April 15, 2010

POS 359--The Current Supreme Court Term
In class today, Thursday 4/15, I distributed one handout, Assignment #3, which is included below. This assignment is due on the last day of class, Thursday 4/29. After going over the requirements of the assignment, the class completed course evaluations. I then went over a few cases that have been argued in the Court, but have not yet been decided: Holder v. Humanitarian Law Project, which asks the question whether certain aspects of providing "material support" to a designated terrorist organization might infringe on the Free Speech guaranty of the First Amendment; and Sullivan v. Florida and Graham v. Florida, which ask whether Florida's imposition of life sentences against juveniles violates the Eighth Amendment's prohibition on Cruel or Unusual punishment.

The assignment for Tuesday 4/20 is to start your work on Assignment #3 by reading the oral argument on CLS v. Martinez, due to be argued on Monday 4/19.

ASSIGNMENT #3
For this assignment, I would like you to trace how the argument of the parties as developed in their legal briefs in Christian Legal Society v. Martinez gets reflected in the oral argument that is held in the case, and what kind of reception that argument receives. That oral argument is scheduled for Monday 4/19, and the transcript will be available later that day on the Supreme Court’s website. I have previously assigned the three briefs of the parties. (The Brief [CLS-B] and Reply Brief [CLS-RB] of CLS, and the Brief of Martinez [Mar-B].)

I want you to pick three specific points on which the two parties disagree in their briefing, and which were the subject of at least some questioning during the oral argument. At least one of the points should be a point of law (e.g. is this “conduct”, as opposed to “speech”), and at least one should be a question about how a prior case should be either followed or distinguished by the Court.

For each of the three points:
1) identify the position of each side’s argument in the briefing, giving specific page references to that brief;
2) identify where that position was presented in the oral argument, giving specific page and line references to that portion of argument;
3) discuss how the Justices involved in the questioning reacted to those positions taken by the parties.

Here’s a sample (fictitious) section to demonstrate the format that I’m looking for:

1) CLS had argued that the case of Citizen’s United v. FEC, ___ U.S. ___ (2010) governs the result in this case, because that case stands for the proposition that government cannot decide how a group is entitled to spend money that the state has distributed to it (CLS-B, p.31). Martinez answered that Citizens United is distinguishable, because that case dealt only with corporations, and CLS is not a corporation (Mar-B, p.4). CLS replied that Citizens United still applies, because the reasoning of the case says that the government cannot look to the viewpoint of the group to which it is distributing money, and that reasoning applies just as much to groups like CLS as it does to corporations CLS-RB, p.14).
2) At oral argument Justice Scalia asked Garre why Citizens United should not apply to this case, since in both cases the government was deciding how to distribute money, and it could not do so in a way that discriminates between viewpoints. (37:17). Garre replied that corporations are allowed certain rights and responsibilities that campus groups do not share (37:21).
3) Justice Scalia’s question, and his comment responding to Garre (“Says who?”) (38:2) indicate that Scalia is thinking that Citizens United is not distinguishable, and should be followed, and that what the University is engaged in is unlawful viewpoint discrimination.

The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday April 29.

If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. 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. In terms of timeliness, any attachment that I cannot open will not be considered received; so the safest course is to copy and paste the paper into your e-mail as well as to attach it.


You papers will be graded on how well you support your position by reference to the briefs and the oral argument. 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.

You are not allowed to collaborate with other students. The work should be entirely your own. The only sources you should be consulting are the briefs and the oral argument. See the syllabus regarding plagiarism.