Legislation Course @ Moritz College of Law

Seeking feedback on final format

Congrats to all on formally completing the course.  I am hoping to keep this class blog running so that I can continue to learn from you about all sorts of stuff.  And, right now, I especially want to encourage students to provide feedback on the final format. 

From my professor-biased perspective, the combined take-home/in-class format was the best of both worlds in light of my deep concerns with traditional in-class 1L exams.  I can imagine, however, that it might seem like the worst of both worlds from a student perspective.  Thus, I am eager to read comments about the format (and only the format) while it is still fresh in your mind.  (After I grade the exams and submit the class grades, I may then seek feedback on the content of the exam.)

Thanks in advance for feedback on the format (and feel free to post anon if that makes you feel more comfortable with criticisms).

Question 1 of exam

Word Limit: 1500 words

You are an aide to a newly elected Ohio state senator, Senator I.M. Sensibal. Senator Sensibal has just heard from some irrate constituents about the Ohio Supreme Court's recent ruling in Hyle v. Porter, 117 Ohio St.3d 165, 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here).  Senator Sensibal tells you that these constituents are part of a new public policy group calling itself Parents Energized to Remove Violators of Sexuality so Our Universe is Terrific (PERVS OUT). Senator Sensibal hands you a piece of the group’s printed literature that describes Hyle v. Porter as "a horrific travesty of a judicial decision in which a bunch of activist Ohio Supreme Court justices flagrantly lied about the intent and goals of the Ohio legislature’s efforts to keep Ohio children safe from repeat pervs like Gerry Porter."

Senator Sensibal tells you that the PERVS OUT group is asking every member of the Ohio state legislature to explain what he or she thinks about the Hyle v. Porter decision and how he or she plans to respond to the decision. Senator Sensibal explains that she told the PERVS OUT group that she would be studying the opinion together with her staff and would respond to their inquiry shortly. Senator Sensibal, in turn, tells you that she wants you to write a memo that (A) describes briefly the Hyle v. Porter ruling (which Senator Sensibal has not had a chance to read) and sets out the strong possible justification or legal explanation for the Ohio Supreme Court's ruling. Then, after this brief review of Hyle v. Porter and its possible merits, the Senator wants your memo to (B) suggest and assess how the Ohio legislature in general and how Senator Sensibal in particular ought to respond to Hyle v. Porter. (Most of your memo, Senator Sensibal emphasizes, should be devoted to part B because she wants you to briefly describe both the pros and cons of whatever suggestions you make for responding to Hyle v. Porter.)

Senator Sensibal explains to you that she is a new state senator who, after making lots of money in college during the first dot.com boom, ran for office based on a campaign focused on the need for the state to promote and display fiscal and tax responsibility. She also explains that, because she is single and does not have a family, she has not given much thought to sex offenders in general or to the issues raised in Hyle v. Porter. She further explains that the most vocal leaders of the new PERVS OUT group come from her state senate district, and thus she believes that her views on and reactions to Hyle v. Porter could readily become a focal point of the group’s attention.  Finally, Senator Sensibal also explains to you that she is very interested in "doing the right thing" for the citizens of Ohio, but that she is also interested in preserving her political power and energies to focus on the fiscal and tax issues that drew her to the state capitol.

Basic instructions for take-home final question

The first question of the final exam (Question 1) will be available via a new post scheduled to appear at 4:30pm, Monday, April 28.  Here are the basic instructions for the exam:

• This is combined take-home/in-class examination.  You will find the first question of exam (the take-home portion) on the blog and available at my office as soon as you complete your Constitutional Law final exam.  The first question (Question 1) has a strict word limit, and you must come to the in-class portion of the exam (which starts 10am on Thursday, May 1) with your answer to Question 1. You will then have two hours to complete the in-class portion of the exam.

• Question 1 has a strict word limitation. The word restriction is a limit, not a goal. A great answer is possible in fewer words.  Aided by your computer’s word count feature, you should record the number of words for Question 1 in your answer.

• You are not required or expected to use sources or materials other than those distributed in class. Though you are not precluded from conducting outside research, your time is better spent reviewing and making use of materials from class.

• Do not put your name on the exam.  Place your exam number on the front page (and, ideally, on every page) of your answers.

• Do not contact me (or another student) for assistance with a question.  Deal with ambiguities or uncertainties in a question by referring to them in your answer.

The format for the final

Here is the first instruction from the cover page of the final:

This is combined take-home/in-class examination. You will find the first question of exam (the take-home portion) on the blog and available from my secretary as soon as you complete your Constitutional Law final exam.  This first question (Question 1) has a strict word limit, and you must come to the in-class portion of the exam (which starts 10am on Thursday, May 1) with your answer to Question 1.  You will then have two hours to complete the in-class portion of the exam.

What is Justice Stevens saying about how the legislative process impacts constitutional interpretation?

I am interested in student reaction to this telling sentence in Justice Stevens' opinion in the Baze, the lethal injection case decided earlier this week:

The thoughtful opinions written by THE CHIEF JUSTICE and by JUSTICE GINSBURG have persuaded me that current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty.

Some interesting sites about exeuction videos

John Ruiz-Bueno sent along these notable links as a follow-up to our discussion of videotaping executions:

• First, here is a petition to many different higher-ups to get executions videotaped and public (with consent)

• Second, here is a NY Times article about the destruction of the only execution tape

If you've totally loved (or totally hated) any part of this course...

you should give serious thought to signing up the Legislation Clinic next year. I can/will tell any interested students all about the clinic's greatness, and on Wednesday (4/9) there is this opportunity to get more "official" information:

In connection with the upcoming scheduling process for next year, the Legislation Clinic is hosting an information session Wednesday April 9 at 12:10 p.m. in room 344. The Legislation Clinic is one of only two Moritz clinics available to 2Ls, so come and hear current and former students talk about their experiences in this clinic.  Sandwiches and drinks provided.

Post of note to finish up Porter and move ahead on Hayes

I have these two new posts on my Sentencing Law and Policy blog that provide some different information and perspectives on some of the issues that have arisen in our discussions of Hyle v. Porter and US v. Hayes:

• Georgia legislature passes revised sex offender residency restrictions
• The Second Amendment and speculating about post-Heller politics

Though I doubt we will directly discuss either of these posts during our classes this coming week, I hope students will feel free to use the comments to react to these posts and/or to any other aspect of our class discussions in recent weeks.

Class plans for this week and beyond

Just a quick note to remind everyone about this week's class plans:

1.  I will clarify any confusion I have created about the grading of the mid-term paper and about the format of the final exam.  (Remember that the mid-term paper needs to be handed in to my secretary before the end of this week.)

2.  I want to talk just a bit more about Hyle v. Porter, with a focus on two questions: (A) what is the strongest statutory interpretation theory one could put forward to support the Ohio Supreme Court's ruling, and (B) what should the Ohio legislature do in response to the ruling?

3.  I want to focus on the issues and statutory construction canons that appear in the Fourth Circuit ruling in US v. Hayes (available here), with a focus on two questions: (A) what canon best accounts for the outcome in the Fourth Circuit, and (B) does the constitutional doubt canon have any relevance here?

Welcome back ... to a new focal point for statutory interpretation

I hope everyone had a restful break because we are going to have a hard charging last few weeks of class focused on issues of statutory interpretation. 

Helpfully, the Supreme Court today decided to bring attention to an interesting (and complicated) statutory issue by granting cert in U.S. v. Hayes (07-608), to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence.  The Fourth Circuit decision under review in Hayes is available here.  The Fourth Circuit Hayes opinion covers a lot of issues we will be discussing in the weeks ahead, and anyone taking the time to read Hayes will have a running start on understanding the statutory interpretation concepts we will cover in the remainder of the semester.

Are the Democrats violating the Constitution?

Though a throw-back to materials we read in the first part of the semester, I thought folks might be interested to see this news from today's CNN political ticker:

The Democratic National Committee is violating the equal protection clause of the 14th Amendment by allowing only four states to hold caucuses or primaries before the first Tuesday in February, a Florida attorney argued Monday before a federal appeals court.

Attorney Michael Steinberg filed suit in August on behalf of Democratic Party activist Vincent Dimaio after the DNC said it would not seat Florida delegates at the national convention because the state party defied party rules and scheduled its primary for January 29.

A federal judge in Florida dismissed the lawsuit in October, but Dimaio appealed. "You can't treat the citizens of some states differently than other states," Steinberg told reporters after the hearing. "What I tried to assert is that the DNC has the right to make rules … but the rules have to be the same for all the states."

Additional (optional) readings on residency restrictions

Anyone deeply interested in the law, policy and litigation surrounding sex offender residency restrictions should check out a new student note (and other links) discussed here at my SL&P blog.  In addition, the group Human Rights Watch recently produced this extraordinary report titled "No Easy Answers: Sex Offender Laws in the US."  Though covering lots of issues, Chapter 9 of the report is focused on residency restriction laws, and it details some of the forms these laws have taken in states other than Ohio:

• In 2002, Iowa legislators passed a law prohibiting registered offenders whose victims were minors from living within 2,000 feet of any school or child care center. Violators face up to two years in prison and a $5,000 fine.

• In 2006, Georgia passed a sex offender zoning law which would prohibit any registered sex offender from living within 1,000 feet of places where children gather, including bus stops and places of religious worship.

• In November 2006, California voters by a large measure (70 percent) passed Proposition 83, a ballot initiative that, among other things, prohibits any registered sex offender from living within 2,000 feet of any school, daycare facility, or place where children gather.

Additional information and filings in Hyle v. Porter

After re-reading Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), for the fourth time, I still had lots of unanswered questions about the case.  Helpfully, the Ohio Supreme Court's website provides access at this link to a lot of the case documents (including all the briefs filed in the Ohio Supreme Court).

The ruling below coming from the First District in this case is available here, and it provides additional interesting background information.  I found this passage from that ruling especially noteworthy:

In the summer of 2005, Hyle had discovered that Porter's home of 14 years was within 983 feet of St. Jude Elementary School.  Hyle then sued under the rule, requesting that the court enjoin Porter from remaining in his home.

St. Jude is not visible from Porter's property.  And it is impossible to walk to the school in a straight line without averting obstacles, hurdling hedges, traversing trellises, or otherwise encroaching on neighbors' property.  Despite the fact that the meandering path to St. Jude would have required that Porter travel “over the river and through the woods,” the legislature and the court below decided that the 1,000 feet is measured as the crow flies.  Although Porter is not a crow and cannot fly, the trial court found that Porter was a registered sex offender whose back yard was within the 1,000-foot radius extending from St. Jude.  So Porter was evicted.

One dated(?) view of one(?) law school's problems

Inspired by a student follow-up to yesterday's class, I found this great old review of Richard Kahlenberg's notable book about Harvard Law School, a book which I read when I was a 3L at HLS.  The full book text of Broken Contract is available here via Google book, though this June 1992 review highlights the book's themes and adds new insights.  Here are a few snippets from the review, which echoes some themes I expressed in class on Friday:

The point is not that private practice is always evil, but that so many who enter Harvard get turned away from their original goals.  Seventy percent enter saying that they want to do public interest work; 95 percent leave to work in law firms, banks, and the like. This is quite a feat, especially at a time when, to hear conservatives tell it, academia is teeming with Marxists bent on tearing the system down. Harvard Law has its share of Marxoids, known there as proponents of Critical Legal Studies.  But Kahlenberg shows — and this is probably his most important insight — how the Crits help create the corporate hired guns they deplore.  Deconstructing the law, they deconstruct their students' idealism as well....

During his first year, Kahlenberg attends a meeting with [Harvard's] public interest adviser (a position since eliminated), who cites [this] estimate: 95 percent of the nation's legal time is spent serving the wealthiest 10 percent, 5 percent on the poor through legal services, and virtually nothing on the 160 million Americans in the middle.

One telling aspect of this 1992 review is how "current" it still seems, even though it was written when many current law students were in grade school. 

Some very notable folks graduated from HLS during the period Kahlenberg describes in his book: Kahlenberg himself graduated from HLS in 1989; Michelle Obama graduated from HLS in 1988; Barack Obama graduated from HLS in 1991; current US Solicitor General Paul Clement graduated from HLS in 1992.  Hmmm....

Incarceration statistics and a nation's collective responsibility

Here are some materials and ideas to follow-up on parts of Friday's class discussion: 

First, the potent Pew Center report, "One in 100: Behind Bars in America 2008." which I showcased in class is discussed and linked here.

Second, I quickly mentioned in class President George Bush's 2005 inaugural address.  That address can be found at this link, and here are a few inspiring excerpts:

America's vital interests and our deepest beliefs are now one.  From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth.  Across the generations we have proclaimed the imperative of self-government, because no one is fit to be a master, and no one deserves to be a slave.  Advancing these ideals is the mission that created our Nation.  It is the honorable achievement of our fathers.  Now it is the urgent requirement of our nation's security, and the calling of our time....

We will persistently clarify the choice before every ruler and every nation: The moral choice between oppression, which is always wrong, and freedom, which is eternally right.  America will not pretend that jailed dissidents prefer their chains, or that women welcome humiliation and servitude, or that any human being aspires to live at the mercy of bullies....

The leaders of governments with long habits of control need to know: To serve your people you must learn to trust them.  Start on this journey of progress and justice, and America will walk at your side....

All Americans have witnessed this idealism, and some for the first time.  I ask our youngest citizens to believe the evidence of your eyes.  You have seen duty and allegiance in the determined faces of our soldiers.  You have seen that life is fragile, and evil is real, and courage triumphs.  Make the choice to serve in a cause larger than your wants, larger than yourself — and in your days you will add not just to the wealth of our country, but to its character.

America has need of idealism and courage, because we have essential work at home — the unfinished work of American freedom. In a world moving toward liberty, we are determined to show the meaning and promise of liberty....

In America's ideal of freedom, the exercise of rights is ennobled by service, and mercy, and a heart for the weak. Liberty for all does not mean independence from one another. Our nation relies on men and women who look after a neighbor and surround the lost with love. Americans, at our best, value the life we see in one another, and must always remember that even the unwanted have worth.  And our country must abandon all the habits of racism, because we cannot carry the message of freedom and the baggage of bigotry at the same time.

Third, for a brief review of the Pew Center's report, you can check out this article about the Pew report from the media outlet Al Jazeera:

More than one percent of US adults are serving prison sentences, higher than any other country in the world, according to a new report. 

The US penal system held more than 2.3 million adults at the start of the year, the Pew Centre on the States said on Thursday. More populous China was ranked second with 1.5 million behind bars, while Russia was third with 890,000. "Beyond the sheer number of inmates, America also is the global leader in the rate at which it incarcerates its citizenry, outpacing nations like South Africa and Iran," the report said.

The report said growth in prison numbers had not been driven by a similar increase in crime rates or a corresponding increase in the nation's population.  "Rather, it flows principally from a wave of policy choices that are sending more lawbreakers to prison and, through the popular 'three-strikes' measures and other sentencing enhancements, keeping them there longer," it said.

Correction expenditure US states spent more than $44bn on corrections last year, the report said, compared with $10.6bn in 1987.  Ryan King of the Sentencing Project, a US prison reform group, told Al Jazeera that many of those currently incarcerated were serving sentences for minor offences or were drug users. "We are using tens of billions of dollars of our domestic resources to incarcerate individuals who would be much better off either under community supervision or in a public health treatment programme."

The report said that the national prison population had almost tripled between 1987 and 2007.  While one in 106 adult white men are incarcerated, one in 36 Hispanics and one in 15 African-Americans are behind bars.

Hmmmmm...  I guess President Bush is quite insightful when, in his 2005 inaugural address, he makes much of "the unfinished work of American freedom."  And the statistics in the Pew report provide another reminder of the real work for all of us if we take seriously, as I think we should, President Bush's righteous assertion that "our country must abandon all the habits of racism, because we cannot carry the message of freedom and the baggage of bigotry at the same time."

Reminder: Friday's focus on Warshow and Porter

Just a quick reminder that we will be looking very closely at every aspect of the Warshow case from the text and Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), as we (finally!) get serious about focusing on the specific tools (and unique challenges) of statutory interpretation.

When we started our Warshow discussion last week, it was clear that not everyone had read the case as closely as needed (which is likely my fault) in order for us to be able to do the kind of statutory interpretation analysis I want us to do.  So, in addition to mentioning Warshow at the end of last class, this is my additional effort to provide more warning that I will be expecting everyone to be very familiar with every aspect of what all the opinions in Warshow and Hyle v. Porter say.

Finalizing mid-term paper and final concerns

After reviewing all the blog comments and hearing from various students in other ways, I want to bring finality to the mid-term paper assignment and also set out my current expectations for the final exam:

1. Mid-term paper:  I am now officially finalizing the 1000 word-limit and topics for the mid-term paper (as outlined here and here), but I will push back the paper due date to March 31 to relieve any break/Easter worries.  Though I hope students interested in the optional oral experience will try to schedule a talk during the break, I'll try to find non-break times for the optional oral experience for those who need an alternative.

2.  Final exam:  I am officially declaring that the final exam for this class will have a (word-limited) take-home essay question along with an in-class timed section.

3.  Grading the mid-term:  The mid-term paper will not be blind graded, and it will be combined (in a student-beneficial way) with my grading of class participation ("CP") to comprise 25% of the total class grade.  Students who do well on the paper, but poorly on other aspects of class engagement, will have roughly 20% of the 25% CP grade come from the paper.  Student who do less well on the paper, but better on other aspects of class engagement, will have roughly 10% of the 25% CP grade come from the paper.

4.  Grading the final exam: The final exam will be blind graded, and right now I expect the  (word-limited) take-home essay question to make up 40% of the total class grade and the in-class timed section to make up 35% of the total class grade.  (I reserve the right to tweak these percentages depending on student feedback concerning the "success" of the mid-term paper.)

I have been meaning to wrap all this up in class, but you all have provided me with so many other exciting discussion topics.  And, as I highlighted at the end of class, what you learn and write as a student is so much more important than worrying about grades.  After all, everyone can now go read, thanks to Politico.com here, Michelle Obama's senior year thesis at Princeton University, titled "Princeton-Educated Blacks and the Black Community."   But, as I suggested in class, while I have seen a lot of talk about the content of this thesis, I cannot seem to find what grade she got. Hmmmmm....

Seeking deep thoughts on possible SCOTUS "whos"

Over at SL&P, I have this long new post about possible nominees for the US Supreme Court in the next administration.  The post critiques Jeffrey Rosen's recent article at The New Republic, titled "Short Bench: Why the Dems lack Supreme Court nominees," and it also highlights the diverse background of some of the Court's most famous Justices. 

Though the TNR article and my response are focused on potential SCOTUS nominees for a Democratic president, I am eager to hear from students with any deep thoughts about who should serve on the Supreme Court.  In an interesting article available here, Professor Adrian Vermeule (who was a law school classmate of mine) has argued that we should have at least one "lay Justice" -- i.e., he contends that "an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court."

I am eager to hear the thoughts of 1Ls about "who" should be on the Supreme Court.  In other words, Berman bonus points go to students who use the comments to (a) describe the type of person that should be a Justice, and/or (b) suggest specific persons that you hope/want the next President to consider.

Reflections on the OSLJ symposium (or other events areound the law school)

A few students sent me some reactions to different events related to last week's OSLJ symposium, and I got their permission to post those reactions in this space for all to consider.  One student had this reaction to the mock hearing on the Supreme Court schools case that took place Wednesday:

I just thought that it was interesting that there were 2 minorities [arguing] on the side of the Parents against the race-based system and 2 Whites for it.  Going along with our "whos" and "aesthetics matter", is sure does make it look like the system is bad if the group that it is supposed to help is opposing it.  I don't know how it was in the actual case, though.

When I was watching it, I thought about Kobe Bryant and how he had a white lady representing him.  It kinda showed that maybe he's not all bad and maybe he didn't rape that young white girl.  So, basically who represents your position matters. If it's someone who shares some of the same racial and gender characteristics as the opposing party, it helps to strengthen your argument.

Also, I thought that the school seemed to be pushing the position that the court took. Having the Dean serve as a justice, made it appear that the "quota, race-based" system was bad and that "race should only be one of the many factors used for admission system" was good.  I think it relates a lot to our class and legislation because the people who are chosen to represent a position affect the way others perceive it.

Another student had this reaction to one of the panels taking place on Friday:

Part of the Symposium this morning was Panel 4: Schools Using Race as a Factor After Parents Involved.  The subject in general clearly ties into the Equal Protection cases we’re looking at in Constitutional Law, but more important (to this blog) was the discussion of the Legislative Process in all of this.

Lia Epperson, from Santa Clara University School of Law, spoke about a proposed solution to the problem of desegregation.  Though she spoke at the speed of light, I did try to take notes about her presentation: She asserted the need for legislative involvement in the possible solution claiming,  “If there’s a way in which Congress can publicly support these changes they will have more strength. . . there’s a credibility that Congress has through its process. . . they can also hear viewpoints from different people.”

So this is clearly about process and brings up the weight that different interest groups [can bring to bear].  I thought it was a very helpful way to make the abstract ideas make more sense.  She added that “this is not a revolutionary concept, for Congress to be more involved.”  This is shown by Brown v. Board of Education, because not much happened with Brown until the Civil Rights Act, then there was a significant change because of the power to enforce that came with the Act.  This is done via funding, post-Brown: it was schools in the deep south that were poorest, and they needed the funding ... to stop segregating.  Additionally the Emergency School Act, which was championed by Nixon, was about fostering integration in all schools, regardless of previous segregation. She discussed No Child Left Behind as the largest foray into education involvement, which shifted away from state and local bodies in favor of federal power. 

There is history of bipartisan support for integration.  Kennedy’s concurrence in Parents Involved, is important for predictive value if nothing else. His suggestion is that the executive and legislative branches should be permitted to consider race in these policies. Thus Congress could now be encouraging voluntary efforts of integration.

Her goal is to make a more narrow plan to garner bipartisan support, which is as follows: 1) Funding research, provide grants to find out what works in reducing racial isolation and disparities (look at Kennedy’s suggestions, look at successful programs), 2) beef up transfer options under no child left behind 3) and expand title 6 enforcement power. “Congress should be a corrector of the courts” thus, they should challenge educational practices that have a discriminatory effect.  She concluded explaining that the Legislature and the President must work together here, and that will depend on next administration. Federal government should play a more active role, and there should be more funding, which is Congress’s power.

Of course, both these students earned serious Berman bonus points for providing such great blog copy.  And, of course, other students are highly encouraged to comment on these comments in the comments and/or to otherwise make a similar serious and studious efforts to connect stuff going on around the building to stuff going on in our class.

Friday follow-up: dead deer and live guns and modes of interpretation

Here are some links to follow-up some points of discussion on Friday:

1.  The recent Wisconsin case upholding a conviction after the defendant pled no contest to having sex with a dead deer is Wisconsin v. Hathaway, and can be accessed here.  Here is a key passage from the court's ruling: "Hathaway first argues his conviction should be reversed because the term 'animal' in WIS. STAT. § 944.17(2)(c) does not include an animal carcass.  He rather convincingly contends that 'animal' means a living creature.  However, Hathaway pled no contest to the charge. A plea of guilty or no contest waives all nonjurisdictional defects and defenses."

2.  I found a terrific short article about the history of the Second Amendment available for download here.  The article highlights, inter alia, that gun control historically has been applied in discriminatory ways in an effort to prevent the poor and religious, ethnic and racial minorities from having access to guns.

3.   On changed perspective concerning the Second Amendment, consider this quotable contrast:

• Former Chief Justice Warren Burger: at a 1992 press conference, "[O]ne of the frauds -- and I use that term advisedly--on the American people has been the campaign to mislead the public about the Second Amendment. The Second Amendment doesn't guarantee the right to have firearms at all."
• Senator Barack Obama: at a 2008 press conference, "I think there is an individual right to bear arms."

As you review our class readings about legisprudence and theories of statutory interpretation, give serious thought to whether and how these theories of interpretation might also be applied to constitutional provisions like the Second Amendment.  Can you think of strong reasons why a particular mode of interpretation might be especially appropriate (or inappropriate) for enacted legislative statutes, but not for the U.S. Constitution?

Seeking clarity and suggesting certainty on assignments

In the hope of creating some clarity and certainty, here's my latest view about our graded class assignments and the final:

1.  The "mid-term paper": Because there seems to be, despite some (minor?) confusion, significant support for this proposed first assignment, I am now declaring that this assignment is officially part of the class requirements.  I am now going to label this assignment the "mid-term paper."

2.  Established parts of the mid-term paper: Every student will be required to submit a word-limited short paper due sometime before the end of March which explores, from a "who" perspective, either a structural legislative process reform OR some aspect of Congress's investigation of performance-enhancing drugs in Major League Baseball.  In addition, any student may schedule an optional oral experience to discuss her or his paper, and this discussion can slightly help (or hurt) a student's grade on this particular assignment.

3.  Grading:  I have now decided, because I do NOT want to grade this paper assignment blind, that this assignment will be (a large) part of the 25% of the total grade for the class that is considered "class participation."  In other words, this assignment will not impact the 75% of the grade that will be based on the "traditional" final (which will be graded blind).

4.  Still (slightly) open to debate:  I am not sure that 1000 words is an ideal word limit, or that March 24 is the ideal final due date, for the mid-term paper.  But, absent strong support for an alternative word limit or due date, I plan to make these features of the assignment official very soon.

5.  Still to be determined:  The exact nature of the "traditional" final will depend upon our collective assessment of the virtues and vices of this mid-term paper assignment.  As of this moment I am thinking that the "traditional" final may end up having a small take-home component and a small in-class component (all of which will be graded blind and will comprise 75% of everyone's final grade).

Thoughts?  Reactions?  Concerns?  Complaints?  Remaining uncertainty?  Remaining desires?

More on the Ohio SCt decision on sex offender statute

The case about the Ohio sex offender residency restriction statute that we discussed Wednesday in class is Hyle v. Porter, No. 2008-Ohio-542 (Ohio S. Ct. Feb. 20, 2008) (available here), and I now mean to make official that it is part of the required reading for Friday's class and beyond.   Also, in case you are interested, the full text of the statute at issue in Hyle v. Porter can be accessed here.

In addition, you can and should keep an eye on my SL&P blog coverage of the case, as well as media coverage.  In this early report from the Columbus Dispatch, for example, the headline is "High court says sex offender need not move."  Is that really what the Ohio Supreme Court "says" in Hyle v. Porter?

UPDATE:  I found interesting the different headlines in the various major Ohio newspaper reports about Hyle v. Porter.  Here they are:

• From the Cincinnati Enquirer, "Sex offenders going home"
• From the Cleveland Plain-Dealer, "Sex offender law not retroactive, Ohio Supreme Court rules"
• From the Columbus Dispatch, "Court: Not all sex offenders must move"

Status quo bias and system justification theory

As promised, starting this week we will start spend a lot more class time focused on the textbook readings.  This week, for example, I am going to really zero in on the Warshow and Morgane cases, and everyone should make sure they understand what going on in these cases in terms of legislative interpretation.

In addition, though we will be focused on these cases, I am also going to be developing a lot of important broad new conceptual ideas.  Most of these ideas are about legal theory and are covered in the text.  But I also want to discussion the social-psychological concepts of status quo bias and system justification theory.  For background, it is sufficient for you to check out Wikipedia entries for SQB and SJT, though students deeply interested in these ideas are encouraged to check out this short article titled "Antecedents and Consequences of System-Justifying Ideologies."

More specifics on my proposed first assignment

Here is a quick outline of the assignment I have in mind for the class to "wrap up" our discussion of structural issues and the legislative process:

Format:  I will expect a written paper to be submitted no later than March 24 and to be no more than 1000 words.  Earlier submissions are welcome and encouraged.

Expectations:  In the 1000 words, you need to state and explain your "who" choice (which you can be changed for this paper) and then, from the perspective of that "who," either (1) set forth and defend any (small or large) structural reform proposal that you think would improve the American political and legal system, OR (2) provide a critical commentary on any aspect of how Congress has investigated the use of performance-enhancing drugs in Major League Baseball.  The best papers will be sure to draw in some way on (a) casebook readings, and/or (b) class discussions, and/or (c) blog readings and comments.  The best papers will also be thoughtful, cogent, well-written and polished, as all formal documents produced by lawyers should be.

Grading: Papers will be graded on a 10-point scale, and this assignment will count up to 20% of each students' final grade for the class.  Any student interested in having the assignment include an oral component can schedule a time during Spring Break for a "paper discussion."  Performance during any such discussion can raise or lower a student's grade on this assignment by no more than 2 points on the 10-point scale.  (And students can get a 10 without any "paper discussion" by producing a really good paper.) 

Impact on the final:  I am still expecting to have a take-home final for the class, but the exact nature and format of that final likely will depend in part of the "success" of this first assignment (and on expressed interest of students).

Key aspects of this proposal are certainly subject to adjustment -- especially the word-limit, the exact due date, and the assignment's percentage of the final grade.  And, as suggested in class, if there is a clear consensus against this proposal in any form, I will eliminate this assignment altogether.

I look forward to reading any comments here on this proposal and also to discussing this proposal more fully during our next class on Wednesday, February 20.

Congress, sports, priorities, politics and even bribery

I've just watched the first two hours of the congressional hearing concerning Rogers Clemens' alleged use of performance enhancing drugs.  There are soooooo many interesting aspects to this story, and I hope every student is thinking about these events as both a lawyer in training AND as the "who" selected for our class use.

This CNN article provides some of the highlights, and I though this comment from a reader was especially worth discussing in our Legislation class this afternoon:

Stephen: What a waste of taxpayers' money. Don't we have a couple of wars going on?  A recession and economic crisis to deal with?   Why is our congress wasting time and money on something that should be dealt with in the private sector with the Baseball Commission?

Meanwhile, and very fitting as we wind up our conversations about structural issues today, consider this passage from this morning's New York Times article about the hearings, which is headlined "Clemens Autograph Seekers May Have Broken Federal Law":

Any members of the House oversight committee or their staff who asked Roger Clemens for an autograph during his tour of the Capitol over the past week might have violated a federal law against soliciting things of value from people with interests before the committee, several lawyers with expertise in Congressional ethics laws said.  In addition, if a staff member or a member of the committee had Clemens autograph a baseball, that would apparently violate a House ethics ban against taking a gift valued at more than $50, the lawyers said.

Clemens’s entourage here said he autographed scores of items Thursday and Friday while visiting 19 of the 40 members of the committee, which is set to take his testimony Wednesday. Clemens and his lawyers were back Tuesday, visiting more committee members in advance of the public hearing. “They shouldn’t have been asking him to autograph things because no matter what it’s worth, there’s a prohibition against soliciting gifts of any value,” said Bernadette Sargeant, a lawyer in Washington who worked as counsel for the House Ethics Committee until late 2004. “You’re definitely not supposed to do it if it’s linked to any action you’re taking or being asked to take,” she said in a telephone interview. “That’s a problem if he’s going around meeting with members of the House oversight committee.”

Another Congressional ethics expert, Jan Witold Baran, a partner in the law firm of Wiley Rein & Fielding in Washington, said, “It would be like O. J. Simpson giving an autographed football to Judge Ito.”

A lawyer for Clemens, Rusty Hardin, said Tuesday that he had “no idea” whether Clemens had signed baseballs in members’ offices. Joe Householder, director of Public Strategies Inc., a public relations firm in Houston working with Clemens’s lawyers here, said Clemens had autographed mostly paper and some balls and a baseball card in the hallways of the House office buildings.