October 24, 2012

POS 282 INTRODUCTION TO AMERICAN LAW
In class today,Wednesday 10/24, we continued our discussion of Lawrence v. Texas. We went through the level of review used by Justice Kennedy, and saw how, even though the questions he addressed looked like those used to decided if the asserted right was a fundamental one, his conclusion in the end did not use the language of strict scrutiny. We also looked at the level of scrutiny in the current Defense of Marriage Act cases, how the equal protection argument differs from the due process argument, the role of morality on law-making, the relationship of this case to gay marriage cases, and the question of what consent means in the context of closed religious societies. We then began our discussion of Gregg v. Georgia, looking at the language of the 8th Amendment, and also the idea behind the 8th Amendment, as well as looking at different methods of execution. We will continue with Gregg v. Georgia on Friday. The additional assignment for Friday 10/26 is to read and prepare to discuss through p. 62 of the text.

POS 359 FEDERALISM
In class today, Wednesday 10/24, I distributed one handout, an article from the New Yorker magazine discussing the parallels between the ACA and the 1937 NLRB v. Jones & Laughlin Steel case. We went over that 1937 case, and those parallels. We then began our discussion of Darby by going over the question of shipment of goods in interstate commerce, and the overruling of Hammer v. Degenhart. We will continue on Friday with the other part of the case, the part of the law that forbade manufacture, as opposed to shipment. The additional assignment for Friday 10/26 is to read and prepare to discuss through p. 312 of the text.



POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 10/24, I distributed one handout, Assignment #1, which is reproduced below. We discussed that assignment (due Friday 11/2) and then finished talking about the standing requirement in Fisher. Then we moved to Kennedy's part in the Fisher oral argument. We looked at his questions about the contrast between a modest versus dominant part that race plays in the holistic review, and also looked at opportunities that he gave Fisher's lawyer to clarify Fisher's position in the case. We will continue with our review of Kennedy's role in oral argument, as well as other aspects of that oral argument, on Friday. The additional assignment for Friday October 26 is to read and prepare to discuss Kennedy's concurrence in the case of Parents Involved, 551 US 751,782 (p. 782 is where Kennedy's concurrence starts).



Change to Syllabus
The Syllabus anticipated that there would be three homework assignments (papers) each 28% of the final grade. It also said that the grading plan was subject to change. As discussed in class, I have decided to make the third paper optional. Thus, if you choose to write only two papers, each paper will be worth 42% of the final grade. If you choose to write the third paper, the original grading will remain in effect. In either case, 16% of the final grade will remain dependent on your participation and attendance.

Assignment #1
For this assignment, I would like you put yourself in the shoes of Justice Kennedy in the case of Fisher v. University of Texas. Write an Opinion in the case as if you were Justice Kennedy. Do not worry about how the other Justices will vote in Fisher; just explain your view (i.e. Kennedy’s view) of how the case should be decided.

What do we have to work with in terms of Kennedy’s views on the subject? We’ve got Rehnquist’s dissent in Grutter, in which Kennedy joined, as well as Kennedy’s separate dissent in Grutter. We also know the he did not join Scalia’s dissent and Thomas’ dissent in that case. We also have his concurrence in part and concurrence in the judgment in Parents Involved in Community Schools, 551 US 701 (2007). Finally, we have his participation in the Fisher oral argument. These are the materials that you should work with in crafting Kennedy’s opinion in Fisher.

Your Opinion should consider Kennedy’s views expressed in Grutter, but should also take note of the fact of Grutter’s status as binding precedent (i.e., that the Grutter majority found that the Michigan Law School program was narrowly tailored, and therefore satisfied strict scrutiny). Since Kennedy disagreed with the outcome in Grutter, you have the option of voting to overrule Grutter, to follow it, or to distinguish it.

Your Opinion should deal with specific issues raised by the briefs in this case, and by the opinions that Kennedy wrote or joined onto in those previous cases. As an aid in organizing your Opinion, I’m including some specific questions that I want your Kennedy Opinion to deal with.

Here are the specific questions I would like you to address (in addition to the more general question of how to deal with Grutter):
1) What is the significance of the relatively modest number of additional minority students admitted under the holistic review?
2) What is the relationship between the need for an individualized consideration of applicants and the goal of achieving a critical mass of minority students?
3) Has the University of Texas demonstrated that the holistic review is necessary to achieve the kind of diversity it wants to achieve?
4) Has the University demonstrated that it is using a numerical census of minorities appropriately in deciding on a group’s status as underrepresented, while at the same time not setting a numerical goal for critical mass?
5) What is the significance of the University’s rationale of using holistic review to increase diversity within minority groups?

This list is not exhaustive. There are other issues that you may wish to discuss, but you should deal with at least these five.

In your Kennedy Opinion, I’m not looking for an introduction to the case, or a summary of it- all of that is assumed. In other words assume that someone else wrote the Introduction to the Opinion, and your task is to just write the Discussion portion of the Opinion. Just launch right into the questions.

The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation.

Your papers will not be graded on which view of the issues you take, but rather on how well you support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.

The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Friday, November 2. 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. If you do not have the paper done on time, be in touch with me right away.

In terms of citation form, for Grutter and Parents Involved, cite to the page number from the U.S. Reports. You can get these from the Supreme Court web site: select Opinions / More / Bound Volumes. Select Volume 551 for Parents Involved. Kennedy’s Opinion starts on p. 782. For Grutter, (volume 539) Rehnquist’s Opinion starts at p. 378, and Kennedy’s starts at p. 387. Use page numbers from the three Briefs we read, and cite the Oral Argument by page and line number (e.g., 17:6).

The work should be entirely your own, with no collaboration or plagiarism. See the syllabus regarding plagiarism and collaboration.