Law 5122: and Public Affairs
Section 1, Spring 2007 MW 2:30-3:45pm 15 Humphrey Center
Sally J. Kenney Office: 263 Humphrey Center phone: [phone] E-mail: [e-mail] Office Hours: Mondays 4-5 Teaching Assistant: Serena Laws office: (cube outside of Sallys office) phone: [phone] E-mail: [e-mail] Office hours: 1:30-2:30 MW Course Objectives To learn how law shapes and constrains and shapes public policy, through setting rules and limits as well as setting the terms of discourse To learn about judges as policymakers and the judiciary as a co-equal branch of government To explore theories of law from the social sciences To develop basic legal research skills To demystify legal cases and to learn how to read them To focus particularly on the issue of tort reform and examine law and social movements
Performance Requirements Class participation 10% Research exercises 20% Project 1: 5%, Project 2: 5%, Project 3: 5%, Project 4: 5% Two Midterms (20% each) 40% Research Paper (10-15 pages) 20%
I describe the grading criteria for each assignment below. In terms of class participation, I expect each student to come to class having carefully read the days reading. The format of the class will be guided discussion rather than lecture. I will ask questions about the reading that explore what I think is most important. I will try to email you these questions in advance so you will have an idea what to read for. In many of the readings, there will be lots of details and I hope you will learn loads of information about the legal process. What I want you to particularly read for, however, is the structure of the argument. What argument is the author making: Is she suggesting that law is always a tool of domination of the powerful? That social groups come to consciousness through legal engagement? That the judiciary needs to align with another branch of government to bring about change? That the United States faces an epidemic of litigation? Once you have identified the argument or arguments, you want to 1
read for what evidence the author brings to bear on that argument and consider whether that evidence is sufficiently persuasive. This skill takes practice. In some ways, it is analogous to reading a novel or watching a film. The first time you read or view it you are often swept away by the story and fail to notice how the story was structured. If you see it again, however, you begin to wonder why it was told out of chronological order, observe from whose perspective the story is told, see how the camera angles facilitate or hinder the story, and consider what parts of the story were NOT told. The structure becomes transparent the more you learn to look for it. I believe such a close reading serves several important purposes. First, it will help you as you design your professional paper by observing the choices other scholars or policy activists have made. You can begin to consider the advantages and disadvantages of various options. Second, you will begin to form your own opinions about how the legal process works. Third, you will develop critical thinking skills. Why are critical thinking skills important? Arent questions of method and study design merely esoteric academic issues of concern only to the scholar and not the activist or policy maker? In my opinion, many common sense understandings of law are not substantiated by empirical evidence and yet have important political consequences. For example, if you believe that courts are the friend of the underdog and the oppressed minority you will participate differently in the policy process than if you believe the opposite. I want us as a class to interrogate these unexamined truths we know about the legal process. But even more importantly, critical thinking skills are essential to the person who wants to bring about change to challenge the status quo. Whether as a scholar, policy maker, or activist, you will have to argue to the best of your ability to show how the dominant view is illogical and unsubstantiated by the evidence. Furthermore, you will want to convince others that the evidence supports your position. It is precisely these skills of matching evidence to argument, assessing strengths and weaknesses of claims, and exposing unexamined assumptions that will enable you to prevail. Because I favor progressive social change, I take this work very seriously. Not only do I want you to get better at making and refuting arguments to be a more effective public policy actor, but the law itself is about argumentation. Early American legal theorists heralded law as the arena of principle and justified courts making important policy decisions. Many argue that the U.S. Constitution was all about taking certain kinds of decisionsthose that impinged upon fundamental rightsoutside of the power of legislators. Recent social scientists have characterized the increasing power of courts worldwide, from Hungary to South Africa to the European Union to Argentina as the judicialization of politics. The two in-class midterm exams will ask you to answer questions about the cases and readings. I will not quiz you on esoteric details, but am looking for the central points. Most answers will be a phrase, or a sentence or two. The midterm exams test your ability to accurately engage in a close reading of the texts.
The final paper asks you to assess the legal environment for a proposed policy change and recommend a course of action. As you can see, I use a number of very different performance evaluations to grade you. In my experience, few people are good at every kind of test. I try to give you a number of different ways to demonstrate your ability. If you know you are less good at timed tests, do your best and try to really shine on the other assignments.
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Additional thoughts on class participation [N]o thought, no idea, can possibly be conveyed as an idea from one person to another....Only by wrestling with the conditions of the problem at first hand, seeking and finding his [sic] own way out, does he think. John Dewey, Thinking in Education. I am committed to a mode of learning that is shared and collective. I want you to form a learning community for one another. You cannot do this if you are not prepared. Contributing to class discussion can take a number of forms. You may answer a question that I ask. You may ask a question. You may comment on another persons contribution. Or you may try to encourage others to speak. All of these are valuable contributions to class discussion. At times, your experience may be important to share with the class. Personal experience should be relevant and central rather than tangential, or it is self-indulgent. It is OK to have an unexpressed thought. Merely speaking often rather than advancing the discussion will not result in a high grade. Remarks that are dismissive rather than respectful of others views, like irrelevant comments or personal reflections, can reduce your participation grade. Vigorous argument is encouraged to the extent that it contributes to our understanding without silencing others. Learning how to argue publicly about issues that matter most to us is an important political skill, much as we may have an aversion to conflict and arguing. Merely repeating ones position at a higher volume should not be confused with vigorous argument. Thinking out loud, however, in response to questioning is strongly encouraged. You can change your position as many times as you wish, or try out different ones. I take attendance and (with my TAs assistance) try to keep track of who has spoken and how often. These numbers assist me in calculating the participation grade. Attendance in and of itself, however, counts for littlealthough it is difficult to get a high participation grade if you frequently miss class. Similarly, while it is useful for me to note that one person spoke two or three times per class (80+) while someone else spoke three times total, I do not calculate the participation grade by merely totaling comments. Speaking often but contributing little will diminish not enhance your participation grade. While I keep a rough count of quantity, I grade on the basis of quality. Some of you may be accustomed to lectures where you passively take notes. This mode is not my vision of graduate education. I am here to work through the material with you, and I ask you to take a lot of responsibility for your own learning. Others of you may be used to a participatory style of class that asks students to reveal themselves, or share personal experiences. Much ink has been spilled about creating a safe space for learning. My views about this may differ from other instructors you have had. I am skeptical about whether any space can be created where judgment is suspended entirely. Therapists, chaplains, members of consciousness raising groups, and parents (if you are lucky!) may at times aim to listen and support without evaluating. I do not see that as my role. Furthermore, it has been my experience that one class members safe space to express positions is one that silences others who disagree or who are of the group whose attributes are being dissected. I do not believe that a magically neutral equilibrium is possible. What I do seek to create, however, is a setting where you can be free to ask questions without fear of censure or ridicule about what you found confusing in the reading, or what knowledge has been assumed that you do not have. You are also free to express opinions, although you will be pressed to defend them. I will argue some interpretations of the readings and the evidence supporting policies are better than others. You may challenge that position. But the class discussion is not an Im OK, youre OK all positions are equally supportable random chat session. As an educator, I do not believe such a discussion helps students learn (although I would urge you to talk about the material outside of class in whatever way you choose as often as possible). But perhaps more importantly, the 3
world of public affairs is not an Im OK, youre OK sort of place, and this is the field you have sought training to enter. I perceive my role in class discussion as pushing the class toward critical evaluation of the texts. I do not see my role as one of validating all student contributions or celebrating those class members who are brilliant enough to agree with me. I may often challenge the positions students offer in class because I want you to defend them to the fullest rather than because I disagree with the position you are taking, and certainly not because I dislike you personally. At times this may seem uncomfortable but I believe it to be pedagogically useful. I am more interested in helping you to grow in your analytical abilities rather than helping you to arrive at some pre-ordained position (like mine) or feel smug about what you already know or think. I will call on you to offer your ideas on a topic. Doing so is not a sadistic act of hazing on my part. I like to hear from everyone. You should not regard it as a performance test. In my experience, students who do not volunteer their thoughts often have much to offer the class. I also have concluded that students often do not think they know the answer or have an opinion until they are called upon to give one, and then they surprise themselves. I also believe that I can only be an effective teacher if I know what you are thinking and where you are struggling with the material or argument. I welcome your thoughts regardless of whether they are the perfectly constructed answer to the question because they help me to focus the class discussion in a way that will be most helpful to learning.1
Grading, graduate school, and professional education It is sheer pleasure to be inspired. It is hard work to learn. Charles I. Gragg, Teachers Also Must Learn. You have gotten this far in your educational career because you are very good learners and are quick to discern what individual faculty want. You have probably been a very successful student, or you would not be here. In graduate school, appearing not to know something can seem terrifying or shameful. In my opinion, however, the fear of appearing stupid is a major impediment to learning. I presume you are taking the class because you do not know everything there is to know about law and public policy but want to learn. It is my job to help you do that. Your job is to actively engage the material and come to class ready to explore it, rather than with all the answers. It is especially helpful to the class if you can bring your questions and puzzlement to class. I welcome these interventions. My ideal class period begins with a question about terms or ideas or a request to explain or explore a point in the reading. I will bring to class my excitement about the material, my knowledge of it, and my determination to help you learn it to the best of my ability. I love law, although it has been a lot less fun to read Supreme Court cases than it was when I started. I will try to keep the bar high, but constantly coach you and encourage you as to how to clear it (apologies in advance for the uncharacteristic sports metaphor).
[i]f real success is to attend the effort to bring a man [sic] to a definite position, one must first of all take pains to find HIM where he is and begin there. This is the secret of the art of helping others. Anyone who has not mastered this is himself deluded when he proposes to help others. In order to help another effectively, I must understand what he understands. If I do not know that, my greater understanding will be of no help to him....For to be a teacher does not mean simply to affirm that such a thing is so, or to deliver a lecture, etc. No, to be a teacher in the right sense is to be a learner. Instruction begins when you, the teacher, learn from the learner, put yourself in his place so that you may understand what he understands and in the way he understands it. Sren Kierkegaard, The Journals, 1864, quoted in Barnes et. al. 1994, 6.
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Because you have been successful students, and because of grade inflation, you are probably accustomed to receiving very high grades. The University of Minnesota defines the meaning of grades as following: A is for achievement that is outstanding relative to the level necessary to meet course requirements, B represents achievement that is significantly above the level necessary to meet course requirements, C represents achievement that meets the basic course requirements, D represents work that is worthy of credit even though it does not fully meet the basic course requirements in every respect, and F is for work that falls sufficiently short of meeting the requirements of the course that it does not merit credit. I grade according to these definitions. Grading is one of my least favorite parts of my job. I do feel strongly, however, that if the performance of students differs dramatically, the grades should reflect genuine differences in effort and ability. I give Bs. B does not signify bad or failure, but rather than you have more than met the course requirements. You should see grades as a feedback mechanism that can help you learn, rather than an indication of your worth as a human being.
How to read But the first stage of contact with any new materials, at whatever age of maturity, must inevitably be of the trial and error sort. John Dewey, Thinking in Education. The workload in the class is heavy, although many of the readings can be read quickly. If you get behind, always read the readings for the next class first, before you return to any you may have missed. Read the first listing first, and so on, completing as many as you can before class. You need to read carefully for the argument, but do not need to memorize every detail. You may need to read ahead on the weeks that are lighter so as not to fall behind in the more demanding weeks. You will also need to learn skills for sorting information in the weeks that are heavy. You should learn to read for the argument (in journal articles, often conveniently summarized in the abstract) by reading introductions and conclusions, topic sentences, and summary paragraphs. Learn to give these passages more importance rather than trying to focus on every last detail. Again, this is a skill that takes practice but is vital for policy makers to acquire. You will often be asked to find the important points in large amounts of material. As is the case in the world of public affairs, not all of the material you encounter will be immediately applicable to the things that you care about. Your task is to sift, stretch, and applyor, if necessary, skim. Reading cases is hard. The language can be obtuse. Sometimes, it seems like you have failed to grasp the point, but perhaps it is just that the text is unpersuasive. Legal opinions are not written by Godthey have flaws, and are more or less persuasive. Our job is to learn how to decode them. Sometimes, this requires learning what points are being made by merely referencing precedents. It does not take that long to learn the key cases and principles in the area of law you care most about. Sometimes, you should think of cases as like a math problem. You learn more in class if you have wrestled with a problem before, but just straining longer does not lead to a solution. Give up, come to class, and put your hand up. Reading cases is a skill, like typing, that takes practice, but not a law degree. Other things you need to know about me The best way to communicate with me and get a quick response is by E-mail, although I am not always able to give you the immediate reply we have come to expect from this medium. You are welcome to leave voicemail messages on my office phone, but please do not call me at on my mobile unless you are trying to save me from a meeting with you that you cannot attend. I will do everything within my power to always be available during my office hours, although sometimes important meetings 5
are scheduled at that time without my consent. As a faculty member with other teaching responsibilities who is trying to do research and be a good citizen, I am juggling many responsibilities. Although I consider it to be important, teaching is but one component of my job and I am doing other work at the same time. In addition to the students I will have in class this semester, I am working with other students on their policy papers, comprehensive exams, and dissertations. At times, I may be able to talk with you in my office at the spur of the moment outside of office hours. Often I cannot. Please ask if this is a good time and do not take it personally if I am busy. Immediately before class is almost always a bad time, for I am trying to collect my thoughts. Furthermore, when you try to conduct student/teacher business with me in the hallways, as I am trying to start class, or during other chance encounters, it often makes me feel harried and it is difficult for me to concentrate on your needs. It is far better to E-mail me or make an appointment. After class is always a good time to talk. I expect you to be on time so that the class can begin on time. I need your help to achieve this goal. It is better to come in late rather than miss the whole class, and everyone is late once in awhile. I take it as a sign of disrespect or lack of seriousness on your part if it is chronic. If you need to miss class, do so. Do not call me to apologize or explain. If you are late or you miss class, it is your responsibility to find out what you missed. I teach each class only once. See other students for notes. But please do feel free to ask me for any announcements I may have made or handouts I may have given out. I encourage an informal atmosphere and welcome repeated interruptions. Bring your coffee, and if you must, snacks. But please no gum, especially no bubbles. Sit with your pals, but save your side comments for after class. I want us to have one conversation. I frown on incompletes. I have designed the course so that you can complete the work during the quarter. Documented family crises or medical emergencies may result in you needing to negotiate an incomplete, or a make-up exam. First, I only grant incompletes or make-ups if you have requested them in advance. Second, at the time you request an incomplete, you will need to submit in writing what work remains to be done and the date by which you will have completed the work. Failure to submit the work in that time will result in a 0 for that assignment, and may lead to a failing grade for the course. The University prohibits me from allowing individual students to submit additional work for extra credit.
Complaints about my grading or professional conduct can be directed to Maria Hanratty, Director of Graduate Studies, 225 HC or at the Student Dispute Resolution Center in 310 Walter Library (6260891). I strongly urge you to discuss any concerns you have with me first, as well as your academic adviser. Do come and see me if you do not understand your grade or would like to improve your performance. I make mistakes, especially when I am under quick deadlines, and will happily regrade any exam or assignment. I would like to hear from anyone who has a disability which may require some modification of seating, testing, or other class requirements so that appropriate arrangements may be made. Please see me after class or during my office hours. Disability Services is located at 16 Johnston Hall. My policy is to prosecute plagiarism, cheating, and scholastic misconduct to the fullest extent permitted by University rules. Required books
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Derthick, Martha. 2002. Up in Smoke, Congressional Quarterly, 2002. Epp, Chuck. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press. Gillman, Howard. 2001. The Votes that Counted: How the Court Decided the 2000 Presidential Election. Chicago: University of Chicago Press. Gould, Jon B. 2005. Speak No Evil: The Triumph of Hate Speech Regulation. Chicago: University of Chicago Press. Haltom, William and Michael McCann. 2004. Distorting the Law: Politics, Media, and the Litigation Crisis, Chicago: University of Chicago Press. Williams, Robert. 2005. Like a Loaded Weapon: the Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press. Reading Assignments Wednesday, January 17th Introduction and Briefing a Case
Murphy, Pure Constitutionalist v. Pure Democrat 43-78 How to Brief a Case Murphy 25-31 Grutter v. Bollinger Murphy 984-1021 Epp Chs 1-2 McClesky v. Kemp Sarat 500-581 Goetz Ch 6 Hollman v. Cisneros consent decree (skim merely to get an idea of what a consent decree is like) Epp 3-4
Monday, January 22nd Can universities take race into account in admissions? Wednesday, January 24th Is the death penalty discriminatory? racially Identify memo topic Monday, January 29th Race discrimination in housing Select journal Wednesday, January 31st Rights Revolution Monday, February 5th Comparative Rights India OR Canada OR Britain Journal assignment due Wednesday, February 7th Do Rights extend to Indians? Monday, February 12th 7
Epp two chapters + 11
Williams Chs 1-5
Racism and Indian Rights (cont)
Williams 6-11 + conclusion
Wednesday, February 14th Does the war on terrorism require indefinite detention? Hamdi v. Rumsfield Sources assignment due Monday, February 19st Should courts police the electoral system? Can Congress limit campaign spending? Wednesday, February 21st Should judges be able to campaign for election? How should we select judges? Monday, February 26th Who decides who is President? Case Brief Due Wednesday, February 28th Bush v. Gore Monday, March 5th Bush v. Gore Wednesday, March 7th In class Midterm
Baker v. Carr (Murphy 807-825) Buckley v. Valeo Ansolabehere and Issacharoff 297-323
GOP v. White Kritzer
Gillman Intro, Chs 1-2
Bush v. Gore Gillman 3-4 Gillman 5-6
Monday, March 19st Do poor Minnesotans have a right to abortion?
Doe v. Gomez MacKinnon, Reflections on Sex Equality Irons, Ch 11 Lawrence v. Texas Burgess, Queer (Theory) Eye For the Straight (Legal) Guy RAV v. St. Paul Gould Intro-Ch 2
Wednesday, March 21st Can states outlaw gay sex? Monday, March 26th Can legislators ban hate speech Identify amicus brief for players assignment Wednesday, March 28th Hate Crimes Monday, April 2nd Law Enforcement, Law, and Policy 8
Gould 3-4
Gould 5-6
Wednesday, April 4th A New Way of Regulation Monday, April 9th The New Wave of Litigation Players Assignment Due Wednesday, April 11th The Tobacco Settlement Monday, April 16th Does the stronger always win in court? Wednesday, April 18th Is there a litigation crisis? Monday, April 23rd What is the role of the media in our perception of law?
Derthick 1-4
Derthick 5-7
Derthick 8-10
Derthick 11 Kritzer and Silbey 1-2
Haltom and McCann 1-2
Haltom and McCann 3-4
Wednesday, April 25th What should be our public policy regarding tort litigation? Haltom and McCann 5-6 Monday April 30th Tobacco Revisited Is Mediation the Answer? Wednesday May 2nd Second Midterm Monday, May 7th FINAL Memo DUE at 12 noon
Haltom and McCann 7-8 Mather
Bibliography Books/Articles: Ansolabehere, Stephen and Samuel Issacharoff. 2004. The Story of Baker v. Carr. In Dorf, Michael C. Ed., Constitutional Law Stories. New York: Foundation Press, 297-323. Burgess, Susan. 2004. Queer (Theory) Eye for the Straight (Legal) Guy. Derthick, Martha. 2002. Up in Smoke. Washington, D.C.: Congressional Quarterly.
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Epp, Chuck. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press. Galander, Marc. 2003. Introduction and What the Haves Come out Ahead: Speculations on the Limits of Legal Change. In Kritzer, Herbert M. and Susan Silbey, ed. In Litigation: Do the Haves Still Come Out Ahead? Stanford University Press, 3-81. Gillman, Howard. 2001. The Votes that Counted: How the Court Decided the 2000 Presidential Election. Chicago: University of Chicago Press. Goetz, Edward G. 2003. Hollman v. Cisneros, Chapter Six. In Clearing the Way: Deconcentrating the Poor in Urban America. Washington D.C.: The Urban Institute Press, 137-175. Gould, Jon B. 2005. Speak No Evil: The Triumph of Hate Speech Regulation. Chicago: Chicago University Press. Haltom, William and Michael McCann. 2004. Distorting the Law: Politics, Median and the Litigation Crisis. Chicago: University of Chicago Press. Kritzer, Herbert. Forthcoming 2007. Law is Mere Continuation of Politics by Other Means: American Judicial Selection in the 21st Century. MacKinnon, Catharine A. 1991. Reflections on Sex Equality under Law, 100 Yale L.J.1281, 1308-24. In Glennon, Michael J Ed., A Constitutional Law Anthology, 2nd Edition. Cincinnati: Anderson Publishing Co., 168-178. Mather, Lynn. 1998. Theorizing about Trial Courts: Lawyers, Policymaking, and Tobacco Litigation. Law and Social Inquiry 23(4): 897-940. Williams, Robert. 2005. Like a Loaded Weapon: the Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press.
Cases: Baker v. Carr (1962) In Murphy, Walter F. et al Ed., American Constitutional Interpretation, 3rd Edition. New York: Foundation Press, 807-825. Buckley v. Valeo (1976). In Murphy, Walter F. et al Ed., American Constitutional Interpretation, 3rd Edition. New York, Foundation Press, 872-893. Bush v. Gore (2000) In Murphy, Walter F. et al Ed., American Constitutional Interpretation, 3rd Edition. New York: Foundation Press, 1558-1577 Doe v. Gomez GOP v. White 10
Grutter v. Bollinger (2003). In Murphy, Walter F. et al Ed., American Constitutional Interpretation, 3rd Edition. New York: Foundation Press, 984-1021. Hamdi v. Rumsfeld (2004) Sullivan, Kathleen and Gerald Gunther Ed., Constitutional Law, Fifteenth Edition. New York: Foundation Press, 373-385. Hollman v. Cisneros consent decree. Lawrence v. Texas (2003). In Sullivan, Kathleen and Gerald Gunther Ed., Constitutional Law, Fifteenth Edition. New York: Foundation Press, 602-614 McClesky v. Kemp in Sarat. R.A.V v St. Paul (1992) In Murphy, Walter F. et al Ed., American Constitutional Interpretation, 3rd Edition. New York: Foundation Press, 742-761.
Project #1: Law and Public Policy Journals Each student should choose one journal from the list below (or propose an alternative) by Monday, January 29th. Submit a short report including as much information as you can find by class time Monday, February 5th. Late papers will be marked down one grade. One of the most important skills you can acquire as a policy maker is the ability to locate relevant information quickly and interpret its source. This assignment seeks to acquaint you with some of the general journals about law and public policy. I will grade this assignment according to: whether you collected all the information and whether you attempted to analyze the tilt of the publication, i.e. its school of thought, ideological commitment, or methodological approach. Information to put in report Name Beginning date of publication Previous names Cost Frequency Length of articles School of thought or approach Intended audience Mission statement, or editorial policy (submit in full if it exists) Associated with an organization Editor Special issues or themes. Special issue editors. 11
Characteristics of editorial board Where indexed Number of subscribers Advocacy (what kind), social science, discipline What kinds of articles recently Where to find descriptions of it. Attach photocopy of entry in one of the following: Ulrichs International Periodical Director (RR Bowker). Martin and Robert Goehlert. Political Science Journal Information Third Edition. Katz, ed. Magazines for Libraries Any rankings? See P/S for Political Science, Thomas Wyrick, The Economists Handbook, or articles such as Liebowitz and Palmer, Assessing the Relative Impacts of Economics Journals, in Journal of Economic Literature 23 (1984): 77-88. Other observations or comments:
Suggested journals (you are welcome to propose others). Look for journals at the intersection of law and public policy, rather than journals on energy policy only (but not law). Other journals in your substantive area of interest, such as reproductive rights, law, and policy that might be suitable. American University Journal of Gender, Social Policy and the Law Berkeley Journal of Employment and Labor Law Columbia Journal of Law and Social Problems Contemporary Policy Issues Critical Social Policy Georgetown Journal of Poverty Law and Policy Hamline Journal of Public Law and Policy Harvard Journal of Law and Public Policy Health Economics, Policy, and Law Journal of Health Politics Policy and the Law Journal of Law and Education Journal of Law and Family Studies Journal of Law and Policy Journal of Law, Medicine, and Ethics Journal of Public Policy Journal of Policy Analysis and Management Journal of Social Policy Law and Inequality Journal Law and Society Review New York University Journal of Legislation and Public Policy Policy Review Policy Sciences 12
Policy Studies Journal Social Policy Social Politics Social Problems Virginia Journal of Social Policy & the Law Wayne State University Journal of Law in Society Washington University Journal of Law and Policy Yale Journal of Health Policy, Law, and Ethics
Project #2: Sources Project due at the beginning of class, Wednesday, February 14th. Late papers will be marked down one grade. If you complete the assignment in this order, you will move from short general summaries before you are buried in information. 1. Legal research guides. Spend some time perusing the law librarys very helpful webpage: http://www.law.umn.edu/library/home.html. It has research guides for more than 40 different areas of law, including immigration, womens human rights, and Minnesota law. If your topic is among these, start there: http://www.law.umn.edu/library/tools/pathfinders/pathfinders.html. The webpage also links to research guides at other law schools that may have different topics. If you use one of these, identify it on your assignment.
2. Legal textbooks. Kathleen M. Sullivan and Gerald Gunthers Constitutional Law, Fifteenth Edition, is a text I took several case excerpts from for this class. The call number is KF4549.G85 (Law). Another, Walter F. Murphys American Constitutional Interpretation, is KF4549.M87 2003 (Law). Textbooks teach the leading cases that established the core principles in their areas of law. They have two virtues: The cases are excerpted, and they often have short summaries of the case law and rules preceding them. Identify at least on textbook in your area of law. Look for specialty casebooks: sports law, violence against women, education law, human rights, etc. List at least one of these with call number on your assignment. 3. Encyclopedias and hornbooks are also a great place to get a broad overview: http://www.law.umn.edu/library/tools/pathfinders/Encdictrest.html, http://www.law.umn.edu/library/tools,pathfinders/hbksnuts.html The American Law Reports are also great summaries. List at least one of these on your assignment. 4. Law journal articles. Legal academics write long articles with lots of footnotes. Law students often write notes in law reviews which summarize the legal significances of a recent case. Both can be good sources for broad overviews of the law and the significance of particular precedents. Some criticize the holdings and recommend what the policy should be. The Index to Legal Periodicals is the most comprehensive index of these, and you need to go to the Law Library to use it on CD. One of the limitations of the law journals database in Lexis/Nexus Academic Universe which you have access to as a UM student through Lumina is that it does not have all legal periodicals in it. The advantage is that it is full text, so you can print the article directly. Many of the journals on gender, for example, that I am most interested in are not in there. Examine the list of subject specific indexes to see if one of these would be 13
better for you http://www.law.umn.edu/library/tools/EResources/ERDirectory.html. List the three most promising law review articles on your topic, and cite them correctly. 5. The preceding sources should help you identify the most important or interesting cases in your area of law. It is better to start there, rather than swimming in a sea of citations on campaign finance cases or abortion cases. But you may also want to search case law by subject or topicfor example, what cases have there been on the Family and Medical Leave Act? You can do this through Lexis. See http://www.law.umn.edu/library/tools/pathfinders/ctcases.html for how to find a relevant case. Identify the case you intend to use for your briefing assignment and final memo. 6. Locate one web site that has information about your topic OR subscribe to a listserv. Many NGOs from the Cato Institute to Amnesty International monitor case law and have great websites describing the legal lay of the land for their areas of interest. Identify the most promising source for your area of interest. 7. Locate one book relevant to your topic that is not a textbook. Identify the key word search terms, the Subject headings in Lumina, the subject heading(s) in Books in Print (attach photocopy), and the author, title, publication details, call number of the most promising book you found. 8. Find one newspaper article on your topic, preferably in the New York Times, through Nexus or through indexes such as: Black Newspaper Index New York Times Minneapolis Star and Tribune Index The Times Index (UK) Your report should include: Your Name: Public Policy Area: 1. Legal research guide, if you could find one. 2. Legal textbook, with call number and copy of relevant page of table of contents 3. Encyclopedia, ALR, or hornbook. 4. Three law journal articles, cited correctly, and how you identified them. 5. Case and how you identified it. 6. URL or address of website or listserv. 7. Book, cited correctly, Key word searches, Subject headingsLumina, Subject heading(s) in Books in Print (attach photocopy), publication details, call number 8. Press index of CD Rom used, attach photocopy of article. NOTE: Use Blue Book style for citations. I will hand out the guidelines in class. Follow them! It is extremely important that you learn how to cite sources properly. If, by some chance, you have sneaked through with your undergraduate degree without learning this important skill, now is your chance. Learning to cite materials properly is important not only for your course work, but imperative for success with your professional paper. Learning how to do things right now will save you hours later. Moreover, most of you will likely be engaged in report writing in your careers. Learning how to cite correctly is a vital skill, without it, you signal your lack of professionalism. I will mark you down on this assignment if you do not cite your sources correctly. 14
Project #3: Finding and Briefing a Case Locate a legal case of importance in your chosen public policy area. (If your policy area does not generate legal cases, pick something close to it, or something else that interests you.) You may pick a case from the U.S. Supreme Court, the other federal courts, a state court, an international court (such as the European Court of Human Rights, the European Court of Justice, or the International Court of Justice), or an administrative agency (such as the Equal Employment Opportunities Commission or the National Labor Relations Board). It is difficult to think of a public policy issue that has no legal dimension. Certainly most contested issues in American politics ultimately end up in court, and the legal opinions shape the choices policy makers have. How courts interpret statutes and the constitution determines how public policies are implemented. Learning to locate the relevant cases and decode them is an important skill for anyone in the field of public affairs. Opinions are written in what appears to be another language, a language that is impenetrable to the uninitiated. I do not believe that only lawyers can read, analyze, or understand cases. Yet reading cases takes skill and practice. I want to expose you to and began to demystify this important arena of public policy. How do you find the name of a case? First, you may want to peruse textbooks on your topic area, whether it is environmental law, planning law, women and the law, etc. Second, you may have seen the name of the case in the New York Times, The Nation, JPAM or another publication. Third, you may want to skim law journals, particularly case notes of recent journals in your topic area. Specialized law journals cover many topics ranging from family law to race relations. Scholarly journals often discuss legal matters. If you find a non-legal journal on your topic, look for articles on the effects of recent cases. Fourth, you may want to look in the case index of books for this course. Fifth, you can get the name of cases through Lexis or Westlaw. Identify your case on the sources assignment. Find the case and photocopy it. Then read it carefully and brief it. Submit the copy and the one or two page brief by the beginning of class on Monday, February 26th. Late papers will be graded down one grade. A brief is an outline of a case that summarizes the essential points. In includes: Name of case: Citation (including court, date): Law (Provision of the constitution or statute that is at issue): Route: How the case got to this point. What other courts heard the case, and what did they decide? Facts: Exclude the provisions of law, route, and legal claim. What situation gave rise to the dispute? Who are the parties? What sequence of events led them to have a legal dispute? Question: One or two sentences. What is the legal question that this case raises? Combine the facts and the constitution/statute. Give specifics. Holding: Answer the question yes or no in one sentence. Reasoning: Separate points of reason by each opinion holder. Provide a schema of the arguments I will give a handout in class, give examples of briefs, and brief one case in class. I will grade this assignment on whether you correctly discerned and stated the legal questions, identified the other points on the brief, and how thoroughly and accurately you summarized the legal reasoning. 15
Project #4: Players Identify the top at least five and no more than ten players on your public policy topic. Who are the most important people in the policy community? Pick people from different spheres: legislators and legislative staff, members of the administration (executive branch departments or freestanding independent agencies and commissions), journalists, academics/scientists/experts, interest groups, nonprofits, etc. Try to cover as many categories as you can, appropriate to your area. You can focus on the international, national, state, or local arenas. Some places to look for information 1. Reference works on organizations, interest groups, and foundations Encyclopedia of Associations Encyclopedia of Associations: International Organizations Encyclopedia of Associations: Regional, State, and Local Organizations Washington Information Directory Sara Slavin, ed. U.S. Womens Interest Groups 2. Newspapers, magazines, scholarly journals Who is quoted in article on your topic? Who has published research in the area? Who has written editorials? 3. Government documents (See or email Wilson government Documents Librarian for help.) Congressional reports (staff or committee) oversight or legislative hearings (note who gives testimony or submits information) Executive branch reports, including GAO commission documents 4. Amicus briefs, cases. What groups have brought litigation in your area, or filed amicus briefs? See the description of the organizations interest at the front of each amicus brief. 5. Additional sources Current Issues Source File, Lumina books TV--McNeil-Lehrer, C-Span, Frontline, etc.
Submit a report that includes your name, your policy area, a brief profile of the five people, an explanation of why you think they are important, and a description of how you identified them. Project Due at the beginning of class Monday, April 9th. Late papers will be marked down one grade. Final Memo The accumulation and acquisition of information for purposes of reproduction in recitation and examination is made too much of. Knowledge, in the sense of information means the working capital, the indispensable resources, of further inquiry; of finding out, 16
or learning, more things. Frequently it is treated as an end itself, and then the goal becomes to heap it up and display it when called for. This static, cold-storage ideal of knowledge is inimical to educative development. John Dewey, Thinking in Education. Obviously, no one-semester course can cover all topics in law and public policy. The substantive area you are most interested may not be among those we cover. By January 24th, I would like you to select a topic in law and public policy of special interest to you: the global gag rule, housing desegregation, gay marriage, mandatory drug sentences, civil commitment for sex offenders, endangered species, sports stadiums, Indian gaming, campaign financing, special education, rape in war, genocide, sex trafficking, etc. (Id like you to identify it on a single sheet of paper and hand it to me in class or email it to me.) Ideally, this will be in your area of concentration and the area you will write on for your professional paper. But if you do not yet know what your focus is, it merely needs to be an issue you are very interested in and want to delve into deeper. The topic needs to be narrow enough for a single project. Affirmative action, for example, is too broad. Racial preferences for hiring fire fighters in St. Paul, however, is not. This area should shape all of your assignments: the journal assignment, the sources assignment, the case assignment, and the players assignment. Aim for a little more than five but do not exceed ten, double spaced, with 12 point fonts and 1-inch margins. You will find that it is much harder to write less than more. Identify a policy that is should be under consideration in your area. Recommend what should be done, including the arguments against. Explain how the legal environment (precedent, composition of the judiciary, etc.) shapes the options available and the framing of the issue. I will grade the paper according to how clearly and persuasively you explain the law, and how persuasively and comprehensively you argue for the policy. Include a bibliography. Assume I am a reasonably (but not exceptionally) intelligent member of Congress or the legislature, governor, Cabinet Secretary, or Commissioner. I am busy. I am a generalist. I think politically, not legally. Alternatively, you could write a memo to the executive director of an NGO, recommending a course of actionsuch as how can the Human Rights Campaign most effectively stop a constitutional amendment on gay marriage in Minnesota. I will also grade according to whether you follow conventional rules for writing. You should put your position and principal rationale in the first paragraph of the memo and include scope and sequence. Each paragraph should have a topic sentence. Write in complete sentences, not bullets. The memo should be skimable. You should spell words correctly and cite according to conventional Bluebook rules. I take following citation rules very seriously. (See rant under assignment #2, sources). I will also provide a handout of the most frequently made writing errors. Do not make them! FINAL PAPER DUE Wednesday MAY 7th AT 12 NOON.
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