SYLLABUS for CONSTITUTIONAL LAW Fall 2014
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MASSACHUSETTS SCHOOL OF LAW at ANDOVER
SYLLABUS for CONSTITUTIONAL LAW – Fall 2014 Professors Peter M. Malaguti and Maxine Winig
Instructors: Professor Peter M. Malaguti Professor Maxine Winig REQUIRED READINGEmail: [email protected] Email: [email protected] Phone: 978.681.0800 ext. 116 Casebook: Chemerinsky, CONSTITUTIONAL LAW (4th Ed. 2013, Wolters Kluwer Pub.) This casebook will serve as the main reference for the course.
Workbook: Brannon P. Denning, DEVELOPING PROFESSIONAL SKILLS: CONSTITUTIONAL LAW (West Pub. 2014)(ISBN: 978-0-314-28974-2). This is a workbook on which writing assignments will be based. This book costs $24.12 on Amazon; I can put in an order through the book store if you would prefer (although the cost likely would be a bit higher). As the syllabus shows below, I will make my first assignment from the book on Thursday, August 28, so you will need to have it in hand by then.
NON-REQUIRED SUPPLEMENTAL READING
May & Ides, CONSTITUTIONAL LAW: NATIONAL POWER AND FEDERALISM – EXAMPLES & EXPLANATIONS (3rd Ed. 2004, Aspen Pub.)
May & Ides, CONSTITUTIONAL LAW: INDIVIDUAL RIGHTS – EXAMPLES & EXPLANATIONS (3rd Ed. 2004, Aspen Pub.)
Chemerinsky, CONSTITUTIONAL LAW – PRINCIPLES AND POLICIES (3rd Ed. 2006, Aspen Pub.)
We will make available a “Primer” on Constitutional Law that we have created, at no charge. Although not a comprehensive statement of the entirety of American Constitutional law, we hope that it will serve as a nuts and bolts guide to the rules and provide some direction for Constitutional Law students.
Reading Assignments from Casebook
Because the classes are highly interactive, the assignments are estimates only. The students are expected to attend every class and keep track of the pace. The students should also understand that, due to the complex nature of the issues and policy questions involved, and the sometimes lengthy Supreme Court cases, the reading load in Constitutional Law is higher than in most classes.
GOALS AND OBJECTIVES OF THE COURSE
This is an introductory survey course of constitutional law. Successful students will master the complicated structure and functions of the doctrines, legal methods, legal reasoning and legal analysis employed by lawyers when practicing “constitutional law,” the process by which our American legal system orders our government and protects the individual rights of its citizens. It is expected that students achieving a grade of “C” or better will have mastered the law and legal processes sufficiently to pass the constitutional law sections of the bar examination. It is also expected that successful students will achieve an understanding of the fundaments of constitutional law that is sufficient to enable them to take the first steps to handle constitutional law issues upon graduation from the Massachusetts School of Law. Students who fail to master the law and legal processes sufficiently enough to pass the constitutional law sections of the bar examination, or who lack the fundamental knowledge requisite to handle constitutional law issues upon graduation, will receive a grade below that of “C.”
GRADING
Your final grade shall be composed of two (2) components:
1. The seven writing assignments given during the course of the semester; and 2. Your final exam given during exam week.
Each component of your grade will count as follows:
Final Exam: 65% Writing Assignments: 35%
Old exams, back to 2004, are on my website. They will be very useful study tools when you reach crunch time at the end of the semester. We will not put my 2013 exam up until early November.
THE WRITING ASSIGNMENTS
The writing assignments referred to in this syllabus will be due at the beginning of the designated class. If you will not be in class, or plan to be late, you will have to make arrangements to submit your assignment prior to class. I WILL NOT ACCEPT LATE ASSIGNMENTS, just as courts do not accept late filings. I WILL NOT PERMIT MAKEUPS OF MISSED ASSIGNMENTS. Just as lawyers face dire consequences for failing to file documents timely, so will you.
You are to submit your writing assignment under your student identification number rather than your name, and shall not put your name on the document in any place. If you use your name, I will not grade the assignment, and you will receive no credit for it.
We will score each writing assignment from 0-5, and shall employ the following rubric in grading:
Excellent Good Fair Poor Value Points Earned Instructions The student has The student has The student has The student has clearly taken time made some minor made a number of failed to follow the to read the mistake in mistakes in instructions is a instructions given following the following the substantial way in the problem and instructions instructions by the professor, and has been careful to adhere to them in his/her written product 0.25 (0.25) (0.2) (0.1) (0-0.05) Facts & The student has The recitation of The recitation of The recitation of carefully gleaned facts and/or facts and/or facts and/or Information the facts and information is information information information of the almost entirely contains a number contains a problem, and fully accurate, but the of mistakes substantial understands the student has mistakes and situation presented minor demonstrates a
2 presented mistakes in facts lack of 0.25 and/or information understanding of the facts and information presented
(0.25) (0.2) (0.1) (0-0.05) Relevance The student has The body of the The body of the The student has employed only law work is almost work is mostly presented fact(s) and facts that are entirely relevant, relevant, but the and/or law that relevant to the but the student student has are irrelevant in a questions posed, has presented presented one or major way and has not some minimally- more significantly- interjected irrelevant facts irrelevant fact(s) irrelevant material and/or law and/or law 0.5
(0.5) (0.4) (0.2) (0-0.1) Law The student has The student has The student has The student has presented the demonstrated demonstrated a demonstrated applicable rules of minimal errors in number of errors major errors in law thoroughly articulating the in articulating the articulating the and accurately applicable rules of applicable rules of applicable rules of law law law
(1) (0.75) (0.5) (0-0.25) 1 Analysis The student has The student has The student’s work The student’s work thoroughly and almost entirely contains a number almost entirely thoughtfully applied correct of misapplied misapplied applied correct principles of law to principles of law principles of law principles of law to the facts and/or facts, and/or facts, the facts presented in order and/or has failed and/or has almost presented in order to form proper to form a number entirely failed to to form proper conclusions of proper form proper conclusions conclusions conclusions 2
(2) (1.5) (1.0) (0-0.5) Writing The work is free of The work has The work contains The work contains grammar, spelling, minimal errors in a number of errors major errors in Mechanics syntactical or grammar, spelling, in grammar, grammar, spelling, stylistic errors. syntax and/or spelling, syntax, syntax, and/or style. and/or style. style.
(1) (0.75) (0.5) (0-0.25) 1 Comments:
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READING
WEEK CHAPTER/SECTION PAGES Week One
Monday, August 18 Introduction to course and discussion of xli-lvii class expectations.
Thursday, August 21 Chapter 1: The Federal Judicial Power
The Authority For Judicial Review : Marbury; 1-11 Martin
Mini-Lecture: Article III and 11-13 Article I Courts; Limits On The Federal Judiciary (Interpretive limits, Congressional Limits & Advisory Opinions)
The Exceptions and Regulations Clause 34-40 (Congress’ authority to limit Supreme Court 3 appellate jurisdiction): McCardle; Klein; Notes on Klein
Week Two
Monday, August 25 Mini-Lectures: Appeals to the Supreme Court; Jurisdiction of Lower Courts; Justiciability Limits (Advisory Opinions, Standing, Ripeness, Mootness & the Political Question Doctrine)
Advisory Opinions: Opinion of the 40-45 Justices; Hayburn’s Case; Plaut; Notes on Advisory Opinions (Wallace)
Standing Constitutional Standing (Injury, 45-67 Causation & Redressibility): Allen; Mass. v. EPA; Notes on Constitutional Standing Requirements (Lyons; Lujan Hays; Akins; Linda R.S.; Warth; Simon; Duke Power)
Prudential Standing: Singleton; 67-80 Barrows; Craig; Gilmore; Elk Grove; Richardson; Flast; Hein, Winn
Thursday, August 28 1st Writing Assignment: On Thursday, August 28, you will receive your second assignment, Chapter One (Judicial Review and Congressional Control of Jurisdiction) from the Denning book. It is due on Thursday, September 4, at the beginning of class.
Ripeness: Poe, Abbott, Mitchell, 81-86 Boyd, R.R. Reorg. Act Cases, MacMullen
Mootness: Moore, Roe, DeFunis, 86-91 Laidlaw, Geraghty
The Political Question Doctrine: 91-113 Baker, Veith, Powell, Goldwater, Nixon
Mini-Lecture: The Adequate and Independent State Grounds Doctrine
September 1 – Labor No Class --- Day
Week Three
4 Thursday, September 4 2nd Writing Assignment: On Thursday, September 4, you will receive your second assignment, Chapter Two (Standing and Justiciability) from the Denning book. It is due on Thursday, September 11, at the beginning of class. (1st Writing Assignment Due) Chapter 2: The Federal Legislative Power
Introduction: Congress and the 115-151 States: McCulloch, Sebelius
The Necessary & Proper Clause: Comstock 151-158 The Commerce Power 158-168 The Initial Era: Gibbons, Houston
1937-1990s: Broad Federal 168-177 Commerce Power: Jones & Laughlin Steel Corp.; Darby; Wickard
Meaning of “Commerce Among the 177-184 States:” Heart of Atlanta; Katzenbach; Hodel; Perez
Week Four
Monday, September 8 The Tenth Amendment Between 184-190 1937 and the 1990s: Garcia
What is Congress’s Authority to 190-220 Regulate “Commerce Among the States”?: Lopez; Morrison; Raich; Printz
Does the Tenth Amendment 220-241 Limit Congressional Powers?: New York, Printz, Reno
Thursday, September 11 Taxing and Spending Power: 241-250 Butler, Steward Machine, Sabri, (2nd Writing Dole Assignment Due) Congress’s Power Under the Post- 251-266 Civil War Amendments: Civil Rights Cases and other introductory material, Morrison, Katzenbach, Flores
Week Five
5 Monday, September 15 3rd Writing Assignment: On Monday, September 15, 266-316 you will receive your third assignment, Chapter Three (Powers of Congress: Commerce, Taxing, and Spending) from the Denning book. It is due on Monday, September 22, at the beginning of class.
Congress’s Power To Authorize Suits Against State Government -- Eleventh Amendment Immunity: Bitzer, Union Gas, Seminole Tribe, Florida Prepaid, Kimel, Garrett, Hibbs, Lane, U.S. v. Georgia, Alden, S.C. Port Auth.
Thursday, September 18 Chapter 3: The Federal Legislative Power Mini-Lecture: The Executive Powers Enumerated Under Article II of the Constitution
Mini-Lecture: The So-Called “Take Care” Clause of Article II, § 3 (Also, So-Called “Signing Statements” and habeas corpus)
Inherent Presidential Power: 317-333 Youngstown Sheet & Tube (The Steel Seizure Cases)
Executive Privilege: U.S. v. Nixon, 327-334 Cheney v. Dist. Ct.
The Authority of Congress To Increase Executive Power: Clinton 333-338 v. NY
Week Six
Monday, September 22 The Constitutional Problems Of The Administrative State (3rd Writing Assignment Due) The Non-Delegation Doctrine 338-344 and Its Demise: Schechter Poultry, Panama Refining, Whitman
The Legislative Veto and Its 344-353 Demise: Chadha
Checking Administratve Power; 353-369 The Appointment and Removal Powers: Morrison, Myers, Humphrey’s Executor, Wiener, Bowsher, Morrison Redux, Free Ent. Fund
6 Separation of Powers and Foreign 369-370 Policy
Are Foreign Policy and 370-373 Domestic Affairs Different?: Curtiss-Wright, Notes on Curtiss-Wright
Thursday, September 25 Treaties and Executive 373-376 Agreements: Dames & Moore
War Powers: War Powers 377-381 Resolution
Presidential Power and the War 381-419 on Terrorism: Hamdi, Boumediene; Ex Parte Quirin; Hamdan
Checks on the President 419-425
Suing and Prosecuting the President: Nixon v. Fitzgerald; Clinton v. Jones
Impeachment 425-429 Week Seven
th Monday, September 29 4 Writing Assignment: On Monday, September 29, you will receive your fourth assignment, Chapter Five (Separation of Powers) from the Denning book. It is due on Monday, October 6, at the beginning of class.
Chapter 4: Limits on State Regulatory and Taxing Power
Preemption of State and Local 431-432 Laws
Mini-Lecture: The Supremacy 432-434 Clause
Express Preemption: Lorillard, Riegel, 434-441 Whiting
Implied Preemption 441
Conflict Preemption: Florida 441-442 Lime
Impeding Federal Objective: 442-446 Pacific Gas & Electric
Occupying the Field: Hines, Arizona 446-455
7 The Dormant Commerce Clause: 455-496 Thursday, October 2 H.P. Hood; Notes following H.P. Hood; Barnwell Bros.; Southern Pacific; Philadelphia v. New Jersey, Hughes, Hunt; Exxon; West Lynn Creamery; Clover Leaf Creamery; Dean Milk, Maine v. Taylor; Pike; Kassel
Exceptions to the Dormant 496-516 Commerce Clause
Congressional Approval: Western & Southern Life Ins.
Market Participant Exception: Reeves; White; South-Central Timber
The Privileges & Immunities Clause of Article IV, § 2: Toomer; United Building; Baldwin; Piper
Week Eight
Monday, October 6 Catch-Up Class (Nothing scheduled for the purpose of using the class to catch up to (4th Writing syllabus. If the catch-up class is not needed, Assignment Due) the professor will issue a modified syllabus.)
th Thursday, October 9 5 Writing Assignment: On Thursday, October 9, you will receive your fifth assignment, Chapter Four (Dormant Commerce Clause) from the Denning book. It is due on Thursday, October 16, at the beginning of class.
Chapter 5: The Structure of the Constitution’s Protection of Civil Rights and Civil Liberties
Introduction 517-518
Application of Bill of Rights to the Skim through States: Barron, Slaughter-House Cases, pages 518-553 Saenz,
Incorporation of the Bill of Rights into the 530-548 Due Process Clause of the 14th Amendment
Application of the Bill of Rights to 548-553 Private Conduct (State Action)
8 October 13 – Columbus No Class --- Day
Week Nine
Thursday, October 16 Exceptions to the State Action Doctrine (5th Writing Assignment Due) The Public Functions 553-567 Exception: Marsh; Jackson; Terry; Evans; Logan Valley, Lloyd Corp., Hudgens
The Entanglement 567-600 Exception: Shelly; Lugar; Edmonson; Burton; Moose Lodge; Norwood; Rendell-Baker; Blum; Reitman; Brentwood Academy
Week Ten
Monday, October 20 Chapter 6: Economic Liberties
Economic Substantive Due Process
Introduction & Early History: 601-623 Allgeyer, Lochner; Muller; Adkins; Weaver; Nebbia
Economic Substantive Due 623-630 Process Since 1937; West Coast Hotel; Carolene; Williamson
Rebirth of Economic Due 630-646 Process?: Gore; State Farm; Philip Morris
The Contracts Clause: Blaisdell; 646-658 Energy Reserves Group; Spannaus; U.S. v. N.J
Thursday, October 23 The Takings Clause: Loretto; Penn. 658-710; (skip Central; Lucas; Dolan; Palazzolo; Penn Coal Co. v. Tahoe- Sierra; Midkiff; Kelo; Mahon, Miller v. Brown Schoene)
Week Eleven
Monday, October 27 Please note that, at this point, we are skipping ahead in the casebook. 1197-2005
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Chapter 9: First Amendment Freedom of 1206-1235 Expression
Introduction
Free Speech Methodology
The Distinction Between 1235-1243 Content-Based and Content- Neutral Laws: Turner 1243-1273 Broadcasting; Boos; Republican Party; City of Renton; Finley, Summum
Vagueness & Overbreadth 1273-1274 Prior Restraints: Near, New York Times; Nebraska Free Press; Alexander; Lovell; Watchtower Bible; 1277-1290 City of Lakewood; Thomas; Z.L. Gifts
Thursday, October 30 What Is an Infringement of 1290-1302 Freedom of Speech?
Compelled Speech: Barnette; 1304-1305 Wooley; Rumsfield; McIntyre, Buckley 1305-1313 Unconstitutional Conditions: Speiser, Rust; Velazquez (skip Gitlow, Whitney, Unprotected and Less Protected Dennis) Speech 1325-1337 Incitement/Clear and Present Danger: Schenck; Frohwerk; Debs; 1337-1350 Abrams; (skip Feiner);
1354- 1365 Brandenburg, Holder 1365-1366 Fighting Words and Racist Speech: Chaplinsky; Gooding; 1366-1387 R.A.V.;
Beauharnais; Black
Sexually-Oriented Speech 1387-1406 (skip Obscenity: Roth; Paris Adult Stanley)
10 Theatre; Miller; Ferber; Ashcroft
Protected But Low-Value 1387-1406 (skip Speech: Young; Pap’s A.M Stanley)
Week Twelve
Monday, November 3 Catch-Up Class (Nothing scheduled for the purpose of using the class to catch up to syllabus. If the catch-up class is not needed, the professor will issue a modified syllabus.)
Thursday, November 6 Profanity and Indecent 1399-1427 Speech: Cohen; Pacifica Foundation; Reno; Stevens; Brown;
Commercial Speech: VA State Bd.; 1427-1441; Bolger; Central Hudson
Torts and the First Amendment
Defamation: Sullivan; 1461-1477 Gerz; Dun & Bradstreet
What Places Are Available for 1545-1582 Speech: Hague; Schneider; Mosley; Hill; Ward; Christial Legal Society; Int’l. Soc. For Krishna
Week Thirteen
th Monday, November 10 6 Writing Assignment: On Monday, November 10, you will receive your sixth assignment, Chapter Nine (First Amendment – Free Speech 2) from the Denning book. It is due on Monday, November 17, at the beginning of class.
Chapter 10: First Amendment Freedom of Religion
Introduction: Seeger; Ballard 1673-1693; 1697- 1701; The Free Exercise Clause 1704-1708
Thursday, November 13 The Establishment Clause: County 1708-1713; of Allegheny; Lemon; Doe; 1719-1725; McCreary County; Van Orden; Lee 1730-1760
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Please note that, at this point, we are jumping back in the casebook.
Week Fourteen
Monday, November 17 Chapter 7: Equal Protection
(6th Writing Introduction 711-717 Assignment Due) The Rational Basis Test: Romer; 717-740 Fritz; Ry. Express; Beazer; Moreno; City Of Cleburne
Race and National Origin (Strict 740-866 Scrutiny)
Gender Classifications 866-905 (Intermediate Scrutiny)
Alienage Classifications 905-921 (Sometimes Strict Scrutiny, Sometimes Rational Basis): Graham; Foley; Ambach; Plyer
Non-Marital Children 921-924 (Intermediate Scrutiny)
Other Classifications: Age; Disability Wealth; Sexual Orientation
Thursday, November 20 7th Writing Assignment: On Thursday, November 20, you will receive your seventh and final assignment, Chapter Ten (First Amendment – Establishment and Free Exercise Clauses) from the Denning book. It is due on Monday, December 1, at the beginning of class.
Chapter 8: Fundamental Rights Under Due Process and Equal Protection
Introduction 933-939
Family Autonomy 939-967
The Right to Marry: Loving; Zablocki
The Right to Custody of One’s Own Children: Stanley; Michael H
12 The Right to Keep the Family Together: Moore
The Right to Control the Uprbringing of Children: Myer; Pierce; Troxel
Reproductive Autonomy 967-1030
The Right to Procreate: Buck; Skinner
The Right to Use Contraceptives: Griswold; Eisenstadt
The Right to an Abortion: Roe; Casey; Gonzales; Maher; Harris; Casey; Bellotti
Week Fifteen
Monday, November 24 Right to Make One’s Own 1030-1046 Medical Decisions: Cruzan; Glucksberg; Vacco
Sexual Orientation and Sexual 1046-1058 Activity: Lawrence
The Right to Travel: Saenz 1062-1069
The Right to Vote: Kramer; Ball; 1069-1119 Crawford; Reynolds; Bush
The Right to an Education: 1135-1142 Rodriguez
Thursday, November 27 No Class -- Thanksgiving ------
Week Sixteen
(6th Writing Assignment Due)
Monday, December 1 Wrap-Up Class ------
CLASS EXPECTATIONS
Anticipated Due Dates
13 WE CALL ON STUDENTS RANDOMLY, AND YOU ARE EXPECTED TO BE PREPARED FOR EVERY CLASS. The Constitutional Law section of the bar exam is largely based on the most important Constitutional Law cases that we will read in class. It is essential that you read these cases closely, and understand them.
Because the classes are intended to be highly interactive, the listed anticipated due dates are to be considered aspirational. At times, especially at the beginning of the semester, we may fall behind of the anticipated due dates; it is also possible that we will move more quickly at times than anticipated. You therefore should continuously match those dates to what we have actually completed in class. Please be prepared for every class by staying slightly ahead of the anticipated due dates and by adjusting and readjusting as the semester progresses.
If you have read ahead substantially, we expect you to review what you have already ready just before class. It is no excuse to state, “I read the case too long ago to remember it.” Lawyers often write briefs months before they argue in court and, like you, are expected to know the material when they are called on to discuss the legal issues.
Notes And Tape Recorders In Class
We test what we teach, and we teach by the syllabus. This means that, if you do all the reading and come to all the classes, you will see no surprises on the final exam. We am told by former students that those who fail to come to class tend not to do very well on the final exam. You therefore should come to class and develop an effective method of recording what goes on. Since the classes are interactive and it is not always possible to take copious notes on every point, we recommend the use of tape/digital recorders in class. A recorder should assist in rounding out, or filling gaps in, notes. It also can serve as a “safety net” in a fast-paced class.
Some students take notes on a laptops or netbook, and this is fine. One caveat, however: we sometimes notice that students are more consumed with typing out what is said in class word-for-word than with listening and participating. The purpose of class is not for you to be a scribe; it is for you to develop analytical skills, and this cannot be achieved if you are single-mindedly typing. You will always be able to supplement the law we discuss in class with outside reading.
Frequent Absences
We call on students randomly and will have the pleasure of speaking with each of you several times this semester. Obviously, you must be present in class to participate. Professors at MSL are authorized to lower the grades of frequently-absent or frequently- unprepared students by one-third of a grade. By way of illustration, this means that a final grade of C will be lowered to a C- if the student is absent from class an inordinate number of times; a B- will be lowered to a C+, and so on. If we call on you, and you are either absent or unprepared three (3) or more times, we will lower your grade as described above.
Being Prepared
We expect you to be prepared for every class and treat an unprepared student as an absent student. This is not college, and old college tricks like skimming, cramming and pretending to be prepared simply will not work. Here is what we expect of you before, during and after class:
14 Before Class
1. Read, reread, study and THINK thoroughly about the assigned cases and materials;
2. Do not leave a case or other reading until you are confident that you thoroughly understand the facts sufficiently to restate them if asked to do so in class;
3. Do not leave a case or other reading until you are confident that you understand why the case book author placed the case in the book;
4. Do not leave a case or other reading until you are confident that you can recite the legal issue(s) presented in the case;
5. Do not leave a case or other reading until you are confident that you know and UNDERSTAND each rule of law, and its elements, presented in the case;
6. Do not leave a case or other reading until you are confident that you understand the policy reasons for the adoption of each rule of law implicated in the case;
7. Read, reread, study and THINK thoroughly about the relevant “hypotheticals” or problems pertaining to the subject matter being studied in each class;
8. Do not leave a hypothetical or problem until you are confident that you understand why the professor assigned it;
9. Do not leave a hypothetical or problem until you are confident that you can recite the legal issue(s) presented in it;
10.Do not leave a hypothetical or problem until you are confident that you know and UNDERSTAND each rule of law, and its elements, implicated in the hypothetical or problem.
11.Do not leave a hypothetical or problem until you are confident that you understand the policy reasons for the adoption of each rule of law implicated by the hypothetical or problem.
During Class
1. Be prepared well enough to be able to provide an accurate recitation of the facts and holding of each assigned case, hypothetical or problem.
2. Be prepared well enough to be able to provide a concise recitation of the issue(s) presented in each case, hypothetical or problem.
3. Be prepared well enough to be able intelligently discuss the legal issues and rules of law presented or implicated by the assigned reading.
4. Be prepared enough to be able to intelligently discuss any factual variations the professor and/or other students propose during class.
5. Be prepared enough to be able to intelligently discuss flaws and strengths in the court’s reasoning or in the applicable rule of law;
6. Be prepared enough to be able to intelligently discuss alternative arguments that might have better resolved the dispute at issue in each case;
15 7. Be prepared enough to be able to intelligently discuss the policy issues relevant to the each case, hypothetical or problem.
After Class
1. Identify and clarify anything confusing about the law or application or law covered in class. If necessary, work with classmates collaboratively to achieve mastery and understanding;
2. Rework your class notes and case briefs to reflect a more accurate picture of the cases, issues and rules of law.
3. Think about how the lesson covered in the particular class fits into the overarching body of property law.
You will be expected to read each assignment in its entirety. Reading “case notes,” “canned briefs,” Westlaw briefs and other shortcut aids, at the expense of the actual cases, will fail to prepare you adequately and will result in you being marked as unprepared.
RULES ON CLASSROOM DECORUM we expect you to observe the following rules in class. I don’t believe any of these rules are unreasonable:
1. Please Stay Put. Once class begins, no one is to leave until it ends. Please go to the bathroom or satisfy your nicotine habit before and/or after class. If you have a medical excuse for being unable to remain in class for the entire time, please provide us with the appropriate explanation and we will make an exception (to the extent possible, without drawing attention to you). If you become sick and need to leave, or otherwise feel compelled to leave class, please don’t return until the class is over.
A constant trail of students in and out the door is disruptive, and we won’t tolerate it. Lawyers are expected to sit through trial without break for entire mornings and afternoons.
2. Timeliness. Please arrive on time. Late arrivals are disruptive to the class. We understand that some of you will be slightly late because of minor overlap with other classes. But, absent that exception, tardiness should be the exception rather than the rule. If we take attendance it will be at the beginning of the class. Late students will be marked absent, and we won’t change this designation if you come in later.
If tardiness becomes an issue, i.e., if it starts to cause disruptions, we will impose a hard-and-fast rule that those arriving late will not be allowed into the classroom.
3. Cell Phones and Messaging. There will be no cell phone use in class. Please turn off your cell phone before the class begins. If you want to use your cell phone as a recorder, place it flat on your desk and do not use it for other than recording. If there is some emergency requiring you to be immediately reachable, you must approach one of us before class and inform us of the situation, in which event we will allow you to keep your cell phone on if it has a “vibrate” only option.
16 There will be no text messaging, instant messaging, or other forms of electronic communication in class. This is disruptive and rude. Students doing so will be asked to leave the class immediately, and will be marked as absent for the entire class.
4. Laptop Computers. While we believe that laptop computers are an invaluable classroom tool, lately their use sometimes has become troublesome in several ways. Like cell phones, they beep and make noises when starting up. Please arrive early enough to start your laptop prior to class so the start up noises won’t be disruptive.
It is never appropriate to use computers to play computer games, send and receive instant messages, surf the net, or perform other computer functions not related to the task at hand.
You will be asked to leave class for violations of this directive.
5. Study Aides and Irrelevant Material. While attending class, you may have on your desk a casebook, various notebook(s), and your required supplemental reading book(s). Although I cannot control what you read outside of class, while you are in class you are not permitted to have “canned briefs,” “case notes,” “published outlines,” “Emanuel’s,” “Gilbert’s,” “Law in a Flash,” or any other so-called “study aides.” Please also refrain from bringing to class newspapers, magazines or any other reading material not related to what we are covering in class that day. I do tend to walk around the classroom and often will see if you bring such materials to class.
6. Talking in Class. This will be an interactive class, and it is normal for there to be a bit of a “buzz” while we are discussing a case or “hypothetical.” We don’t usually get upset if the class is analyzing a hypothetical, and some students do a little “kibitzing” in the process. However, we still expect you to listen while others are talking so you can respond if called upon, and, most importantly, to respect others by not talking over them. We will not tolerate talking that doesn’t involve the subject matter at hand.
7. Eating/Drinking in Class. We generally don’t approve of anything that might divert your focus from the class discussion, and eating and drinking in class certainly falls into that category. On the other hand, we do understand that stressed-for-time students, especially evening students, often are unable to take meals at normal hours, and therefore need some sustenance to get them through. Generally, therefore, we tolerate small snacks and drinks during class. We will not tolerate full meals, full “submarine” sandwiches, or anything of the like. We also will not tolerate undue noise while eating, e.g. stubborn plastic wrappers, crunchy foods, etc. We will ban all foods and drinks in class if I think they are becoming a distraction.
8. Stand, Name, Project. When you speak in class, whether it’s while volunteering or after being called on, please stand, state your first name, face the rest of the class (not me), and project your voice so as to be heard. Please do this for the entire semester. Speaking in public is uncomfortable at first, but even those of you who intend to practice transactional law, as opposed to litigation, must realize that the practice of law is a performance art as well as an intellectual endeavor.
9. Civility Above All Else. There is often “intellectual tension” is a law school classroom. Students and professors can differ -- sometimes widely – in their views
17 on morals, ethics, society, politics and ways of life. It is my intention to treat each of you with the utmost courtesy and respect, even when we disagree. In turn, I expect that each of you will also treat each other with respect and courtesy. Passionate argument is terrific if kept civil and respectful. Remember: argue the issues, not the personalities!
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