February 3, 2009

POS 359--The Current Supreme Court Term
In class today, Tuesday 2/3, I distributed 2 handouts; one was the assignment (due 2/12) which is copied below, and the second was two different Statements of the Issues from Summum. We spent much of class going over the requirements for the paper. I also went over 4 Supreme Court cases that contribute to an understanding of Summum: Lambs Chapel, 508 US 384(1993); Capital Square v. Pinette, 515 US 753 (1995); Arkansas v. Forbes, 523 US 666(1998); NEA v. Finley, 524 US 569 (1998); and Johanns v. Livestock Marketing Assoc., 544 US 550(2005). The assignment for Thursday 2/5 is to begin work on the paper, reading and being prepared to discuss the 10th Circuit decision and the oral argument transcript.

Assignment #1

For this assignment, I would like you to predict the outcome of the Supreme Court case of Pleasant Grove City, Utah v. Summum, Supreme Court Docket # 07-665.

The paper should be 2-3 pages long. It will be due at the beginning of the class on Thursday February 12 (this is one week earlier than the tentative date given in the syllabus). If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. (If your computer uses the newer doc.x format, please copy and paste the paper into the e-mail, rather than attaching it). I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.


1) The first step in preparation for the prediction, is to read the lower court decision in this case, Summum v. Pleasant Grove City 483 F.3d 1044 (10th Cir., 2007).

You can find this case by going to the Lexis/Nexis site on the Fogler library website, as outlined in the first-day handout, Useful Legal Websites. (Go to the Fogler site, then LexisNexis Academic, click the “Legal” tab, select “Federal and State cases” on the left, at the citation number enter 483 F.3d 1044 (or whatever citation you are searching)). Ignore the introductory materials, and go right to where the actual opinion starts.

2) For the second step In preparation for your prediction, you must read the transcript of the oral argument of the case, which was heard by the Supreme Court on November 12, 2008. You can find the transcript of the oral argument by going to the Supreme Court’s web site:

http://www.supremecourtus.gov/
and clicking on
oral arguments/ argument transcripts
scrolling down to the November 3-November 12 Argument Session, and selecting 07-665 Pleasant Grove City v. Summum

3) The third step is to read 2 already decided Supreme Court cases. There are no cases that are right on point, but I’ve chosen two that I think are most helpful. They are
Van Orden v. Perry, 545 U.S. 677 (2005) and Capital Square v. Pinette, 515 US 753 (1995). Both of these case are available through the LexisNexis site.


4) You might like to read the briefs of the parties, although these are not mandatory (unlike the oral argument, and cases, which are mandatory). For the Merits briefs select Merits Briefs/ On Line Merits Briefs and then scroll down alphabetically to Pleasant Grove City v. Summum. Then scroll down again to Pleasant Grove City.

or you can go directly to the ABA briefs at
http://www.abanet.org/publiced/preview/briefs/nov08.shtml#polar


The specific assignment is this: To the extent possible, go Justice-by-Justice and find some indication of how each Justice might vote in this case.

One important source of those indications will be the questions raised at oral argument. For example, you might write that Justice Scalia would seem to have no Establishment clause trouble, even if the speech is government speech, because on p. 6, lines 17-19, he seems to approve of government saying that the Ten Commandments are an important part of our national heritage, and implying that that’s exactly what the government says in accepting this monument (as opposed to the government saying that these are the “words of God”). Your citations to the oral argument transcript should give page and line numbers.

Another source will the the Justice’s votes and opinions in the previously decided cases. These will be discussed in class, and some are also specifically part of the assignment, As an example for how to cite a particular page of an opinion, you would write Van Orden v. Perry, 545 US 677, 682 (2005) the first time you cite the case, and thereafter just write Van Orden at 683.

This paper is not intended as a discourse on the history of the case, or a synopsis of the case, or a full legal analysis of the issues in the case--it is intended to be “I think that this Justice will vote this way because of these indications that I find in the oral argument and the previous cases”. You will, though, need to make the case that any previously decided cases are indicative of a Justice’s view in this case because it is analogous to the issues in this case.

Your prediction should be directed not only to the final vote (for or against Summum), but rather to the distinct issues and positions raised by the parties (e.g. whether this is government speech, or whether it is private speech of the Fraternal Order of Eagles). It should also reflect, to the extent possible, a Justice’s preference for jurisprudential considerations such as the need for a clear rule (as opposed to a case-by-case analysis).

You papers will not be graded on the accuracy of the predictions, but rather on how well you support your position by reference to the oral argument and the previously decided cases. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I encourage you to use the UM writing center to help with your English.

For this paper, I have decided to allow you to collaborate with one other student of your choosing, if you wish to do so. Any collaborative submission impliedly asserts and confirms that you have both worked on the paper, and that you are neither just copying or allowing the other student to copy, from the work of the other. Other than this optional collaboration with one other student, the work should be your own. Do not go trolling through the legal blogs to copy what others think. See the syllabus regarding plagiarism.

As I write this assignment, the Supreme Court has not yet decided this cases; naturally, I hope they don’t decide it before February 12, because that would really complicate the process of evaluating a prediction. But, if they do decide the case before February 12, I will post a modification to the assignment on the blog. Be sure to check the blog (even if you don’t miss any classes) to see if they have complicated my life.

CMJ 375--Mass Media Law
In class today, Tuesday 2/3, I first announced that Exam #1 would be on Tuesday 2/10. We then finished up our discussion Of Chapter 3, and moved right on to Chapter 4. The assignment for Thursday, 2/5 is to read in the text and prepare to discuss pp.122-148.