Exams in this year-long course are three-hours each, and closed-book during the exam for Mid-term, in December, and Final in April or May.
Having given up on short-answer questions (stuff I thought easy, such as describing a legal doctrine and asking what it's called: "Answer: Judicial Review," was producing too many unexpectedly poor grades. The idea was to make the first question a quick warm-up for the two essay questions that followed. But I can't have poor grades. They make Teacher look bad. Someone might think that the material wasn't being properly presented (except for the fact several students got all or most of the short-answers right, proving I'd been there). Time saved on the first question could be applied to the subsequent two.
This semester I decided to invent a short essay question, with the same idea in mind: let the student show me, in a light, easy way, that he/she learned something.
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Robert Sheridan November 16, 2004
San Francisco Law School
Constitutional Law Mid-term Exam, Dec. 2004
1st Essay Question
VOLARE! ...FLYING WITH SCALIA
As you are returning to San Francisco from a visit to the nation’s capital, Washington, D.C. [I take nothing for granted around here], you board your flight, and stow your bag in the overhead rack except for your excellent Cohen & Varat Constitutional Law casebook, which you plan to peruse since you’ve got this Mid-term coming up.
As you flip open the casebook to begin your review, the gentleman seated next to you, dark hair, 68, in a kindly but pointed way, displaying a certain intelligence and sophistication that you don’t feel you can very well ignore, says,
Excuse me, I can’t help but notice that you are studying Constitutional Law, a favorite subject of mine. I happen to be Antonin Scalia, Associate Justice of the Supreme Court. Do you consider yourself an Originalist or an Evolutionist when it comes to interpreting the Constitution? Do you think we justices ought to be more Activist, or less? The reason I’m asking is that I’ve been invited to address a class taught by a professor at San Francisco Law School while I’m visiting relatives in San Francisco. I don’t suppose you’ve met this Prof. Sheridan, by any chance, have you? You follow what I’m talking about?
Met him? I’ve learned almost everything I know about Constitutional Law from taking his class, and from reading his blog, which you really should take a look at someday, since your name appears there with some frequency, and that’s how I know what you’re asking about. I’m so pleased to meet you Justice Scalia.
Tell you what. For purposes of this flight, why don’t I just be Nino. I can be Justice Scalia when you stand at the podium some day. I don’t want to frighten the other passengers.
And so the two of you have a nice informal chat about Constitutional Law while flying across the country.
Question 1: How do you respond to Justice Scalia’s thought-provoking questions?
Here they are, again,
(1) Do you favor an Originalist or Evolutionist approach to Constitutional interpretation; and
(2) Do you prefer that we justices take a more or a less Activist approach towards exercising the power of judicial review?
Question 2:
(1) Now that you’ve got the good justice boxed into his seat, where he cannot easily move away to avoid answering, What Constitutional Law question would you like to ask Justice Scalia?
(2) Assume that Justice Scalia is quite willing to answer your Constitutional Law question (having to do with some theory, say, not one closely associated with a pending case or issue, such as “Under God,” or one likely to come up, for which he might have to disqualify himself, as he did in Newdow).
What does Justice Scalia say in giving you a genuine, honest reply, given his well-known and outspoken views?
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This question is being provided at the end of the last class well in advance of the exam. Thus the preparation for your answers to this essay question may be done in advance of the examination in Open-book fashion.
You are thus free to consult such resources as you will.
You may freely discuss what you would like your answer to be with your class and teammates, but your final answer(s) will be your own, not a combined or team product.
You will hand-write or type your answer as an original matter during the scheduled examination period, just as you do the other questions.
You needn’t overdo this. This is the gift question. To lighten things up. Happy Holidays! Take it easy on yourself. It is not a term paper and I don’t want to wade through volumes of research material. That’s why your answer must be hand-written during the examination in Closed-book fashion.
I’m simply looking for evidence that you are conversant with the basic controversial Constitutional Law doctrine referenced (Flash: It’s all controversial). Remember, you are having an enjoyable, relaxing, but informed airplane conversation, not taking a law exam. You treat each other as respectful intellectual equals, which is what you are, not as sage and acolyte. “We can talk,” in other words.
There are references to Justice Scalia’s views in the decided cases, which I commend to you, in his book, A Matter of Interpretation, (Princeton, 1997, paperback, 149 pp.) which sets forth the contrasting views of Justice Scalia and other scholars, on-line (see How Appealing, Slate), in newspaper columns, and in the Sheridan Conlaw blog, URL:
http://sheridan_conlaw.typepad.com/sheridan_conlaw/
A fresh copy of this exam question will be provided to you at the examination, along with the other exam questions.
I hope you enjoy dealing with this essay question.