me.
Include a cover page with your name and the name of the paper – do not repeat this information on the
first page of the text.
Page numbers should be in the upper right hand side of the paper only.
Do not use footnotes – use endnotes only if needed. If you do use endnotes, the notes do not apply to the
page count.
3. References: References (or bibliography) should be placed at the end of the paper and do not count as
pages in the page count. Please use in text citations to refer to material in the body of the paper. That is,
when you cite material that you have found from another source, immediately after the information,
please
include the author’s last name and year of publication in parentheses. For example, material by author
Smith would be cited as (Smith 2003). If using a direct quote, please include page numbers. For
instance,
Smith said, “…” would be (Smith 2003: 203).
The question of what to cite is a tricky one but the general rule of thumb is that if the information you are
using is not “common knowledge,” it should be cited. If you are in doubt, citing material is better than
not. If you do not cite material that should have been cited, you are effectively engaged in plagiarism,
obviously something you want to avoid. You should make very limited use of direct quotes. Instead,
restate the authors point in your own words – that is usually far preferred in academic work. If you do use
a direct quote and if the quote is more than 5 lines long, the quote should be indented and single-spaced.
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Do not rely on Internet sources. I expect you to use academic sources and material on the Internet is
usually not sufficient. For my purposes, there is one major exception to the “do not use Internet sources”
rule. Our library subscribes to several journal databases – you may download academic articles from
these databases (J Store and Lexis/Nexis are particularly useful). Finally, while there is no absolute
number of sources you must use, I personally doubt that a good research paper can be done with fewer
than 10-15 sources. If you engage in plagiarism, you will fail this course.
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Paper Topics: Please remember that there can be no more than two students writing on any one
topic.
1. Perez v. Sharp – interracial marriage
2. Goodridge v. Dept. of Health – same sex marriage
3. In re Quinlin – Right to Die
4. Washington v. Gluckberg – Physician assisted suicide
5. DC v. Heller – gun control
6. Brown v. Board of Education – desegregation
7. San Antonia School District v. Rodriguez – school funding
8. Harris v. McRae – abortion funding
9. Texas v. Johnson – flag burning
10. Griswold v. Connecticut – privacy rights
11. Gideon v. Wainwright – right to counsel
12. Mapp v. Ohio – exclusionary rule
13. Criner, Richards, and the Texas Court of Criminal Appeals
14. State v. Odom – Tennessee death penalty case
15. Caperton v. Massey (No. 33350) – starting with West Virginia v. Argbaugh and both West Virginia
cases (recusal)
.
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