Wednesday, May 20, 2009
Diane Wood in D.C.
According to this report from Jan Crawford Greenburg, Judge Diane P. Wood of the United States Court of Appeals for the Seventh Circuit made an unexpected trip today to Washington, D.C. Under the circumstances, it is not hard to come up with some plausible reasons for the visit. Most observers seem to think the President is likely to announce the nomination next week.
Thursday, May 14, 2009
Chadha
QUESTION: I think I understand that Congress can delegate its legislative power to executive and administrative agencies, but cannot subsequently retract it (Such a “legislative veto” is unconstitutional. INS v. Chadha). We also talked about the exceptional conditions in which just one house can act alone (impeachments, presidential elections, treaty ratification, etc.). What I’m not sure of is what exactly Congress as a whole CAN veto?
ANSWER: What matters is not whether Congress's action might be characterized as a "veto" -- a rejection of administration policy. What matters is whether Congress, when it acts to affect the rights and responsibilities of persons outside the legislative branch, has followed all of the requirements of the lawmaking process set out in Article I. That was the real (and only) problem in Chadha.
ANSWER: What matters is not whether Congress's action might be characterized as a "veto" -- a rejection of administration policy. What matters is whether Congress, when it acts to affect the rights and responsibilities of persons outside the legislative branch, has followed all of the requirements of the lawmaking process set out in Article I. That was the real (and only) problem in Chadha.
Wednesday, May 13, 2009
Substantive due process
QUESTION: I am having trouble separating the controversy surrounding the incorporation of the Bill of Rights from the doctrine of substantive due process. Is it correct to say that substantive due process arose from a belief that there are rights "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" that were not included in the Bill of Rights, and therefore couldn't be incorporated?
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).
ANSWER: Not quite. First, the first substantive right to be adjudged by the Supreme Court to be protected by the Due Process Clause was the right to "just compensation" protected by the Fifth Amendment. Thus, at its outset, substantive due process arose because of incorporation. Second, I would agree that the Court came to believe that certain rights that are "implicit in a scheme of ordered liberty" and "basic in our system of jurisprudence" are not set out in the first eight amendments to the Constitution. And if that is case -- and the Court had already set these as the standard for what due process means -- that leads to the protection of some unenumerated rights. That explains why the Court has come to protect certain rights are "fundamental" and constitutionally protected even though they do not appear in the Constitution. But unenumerated and substantive are different ideas. It is true that many (perhaps all) of these unenumerated rights are substantive. But that need not have been the case.
QUESTION: I am also trying to figure out how West Coast Hotel/Lee Optical overrule Lochner - it seems that they are recognizing that state governments are not free to intermeddle with individual's economic activities at their whim, but hold that rational basis scrutiny rather than strict scrutiny is appropriate for determining if the interference with economic activity is valid. Is this close? Any clarification would be greatly appreciated.
ANSWER: Well yes, that is true. Those decisions move the level of review from something approaching strict scrutiny to something approaching nonexistent (rational basis) review for ordinary economic legislation under the Due Process Clause. To me, that is a 180-degree turn. The difference between the aggressive form of judicial review in Lochner, and the all-you-need-is-some-hypotetically-plausibly-rational-basis review of Lee Optical is that between night and day. And that is why I think it is fair to say that the later decisions effectively overruled Lochner (though they did not do so explicitly).
Groupwise seems to be down
I cannot get into my Groupwise account, either via the regular client or through the web portal. I apologize if you have a question waiting in my in-box. I will keep trying throughout the evening. Once I can access my e-mail, I will post my answers here.
Preemption
QUESTION: I noticed on your 2001 practice exam in the question about a federal voting regulation where Congress was imposing a nationwide standard, that preemption wasn't an issue. I'm having trouble seeing where it is or isn't an issue. Does preemption only come into play in terms of commercial regulation rather than something like voting?
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
ANSWER: No. Preemption has nothing to do with the particular subject matter at issue. It is relevant when a party invokes state law, and the defendant claims that the state law is invalid or inapplicable because it is preempted (it conflicts with a validly enacted federal law). I'm not remembering exactly the facts of the hypo you reference, but my guess is that no one was invoking a state law, thus preemption was beside the point.
Lopez and aggregate effects
QUESTION: Under the substantial affects prong of Lopez, if the activity examined is neither economic or commercial, can we still examine it in the aggregate or must be examine it as an individual instance?
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
ANSWER: The Court says, in Lopez or Morrison (I forget which) (and I'm paraphrasing): "We have never upheld the regulation of an intrastate, noncommercial activity based on its aggregate effects on interstate commerce." That is obliquely worded. It is not saying conclusively that such effects can never be aggregated. But it is also the most logical inference, perhaps with a small escape hatch.
Raich
QUESTION: I cannot see how Raich helps our analysis under the Commerce Clause discussion. Unless we assume that noncommercial, intrastate activities can be aggregated to substantially affect interstate commerce, it appears to be relatively similar to Lopez and Morrison. Can you help?
ANSWER: I will try. The statute challenged in Raich was the Controlled Substances Act, which Angel Raich conceded regulated an interstate commercial market. Thus, it is the CSA which we, as a first tier matter, subject to the Lopez test. Doing so, we conclude that, because it regulates a commercial activity, it fits within the third category. Angel Riach argued, though, that Congress was under an obligation to except her activity from the coverage of the CSA because her activity was noncommercial and purely intrastate. The Court said no. The Court did NOT say that her noncommercial, intrastate activity could be aggregatged, and thus it had (as a class) a substantial effect on interstate commerce. Instead, the Court held that the CSA was regulating commercial activity, and Congress need not create an exception to such valid regulation (for intrastate noncommerical instances of the regulated activity) when it has a reasonable basis for concluding that such an exception will undermine the broader regulatory program (i.e., the CSA). In this way, Angel Raich's specific activity was not what Congress targeted, unlike Rodrigo Lopez's possession of a gun of a school zone. In Raich, the regulated activity was the distribution of narcotics, and this makes the doctrinal analysis different.
ANSWER: I will try. The statute challenged in Raich was the Controlled Substances Act, which Angel Raich conceded regulated an interstate commercial market. Thus, it is the CSA which we, as a first tier matter, subject to the Lopez test. Doing so, we conclude that, because it regulates a commercial activity, it fits within the third category. Angel Riach argued, though, that Congress was under an obligation to except her activity from the coverage of the CSA because her activity was noncommercial and purely intrastate. The Court said no. The Court did NOT say that her noncommercial, intrastate activity could be aggregatged, and thus it had (as a class) a substantial effect on interstate commerce. Instead, the Court held that the CSA was regulating commercial activity, and Congress need not create an exception to such valid regulation (for intrastate noncommerical instances of the regulated activity) when it has a reasonable basis for concluding that such an exception will undermine the broader regulatory program (i.e., the CSA). In this way, Angel Raich's specific activity was not what Congress targeted, unlike Rodrigo Lopez's possession of a gun of a school zone. In Raich, the regulated activity was the distribution of narcotics, and this makes the doctrinal analysis different.
Article IV, section 2 "fundamentalness"
QUESTION: Art. 4., section 2 protects states from infringing on fundamental rights. It is my understanding that these are very narrow: right to travel, right to pursue common calling or vocation etc. My question is are the fundamental rights that are derived from substantive due process, like the right to marriage or right to privacy, protected as well by Art. 4.2?
ANSWER: Two response. First, I don't think the list of rights considered "fundamental" for purposes of Article IV, section 2 is all that narrow. It includes, for instance, the right to pursue a common calling, the right to own and dispose of property, the right of access to the courts, and a host of other things thought "important to the unity of the nation." Second, I would say probably, yes, to your second question, as that category is so much smaller. There are not that many rights that are so important -- "implicit in any scheme of ordered liberty" -- as to be "fundamental" as a matter of due process. Thus, it is likely true (though I'm not certain) that those rights that are fundamental under the Due Process Clause would also be considered a "privilege" or "immunity" for purposes of Article IV.
ANSWER: Two response. First, I don't think the list of rights considered "fundamental" for purposes of Article IV, section 2 is all that narrow. It includes, for instance, the right to pursue a common calling, the right to own and dispose of property, the right of access to the courts, and a host of other things thought "important to the unity of the nation." Second, I would say probably, yes, to your second question, as that category is so much smaller. There are not that many rights that are so important -- "implicit in any scheme of ordered liberty" -- as to be "fundamental" as a matter of due process. Thus, it is likely true (though I'm not certain) that those rights that are fundamental under the Due Process Clause would also be considered a "privilege" or "immunity" for purposes of Article IV.
Tiers of scrutiny
QUESTION: Carolene Products and Lee Optical = rational basis/ deferential reivew
ANSWER: I agree.
QUESTION: Griswold= strict scrutiny
ANSWER: Agreed.
QUESTION: Roe= Strict scrutiny
ANSWER: Agreed.
QUESTION: Casey= intermediate scrutiny (it seems that the court is rejecting the use of strict scrutiny for abortion cases in favor of an "undue burden" analysis which i am guessing is some form of intermediate scrutiny)
ANSWER: I would say Casey just does not really plot on this graph. It is different. The "undue burden" standard, in a sense, is a specific translation of the protection of the woman's fundamental right in light of the state's legitimate (and perhaps more than that) interest in the fetus. I'm not sure we can say much more than that in terms of where it "fits."
QUESTION: Also, in regards to footnote 4 in Carolene Products, does Stone mean that in those three situations (the right is enumerated, effects political process, aimed at discrete/insular minorities) that strict scrutiny should be used instead of deferential review or was he merely saying that something more then deferential review should be used w/o actually specifying what standard should be used instead?
QUESTION: Also, in regards to footnote 4 in Carolene Products, does Stone mean that in those three situations (the right is enumerated, effects political process, aimed at discrete/insular minorities) that strict scrutiny should be used instead of deferential review or was he merely saying that something more then deferential review should be used w/o actually specifying what standard should be used instead?
ANSWER: Given that this was purely dicta, he was not getting so specific. I think he was generally suggesting that, in these circumstances, some level of more aggressive judicial review, something certainly more than rational basis, may be appropriate. But, given the context, he had no reason to be any more detailed than this.
Dormant commerce clause
QUESTION: My understanding is that regardless of the nature of the law in question (facially discriminatory, discriminatory in purpose or effect), it is subject to a Pike balancing/undue burden test.
ANSWER: I don't think that is right. If the law discriminates against interstate commerce, then it is subject to the far more rigorous "heightened scrutiny" standard. Because this is far more demanding than the "undue burden" test, I don't think there is any need to subject a discriminatory law to the Pike test as well. If it passes the very strict test for discriminatory laws, it will (by definition) pass the less demanding test.
QUESTION: In regards to facially discriminatory laws, the level of inquiry is high, at strict scrutiny, which in turn creates the notion of "virtually invalid per se." In cases involving a law which is discriminatory in purpose or effect, the Pike balancing test is much more deferential, with a lower level of scrutiny. Is my rudimentary understanding at least partially on track?
ANSWER: Just to be clear, the "heightened scrutiny" test (non-protectionist interest, no other nondiscriminatory means) applies to ALL state or local laws that discriminate against interstate commerce, regardless of whether that discrimination is facial, in purpose, or in effect. The Pike test is essentially the lesser, less rigorous standard applicable to laws that do not discriminate against interstate commerce but nonetheless impose burdens on interstate commerce.
State vs. local governments
QUESTION: I realize this is kind of a broad question at this point, but to what extent (if any) does constitutionality differ between local (e.g., county or city) regulation and state regulation? In considering all the topics we’ve talked about this semester, are there any constitutional variances on how local issues are dealt with compared to state issues?
ANSWER: No. For purposes of what we studied this semester (and for virtually all of federal constitutional law), there is no difference between state, city, or municipal governments. They are all considered political subdivisions of the states. (The Camden case is probably the best on this point, of what we studied.) There is a small difference under the Eleventh Amendment, but that is outside the scope of our course.
ANSWER: No. For purposes of what we studied this semester (and for virtually all of federal constitutional law), there is no difference between state, city, or municipal governments. They are all considered political subdivisions of the states. (The Camden case is probably the best on this point, of what we studied.) There is a small difference under the Eleventh Amendment, but that is outside the scope of our course.
Monday, May 4, 2009
Enumerated powers
QUESTION: I'm getting confused when trying to justify congressional authority on some power other than commerce, spending, or tax. Would I turn to the necessary and proper clause or section 5 of the 14th Amendment or something else? Basically, I'm fuzzy on how to explain congressional authority when the statute has nothing to do with money.
ANSWER: A couple of response. First, much of what Congress can regulate using its commerce power need not concern money, at least directly. Recall Wickard v. Filburn. Or Gonzales v. Raich. Even the Civil Rights Act cases from the 1960s -- Heart of Atlanta Motel and McClung -- were not really about money, but instead racial discrimination. Second, yes, if the three powers you mention cannot justify the legislation, we have to look elsewhere, such as Section 5 or the treaty power (or the postal roads power or whatever). Just to be clear, though: the Necessary and Proper Clause is not a "power" by itself. It is about means, not ends. So it can never be invoked by Congress standing alone. Instead, it permits Congress wide latitude in selecting appropriate means once it is resolved that the objective is within Congress's enumerated powers.
ANSWER: A couple of response. First, much of what Congress can regulate using its commerce power need not concern money, at least directly. Recall Wickard v. Filburn. Or Gonzales v. Raich. Even the Civil Rights Act cases from the 1960s -- Heart of Atlanta Motel and McClung -- were not really about money, but instead racial discrimination. Second, yes, if the three powers you mention cannot justify the legislation, we have to look elsewhere, such as Section 5 or the treaty power (or the postal roads power or whatever). Just to be clear, though: the Necessary and Proper Clause is not a "power" by itself. It is about means, not ends. So it can never be invoked by Congress standing alone. Instead, it permits Congress wide latitude in selecting appropriate means once it is resolved that the objective is within Congress's enumerated powers.
Friday, May 1, 2009
Privileges and/or immunities
More from my inbox:
QUESTION: I am having some trouble understanding the difference between the P&I clause in the 14th amendment and the Art. 4 Sec. 2 P&I clause. My understanding is that Art. 4 P&I is a limit on states ability to regulate in a way that discriminates on the basis of state residency, but that it only protects certain P&I like the right to common calling/vocation, access to courts/medical care, right to travel etc. My question, is why do the plaintiffs in the Slaughter House cases challenge the monopoly law under the 14th amendment P&I clause? If the Art. 4 clause applies to states, and one of the fundamental P&I it protects is common calling/vocation, then why do they even bother trying to invalidate the law through the 14th amendment?
ANSWER: In short, the plaintiffs in Slaughter-House -- butchers who were forced to use the Crescent City Livestock slaughter-house -- were Louisiana residents. They had no basis for claiming that they had been discriminated against due to their state of residence. And it is only that sort of discrimination that is the concern of the Privileges and Immunities Clause of Article IV, section 2.
QUESTION: I have similar confusion about the Saenz case. Why did the court use the 14th amendment P&I clause to knock down the state law when the right to travel is protected by the Art. 4 P&I clause? Why didn’t they simply invalidate the law using the Art. 4 P&I clause?
ANSWER: Those are different aspects of the right to travel. The one at issue in Saenz concerned the right of interstate migration, the right to move from one state to another and become a resident of that second state. The aspect of the right to travel protected by Article IV, section 2 is the right, as a non-resident, to visit another state and generally to be treated equally. Because the plaintiffs in Saenz were California residents, Article IV, section 2 was simply irrelevant.
QUESTION: In the Slaughter-House decision there is some line about how the 14th amendment P&I clause “was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.” Wasn’t the entire purpose of the 14th amendment to protect people from states? Isn’t the court in Saenz using 14th amendments P&I clause as a basis for invalidating the CA law?
ANSWER: Well, I think that line is a bit of an overstatement. Even the majority in Slaughter-House would have agreed that the Privileges or Immunities Clause of the Fourteenth Amendment is a constitutional restriction on how states treat their own citizens. But they construed it as applying to a very small, relatively insignificant batch of rights. One, though, was the right to interstate migration, and this was the right vindicated in Saenz.
QUESTION: I am having some trouble understanding the difference between the P&I clause in the 14th amendment and the Art. 4 Sec. 2 P&I clause. My understanding is that Art. 4 P&I is a limit on states ability to regulate in a way that discriminates on the basis of state residency, but that it only protects certain P&I like the right to common calling/vocation, access to courts/medical care, right to travel etc. My question, is why do the plaintiffs in the Slaughter House cases challenge the monopoly law under the 14th amendment P&I clause? If the Art. 4 clause applies to states, and one of the fundamental P&I it protects is common calling/vocation, then why do they even bother trying to invalidate the law through the 14th amendment?
ANSWER: In short, the plaintiffs in Slaughter-House -- butchers who were forced to use the Crescent City Livestock slaughter-house -- were Louisiana residents. They had no basis for claiming that they had been discriminated against due to their state of residence. And it is only that sort of discrimination that is the concern of the Privileges and Immunities Clause of Article IV, section 2.
QUESTION: I have similar confusion about the Saenz case. Why did the court use the 14th amendment P&I clause to knock down the state law when the right to travel is protected by the Art. 4 P&I clause? Why didn’t they simply invalidate the law using the Art. 4 P&I clause?
ANSWER: Those are different aspects of the right to travel. The one at issue in Saenz concerned the right of interstate migration, the right to move from one state to another and become a resident of that second state. The aspect of the right to travel protected by Article IV, section 2 is the right, as a non-resident, to visit another state and generally to be treated equally. Because the plaintiffs in Saenz were California residents, Article IV, section 2 was simply irrelevant.
QUESTION: In the Slaughter-House decision there is some line about how the 14th amendment P&I clause “was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.” Wasn’t the entire purpose of the 14th amendment to protect people from states? Isn’t the court in Saenz using 14th amendments P&I clause as a basis for invalidating the CA law?
ANSWER: Well, I think that line is a bit of an overstatement. Even the majority in Slaughter-House would have agreed that the Privileges or Immunities Clause of the Fourteenth Amendment is a constitutional restriction on how states treat their own citizens. But they construed it as applying to a very small, relatively insignificant batch of rights. One, though, was the right to interstate migration, and this was the right vindicated in Saenz.
Levels of scrutiny
Several questions in my inbox concerning the applicable levels of judicial scrutiny in particular contexts:
QUESTION: I had a few questions on the level of scrutiny used for Dormant commerce clause and also for enumerated rights. First, the dormant Commerce Clause, for facially discriminatory laws: The language of substantial interest with no reasonable alternative sounds a lot like the intermediate scrutiny of Article IV except that "no reasonable alternative" sounds more demanding than "substantially related to." If anything that sounds a lot like strict scrutiny's necessary, is it a hybrid of the two or is it pretty much intermediate scrutiny?
ANSWER: I would characterize it as a sort of hybrid, tailored to the underlying purposes of the clause. The requirement is (a) a legitimate (i.e., non-protectionist) purpose, and (b) means that are necessary (i.e., no nondiscriminatory alternatives) to achieve that interest. The applicable scrutiny is "strict" in a sense, but only with respect to the means-ends fit, not the importance of the state objective.
QUESTION: For Neutral with Undue Burden under the dormant Commerce Clause: "legitimate interest" seems to imply deferential scrutiny but the Pike balancing is much more strict than a "rational basis" for the law.
ANSWER: I'm not sure I agree. I would characterize the Pike test as fairly deferential.
QUESTION: Is the "legitimate interest" portion really the same interest as deferential scrutiny?
ANSWER: I think it is the same as that for discriminatory state laws. The purpose the law serves, in this context, must be something other than economic protectionism.
QUESTION: Are all currently incorporated enumerated rights given strict scrutiny? What about non incorporated enumerated rights when it is a federal law that's at issue?
ANSWER: This is complicated. With respect to specifically incorporated rights appearing in the first eight amendments (such as the right to counsel, the right to confront witnesses, or the right to be free from unreasonable searches or seizures), the Court has worked out clause- or right-specific doctrines. I'm not sure I would really characterize those doctrines as "strict scrutiny"; that would be painting with too broad a brush. Certainly the governmental action gets close judicial examination. But it is not the same sort of analysis as what we have seen with respect to the rights deemed "fundamental" as a matter of due process that we have studied, where the Court asks whether the government's interest is compelling and whether the means are narrowly tailored. Perhaps it is strict scrutiny in some sense, but it is translated into a particular doctrinal context, such that the constitutional analysis proceeds differently. You will see this in great detail if you take criminal procedure. And you will see it next fall with respect to the First Amendment.
QUESTION: I had a few questions on the level of scrutiny used for Dormant commerce clause and also for enumerated rights. First, the dormant Commerce Clause, for facially discriminatory laws: The language of substantial interest with no reasonable alternative sounds a lot like the intermediate scrutiny of Article IV except that "no reasonable alternative" sounds more demanding than "substantially related to." If anything that sounds a lot like strict scrutiny's necessary, is it a hybrid of the two or is it pretty much intermediate scrutiny?
ANSWER: I would characterize it as a sort of hybrid, tailored to the underlying purposes of the clause. The requirement is (a) a legitimate (i.e., non-protectionist) purpose, and (b) means that are necessary (i.e., no nondiscriminatory alternatives) to achieve that interest. The applicable scrutiny is "strict" in a sense, but only with respect to the means-ends fit, not the importance of the state objective.
QUESTION: For Neutral with Undue Burden under the dormant Commerce Clause: "legitimate interest" seems to imply deferential scrutiny but the Pike balancing is much more strict than a "rational basis" for the law.
ANSWER: I'm not sure I agree. I would characterize the Pike test as fairly deferential.
QUESTION: Is the "legitimate interest" portion really the same interest as deferential scrutiny?
ANSWER: I think it is the same as that for discriminatory state laws. The purpose the law serves, in this context, must be something other than economic protectionism.
QUESTION: Are all currently incorporated enumerated rights given strict scrutiny? What about non incorporated enumerated rights when it is a federal law that's at issue?
ANSWER: This is complicated. With respect to specifically incorporated rights appearing in the first eight amendments (such as the right to counsel, the right to confront witnesses, or the right to be free from unreasonable searches or seizures), the Court has worked out clause- or right-specific doctrines. I'm not sure I would really characterize those doctrines as "strict scrutiny"; that would be painting with too broad a brush. Certainly the governmental action gets close judicial examination. But it is not the same sort of analysis as what we have seen with respect to the rights deemed "fundamental" as a matter of due process that we have studied, where the Court asks whether the government's interest is compelling and whether the means are narrowly tailored. Perhaps it is strict scrutiny in some sense, but it is translated into a particular doctrinal context, such that the constitutional analysis proceeds differently. You will see this in great detail if you take criminal procedure. And you will see it next fall with respect to the First Amendment.
My availability between now and the final exam
Here is a schedule of when I will be holding office hours (and having a review session) over the next two weeks:
Monday, May 4: office hours from 11:00 to 1:00.
Tuesday, May 5: office hours from noon to 2:00.
Tuesday, May 12: office hours from 9:30 to noon, review session from 1:00 to 3:30.
Wednesday, May 13: office hours from 9:15 to 11:15.
I might be free at a few other times, but this is what I can commit to for the time being. Also, I am happy to field questions by e-mail. Those of a general interest I will answer on the course blog.
Monday, May 4: office hours from 11:00 to 1:00.
Tuesday, May 5: office hours from noon to 2:00.
Tuesday, May 12: office hours from 9:30 to noon, review session from 1:00 to 3:30.
Wednesday, May 13: office hours from 9:15 to 11:15.
I might be free at a few other times, but this is what I can commit to for the time being. Also, I am happy to field questions by e-mail. Those of a general interest I will answer on the course blog.
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