February 8, 2013

POS 282 INTRODUCTION TO AMERICAN LAW
In class today. Friday 2/8, I collected the Prescott briefs, and we discussed them pretty much the entire class period. I plan on returning them on Monday (barring a heart attack from shoveling). The assignment for Monday 2/11 is to review Katko, previously assigned.

POS 384 CIVIL LIBERTIES
In class today Friday 2/8, I distributed two handouts: one was Assignment #1, reproduced below, which will be due at the beginning of class on Friday 2/15. We went over the requirements of the assignment. The second handout was a ballot for the class to decide what subjects you want to cover (in addition to free speech) for the remainder of the semester. The winners were (in order of votes) the Second Amendment, the right to be free from discrimination, and the freedom of the press. We then discussed the Boerne case, trying to translate into English exactly what the Court found that Congress had done wrong. We will continue with Boerne and its progeny on Monday. The assignment for Monday 2/11 is to begin work on the assignment, and to review Boerne.


Assignment #1
For this assignment, I'm asking you to do some explication and discussion of the Free Exercise Clause jurisprudence that we've covered. I’m asking you for three brief sections, identified as such (number the sections of your responses).

First, I would like you to make a “he said” (Scalia) /“she said” (O’Connor) chart of Smith. Using your own words, briefly identify each proposition of Scalia in the case (use the order in which he presented them in his opinion), and then identify O’Connor’s response.

You should be listing such areas as the nature of the protections offered by the Free Exercise Clause, treatment of precedent (in detail), the nature of the scrutiny to which government policies are subjected, etc. It’s pretty much paragraph by paragraph in Scalia’s opinion. Then list O’Connor’s response. If she doesn’t have one, but Blackmun does, use his (and indicate that you’re doing so).

Here’s an (inaccurate) example of what I’m looking for:
Scalia:
1. The Free Exercise Clause protects only beliefs, never actions.
O’Connor:
1. No, the Free Exercise Clause protects all actions, as long as the actions are religiously motivated.


Second, start with the facts of the Korte case. Using the Free Exercise clause (instead of RFRA) make the best argument that you can that the Kortes should prevail under Smith. In other words, can you in some way distinguish Smith? Use particular concepts or language from Scalia’s opinion to make your point.

Third, briefly give (and explain) your own opinion about whether the Kortes should win their case under the Free Exercise Clause. If they should win, is this because Smith should be distinguished (as you’ve tried to do in Part Two); because Smith uses the wrong test; etc. Explain how you think the Free Exercise Clause should apply to their situation, being free to follow, distinguish, overrule precedent at will (in other words, pretend that you’re Justice Thomas).

Your papers will not be graded on which view of the issues you take, but rather on how well you complete the assignment and 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 2 pages long, and no more than 3 pages (double spaced). Brevity should be seen as an asset, not a liability. Just respond to the questions I’ve asked, rather than providing an introduction of any sort.

The paper will be due at the beginning of the class on Friday, February 15. 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.


The work should be entirely your own, with no collaboration or plagiarism. If you have any questions about what it is that I am looking for, I’m the person to contact. See the syllabus regarding plagiarism and collaboration.