February 28, 2008
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.
February 27, 2008
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.
February 25, 2008
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.
February 23, 2008
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?
February 21, 2008
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?
February 20, 2008
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"
February 19, 2008
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."
February 14, 2008
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.
February 13, 2008
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.