Required and Recommended Texts

This class has two required texts:

• Erwin Chemerinsky, Constitutional Law (6th ed. 2020)

• Erwin Chemerinsky, Constitutional Law (2023 Supplement)

If you are looking for a constitutional law treatise, I recommend:

• Erwin Chemerinsky, Constitutional Law: Principles and Policies (7th ed.)

Your Grade

Your grade for the course will reflect 2 factors:  

• Your performance on the final exam (100% of your final grade), and

• Class participation.  

• In addition, there will be three optional, ungraded writing assignments that you may submit for feedback.

Final Exam

The bulk of your final grade will consist of a final examination at the end of the semester. WhiIe I will have more to say about the content of the exam as the semester progresses (and reserve the right to make changes in the exam format, in the past it has contained two parts: two essays and 20 multiple choice questions. The essays place you "in role" as a lawyer or law clerk and ask you to assess the constitutionality of a statute or government action. My reason for drawing your attention to the exam format is that while many of our class discussions will focus on policy, I generally do not ask policy questions on the exam. On the exam, I'm interested in your ability to:

• Demonstrate a working knowledge of constitutional doctrine and authority, 

• Use case law to make legally sound arguments,

• Identify the constitutional issues triggered by a fact pattern, 

• Present legally relevant arguments and counter-arguments that apply law to a distinct set of facts, 

• Assess the relative strength of those arguments, 

• Draw analogies and distinctions between the fact pattern and the cases we have read, 

• Make accurate judgments about whether the resolution of a legal question is clear or whether there are reasonable legal arguments on both sides, and

• Write in a clear, well-organized manner that meets the expectations of a legally-trained reader. 

For the final exam, you may bring a hard copy of a course outline that you yourself have written and prepared (either by yourself or in cooperation with other members of the class) into the exam with you. You may not bring any other materials into the exam with you, including the casebook, and you will not have access to the internet or any online or digital materials. When preparing your outline, you should not “cut and paste” entire cases or sections of the casebook or include verbatim excerpts of content drawn from commercial outlines, hornbooks, or online resources. The value of the outline is in the process of preparing it: reviewing the material we’ve covered in the course, condensing and synthesizing that material into a manageable form, and organizing the material in a way that will help you analyze legal problems related to constitutional law.  An outline that is either too long or contains material you haven’t written and reviewed won’t help you master and apply the rules and concepts covered in this course.

Class Participation 

This is primarily a discussion-based class, and your participation and full engagement is absolutely essential to its success. While I will lecture from time to time, if you are the sort of student that learns best in a lecture format or in a passive learning environment, this may not be the right Con Law section for you. In most classes, one of the discussion sections will be assigned to be on call, and I will "cold call" students within that section. However, it is my expectation that every student, regardless of whether you are on call, will be prepared for each and every class. In general, I tend to “cold call” students that have not otherwise volunteered to participate. Please keep in mind that the quality of your participation is far more important than the frequency.

Your final grade for the course may include an adjustment upward one notch (e.g. B to B+) for high-quality participation. Similarly, it may include an adjustment downward for attendance issues, lack of participation, or low-quality participation. Lack of preparation or failure to attend class is a form of low-quality participation.

You have each been assigned to a Con Law II Discussion Section that will meet periodically throughout the semester and will be led by the TA for your group. You can find your Section here.

At times, the course will touch upon emotionally charged subject matter, and you should absolutely feel free to come and talk to me about any reactions you're having to the topics we are exploring or the tone of class discussion. Our goal, as a class, is to model civil discourse between legally trained professionals about difficult issues in ways that reflect the critical role lawyers play in shaping public conversations about constitutional meaning. This involves:

• Focusing on the issue under discussion rather than the individual(s) that are participating in the discussion;

• Defending your interpretations using verifiable information;

• Thoughtfully listening to and trying to understand other students' perspectives;

• Treating the ideas of others with curiosity and respect;

• Assuming the best intentions of individuals who offer perspectives you disagree with;

• Being open-minded about different opinions and to changing your mind based upon what you hear; and

• Respectfully expressing disagreement, and attempting to understand the sources of disagreement.

Optional Writing Assignments 

There will be three ungraded writing assignments throughout the semester for you to submit and receive feedback on your analysis. You are required to submit at least one of the three assignments, though you are welcome (and encouraged) to complete the other assignments as well. The optional writing assignments are due on February 1, February 27, and April 11. Failure to complete at least one of the optional writing assignments constitutes failure to complete the course requirements, and will result in a grade of F for the semester.

How Should I Prepare for Class?

Every constitutional case involves both a state actor and an allegation that the state actor has violated a provision of the United States Constitution. For each and every case you read, make sure you can (a) identify the state action that's under review, (b) identify the precise constitutional provision the state actor is accused of violating, and (c) can clearly explain how the action taken by a state actor potentially violated the specific constitutional provision in question. 

Once you have clearly identified the state action, the relevant constitutional provision, and the nature of the constitutional claim, focus your reading (and your case briefing) on these questions:

• Facts: What are the facts that gave rise to the alleged constitutional violation, and what does each side want the Court to do? 

• Law: What is the “state action” under review, and which specific provision(s) of the constitutional text does it allegedly violate?  

• How did each side argue the case? Imagine yourself as an attorney for one side, and then the other. What is each side’s “theory” of how the Court should interpret the constitutional provision at issue? What reasons does the government offer as the justification for its actions, and why does the plaintiff believe those reasons are inadequate? What are the interpretive arguments made by both sides in the case, and which interpretive modalities do they use? What legal authorities do they use to support their interpretation? NOTE: Do NOT skip this step--most of the questions we explore in class will require you to fully articulate each side's interpretive arguments.

• Rule: What constitutional “standard of review” and/or rule does the case apply? How will that rule guide subsequent interpretations of the constitutional clause(s) at issue? 

• Theory and Policy: To what extent does the rule operate to limit or expand government power? What reasons does the government offer as the justifications for its actions, and do you think those reasons are constitutionally sufficient? What are the policy justifications for the rule established by the Court, and what potential problems does the rule present for future cases?

• Did the Court get it right?: Imagine yourself as a judge deciding the case. Would you sign onto the majority opinion?  Did the Court decide the case correctly based on the law (i.e. is the case's outcome supported by the Constitution's text, history, structure, and other cases)? Does the Court's decision comport with your own sense of "fairness" and "justice"? 

• Contextual Dynamics: What independent historical, social, political, and/or economic factors might help explain the Court’s actions?