Monday, September 29, 2008
No office hours this Wednesday at noon
My apologies, but I have to cancel my regularly scheduled office hours from noon to 1:00 this Wednesday (due to a prior commitment that was moved to this time slot). I will still have office hours, as usual, from 5:00 to 6:00 on Wednesday, and am available at other times during the week. Sorry for any inconvenience.
Thursday, September 25, 2008
The Supreme Court and foreign policy
This coming Sunday's New York Times Magazine will run this lengthy article by Noah Feldman (a former clerk for Justice Souter, now a professor at Harvard Law School) about the impact of Supreme Court decisions on international relations. Interesting stuff. You can access the article here.
Wednesday, September 24, 2008
Question on Supreme Court procedure
Question: If a party brings suit under federal law and it makes its way up to the Supreme Court and none of the parties specifically claim that the statute is unconstitutional but simply have a dispute over its interpretation of a clause....but in fact if you would examine the statute you would find it unconstitutional, can the Supreme Court itself raise this as an issue or will it merely rule based on the interpretation of the clause and leave the question of whether the statute as a whole is unconstitutional to another date?
Answer: Good question, albeit in a very long sentence. The short answer is that the Supreme Court (and really all federal courts) will not address a legal claim that has not been raised by the parties. For instance, suppose Mr. Lopez contested his conviction under the Gun-Free School Zone Act solely on the ground that he actually was not in a school zone (as defined in the Act) when he possessed the gun in question, a purely statutory question. This is a question of federal law, and thus within the subject matter jurisdiction of the federal courts. It could even get all the way to the Supreme Court (especially if there were some conflicting views in the lower courts on the issue). But no court hearing the claim would address whether the GFSZA was beyond Congress's enumerated powers, and thus unconstitutional, unless Lopez himself had pressed the claim. (Compare Justice Thomas's concurrence in Printz in this regard.)
The one exception to this general rule is if the constitutional question concerns the court's jurisdiction -- its power to speak. Under Article III, as we have discussed, federal courts may only decide those "cases" and "controversies" spelled out in the Constitution. This is true even if the claim that the court lacks jurisdiction is not raised by the parties. Thus, if the court believes the case presents a political question, or that the plaintiff lacks standing, it is actually required constitutionally to raise the issue sua sponte and resolve it. For if it does not, the court would effectively be issuing an advisory opinion, something that is supposed to be beyond the authority of the federal judiciary.
Answer: Good question, albeit in a very long sentence. The short answer is that the Supreme Court (and really all federal courts) will not address a legal claim that has not been raised by the parties. For instance, suppose Mr. Lopez contested his conviction under the Gun-Free School Zone Act solely on the ground that he actually was not in a school zone (as defined in the Act) when he possessed the gun in question, a purely statutory question. This is a question of federal law, and thus within the subject matter jurisdiction of the federal courts. It could even get all the way to the Supreme Court (especially if there were some conflicting views in the lower courts on the issue). But no court hearing the claim would address whether the GFSZA was beyond Congress's enumerated powers, and thus unconstitutional, unless Lopez himself had pressed the claim. (Compare Justice Thomas's concurrence in Printz in this regard.)
The one exception to this general rule is if the constitutional question concerns the court's jurisdiction -- its power to speak. Under Article III, as we have discussed, federal courts may only decide those "cases" and "controversies" spelled out in the Constitution. This is true even if the claim that the court lacks jurisdiction is not raised by the parties. Thus, if the court believes the case presents a political question, or that the plaintiff lacks standing, it is actually required constitutionally to raise the issue sua sponte and resolve it. For if it does not, the court would effectively be issuing an advisory opinion, something that is supposed to be beyond the authority of the federal judiciary.
Tuesday, September 23, 2008
Question on exam answer format
I received this question regarding the format of exam answers two weeks ago and should have answered it sooner.
Question: [I am wondering about] your preference in styles for answering the exam. IE: some professors prefer that you make a single decision on an issue and move forward, some prefer you address and make a determination on every potential result of an issue and others, still yet, prefer you simply argue the potential sides and make no final determination on the issue. I have been in classes where professors prefer issue spotting to be like blasting a shotgun (trying to hit as much as possible) and where the professor prefers issue spotting to be like a sniper's work (hit a single target with efficacy). Is there a manner you feel most effectively portrays our understanding of con law? I only ask because it allows me to prepare for the test ahead of time in how I organize my notes/outline, etc...
Answer: I will do my best to answer this, but I'm afraid that, no matter what, it will have to be imprecise. First, the most important thing is to answer the question that is asked. Often students get off track, for instance, by reciting all of the arguments the plaintiff or the defendant might possibly make, regardless of their plausibility, and without actually analyzing their likelihood of success, because they failed to read that the question prompted them to provide an objective analysis of the legal problem.
Second, I think a well-prepared student could take almost a week to answer a typical law school exam. Thus, implicitly the exam is not asking you to provide your best answer in the abstract, but your best answer given the time that is available. In other words, one of the skills being tested is your ability to discern which issues are the most important, which ones present the closest calls legally, and thus which ones deserve the bulk of your attention (and which ones can be disposed of rather quickly). Obviously, there is no algorithm for this. But engaging in a triage of the issues is an important skill. Indeed, this may be one of the most significant ways that law school exams actually measure a skill critical to the practice of law. To be sure, you infrequently will face the pressure of a 3-hour deadline to turn something around. But you will always have less time than you would like to complete all of your work, and you will constantly be making choices about what is most important, allocating the scarce resource of your attention accordingly.
Finally, I think my model answers, particularly the complete answers in the 2001 exam that I posted today on ClaraNet (answers to essay questions B, C, and D) might give you a general sense of what I think solid answers look like. I will leave it to you to analyze where they fit within the categories you describe above.
Hope this helps in some way.
Question: [I am wondering about] your preference in styles for answering the exam. IE: some professors prefer that you make a single decision on an issue and move forward, some prefer you address and make a determination on every potential result of an issue and others, still yet, prefer you simply argue the potential sides and make no final determination on the issue. I have been in classes where professors prefer issue spotting to be like blasting a shotgun (trying to hit as much as possible) and where the professor prefers issue spotting to be like a sniper's work (hit a single target with efficacy). Is there a manner you feel most effectively portrays our understanding of con law? I only ask because it allows me to prepare for the test ahead of time in how I organize my notes/outline, etc...
Answer: I will do my best to answer this, but I'm afraid that, no matter what, it will have to be imprecise. First, the most important thing is to answer the question that is asked. Often students get off track, for instance, by reciting all of the arguments the plaintiff or the defendant might possibly make, regardless of their plausibility, and without actually analyzing their likelihood of success, because they failed to read that the question prompted them to provide an objective analysis of the legal problem.
Second, I think a well-prepared student could take almost a week to answer a typical law school exam. Thus, implicitly the exam is not asking you to provide your best answer in the abstract, but your best answer given the time that is available. In other words, one of the skills being tested is your ability to discern which issues are the most important, which ones present the closest calls legally, and thus which ones deserve the bulk of your attention (and which ones can be disposed of rather quickly). Obviously, there is no algorithm for this. But engaging in a triage of the issues is an important skill. Indeed, this may be one of the most significant ways that law school exams actually measure a skill critical to the practice of law. To be sure, you infrequently will face the pressure of a 3-hour deadline to turn something around. But you will always have less time than you would like to complete all of your work, and you will constantly be making choices about what is most important, allocating the scarce resource of your attention accordingly.
Finally, I think my model answers, particularly the complete answers in the 2001 exam that I posted today on ClaraNet (answers to essay questions B, C, and D) might give you a general sense of what I think solid answers look like. I will leave it to you to analyze where they fit within the categories you describe above.
Hope this helps in some way.
Exam review session December 7
For those planning ahead, I have scheduled a purely voluntary review session for Sunday, December 7, at 3:00, in our regular classroom (142). This is two days before our final exam. I realize this may not be a convenient time for everyone, but there simply is no time that is convenient for everyone. I will not present any new material at the session, but instead will just entertain questions from all of you in a group setting. I will also record the session and try to have it posted to iTunes as soon as possible after the event, probably some time Monday morning (depending on the availability of the school IT staff). Thanks.
Response to notecards (part 2)
Again, in no particular order.
Question: What is the goal of con law?
Answer: As a general matter, to structure the government and politics of a society -- to set the ground rules for how we, as a polity in a democracy, govern ourselves.
Question: What kind of lawyer needs to know con law?
Answer: At some level every lawyer needs to know something about constitutional law, for all law is formed against the backdrop of the constitutional rules that make such lawmaking (whether in the form of statutes, regulations, or common law rules) legitimate. Certainly, every citizen should know a bit about constitutional law, which is part of the point of the course.
Comment: Sometimes you entertain too many questions from students when we are behind in the materials and I want to move on. I think questions from students are important, but sometimes it can take away from your lecturing and explanation of the material.
Response: First, I think you are giving my lecturing too much credit. But to get to the heart of the point, this is a balance that, at some level, you just have to trust me with. (1) I want to make sure that everyone feels comfortable asking questions, so I want to err in that direction, at least at the beginning of the semester. (2) It may not seem so to everyone, but I am actually screening questions and only answering those that I think are relevant to the subject we are discussing. Indeed, I think some of our most interesting discussions thus far in the semester have emerged in the give-and-take of questions and answers. (3) The material assigned for a given class, and really for the semester, is somewhat arbitrary. So we are not really ever "behind" in a meaningful sense. Trust me, we will have plenty of time to cover the essential material for the course. (4) Finally, let me urge you not to "tune out" when someone asks a question, even if you have heard similar questions before, even from that student. We can all learn from these interactions.
Comment: I feel like it would be helpful to mention what we might expect on the exam.
Response: As the syllabus explains, the exam will be a mixture of objective (multiple choice) and essay questions. And the best indication of what the essay questions will be like are my past exams, which are posted on the ClaraNet site.
Comment: I'd like some more time spent on how you would like us to analyze things -- in general and for the final.
Response: Our problems in class are meant to fulfill this objective. Indeed, the problems we work through in class are very much like exam questions, and the way we have proceeded to analyze them reflect my expectations. In addition, you can look at the model answers that I have posted to past exams.
Comment: Things move quick. Maybe some time at the start of class to review the previous class would be good.
Response: I have tried to provide a bit more of this the last couple of classes.
Comment: I wish you could make references to info you are conveying and statements like "I might ask a test question about this . . . like . . . ." References to the testing content and what to expect would be a great help.
Response: I appreciate the anxiety many of you may have about the exam for this class, particularly if the way I approach the material is somehow qualitatively different from other professors you have had. At the same time, this is graduate school. Flagging issues that I may ask on an exam is, well, beneath you. You all are better than that, and you deserve a higher level of discourse. Maybe the simplest way I can state it is this: I see my role as organizing and structuring the class, ensuring that you are exposed to the important material and guiding you as you work through it; it is your responsibility to learn it -- to figure out what is important, how to synthesize it, how to fit the various parts together into a coherent whole, and to see how to apply it to novel, unforeseen circumstances. That is what you will be doing as a professional in two or three years. Clients will not tell you what is important in the long, rambling stories they give you. Nor will they give you any hint of how to organize or outline that material. You will have to figure out how to do that on your own, and law school is meant to be a training ground for that -- a place to do it where no real lives are at stake. Again, I am happy to help when you run into stumbling blocks. But if I were to indicate how you should go about this process in the first instance, I will have short-circuited the process that is singularly central to the law school experience, the means by which you should develop the most important skill a lawyer possesses.
Question: What is the goal of con law?
Answer: As a general matter, to structure the government and politics of a society -- to set the ground rules for how we, as a polity in a democracy, govern ourselves.
Question: What kind of lawyer needs to know con law?
Answer: At some level every lawyer needs to know something about constitutional law, for all law is formed against the backdrop of the constitutional rules that make such lawmaking (whether in the form of statutes, regulations, or common law rules) legitimate. Certainly, every citizen should know a bit about constitutional law, which is part of the point of the course.
Comment: Sometimes you entertain too many questions from students when we are behind in the materials and I want to move on. I think questions from students are important, but sometimes it can take away from your lecturing and explanation of the material.
Response: First, I think you are giving my lecturing too much credit. But to get to the heart of the point, this is a balance that, at some level, you just have to trust me with. (1) I want to make sure that everyone feels comfortable asking questions, so I want to err in that direction, at least at the beginning of the semester. (2) It may not seem so to everyone, but I am actually screening questions and only answering those that I think are relevant to the subject we are discussing. Indeed, I think some of our most interesting discussions thus far in the semester have emerged in the give-and-take of questions and answers. (3) The material assigned for a given class, and really for the semester, is somewhat arbitrary. So we are not really ever "behind" in a meaningful sense. Trust me, we will have plenty of time to cover the essential material for the course. (4) Finally, let me urge you not to "tune out" when someone asks a question, even if you have heard similar questions before, even from that student. We can all learn from these interactions.
Comment: I feel like it would be helpful to mention what we might expect on the exam.
Response: As the syllabus explains, the exam will be a mixture of objective (multiple choice) and essay questions. And the best indication of what the essay questions will be like are my past exams, which are posted on the ClaraNet site.
Comment: I'd like some more time spent on how you would like us to analyze things -- in general and for the final.
Response: Our problems in class are meant to fulfill this objective. Indeed, the problems we work through in class are very much like exam questions, and the way we have proceeded to analyze them reflect my expectations. In addition, you can look at the model answers that I have posted to past exams.
Comment: Things move quick. Maybe some time at the start of class to review the previous class would be good.
Response: I have tried to provide a bit more of this the last couple of classes.
Comment: I wish you could make references to info you are conveying and statements like "I might ask a test question about this . . . like . . . ." References to the testing content and what to expect would be a great help.
Response: I appreciate the anxiety many of you may have about the exam for this class, particularly if the way I approach the material is somehow qualitatively different from other professors you have had. At the same time, this is graduate school. Flagging issues that I may ask on an exam is, well, beneath you. You all are better than that, and you deserve a higher level of discourse. Maybe the simplest way I can state it is this: I see my role as organizing and structuring the class, ensuring that you are exposed to the important material and guiding you as you work through it; it is your responsibility to learn it -- to figure out what is important, how to synthesize it, how to fit the various parts together into a coherent whole, and to see how to apply it to novel, unforeseen circumstances. That is what you will be doing as a professional in two or three years. Clients will not tell you what is important in the long, rambling stories they give you. Nor will they give you any hint of how to organize or outline that material. You will have to figure out how to do that on your own, and law school is meant to be a training ground for that -- a place to do it where no real lives are at stake. Again, I am happy to help when you run into stumbling blocks. But if I were to indicate how you should go about this process in the first instance, I will have short-circuited the process that is singularly central to the law school experience, the means by which you should develop the most important skill a lawyer possesses.
Response to notecards (part 1)
In a series of posts, I will try to respond to all of the comments and questions that you all made in the notecards you filled out a few classes ago. I am taking them up in a purely random order -- the order of the stack on my desk. Here is the first installment:
Question: Would it be possible to post your class outlines before class?
Answer: Yes. And I do. They are typically posted on ClaraNet at least three hours before class, but sometimes they are there more than a day in advance. It depends on how much work I need to do in resolving what, precisely, we will cover in that class, and how I want to structure our discussion.
Comment: I would appreciate it if the class was less politically bias. I understand we should definitely be discussing current political events, but I would appreciate the subject matter more if there were not anti-republican undertones to the discussion.
Answer: I am quite sorry if you feel that I have inserted my own political beliefs into our discussions in a way that makes you feel less welcome, or makes our inquiries seem politically biased. Making our classroom a place in which all feel welcome to voice their views, no matter their partisan attachments, is quite important to me. So I apologize if I have failed in this respect. I do enjoy poking fun at government officials, in part because I think it is healthy and part of cultivating a capacity for critical analysis. But I aim to do so in an ecumenical fashion. I will try to be more conscious of any partisan bias going forward.
Question: I am a very structured person and love my "nice and clean" rules. At present time my outline is looking more like a smorgasboard of notes. Can you offer some advice of outline approaches.
Answer: This is a very common concern, and I have three responses. (1) The course syllabus and the class outlines might provide some help; they are at least how I think of the structure of the material, for whatever that is worth. (2) Generally -- at least in my view -- outlining is a way of digesting, synthesizing, and learning the material. I cannot -- indeed, I should not -- instruct you how to go about doing this. Developing the ability to digest and synthesize disparate sources of law is the one critical skill that you need to develop before leaving law school. And you need to graduate with the ability to do it on your own. If you have tried to learn an area of our course, and you have run into some difficulty doing so, I am more than happy to talk about it with you. But in my view, it would be pedagogically irresponsible for me not to leave this task, at least in the first instance, completely to you. (3) If you like "nice and clean" rules, I can see how the material in this class would be challenging. But I would think the same would be true of all law school classes, at least once you have scratched the surface. All areas of the law are fraught with ambiguity. Were that not so, there would be no market for lawyers. Studying for the bar exam involves memorizing a bunch of rules an regurgitating them. Law school -- at least I hope -- is something quite different, something more intellectually rich and challenging.
Question: Would you provide some sample answers to your past exams?
Answer: Yes. Outlines to answers for the 2003 and 2005 exams are now posted on ClaraNet, and I will get more posted as soon as I am able.
All for now.
Question: Would it be possible to post your class outlines before class?
Answer: Yes. And I do. They are typically posted on ClaraNet at least three hours before class, but sometimes they are there more than a day in advance. It depends on how much work I need to do in resolving what, precisely, we will cover in that class, and how I want to structure our discussion.
Comment: I would appreciate it if the class was less politically bias. I understand we should definitely be discussing current political events, but I would appreciate the subject matter more if there were not anti-republican undertones to the discussion.
Answer: I am quite sorry if you feel that I have inserted my own political beliefs into our discussions in a way that makes you feel less welcome, or makes our inquiries seem politically biased. Making our classroom a place in which all feel welcome to voice their views, no matter their partisan attachments, is quite important to me. So I apologize if I have failed in this respect. I do enjoy poking fun at government officials, in part because I think it is healthy and part of cultivating a capacity for critical analysis. But I aim to do so in an ecumenical fashion. I will try to be more conscious of any partisan bias going forward.
Question: I am a very structured person and love my "nice and clean" rules. At present time my outline is looking more like a smorgasboard of notes. Can you offer some advice of outline approaches.
Answer: This is a very common concern, and I have three responses. (1) The course syllabus and the class outlines might provide some help; they are at least how I think of the structure of the material, for whatever that is worth. (2) Generally -- at least in my view -- outlining is a way of digesting, synthesizing, and learning the material. I cannot -- indeed, I should not -- instruct you how to go about doing this. Developing the ability to digest and synthesize disparate sources of law is the one critical skill that you need to develop before leaving law school. And you need to graduate with the ability to do it on your own. If you have tried to learn an area of our course, and you have run into some difficulty doing so, I am more than happy to talk about it with you. But in my view, it would be pedagogically irresponsible for me not to leave this task, at least in the first instance, completely to you. (3) If you like "nice and clean" rules, I can see how the material in this class would be challenging. But I would think the same would be true of all law school classes, at least once you have scratched the surface. All areas of the law are fraught with ambiguity. Were that not so, there would be no market for lawyers. Studying for the bar exam involves memorizing a bunch of rules an regurgitating them. Law school -- at least I hope -- is something quite different, something more intellectually rich and challenging.
Question: Would you provide some sample answers to your past exams?
Answer: Yes. Outlines to answers for the 2003 and 2005 exams are now posted on ClaraNet, and I will get more posted as soon as I am able.
All for now.
Monday, September 22, 2008
Garcia and the commerce power
QUESTION: I understand that [Garcia v. SAMTA] established the Congress's ability to enforce its power against the States in area of the traditional governmental functions through the Commerce Clause. However, I was unclear why can Congress enforce its power via the Commerce Clause? Is it simply because the minimum wage and overtime influences one's earning and consumer power, thus, affects the interstate commerce, Congress is entitled to exert its power via the Commerce Clause? Are there other reasons?
ANSWER: Very good question. And it depends whether we are answering using the law as of 1985, when Garcia was handed down, or today (following Lopez, Morrison, and Raich). As to the former, consider the rationale of Garcia: the true protections of states is through the political process, not judicial enforcement of the outer limits of Congress's enumerated powers. Taken seriously, the Court is basically saying that any claim that Congress has exceeded its enumerated powers is a political question (barring some problem with the political process itself). As to the latter -- under the law as it stands today -- think about the framwork set up by Lopez. The FLSA ia almost certainly not a regulation of the use of the channels of interstate commerce. Nor is it a regulation of the instrumentalities of, or persons or things in, interstate commerce. Thus, it would have to be a regulation of an activity substantially affecting interstate commerce. What is the activity in question? Employment, and setting the terms thereof (such as maximum hours, the minimum wage, etc.). These are almost certainly economic or commercial activities. And Lopez indicates that, if the regulated activity is economic or commercial in nature, we can aggregate its effects to determine whether there is a substantial effect. And clearly, in aggregate, the terms of employment goverened by the FLSA have a substantial effect on interstate commerce. That is why a court today would almost certainly find that the FLSA is within Congress's commerce power.
ANSWER: Very good question. And it depends whether we are answering using the law as of 1985, when Garcia was handed down, or today (following Lopez, Morrison, and Raich). As to the former, consider the rationale of Garcia: the true protections of states is through the political process, not judicial enforcement of the outer limits of Congress's enumerated powers. Taken seriously, the Court is basically saying that any claim that Congress has exceeded its enumerated powers is a political question (barring some problem with the political process itself). As to the latter -- under the law as it stands today -- think about the framwork set up by Lopez. The FLSA ia almost certainly not a regulation of the use of the channels of interstate commerce. Nor is it a regulation of the instrumentalities of, or persons or things in, interstate commerce. Thus, it would have to be a regulation of an activity substantially affecting interstate commerce. What is the activity in question? Employment, and setting the terms thereof (such as maximum hours, the minimum wage, etc.). These are almost certainly economic or commercial activities. And Lopez indicates that, if the regulated activity is economic or commercial in nature, we can aggregate its effects to determine whether there is a substantial effect. And clearly, in aggregate, the terms of employment goverened by the FLSA have a substantial effect on interstate commerce. That is why a court today would almost certainly find that the FLSA is within Congress's commerce power.
Saturday, September 20, 2008
Spending Clause question
A student sent this insightful question this morning:
QUESTION: If I'm not mistaken, the spending power is given to Congress by the language of Art 1, Sec 8, Clause 1 which states "...provide fro the common defence and GENERAL WELFARE of the United States." So from my understanding of reading the clause, the power enables Congress to SPEND, i.e. raise funds, collect taxes and give federal grants in order to further what is, what they deem, within this "general welfare" of the U.S.
What I don't understand is the connection between spending for the "general welfare" of the U.S and litigating on cases that have to do with "conditioned" federal funds. Usually, states try to argue that something is beyond Congress' scope to regulate. Are they now arguing that states have a right to these federal grants, and conditioning these grants on such coercive UNRELATED statutes is violating their right to a federal grant?
I suppose I just don't see how a state could claim that they have a right to federal aid (unless of course they are in dire economic situations or emergency situations of that nature). Assuming they do have this right, does the spending clause essentially give Congress the authority to say when/where/what these federal grants will be allocated?
ANSWER: You are right in your intuition: the states have no freestanding "right" to federal funds. Thus, that is not the issue they are litigating. Rather, the relevant question (more or less) is whether Congress is using its spending power to actually regulate (i.e., coercively mandate certain behavior of) the states. And this is where the "general welfare" you reference matters. Congress has the authority to tax and spend for "the general welfare," which means there is basically no limit on the power (at least as a matter of constitutional law) with respect to its subject matter. But Congress's authority to regulate is circumscribed, as we have seen. Congress must fit its regulation within one of the other enumerated powers -- that is, a power other than its power to tax and spend. Thus, a state like South Dakota in South Dakota v. Dole is arguing that, because the conditions attached to the highway funds are so far afield of the spending program on which the conditions have been placed, the condition is esssntially a regulation of the state's conduct. As such, it would not be automatically unconstitutional, but Congress would have to justify it in some way outside the Speinding Clause (such as as a regulation of interstate commerce). Notice, too, that if the spending condition in Dole were considered a regulation rather than a legitimate condition on the highway spending program, there is also arguably a Tenth Amendment "commandeering" issue.
QUESTION: If I'm not mistaken, the spending power is given to Congress by the language of Art 1, Sec 8, Clause 1 which states "...provide fro the common defence and GENERAL WELFARE of the United States." So from my understanding of reading the clause, the power enables Congress to SPEND, i.e. raise funds, collect taxes and give federal grants in order to further what is, what they deem, within this "general welfare" of the U.S.
What I don't understand is the connection between spending for the "general welfare" of the U.S and litigating on cases that have to do with "conditioned" federal funds. Usually, states try to argue that something is beyond Congress' scope to regulate. Are they now arguing that states have a right to these federal grants, and conditioning these grants on such coercive UNRELATED statutes is violating their right to a federal grant?
I suppose I just don't see how a state could claim that they have a right to federal aid (unless of course they are in dire economic situations or emergency situations of that nature). Assuming they do have this right, does the spending clause essentially give Congress the authority to say when/where/what these federal grants will be allocated?
ANSWER: You are right in your intuition: the states have no freestanding "right" to federal funds. Thus, that is not the issue they are litigating. Rather, the relevant question (more or less) is whether Congress is using its spending power to actually regulate (i.e., coercively mandate certain behavior of) the states. And this is where the "general welfare" you reference matters. Congress has the authority to tax and spend for "the general welfare," which means there is basically no limit on the power (at least as a matter of constitutional law) with respect to its subject matter. But Congress's authority to regulate is circumscribed, as we have seen. Congress must fit its regulation within one of the other enumerated powers -- that is, a power other than its power to tax and spend. Thus, a state like South Dakota in South Dakota v. Dole is arguing that, because the conditions attached to the highway funds are so far afield of the spending program on which the conditions have been placed, the condition is esssntially a regulation of the state's conduct. As such, it would not be automatically unconstitutional, but Congress would have to justify it in some way outside the Speinding Clause (such as as a regulation of interstate commerce). Notice, too, that if the spending condition in Dole were considered a regulation rather than a legitimate condition on the highway spending program, there is also arguably a Tenth Amendment "commandeering" issue.
Thursday, September 18, 2008
Preemption
We will be covering the doctrine of preemption in a few weeks, the rule (derived from the Supremacy Clause of Article VI) that, when federal and state law come into conflict, federal law trumps. The Supreme Court has two very big preemption cases on its docket for the coming Term, Altria v. Good (involving the marketing of cigarettes as "light" or "low tar") and Wyeth v. Levine (concerning the labeling of prescription medications approved by the FDA). In Friday's edition, the New York Times contains a lengthy story on Wyeth, which you can find here.
Classes up on iTunes
The class sessions for September 10, 15, and 17 are now posted to iTunes and available for download. Somehow the September 8 class was not recorded. I am not sure what happened, but likely I pressed the wrong button at some point. My apologies.
Next week's assignments
Here is the material I think, roughly, we will cover in Monday and Wednesday's classes of next week:
Monday (9/22): Section 5 of the Fourteenth Amendment, the spending power, and the first half of the Tenth Amendment material (Garcia and at least part of New York v. United States). We will probably talk about Problem 5 only briefly.
Wednesday (9/24): The remainder of the Tenth Amendment material (finishing New York and Printz), Problem 6 (on the Drivers' Privacy Protection Act), and an introduction to executive authority and the separation of powers. We will defer Youngstown Steel until Monday, Sept. 29.
Also, you will notice that our first assignment schedule ends next week, so I will post a second one (for weeks 7 through 12 of the semester) on ClaraNet next Thursday. If you need to read ahead before then, you can reference the order of the material on the syllabus.
Thanks.
Monday (9/22): Section 5 of the Fourteenth Amendment, the spending power, and the first half of the Tenth Amendment material (Garcia and at least part of New York v. United States). We will probably talk about Problem 5 only briefly.
Wednesday (9/24): The remainder of the Tenth Amendment material (finishing New York and Printz), Problem 6 (on the Drivers' Privacy Protection Act), and an introduction to executive authority and the separation of powers. We will defer Youngstown Steel until Monday, Sept. 29.
Also, you will notice that our first assignment schedule ends next week, so I will post a second one (for weeks 7 through 12 of the semester) on ClaraNet next Thursday. If you need to read ahead before then, you can reference the order of the material on the syllabus.
Thanks.
Wednesday, September 17, 2008
U.S. asks for reversal in Kennedy v. Louisiana
The Solicitor General of the United States has just filed his office's brief at the request of the Court in Kennedy v. Louisiana, the case involving the imposition of the death penalty for child rape. And the SG has asked the Court to reverse its 3-month-old decision, arguing that the Court could not conclude that there is a national consensus against the practice when it has been approved by the national legislature and the President. You can find the SG's brief here.
Tuesday, September 16, 2008
Wednesday's assignment
Here is the agenda for Wednesday's class:
* Discuss Gonzales v. Raich
* Work through Problem 4
* Discuss the material on Section 5 of the Fourteenth Amendment and the Spending Clause
We will defer Problem 5, on the spending power, until Monday, September 22.
The recent class meetings will be up on iTunes some time this week, probably Thursday.
Thanks.
* Discuss Gonzales v. Raich
* Work through Problem 4
* Discuss the material on Section 5 of the Fourteenth Amendment and the Spending Clause
We will defer Problem 5, on the spending power, until Monday, September 22.
The recent class meetings will be up on iTunes some time this week, probably Thursday.
Thanks.
Constitution Day!
Tomorrow is September 17, the day in 1787 that the members of the constitutional convention signed the Constitution in Philadelphia before sending it to the Continental Congress and then onto the states for ratification. To mark the occasion, I and three other Santa Clara faculty will be discussing the upcoming Supreme Court term and the direction of the Roberts Court. The event will take place from noon to 1:00 in Room 139. Please join us if you are interested.
Wednesday, September 10, 2008
"Understanding" constitutional law
A number of you have confided in me, in various words, that you "don't know what is going on" in our class. When I have pressed, the point has become a bit more specific: many of you are unclear what you are supposed to be extracting from the material as we cover it. When pressed further, it has become yet more specific: many of you are unclear what you are supposed to be extracting from the material for purposes of the final exam.
This -- I want to make clear -- is a completely legitimate concern. Unlike some professors, I'm not bothered when students ask about the exam, or try to pin down more concretely my expectations. I understand that grades are important to many of you (though I think students tend to overestimate their real-world significance), and I think it is very important that I be as transparent as possible about how you will be evaluated. So this is all completely fair game.
But I should also say that my objectives for the class are broader than the types of things that are amenable to law school examinations. Broadly speaking, I have three pedagogical goals: (1) to convey a basic grounding in the fundamental tenets of constitutional law, useful to all lawyers in their practice, and in taking the bar exam; (2) to instill an understanding and critical awareness of constitutional law in its broader outlines, not simply in its blackletter rules, useful to you as future guardians of the legal profession; and (3) a still broader sense of constitutional history and politics, and the means of constitutional change, that I hope will be useful to you as well-educated citizens in our constitutional democracy.
In the first few weeks of the course, as we are establishing a framework for the material, goals (2) and (3) have received more emphasis than goal (1). As a result, there have been fewer "rules" that might be analogous to those you have studied in other classes. And this may be causing some of the uneasiness. As the semester progresses, goal (1) will increase in prominence, though I must admit, the nature of constitutional law is that such "rules" are rarely ever clear, and they are rarely more certain than the ideological leaning of the present Supreme Court.
I should also confess, though, that although goal (1) is the easiest to test, I think it is ultimately the least important of the three. Law school is obviously much more than bar prep; if it were not, you would be wasting a great deal of money on tuition. (Perhaps you feel that regardless.) What I hope a well-rounded legal education provides is a deeper level of comprehension and understanding, a way to contextualize and organize all the minutiae of legal rules that you will master through the course of your career.
Mind you, goal (1) is still quite important. But it is only one part of what I hope is going on in our class.
I'm not sure whether this actually allays any concerns. But it might at least help you understand where I am coming from, and why I have emphasized certain aspects of the material thus far.
This -- I want to make clear -- is a completely legitimate concern. Unlike some professors, I'm not bothered when students ask about the exam, or try to pin down more concretely my expectations. I understand that grades are important to many of you (though I think students tend to overestimate their real-world significance), and I think it is very important that I be as transparent as possible about how you will be evaluated. So this is all completely fair game.
But I should also say that my objectives for the class are broader than the types of things that are amenable to law school examinations. Broadly speaking, I have three pedagogical goals: (1) to convey a basic grounding in the fundamental tenets of constitutional law, useful to all lawyers in their practice, and in taking the bar exam; (2) to instill an understanding and critical awareness of constitutional law in its broader outlines, not simply in its blackletter rules, useful to you as future guardians of the legal profession; and (3) a still broader sense of constitutional history and politics, and the means of constitutional change, that I hope will be useful to you as well-educated citizens in our constitutional democracy.
In the first few weeks of the course, as we are establishing a framework for the material, goals (2) and (3) have received more emphasis than goal (1). As a result, there have been fewer "rules" that might be analogous to those you have studied in other classes. And this may be causing some of the uneasiness. As the semester progresses, goal (1) will increase in prominence, though I must admit, the nature of constitutional law is that such "rules" are rarely ever clear, and they are rarely more certain than the ideological leaning of the present Supreme Court.
I should also confess, though, that although goal (1) is the easiest to test, I think it is ultimately the least important of the three. Law school is obviously much more than bar prep; if it were not, you would be wasting a great deal of money on tuition. (Perhaps you feel that regardless.) What I hope a well-rounded legal education provides is a deeper level of comprehension and understanding, a way to contextualize and organize all the minutiae of legal rules that you will master through the course of your career.
Mind you, goal (1) is still quite important. But it is only one part of what I hope is going on in our class.
I'm not sure whether this actually allays any concerns. But it might at least help you understand where I am coming from, and why I have emphasized certain aspects of the material thus far.
Guaranty Clause vs. Equal Protection Clause
One of you asked the following, insightful question after class Monday night:
QUESTION: If the problem in Colgrove v. Green was that the Court could not discover a "judicially manageable standard" to malapportionment claims brought under the Guaranty Clause of Article IV, how did the standard become manageable in Baker v. Carr simply because the constitutional claim was grounded in the Equal Protection Clause of the Fourteenth Amendment? That is, is not the standard identically manageable or unmanageable regardless of which constitutional clause the claim is brought under?
ANSWER: I agree. I don't see how it is any more manageable. If the Court could manage a "one person, one vote" standard under the Equal Protection Clause, it is entirely opaque as to why they could not manage the same standard as an interpretation of the Guaranty Clause. (Certainly Justice Frankfurter agreed with this view, and thus thought the issue was settled.) Why did the result actually change? I would point to two reasons: (1) the composition (and ideological disposition) of the Court changed between 1947 and 1962, and (2) it became increasingly apparent that, if the courts did not intervene, the political process was not going to heal itself (and the dominant national political regime now strongly supported bringing more political power to urban areas). Why didn't the Court simply overrule Colgrove v. Green. I think it is simply a matter of risk aversion and the norm of stare decisis. If there is a way to get there without overruling precedent, the Court is likely to take that course. (Notice that this is why Congress justified the Civil Rights Act of 1964 as an exercise of its commerce power rather than as a use of its power under Section 5 of the Fourteenth Amendment.) The justices might also have feared what opening up the Guaranty Clause to justiciable claims would have meant in other cases that they could not yet anticipate.
QUESTION: If the problem in Colgrove v. Green was that the Court could not discover a "judicially manageable standard" to malapportionment claims brought under the Guaranty Clause of Article IV, how did the standard become manageable in Baker v. Carr simply because the constitutional claim was grounded in the Equal Protection Clause of the Fourteenth Amendment? That is, is not the standard identically manageable or unmanageable regardless of which constitutional clause the claim is brought under?
ANSWER: I agree. I don't see how it is any more manageable. If the Court could manage a "one person, one vote" standard under the Equal Protection Clause, it is entirely opaque as to why they could not manage the same standard as an interpretation of the Guaranty Clause. (Certainly Justice Frankfurter agreed with this view, and thus thought the issue was settled.) Why did the result actually change? I would point to two reasons: (1) the composition (and ideological disposition) of the Court changed between 1947 and 1962, and (2) it became increasingly apparent that, if the courts did not intervene, the political process was not going to heal itself (and the dominant national political regime now strongly supported bringing more political power to urban areas). Why didn't the Court simply overrule Colgrove v. Green. I think it is simply a matter of risk aversion and the norm of stare decisis. If there is a way to get there without overruling precedent, the Court is likely to take that course. (Notice that this is why Congress justified the Civil Rights Act of 1964 as an exercise of its commerce power rather than as a use of its power under Section 5 of the Fourteenth Amendment.) The justices might also have feared what opening up the Guaranty Clause to justiciable claims would have meant in other cases that they could not yet anticipate.
Tuesday, September 9, 2008
More on Problem 3
Thanks to everyone for the interesting (if abbreviated) discussion of Problem 3 last night. At some level, the problem raises the question of what it means to live in a constitutional democracy, or at least our constitutional democracy. If the Supreme Court's decisions are indeed the final word, not just in the case before it, but as to the meaning of the Constitution, perhaps we are no longer a government "of the people, by the people," but instead have given that responsibility over to the Court. The Court's opinions become no different than the Constitution itself. At the same time, it is not easy to square the idea of independent powers of constitutional interpretation with the rule of law. The behavior of school districts in the South following Brown v. Board of Education was hardly a sterling example of how a democracy should function. It was obstructionist in the worst sense. The Court held in May 1954 that segregation in public education was inherently unequal, yet by 1965, a whopping 1 percent (!) of African American children in the Deep South were attending desegregated public schools.
So, how should we resolve these questions? Where should we strike the balance? What does living under our Constitution mean to you?
So, how should we resolve these questions? Where should we strike the balance? What does living under our Constitution mean to you?
Section 5 of the Voting Rights Act
The Northwest Austin Municipal District No. 1 indeed filed its appeal late yesterday at the Supreme Court, challenging the constitutionality of Section 5 of the Voting Rights Act. Based on recent decisions involving Section of the Fourteenth Amendment (which we will discuss next week), the District asserts that Congress's extension of Section 5 of the VRA in 2006 goes beyond Congress's powers to enact "appropriate legislation" to enforce the Fifteenth Amendment. (The enforcement provisions of the Fourteenth and Fifteenth Amendments are essentially identical in language.) You can find coverage of yesterday's filing here.
More on political questions
Just to put a little more flesh around the bones of the political questions doctrine, consider the following political questions decisions:
* In Nixon v. United States (involving a district court judge, not the President), the Supreme Court held that the judge's challenge to the procedure adopted by the Senate for trying his impeachment (where not all Senators were present for all aspects of the trial) presented a political question. (Here, the Court emphasized the "textual commitment" criterion.)
* In Goldwater v. Carter, an individual challenged the President's unilateral withdrawal of the U.S. from a treaty with Taiwan. (The treaty had been previously ratified by the Senate, as required for all binding treaties.) The contention was that the President also needed the assent of the Senate before dissolving a treaty. The Court held that whether the Constitution requires such assent presented a political question.
* As I mentioned last night, in a case that challenged the legality of the Clinton administration's commitment of U.S. troops to the former Yugoslavia, the lower federal courts held the case presented a political question. (There was also a problem with standing.)
Obviously, the doctrine is fairly malleable and amorphous. To be sure, the six factors identified in Baker v. Carr are relevant. But those factors hardly identify which cases will be judged to present political questions with any degree of certainty. It is important to keep in mind that very, very few cases are judged to present nonjusticiable political questions. Indeed, we can basically count on our hands all of the cases in which the Supreme Court has reached such a result.
* In Nixon v. United States (involving a district court judge, not the President), the Supreme Court held that the judge's challenge to the procedure adopted by the Senate for trying his impeachment (where not all Senators were present for all aspects of the trial) presented a political question. (Here, the Court emphasized the "textual commitment" criterion.)
* In Goldwater v. Carter, an individual challenged the President's unilateral withdrawal of the U.S. from a treaty with Taiwan. (The treaty had been previously ratified by the Senate, as required for all binding treaties.) The contention was that the President also needed the assent of the Senate before dissolving a treaty. The Court held that whether the Constitution requires such assent presented a political question.
* As I mentioned last night, in a case that challenged the legality of the Clinton administration's commitment of U.S. troops to the former Yugoslavia, the lower federal courts held the case presented a political question. (There was also a problem with standing.)
Obviously, the doctrine is fairly malleable and amorphous. To be sure, the six factors identified in Baker v. Carr are relevant. But those factors hardly identify which cases will be judged to present political questions with any degree of certainty. It is important to keep in mind that very, very few cases are judged to present nonjusticiable political questions. Indeed, we can basically count on our hands all of the cases in which the Supreme Court has reached such a result.
Assignment for Wednesday
The reading assignment for Wednesday evening's class (September 10) is that on the original assignment schedule for September 8. We will begin our section on the powers of Congress: the basic framework and an introduction to the Commerce Clause (pp. 99–112 and 136–142 of the casebook). The assignment for next Monday's class is that set out on the original assignment schedule for September 10 (Lopez and Raich, as well as Problem 4). Thanks.
Thursday, September 4, 2008
Problem 3
When we cover Problem 3 in class on Monday, I want to focus our discussion on three distinct questions:
1. To what degree is there a gap between the law in theory and the law in fact? And if there is such a gap (or at least the potential for such a gap), how might that affect the Supreme Court's decision making? (Think here a bit about Marbury and Cohens, as well as the widespread reaction in the South to the Supreme Court's 2000 decision in Santa Fe.)
2. Is the Supreme Court's interpretation of the Constitution -- that is, the Court's rationale for its decisions and constructions of constitutional meaning -- the "supreme law of the land" as the Court seems to assert in Cooper v. Aaron? Or does each department of the government have the authority to interpret the Constitution for itself? In other words, was President Lincoln correct that, although he was obliged to comply with Dred Scott with respect to the parties in that case, he was not obliged to accept the Supreme Court's holding that Congress lacks the authority to regulate slavery in the territories?
3. Is it ever appropriate for actors -- and specifically the President -- simply to defy a order of the federal judiciary because he believes it is necessary to the preservation of the nation? If so, why? And how can this be squared with "the rule of law"?
Thanks, and have a great weekend.
1. To what degree is there a gap between the law in theory and the law in fact? And if there is such a gap (or at least the potential for such a gap), how might that affect the Supreme Court's decision making? (Think here a bit about Marbury and Cohens, as well as the widespread reaction in the South to the Supreme Court's 2000 decision in Santa Fe.)
2. Is the Supreme Court's interpretation of the Constitution -- that is, the Court's rationale for its decisions and constructions of constitutional meaning -- the "supreme law of the land" as the Court seems to assert in Cooper v. Aaron? Or does each department of the government have the authority to interpret the Constitution for itself? In other words, was President Lincoln correct that, although he was obliged to comply with Dred Scott with respect to the parties in that case, he was not obliged to accept the Supreme Court's holding that Congress lacks the authority to regulate slavery in the territories?
3. Is it ever appropriate for actors -- and specifically the President -- simply to defy a order of the federal judiciary because he believes it is necessary to the preservation of the nation? If so, why? And how can this be squared with "the rule of law"?
Thanks, and have a great weekend.
Next week's assignments
Given where we finished last night, we will not get to all of the material originally assigned for Monday (Sept. 8). Instead, we will cover political questions (Baker v. Carr and Vieth), the principle of constitutional avoidance (Ashwander), and the practical limitations on the judiciary's authority (supplemental readings and Problem 3), and we will begin (but perhaps not finish) our discussion of McCulloch v. Maryland. Thus, the material on the commerce power will be pushed to Wednesday. For now, the reading assignment for Wednesday (Sept. 10) remains the same, though it is unlikely that we will get to Problem 4 until the following week. Of course, I will know more once we finish class on Monday. It is possible we will defer our discussion of Gonzales v. Raich as well.
Thanks for all of the questions and vigorous discussion last night. I really enjoyed it.
Thanks for all of the questions and vigorous discussion last night. I really enjoyed it.
Monday, September 1, 2008
Even more on Plaut
Another great student question on Plaut, this time in my e-mail in box.
Question: After initially reading Plaut, I asked the question, "Why is this in the Advisory Opinion section?" I think I realize why now, but wanted to confirm that with you. The following is part of Scalia's opinion in Plaut: "Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the court said it was." This statement appears to me to be grounded in two ideas. First, there is a separation of powers between the Legislative and Judicial branch. More importantly, and directly related to the concept of Justiciability, a process which would allow Congress to alter interpretations of decided Supreme Court cases would abolish all notion of the court's prohibition against advisory opinions and in effect create the possibility that all Supreme Court decision making is subject to further Congressional scrutiny. This doesn't mean that a Congress cannot act to create new laws to avoid a Supreme Court ruling, but they cannot alter laws to re-open final judgments. The authority to pass final judgment on a case is vested in the Supreme Court only . . . and not in Congress. Is this an accurate summary?
Answer: I think that is a terrific summary. On reflection, I think Plaut sits at the confluence of United States v. Klein and Hayburn's Case, and for precisely the reasons you state. It is like Klein in the sense that it involves a fundamental, separation of powers limitation on Congress's ability to regulate the federal courts. Courts adjudicate cases, and Congress cannot interfere with this essential function of the federal judiciary. But it also is like Hayburn's Case in the sense that, were Congress able to unwind final federal court judgments, those "final" judgments would effectively be subject to review by another branch (just as the judicial pronouncements in Hayburn's Case were reviewable by the Executive Branch). In essence, as you say, it would render every judicial ruling, at least potentially, an advisory opinion.
Question: After initially reading Plaut, I asked the question, "Why is this in the Advisory Opinion section?" I think I realize why now, but wanted to confirm that with you. The following is part of Scalia's opinion in Plaut: "Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the court said it was." This statement appears to me to be grounded in two ideas. First, there is a separation of powers between the Legislative and Judicial branch. More importantly, and directly related to the concept of Justiciability, a process which would allow Congress to alter interpretations of decided Supreme Court cases would abolish all notion of the court's prohibition against advisory opinions and in effect create the possibility that all Supreme Court decision making is subject to further Congressional scrutiny. This doesn't mean that a Congress cannot act to create new laws to avoid a Supreme Court ruling, but they cannot alter laws to re-open final judgments. The authority to pass final judgment on a case is vested in the Supreme Court only . . . and not in Congress. Is this an accurate summary?
Answer: I think that is a terrific summary. On reflection, I think Plaut sits at the confluence of United States v. Klein and Hayburn's Case, and for precisely the reasons you state. It is like Klein in the sense that it involves a fundamental, separation of powers limitation on Congress's ability to regulate the federal courts. Courts adjudicate cases, and Congress cannot interfere with this essential function of the federal judiciary. But it also is like Hayburn's Case in the sense that, were Congress able to unwind final federal court judgments, those "final" judgments would effectively be subject to review by another branch (just as the judicial pronouncements in Hayburn's Case were reviewable by the Executive Branch). In essence, as you say, it would render every judicial ruling, at least potentially, an advisory opinion.
Subscribe to:
Posts (Atom)