Here is a schedule of when I will be holding additional office hours and a review session in the week leading up to our final exam.
Tuesday, December 2: office hours 10:30-2:30
Wednesday, December 3: office hours 10:30-2:30
Sunday, December 7: review session, 3:00, Room 142
Monday, December 8: office hours, noon-4:30
I generally do not make individual appointments for office hours, but instead speak with students as they come to my office. If several students arrive at the same time, I will move our discussion to a table in Benson, where a group can participate together. (I will leave a note on my office door if I do so.)
The review session, of course, is purely optional. I will not present any material, but instead merely answer questions in a group setting.
And I am sure you all realize this, but the purpose of my answering questions at this point in the course is to clarify issues that you have been unable to resolve on your own. That is, I am here to help you after you have tried to answer the questions yourselves. My job is to offer a framework, to organize the material, and to provide you with the tools for comprehension. But the work of learning is on you. To state it in more crass terms, something like "Can you just go over the dormant Commerce Clause again?" is a question I will not answer.
Again, I am sure you know this already, but a gentle reminder is sometimes helpful. Thanks.
Thursday, November 20, 2008
Tuesday, November 18, 2008
We will have class next Wednesday
I know this will come as a disappointment to many of you, but our class will meet next Wednesday, November 26 (even though the civil procedure class is canceled). There are a variety of reasons for this, but at bottom (1) I feel an obligation to cover the material set out in the syllabus, as this is what you will all be expected to have mastered entering con law II, and (2) given your various schedules, it would be impossible to schedule a different time to make up the class. As I said on the first day of class, I understand when students choose to spend their time elsewhere (or, perhaps more accurately, I try not to be judgmental about it). So if you fell like you would rather be someplace else, that is your prerogative. At the same time, you all are paying an awful lot of money to be here. And I feel a strong professional obligation to hold up the school's end of the bargain.
Remaining reading assignments
The following sets out what we are likely to cover in our remaining class meetings, respectively.
Wednesday, November 19: the right to privacy and Roe v. Wade (pp. 850-868).
Monday, November 24: Planned Parenthood v. Casey, the government funding of abortion services, and (perhaps only start) Lawrence v. Texas (pp. 867-878, 897-901, 891-895, 920-932).
Wednesday, November 26: Lawrence v. Texas and the right to marry (pp. 821-827).
Wednesday, November 19: the right to privacy and Roe v. Wade (pp. 850-868).
Monday, November 24: Planned Parenthood v. Casey, the government funding of abortion services, and (perhaps only start) Lawrence v. Texas (pp. 867-878, 897-901, 891-895, 920-932).
Wednesday, November 26: Lawrence v. Texas and the right to marry (pp. 821-827).
Monday, November 17, 2008
Notes and the final exam
I will have a longer post addressing procedural questions concerning the final exam within the next week. But I thought I should address this one now.
QUESTION: I was wondering whether students will have access to their notes in the computer during the exam? In the past, I've taken an exam on examsoft, where access to my notes on the computer remained available (Professor Neustadler's Contract Exam). If possible, I would like that option available. Thank you very much for your consideration.
ANSWER: You are welcome for the consideration. But you are going to be disappointed with my answer, which is no. The short of it is that I am inherently conservative in tinkering with exam procedures, so my strong presumption is in favor keeping things the same. My underlying substantive concern with opening up laptops for such access is that it rewards students who (a) stuff exorbitant amounts of material on their hard drives, and (b) are able to access that material through various searches during the exam. And I am thinking not just about what is actually fair, but also various perceptions of fairness.
Thus, the answer is no. I will maintain the default setting in examsoft, which means you will not be able to access anything on your hard drive. The exam is completely open book. But if you want access to something, you need to bring it to the exam in a hard copy.
QUESTION: I was wondering whether students will have access to their notes in the computer during the exam? In the past, I've taken an exam on examsoft, where access to my notes on the computer remained available (Professor Neustadler's Contract Exam). If possible, I would like that option available. Thank you very much for your consideration.
ANSWER: You are welcome for the consideration. But you are going to be disappointed with my answer, which is no. The short of it is that I am inherently conservative in tinkering with exam procedures, so my strong presumption is in favor keeping things the same. My underlying substantive concern with opening up laptops for such access is that it rewards students who (a) stuff exorbitant amounts of material on their hard drives, and (b) are able to access that material through various searches during the exam. And I am thinking not just about what is actually fair, but also various perceptions of fairness.
Thus, the answer is no. I will maintain the default setting in examsoft, which means you will not be able to access anything on your hard drive. The exam is completely open book. But if you want access to something, you need to bring it to the exam in a hard copy.
More on Carolene Products
Some good questions about Carolene Products:
QUESTION: The Filled Milk Act was an act of Congress that I presume was enacted pursuant to the Commerce Clause. Forgoing the first two basis for interstate regulation we'll assume that interstate commerce of the product ("Milnut") has a substantial relation to interstate commerce and the basis for the action by Congress falls within its powers. What is unclear, but I presume, is that Carolene Products challenged the statute because the act amounted to a deprivation of its property.
ANSWER: I think that is essentially correct. More specifically, it might have phrased the claim as the law infringing on its fundamental right to contract -- to sell its product (which it believed was perfectly safe) to willing buyers. This is the potential contract that was forbidden.
QUESTION: Since the action is Congress' then the 5th Amendment is the proper recourse to challenge the deprivation. Is it correct to understand that Carolene Products is asserting the right at issue (the right to manufacture and ship "Milnut") is a "substantive due process right" or an "economic liberty." I am at a loss to define what either term really means.
ANSWER: Essentially, yes. It was a substantive right to economic liberty which the Court had previously recognized as a fundamental right under the Due Process Clause (in both the Fifth and Fourteenth Amendments). I'm not sure we can get too far into the exact contours of that right, as it would require delving into hundreds of cases decided between 1880 and 1937. But the basic idea was that, absent a "legitimate public concern" -- a clear health, safety, or morals interest -- the government was prohibited from interfering with willing buyers and sellers in the economic marketplace. Hence, no minimum wage, maximum hour, pro-union legislation or the like. Carolene Products likely would have prevailed on its claim during the Lochner era because the safety rationale for the legislation looked pretty weak, and the Filled Milk Act likely was meant to protect regular milk producers from competition.
QUESTION: We've seen examples of economic rights tied to minimum wage standards (West Coast Hotel) maximum work weeks (Lochner), prohibition on the manufacture or sales of a product (Carolene) and prohibitions for the sales of services without a prescription (Lee Optical). Are challenges to economic regulation which impedes my freedom to freely engage in activities for compensation (beyond the freedom to contract) necessarily challenges to substantive due process rights because they are a deprivation of property or "economic liberty"?
ANSWER: Not if the claim is that the regulation in question violates another clause, such as the Contracts Clause or the Takings Clause. But as to the cases you mention, yes, because they are substantive rights (that is, they are unrelated to the procedure by which property is being taken) that the plaintiff claims are protected by the Due Process Clause.
QUESTION: This appears to me to make the most sense. And so long as the Court construes that Congress, or a State legislature, had a rational basis (the government had a legitimate purpose and the legislation was reasonably related to that purpose) then economic regulation, which might have the affect of depriving me of income or property does NOT itself violate my substantive due process.
ANSWER: I would agree. Unless, apparently, we are talking about punitive damages. There, the Court seems to be applying something more than rational basis review.
QUESTION: The Filled Milk Act was an act of Congress that I presume was enacted pursuant to the Commerce Clause. Forgoing the first two basis for interstate regulation we'll assume that interstate commerce of the product ("Milnut") has a substantial relation to interstate commerce and the basis for the action by Congress falls within its powers. What is unclear, but I presume, is that Carolene Products challenged the statute because the act amounted to a deprivation of its property.
ANSWER: I think that is essentially correct. More specifically, it might have phrased the claim as the law infringing on its fundamental right to contract -- to sell its product (which it believed was perfectly safe) to willing buyers. This is the potential contract that was forbidden.
QUESTION: Since the action is Congress' then the 5th Amendment is the proper recourse to challenge the deprivation. Is it correct to understand that Carolene Products is asserting the right at issue (the right to manufacture and ship "Milnut") is a "substantive due process right" or an "economic liberty." I am at a loss to define what either term really means.
ANSWER: Essentially, yes. It was a substantive right to economic liberty which the Court had previously recognized as a fundamental right under the Due Process Clause (in both the Fifth and Fourteenth Amendments). I'm not sure we can get too far into the exact contours of that right, as it would require delving into hundreds of cases decided between 1880 and 1937. But the basic idea was that, absent a "legitimate public concern" -- a clear health, safety, or morals interest -- the government was prohibited from interfering with willing buyers and sellers in the economic marketplace. Hence, no minimum wage, maximum hour, pro-union legislation or the like. Carolene Products likely would have prevailed on its claim during the Lochner era because the safety rationale for the legislation looked pretty weak, and the Filled Milk Act likely was meant to protect regular milk producers from competition.
QUESTION: We've seen examples of economic rights tied to minimum wage standards (West Coast Hotel) maximum work weeks (Lochner), prohibition on the manufacture or sales of a product (Carolene) and prohibitions for the sales of services without a prescription (Lee Optical). Are challenges to economic regulation which impedes my freedom to freely engage in activities for compensation (beyond the freedom to contract) necessarily challenges to substantive due process rights because they are a deprivation of property or "economic liberty"?
ANSWER: Not if the claim is that the regulation in question violates another clause, such as the Contracts Clause or the Takings Clause. But as to the cases you mention, yes, because they are substantive rights (that is, they are unrelated to the procedure by which property is being taken) that the plaintiff claims are protected by the Due Process Clause.
QUESTION: This appears to me to make the most sense. And so long as the Court construes that Congress, or a State legislature, had a rational basis (the government had a legitimate purpose and the legislation was reasonably related to that purpose) then economic regulation, which might have the affect of depriving me of income or property does NOT itself violate my substantive due process.
ANSWER: I would agree. Unless, apparently, we are talking about punitive damages. There, the Court seems to be applying something more than rational basis review.
Could the President be held in contempt?
I received this interesting question over the weekend:
QUESTION: Earlier in the course, we discussed how the Supreme Court lacks any ability to enforce its decisions and, therefore, out of a perfectly sensible sense of self-preservation, the justices try to avoid decisions that will create a great deal of conflict with the other arms of government if possible. If the Supreme Court were to hand down a decision, and the president decided to not follow it, could the Court then hold him in contempt and, if so, could the House then impeach him for "high crimes and misdemeanors"? Obviously, this still requires the cooperation of another branch to assist the Court, but could it happen?
ANSWER: The short answer is yes, but there are a few different steps to the relevant analysis. First, could a court (any court) hold the President in contempt? The answer would seem to be yes, as the Court implied in the famous Watergate tapes case, United States v. Nixon. At issue there was whether President Nixon was required to turn over the tapes which plainly revealed that he know of the Watergate break-in and was involved in its cover-up. The Court held that a federal court could order the President to turn over the tapes, and thus implicitly held that the court could hold the President in contempt if he did not. (Whether a sitting President could actually be criminally prosecuted is a different matter, and most people believe that would be unconstitutional.)
Second, could the President be held in contempt by a court for failing to enforce a statute? Conceivably, but this seems exceedingly unlikely. Since a contempt citation against a sitting President would be largely (perhaps entirely) symbolic, there is not much difference between that and an authoritative judgment that the Executive Branch has a binding legal obligation, and he is not following it. In practical effect, they are the same thing.
Finally, could the House initiate impeachment proceedings on this basis? Absolutely. And the charge of failing to follow (or ignoring) binding federal law probably would not be any different than an actual contempt finding. Ultimately, "high crimes and misdemeanors" are "political crimes" -- crimes against the Republic and its political well being. If the President is defying the obligations of his office (or a majority of the House believes so), that is grounds for impeachment. A specific contempt citation (which a court would be unlikely to issue regardless) would mostly be besides the point. As in the Clinton saga, whether the relevant offenses warranted impeachment or removal from office would be fought out in the courts of politics and public opinion.
QUESTION: Earlier in the course, we discussed how the Supreme Court lacks any ability to enforce its decisions and, therefore, out of a perfectly sensible sense of self-preservation, the justices try to avoid decisions that will create a great deal of conflict with the other arms of government if possible. If the Supreme Court were to hand down a decision, and the president decided to not follow it, could the Court then hold him in contempt and, if so, could the House then impeach him for "high crimes and misdemeanors"? Obviously, this still requires the cooperation of another branch to assist the Court, but could it happen?
ANSWER: The short answer is yes, but there are a few different steps to the relevant analysis. First, could a court (any court) hold the President in contempt? The answer would seem to be yes, as the Court implied in the famous Watergate tapes case, United States v. Nixon. At issue there was whether President Nixon was required to turn over the tapes which plainly revealed that he know of the Watergate break-in and was involved in its cover-up. The Court held that a federal court could order the President to turn over the tapes, and thus implicitly held that the court could hold the President in contempt if he did not. (Whether a sitting President could actually be criminally prosecuted is a different matter, and most people believe that would be unconstitutional.)
Second, could the President be held in contempt by a court for failing to enforce a statute? Conceivably, but this seems exceedingly unlikely. Since a contempt citation against a sitting President would be largely (perhaps entirely) symbolic, there is not much difference between that and an authoritative judgment that the Executive Branch has a binding legal obligation, and he is not following it. In practical effect, they are the same thing.
Finally, could the House initiate impeachment proceedings on this basis? Absolutely. And the charge of failing to follow (or ignoring) binding federal law probably would not be any different than an actual contempt finding. Ultimately, "high crimes and misdemeanors" are "political crimes" -- crimes against the Republic and its political well being. If the President is defying the obligations of his office (or a majority of the House believes so), that is grounds for impeachment. A specific contempt citation (which a court would be unlikely to issue regardless) would mostly be besides the point. As in the Clinton saga, whether the relevant offenses warranted impeachment or removal from office would be fought out in the courts of politics and public opinion.
Thursday, November 13, 2008
Next week's assignments
Here is the material I think we will cover in our two class meetings next week.
Monday, November 17: finish punitive damages, the Contracts Clause, the Takings Clause, and the right to privacy (Griswold v. Connecticut). Thus, the assignment is as scheduled, except we will not get past p.856.
Wednesday, November 19: continuation of the right to privacy and the right to abortion. In addition to pp. 856-858, the assignment remains that set out in the original assignment schedule (pp. 858-878, 897-901), though it is likely we will not complete this discussion until Monday, November 24.
Thanks.
Monday, November 17: finish punitive damages, the Contracts Clause, the Takings Clause, and the right to privacy (Griswold v. Connecticut). Thus, the assignment is as scheduled, except we will not get past p.856.
Wednesday, November 19: continuation of the right to privacy and the right to abortion. In addition to pp. 856-858, the assignment remains that set out in the original assignment schedule (pp. 858-878, 897-901), though it is likely we will not complete this discussion until Monday, November 24.
Thanks.
Subscribe to:
Posts (Atom)