Constitutional Law I, Fall 2002

Introduction–The Court: Its place and its work
Reading	September 4-6—	Read: O’Brien, Volume I Constitutional Law And Politics, 23-39; Peretti, In Defense of A Political Court, 1-35.
Assignment #1	September 9	brief: Federal Maritime Comm’n v. South Carolina Ports Authority [01-46] decided 5/28/2002. Bring a copy of your evaluative essay brief to be handed in during class on September 9. This assignment requires you to submit two documents.
	Evaluation	a) Does your brief identify and articulate the critical elements of the decision and the dissents? b) Do you present a coherent account of the issue and reasoning? In one page, double-spaced or less, indicate which opinion is correct. c) Do you explain why this is so? (30 points).
Judicial Review, Constitutionalism and Self-government— By What Right?
Reading	September 11-13:		Read: O’Brien, Volume I Constitutional Law And Politics 40-98; Perentti, 36-54.

Assignment #2	September13	Considering the questions posed by Professor Murphy, does Justice John Banister Gibson eviscerate Chief Justice Marshall’s reasoning in Marbury? If not, why not? Confine your answer to three pages, double-spaced. (40 points). Bring two copies of your essay to class.
√	Evaluation: (50 pts total	a) Does your essay clearly and coherently focus on each of Murphy’s questions? (20 pts) b) Does the essay contrast the reasoning of the Justices? (10 pts) c) Are the evaluative standards used to choose between the two views explicit and persuasive? (20 pts)
The Institutional Court: Limits & Barriers to Adjudication
Reading	September16	Read: O’Brien, Volume I Constitutional Law And Politics, 103-161; Perentti, 55-73.
The Institutional Court: Politics Process & Impact
	September18	Read: Volume I Constitutional Law And Politics 161-221; Rehnquist, All The Laws But One, 1-39. Consider Rule 10 of the Rules of the United States Supreme Court* and analyze Coleman v. Balcom (1981).[1].
Oral Presentations	(September 20) 8 AM and 1:15 AM (no class at 11 AM)	Reflecting on Coleman v. Balcom,: What did the Court decide? What is the significance of the determination? What propositions about the role of the Court do the opinions of the justices in this case stand for?
	Evaluation: (100 pts)	a) Is your presentation well organized, clear and persuasive? (20 pts) b) Is your evaluation supportable by the evidence? (25 pts) c) Is your evaluation logically coherent and well structured? (30 pts.)
Our Chief Magistrate— The Two Presidents
Reading	September 23	— Read: Volume I Constitutional Law And Politics 222-257; Rehnquist, 40-127.
War-Making and Emergency Powers— The Constitution Under Pressure
Reading	September 25	Read: Volume I Constitutional Law And Politics 257-286; Rehnquist, 128-225.
Oral Presentations	(September 27) 8 AM and 1:15 AM (no class at 11 AM)	President Bush, by executive order, authorizes military tribunal to try al Qaeda and Taliban prisoners captured in Afghanistan and confined in Guantànamo Bay, Cuba at the direction of the secretary of Defense. Furthermore, the government maintains the jurisdiction of the tribunals is not subject to review by civilian courts or international judicial bodies: What are the constitutional issues raised by President Bush’s decision? What is the constitutional basis for President Bush’s action? Can the detainees be brought to trial in 2005? Is there any basis for challenging the executive decision? Are American citizens captured while active with the Taliban or al Qaeda subject to military tribunals?
	Evaluation: (100 pts)	a) Is your presentation well organized, clear and persuasive? (20 pts) b) Is your evaluation supportable by the evidence? (25 pts) c) Is your evaluation logically coherent and well structured? (30 pts.) d) Which conception of the Court’s role is correct? Why?
Appointment and Removal Powers— The Dilemma of Constitutional Interstice
Reading	September 30	Read: Volume I Constitutional Law And Politics 287-318; Peretti, 77-132
Separation of Power in an Era of Change & Presidential Accountability and Immunities — Balance and Hegemony in the Administrative State
Reading	October 2-9	Read: Volume I Constitutional Law And Politics 365-427; Perentti, 133-160.
Midterm Examination	October 11	Watergate Video. If the link does not work, 1. Open Quicktime 2. Select "File" Menu 3. Select "Open URL in new player" 4. Paste the following in the window. rtsp://sax.pomona.edu/politics/Watergate.mov 5. Make some popcorn, sit down and watch the movie.
Congress, Membership, and Immunities
Reading	October 14-16	Read: Volume I Constitutional Law And Politics 428-490; Perentti, 161-188.
Congress, Investigative Powers
Reading	October 18	Read: Volume I Constitutional Law And Politics 491-537; Perentti, 189-254.
No Class	October 25
Oral Presentations	(October 27) 8 A.M. and 1:15 P.M (no class at 11 A.M.)	In 2002, Congress granted the President “fast track” authority to negotiate trade treaties with nations in Latin America. Pursuant to this statute, the U.S. Trade Representative negotiates a NAFTA-like agreement with the nations of Central and South America to eliminate barriers to the free exchange of goods and service among the signatory nations. The treaty bans any interference with free trade based on non-trade related considerations unless provided for specifically in the agreement. Regulations and restrictions alleged to be in violation of the Treaty are to be adjudicated in camera arbitration proceedings under the terms of the Treaty. The arbitration panel is authorized to impose penalties on an offending nation. The America’s Free Trade Agreement is ratified by the Senate and goes into force December 31, 2005. In October 2008, the Associated Students of UC, Berkeley, UCLA, UCSD, UCSC and UC, Irvine file suit for breach of contract against a logo ware wholesale distributor. The distributor contracted to furnish logo sports ware to all UC campuses for a period of ten years. All vendors must sign an assurance that all goods delivered to campus stores will be produced under labor conditions meeting the United Nations recommended “Humane Working Conditions Code.” A joint student-employee task force on labor and human rights reports that manufacturers in Paraguay produce logo ware under contract to the vendor in substandard and sometimes horrific working conditions. The joint UC student bodies returned unsold logo ware and refused to accept further shipments from the vendor. The vendor sued and the ASUC counter sued under California’s anti-sweat shop law. The law permits California residents to recover punitive damages where goods are produced under labor conditions determined to be so dangerous the health and well-being of works so as to “shock to conscience” of the average person. A jury awarded ASUC $17 million in damages. The appellate court reduced the award to $9 million. The vendor complained to the WTO arbitration panel that determined the California verdict was in violation of The Latin America Free Trade Agreement and assessed the United States $29 million in damages. Because the United States was assessed damages under LAFTA and NFTA because of a number of state court judgments, Congress, acting pursuant to the Foreign Commerce power preempts state court jurisdiction in cases involving imported foreign manufactured goods and services. California and the ASUC challenged the assertion of federal authority denying their right to trial by jury under the Seventh Amendment and they also maintain that “fast track” treaty making violates the doctrine of separation of powers. What are the constitutional issues raised these legislative and judicial actions? Does the Constitution impose limitations on the treaty power? Can Congress deny citizens a remedy against unconscionable sweatshop labor?
	Evaluation: (100 pts)	a) Is your presentation well organized, clear and persuasive? (20 pts) b) Is your evaluation supportable by the evidence? (25 pts) c) Is your evaluation logically coherent and well structured? (30 pts.)
Legislative Power— The Classical View
Reading	October 30	Read: Volume I Constitutional Law And Politics 537-577; Tushnet, Taking the Constitution Away From The Courts, 3-32.
All legislative powers herein granted …”— Congress— From Crises to a Formalist Revival
Reading	November 1-6	Read: Volume I Constitutional Law And Politics, 577-606; Tushnet, 33-53.
Guest lecture Lori Ramirez	November 6	— United States v. Morrison and a “feminist jurisprudential analysis.””
Taxing and Spending Powers
Reading	November 8	Read: Volume I Constitutional Law And Politics 606-619; Tushnet, 54-94
A Nation of States— Whatever that means?
Reading	November 13	Read: Volume I Constitutional Law And Politics, 620-664; Tushnet, 95-128.
Reading	November 15	Read: Volume I Constitutional Law And Politics 665-724; Tushnet, 129-153.
Making It All Work— Judicial Federalism
Reading	November 18	Volume I Constitutional Law And Politics, 724-764; Tushnet, 154-176.
Oral Presentations	(November 15) 8 AM and 1:15 AM (no class at 11 AM)	In 2002, California adopted legislation authorizing the Air Resources Board to set “maximum” but “economically feasible” tailpipe emissions standards to reduce atmospheric greenhouse gases and reduce global warming. The standards are to be adopted by 2005 and must be met by every automobile sold in California by 2009. Under a 1967 federal law, California is the only state allowed to set its own regulation for omissions because of the extreme levels of smog in Los Angeles in the 1950s and 1960s. California’s purchase 10% of automobiles in the national car market, Detroit automakers complain the these new tailpipe emissions standard will effect the national auto market driving up prices and reducing consumer choice in California and elsewhere. Since, 1985 Congress has rejected efforts to mandate increased fuel efficiency under so-called CAFE standards. The California law, according to the automakers, is an end-run around Congresses refusal to act. Detroit automakers contend that California’s action is bared under the principle of the Dormant Commerce Clause. There is no longer a compelling necessity for California being exempted from a uniform national omissions policy since the air in Southern California has improved dramatically since the 1970s. Indeed there were no smog alerts since 1998.
	Evaluation: (100 pts)	a) Is your presentation well organized, clear and persuasive? (20 pts) b) Is your evaluation supportable by the evidence? (50 pts) c) Is your evaluation logically coherent and well structured? (30 pts.)
The Reapportionment Revolution— Redrawing the Electoral Map
Read	November 20	Read: Volume I Constitutional Law And Politics 766-799; Tushnet, 177-194.
	November 22-25	Read: Volume I Constitutional Law And Politics 800-867
Representation, Participation and Fairness
Reading	November 27-December 2	Read: Volume I Constitutional Law And Politics 867-921.
Constitutional Underpinnings of American Capitalism
Reading	December 4-6	Volume I Constitutional Law And Politics, 922-990; Video: McCain-Fingold Quicktime Tutorial rtsp://sax.pomona.edu/politics/McCain-Fingold.mov
Oral Presentations	(December) 8 AM and 1:15 AM:	The Court’s decision on December 12 in Bush v. Gore effectively ended the 2000 Presidential Election. That decision will remain the “blockbuster” judgment for many years to come. The sharply divided decision mirrored the Nation’s division in public opinion. Supporters praised the decision as just and fair. On the other hand, critics compared the decision with Dred Scott and termed it political and partisan. The decision and the justices were microscopically dissected in the news media in the ensuing weeks. The ink was hardly dry before scholars and commentators produced a myriad of books and articles either defending the Court or excoriating the decision and the justices. From the perspective of two-years, what is the place of Bush v. Gore in constitutional jurisprudence? The oral arguments on December 1 focused media attention and the Nation on the Court and the justices. Spin and speculation were rife throughout the weekend. The American public participated in this hearing earlier and more directly than ever before when the proceedings were rebroadcast over radio, television and the Internet in near real time. In the future, should the proceedings of the Nation’s highest Court be televised?
	Evaluation: (100 pts)	a) Is your presentation well organized, clear and persuasive? (20 pts) b) Is your evaluation supportable by the evidence? (50 pts) c) Is your evaluation logically coherent and well structured? (30 pts.)
Reading	December 9	Read: Volume I Constitutional Law And Politics 991-1000.
Last Class:	December 11	Making Sense of it all

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√ If you observe Yom Kippur, please obtain class notes from someone in the class.

* Rule 10. Considerations Governing Review

Writ of Certiorari

1. A review on writ of certiorari is not a matter of right, but of judicial discretion. A petition for writ of certiorari will be granted only when there are special and important reasons therefore. The following, while neither controlling nor fully measuring the Court’s discretion, indicate the character of reasons that will be considered:

(a) When a United States Court of Appeals has rendered a decision in conflict with the decision of another United States Court of Appeals on the same matter; or has decided a federal question in a way in conflict with a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s power of supervision.

(b) When a state court of last resort has decided a federal question in a way that conflicts with the decision of another state court of last resort or of a United States Court of Appeals.

(c) When a state court or a United States court of appeals has decided an important question of federal law which has not been, but should be, settled by this Court or has decided a federal question in a way that conflicts with applicable decisions of this Court.