Sheridan: Con-Law

LEADING CASES

How about this for an idea.  Let's say you want to check on what you know about Con-Law.  Where would you look?

Why not start with the most recent leading cases?  We all know that the Court refers back to earlier decisions, reflecting earlier philosophies, when accepting, rejecting or modifying what has gone before to either continue the development on track or to forge a new trail.  So why not select today's leading cases and do a retrospective review?

Or, you could select a few early leading cases and travel forward, but there you'd run into many by-roads.

Below are a few leading recent cases.  If you take the time to understand every word of these, you'll be well on your way to learning the guts of Con-law (no need to remind me I've left out a lot of areas...this is a blog, not Laurence Tribe's treatise on Con-law).

Lawrence v. Texas (2003), for the meaning of liberty and freedom in America.  The operative principle, as in free expression law, is that in order to protect the core, you must protect the fringe.  That's why Nazis march in Skokie and the Klan may burn a cross for its members (but not to threaten others).

No one, especially gays, will want to see essential human rights described as fringe, but that's not what I just did.   Fringe, of course, refers not to individual rights, but to the marginalization of gays as respected members of society traditionally.

Gonzales v. Raich (2004), as to Congress's Commerce Power, federalism, Lopez (School Gun case, 1995), Morrison v. Olsen (VAWA, 2000), Wickard v. Filburn (home grown and used wheat, 1942 or so).

Grutter and Gratz, the U. of Michigan cases (2003), official efforts to deal with race relations on an affirmative action basis in higher education at least.

I'm going to reserve First Amendment for later, but for those who'd like to read ahead, see Gerald Stone's Perilous Times on free expression in wartime, and Floyd Abrams's "Speaking Freely" on developments since Vietnam.  Mark Tushnet's A Court Divided, an account of the Rehnquist Court is wonderful for putting into perspective both politically and legally what's been going on lately.  Linda Greenhouse's Becoming Justice Blackmun is the book on Roe v. Wade and the abortion controversy.

If  you want the baseline on what you can't say, Brandenburg v. Ohio (1969) and Virginia v. Black (2003).  Dates are approximate, since blogging is from memory.  We never want to let the immediacy of blogging to be interrupted by looking up cites.

In recent years the Court has developed doctrines to support other doctrines.  The flying buttress theory, one might call it.  You know, those lateral supports that kept tall cathedral walls from collapsing when they went so high.

I'm thinking of the right to, or of,  expressive association, as in Dale v. Boy Scouts of America, and the Hurley Boston Parade case.  Further discussion must await continuing exam grading, a sorrowful task indeed.

The City of Boerne v. Flores (1997), Congress's Amendment 14, Sec. 5 power to enforce constitutional rights, such as religious rights of the First Amemdment as in RFRA, RLUIPA, and a new bill providing for religious freedom in the workplace.  I don't know why so many students had such problems recognizing this issue on the recent exam, when there were those who did.  I'm sure I referred to this subject in class more than once.  Congruence and proportionality?  Congress making a good record of need and fitting legislative response?  Narrowing the Nation's Power by John T. Noonan, Jr.?  Puh-leeze!

STUDYING CON-LAW

There are several purposes for using a blog as an adjunct to the class. I suppose you've noticed what a bright and interested group we've got. It's impressed me. The trick is to encourage feedback on the cases, on Con-law, and on how the class is going. The more it's a two-way street, the better off I think we are.

We're on a journey, together, through an interesting part of the jungle. I'm happy to be the guide, pointing out the sights of interest, and such pitfalls as I'm able. It's a very great privilege that I'm quite aware of, and a considerable challenge for anyone, much less a practicing attorney who has a day job quite outside academia. That's why I appreciate all the cooperation and encouragement I've been receiving. Thank you very much and please keep up all the good work.

If you've got something you'd like to say, kindly either post it or email me and I'll do my best to deal with it.

A student asked why I didn't simply write out the stuff I put on the board at the beginning of class and hand it out. The reason is that it takes me all week to think up the oversimplifications I put on the board for illustrative purposes.

I make notes in a notebook, but I'm always thinking, "How can I explain this succinctly, or better yet, graphically." That's where the checker boards and other diagrams come from. But I don't know until the last minute which I'm going to use.

By the day the class rolls around these ideas are beginning to jell in my mind. When I arrive at class and start writing, I can't wait to get it down before I leave something useful out.

This is a reasonably creative thing to do and not one that I can regiment into the student's suggestion, i.e. to can it all in advance, essentially. That's not how my mind works. Each week is like a mini-final exam for me. Or as I tell my Hall of Justice friends, I do a misdemeanor jury trial a week.

If I did it any other way I'm afraid I'd bore you to death. You're seeing a live performance. If I canned my presentations, I might as well not show up. You could just read it.

A student last year was a great typist. He keyboarded practically every word, as far as I could see, sitting in the first row and taking down the words on the board and what I said. I've asked him whether he'd write it all up and make it available, but I guess that would be too much of a chore, he hasn't done it, and I don't blame him. You each have to do your own work.

What I find is that I'm not interested in looking at last year's notes. What I put on the board is fresh because I've been re-reading the cases and each year I find I can boil it down and repackage it more clearly.

There's such a mass of verbiage in Con-law. As a student, one hardly knows what's important. For every argument in the majority there's an argument in the dissent that seems plausible, only it was rejected, is not the law, and so why do we bother with it?

Because the counter-argument shows you where the battle lines were drawn, what the fight was about.

If you noticed this evening, we had some good briefing going on. One student stated the issue. It was fine, but abstract. Okay, I asked, let's say you stated the issue nicely, what was the fight about?

That brought us onto the battle field. A state passed a law that upset some company engaged in interstate commerce who hollered foul, and sued. Trucks and cows. That was tonight. UNDUE burden on interstate commerce allegedly for health and safety reasons, is the claim. How does the court analyze this?

This is a nice way to brief a case, to state what the war was over and how it began. A state exercised a regulatory power. It conflicted with a federal power. The fight was over power, not equity. Or maybe some of each. We relate it to the larger system, the common market, with as few kinks in the hose representing the stream of commerce as possible, with no local favoritism and a sharp eye peeled for less burdensome alternatives. And watch out for subterfuges. That was tonight. Not so complicated, right? What's complicated about that?

I can remember oversimplifications.

I can argue oversimplifications and allow for variances and complications. That's what lawyers do, right?

Tell me the rules of the game and I'll play the game and argue the application of the rules. We're learning the rules, via the scenarios. We're watching the players argue the rules. When it's our turn, we'll know the principles and the arguments. We practice in class and on exams.

If you can think of a better way of learning the principles, aka the rules, let me know.