Fall 2010

POLS 317 Judicial Process

The judicial process presents us with an interesting puzzle. Narrowly conceived, it is a set of specific procedures, specialized personnel, and institutional arrangements with the goal of adjudicating cases filed in courts. A broader view suggests that there are no clear signs to mark the outer edges of the judicial process, as a constant struggle occurs to decide what is and what is not an issue for litigation. Are some things off limits? To what extent should the judicial process be a part of our every-day lives? We are also concerned with the issue of justice in the law. Should law include the concept of justice at all?  Is law simply the struggle over different moral claims, values, and beliefs? Can we agree on a common ideal of justice? Along these lines we’ll ask what does it mean to think like a lawyer or a judge? Is it any different from the way you or I or anybody else thinks?

T 6:00 – 8:40pm DU 459

Instructor: Artemus Ward
Office: 405 Zulauf Hall Office Phone:
815-753-7041
E-mail:
aeward@niu.edu – Best way to reach me. Website: http://polisci.niu.edu/polisci/faculty/ward/
Office Hours:
T 1:30pm-4:30pm & by appointment


Required Texts:

Braman, Eileen, Law, Politics & Perception: How Policy Preferences Influence Legal Reasoning (Charlottesville: University of Virginia Press, 2009).

 

Corley, Pamela C., Concurring Opinion Writing on the U.S. Supreme Court (Albany: State University of New York Press, 2010).

 


In-Class Films:

Roshomon (1950). The bad news is that a crime is committed in ancient Japan. The good news is that there are a number of eyewitnesses so the crime will be easy to solve. Directed by Akira Kurosawa. Starring Toshiro Mifune. 88 minutes.

The Wrong Man (1956). Never borrow on your wife’s insurance policy. I don’t care how bad her teeth are! Directed by Alfred Hitchcock. Starring Henry Fonda and Vera Miles. 105 minutes.

Twelve Angry Men (1957). Why no juror should ever have tickets to the ballgame in his pocket. Directed by Sidney Lumet (Academy Award Nominations—Best Director; Best Picture). Starring Henry Fonda. 96 minutes.

To Kill a Mockingbird (1962). What kind of man are you? Directed by Robert Mulligan (Academy Award Nomination—Best Director; Best Picture). Starring Gregory Peck (Academy Award Winner--Best Actor). 129 minutes.

The Paper Chase (1973). You have to choose between the girl you love and the diploma you've worked for all your life. You have 30 seconds. Directed by James L. Bridges. Starring Timothy Bottoms, Lindsay Wagner, and John Houseman (Academy Award Winner—Best Supporting Actor). 111 minutes.

Gideon’s Trumpet (1980). Should you have the right to an attorney? Starring Henry Fonda, Jose Ferrer, and John Houseman. 104 minutes.

The Firm (1993). A young lawyer joins a prestigious law firm. Was the signing bonus worth it? Directed by Sydney Pollack. Starring Tom Cruise, Gene Hackman, and Holly Hunter. 154 minutes.

A Civil Action (1998). Justice has its price. Directed by Steven Zaillian. Starring John Travolta and Robert Duvall (Academy Award Nomination—Best Supporting Actor). 115 minutes.

The Supreme Court Visitor’s Film (2001). Brief documentary on the functioning of the Court, including interviews and discussion with the final Rehnquist Court: Chief Justice William H. Rehnquist, and Justices John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer. 25 minutes.

Real Justice, Parts I & II (2000). A riveting PBS Frontline documentary about the American criminal justice system. We are treated to virtually total access of all elements of the process. Thanks to wireless microphones worn by lawyers, police officers, and judges, we can hear them discussing the details of various cases, consulting with victims and witnesses, counseling and educating clients and, not least, cutting deals. Part I: 90 minutes. Part II: 60 minutes.

Milk (2008). The beginning of Dianne Feinstein's political career. Sean Penn (Academy Award Winner-Best Actor), Josh Brolin (Academy Award Nomination-Best Supporting Actor).


Course Requirements:

 

Mid-Term Exam

There will be one midterm exam. It will be an objective test consisting of multiple choice and true/false questions about the lectures, films, and readings. There will be 25 questions and you will have 30 minutes maximum to complete the exam once you start. It will be available through Blackboard for a 24-hour period. Make sure you use a reliable computer to take the mid-term. I suggest using a computer on-campus. The mid-term cannot be made up under any circumstances.

 

Moot Court Oral Argument Exercise and Paper

We will hold simulated Supreme Court oral arguments for one case toward the end of the semester. Well before the moot court, I will ask each of you to choose to be either a justice or an attorney. Everyone is required to participate by choosing to play an attorney for the petitioner, attorney for the respondent, or a particular, current, Supreme Court justice. For each case there will be 2 attorneys, one for each side, and up to nine justices. The moot court paper will be based on your role. If you play a justice, you are to write a “bench memo” which is basically an opinion tentatively deciding the case the way that “your justice” would decide it (more info on this below). If you are an attorney, your paper will be in the form of a legal argument as to why your position is correct and your opponent’s argument is incorrect. Failure to attend your scheduled oral argument will result in a failing grade for the assignment. No exceptions. 

 

Attorneys: The responsibilities of the attorneys will be to prepare an oral argument. Each attorney should come to the oral argument with a detailed brief (3-5 pages) of the argument he or she wishes to make. The brief must consist of a discussion of each of the precedents you are assigned to read. Begin with an introduction stating your argument. Then go through each precedent. You should state what the Court said in the past case and explain how it is relevant to your position on the current case. Majority opinions are most important, but concurrences and dissents from past cases may also be helpful to your argument. Address every opinion that you are assigned to read. Your conclusion reiterates the argument you made in the body of your brief. Hand in a copy of your brief to the instructor at the start of class. 

 

Justices: The responsibility of the justices is to identify the key questions that the justice they are “playing” would be most concerned about. Each justice should prepare a "bench memo" of 4-5 pages outlining what the justice thinks the key issues and the questions the justice will want the attorneys to address. Each justice must ask at least two questions during the oral argument. Each justice will hand in a copy of their bench memo to the instructor at the start of class just before oral argument begins.

 

Bench Memo: This 4-5 page paper outlines the key issues in the case and the questions they raise. You are writing it as if you were the justice you are portraying. The memo should be structured with an introduction, body, and conclusion. The introduction should identify the key issues and questions they raise—and perhaps a tentative answer if you wish. The body should be a discussion of the precedents you are assigned to read. Go over each case: what was the Court’s holding? What was the reasoning of the majority? When applying that reasoning to the current case, what questions are raised? You may also want to provide your own answer (that is as the justice you are playing) to these questions – in essence a preliminary determination of the case. Focus on majority opinions, but also address the concurrences and dissents we read and discussed in class. The conclusion should reiterate the key issues, the questions they raise, and possibly your initial resolution to the dispute. Bring a copy of your bench memo to hand in to the instructor at the start of class. 

 

Oral Argument Questions: Each justice must ask at least 2 questions during oral argument. You should already have these questions (and more) in your bench memo. Listen to the oral argument carefully and make sure your question comes at an appropriate time in the argument. To listen to how this works in the U.S. Supreme Court, hear oral arguments at www.oyez.org. Asking only one question will result in one full-grade deduction on your paper. Failure to ask any questions will result in two full-grade deductions on your paper. 

 

Procedure: Each attorney will have up to, but not more than 30 minutes to present his/her argument. The Chief Justice is in charge of oral argument and will keep the time. At the start, the Chief announces, “We will now hear arguments in (name of the case). We will hear from counsel for the petitioners.” The petitioner is always the name listed first on the case. For example, in Roe v. Wade, the petitioner (the person bringing the case to the Court) is Roe. The attorneys always begin the argument by stating “Mr./Madam Chief Justice and may it please the Court . . .” Toward the end of the argument, the attorneys may choose to save some of their time for rebuttal, by announcing “I would like to reserve the balance of my time.” After hearing from the petitioners, the Chief Justice will announce, “We will now hear from the respondents” giving them 30 minutes total as well. The respondents may also reserve the balance of their time for rebuttal if they choose. After the argument concludes, the Chief announces, “The case is submitted.” 

 

For the oral argument, attorneys should not simply read from their outlines. The justices will constantly interrupt to ask questions; justices should take care to allow the other justices to finish asking their questions and the attorneys to respond for asking their own questions. In short, be respectful of others. 

 

The oral arguments will be presented in separate sessions toward the end of the semester. You are only required to attend the session you are assigned to. However, you may also attend other sessions and observe if you choose. You may even be able to participate in other moot courts if there is space… 

 

For justices grading of the oral argument exercise will be based primarily on your written work. However, excellent oral participation can compensate for shortcomings in the paper, but only at the discretion of the instructor. Justices will want to discuss each required precedent and how it relates to the current case. In this sense, the bench memo is like a preliminary opinion. For example, if you are “playing” Justice Sandra Day O’Connor, you would write the bench memo as if you were her analyzing and possibly tentatively resolving the case. Explain how past cases/opinions give rise to questions and, if you choose, help you tentatively resolve the current case. Each justice must also ask two questions. Failure to do this will negatively affect your moot court grade.  

 

For lawyers the grade will be based primarily on the oral presentation. Lawyers should focus on how past cases apply to the current case. Attorneys should realize that they will be answering questions more than giving a speech.

 

Field Observation & Report

An important part of learning is experience. In this course you are required to participate (attend, observe, and possibly interact in) at least one aspect of the judicial process. It is your responsibility to arrange this. Past students have observed court proceedings, visited law firms and spent the day with an attorney, done ride-alongs with police officers, and visited jails. There are other opportunities as well. You many NOT use your own personal involvement with the legal process—for example if you are pulled over for speeding, cited for underage drinking, or indicted for running a money-laundering operation in the Caymen Islands—for this assignment. If you are unsure whether your field observation will be acceptable, please discuss it with me first.

The field report must address four topics:  

1)      a personality you observed (a particularly charismatic or intriguing person) noting the leadership skills, rhetoric, and emotion, if any that are exhibited;

2)      the process (what procedure took place in public, and even behind the scenes);

3)      how justice was either further or inhibited (possibly both) by what you observed;

4)      and a discussion of how what you observed relates to the course material (lecture, readings, films, etc.)

 “A” papers cover all four topics well. “B” papers cover three of the four topics. “C” papers cover two of the four topics. This write-up should be 3-4 pages long (typed double-spaced). We will briefly discuss your reports at the end of the semester. All papers are due on the first day of in-class discussion of the field reports. Check the syllabus for the due date.    

Final Exam

The exam will cover the course material that was assigned since the mid-term and will be on-line through Blackboard following the same format as the mid-term exam.

 


Grading System:

Final grades will be determined by the following scale:

90-100 = A

80-89 = B

70-79 = C

60-69 = D

0-59 = F

...

% of Total Grade

Mid-Term Exam

30%

Moot Court Oral Argument Exercise

20%

Field Observation & Report

20%

Final Exam

30%

Total=

100%


Course Policies:

1. Extracurricular Activities - It is your responsibility to notify me in advance of any activities that will disrupt your course participation. If your activities make it impossible for you to fully participate in this course, you should consider withdrawing.

2. Late Work - Anything turned in late will be marked down one-third grade for every day it is overdue. Exceptions are made only in the most extraordinary circumstances and I will require some sort of documentation to make any accommodation.

3. Cheating and Plagiarism - Students cheating and plagiarizing will fail the assignment on which they have committed the infraction and will be referred to the appropriate judicial board for disciplinary action. The submission of any work by a student is taken as guarantee that the thoughts and expressions in it are the student's own except when properly credited to another. Violations of this principle include giving or receiving aid in an exam or where otherwise prohibited, fraud, plagiarism, or any other deceptive act in connection with academic work. Plagiarism is the representation of another's words, ideas, opinions, or other products of work as one's own, either overtly or by failing to attribute them to their true source.

4. Undergraduate Writing Awards - The Department of Political Science will recognize, on an annual basis, outstanding undergraduate papers written in conjunction with 300-400 level political science courses or directed studies. Authors do not have to be political science majors or have a particular class standing. Winners are expected to attend the Department's spring graduation ceremony where they will receive a certificate and $50.00. Papers, which can be submitted by students or faculty, must be supplied in triplicate to a department secretary by the end of February. All copies should have two cover pages - one with the student's name and one without the student's name. Only papers written in the previous calendar can be considered for the award. However, papers completed in the current spring semester are eligible for the following year's competition even if the student has graduated.

5. Statement Concerning Students with Disabilities - Under Section 504 of the Rehabilitation Act of 1973, NIU is committed to making reasonable accommodations for persons with documented disabilities. Those students with disabilities that may have some impact on their coursework and for which they may require accommodations should notify the Center for Access-Ability Resources (CAAR) on the fourth floor of the Health Services Building. CAAR will assist students in making appropriate accommodations with course instructors. It is important that CAAR and instructors be informed of any disability-related needs during the first two weeks of the semester.

6. Department of Political Science Web Site - Undergraduates are strongly encouraged to consult the Department of Political Science web site on a regular basis. This up-to-date, central source of information will assist students in contacting faculty and staff, reviewing course requirements and syllabi, exploring graduate study, researching career options, tracking department events, and accessing important details related to undergraduate programs and activities. To reach the site, go to http://polisci.niu.edu.


Course Calendar:

Week 1 T Aug 24

·         Lecture 01:Introduction, syllabus review.


Week 2 T Aug 31

·         Lecture 02: Courts, Politics, and Justice.

·         Reading: Law, Politics & Perception, Preface.

·         Film: Roshomon (1950)


Week 3 T Sep 7

·         Lecture 03: The Legal Profession I: Legal Education & Law School

·         Reading: Law, Politics & Perception, Introduction.

·         Film: The Paper Chase (1973)

Recommended Reading List: Recommended Reading List: John Jay Osborn, The Paper Chase (Boston: Houghton Mifflin, 1971); Scott Turow, One L (New York: Putnam, 1977); Lawrence Dieker, Letters from Law School: The Life of a Second Year Law Student (Lincoln, NE: Writers Club Press, 2000); Anthony Lewis, Gideon’s Trumpet; Gerald Stern, The Buffalo Creek Disaster.


Week 4 T Sep 14

o       Lecture 04: The Legal Profession II: Lawyers & Law Practice

o       Reading: Law, Politics & Perception, Ch. 1.

o       Film: The Firm (1993)

 


Week 5 T Sep 21

·         Lecture 05: The Organization of Courts

·         Reading: Law, Politics & Perception, Ch.2.

·         Film: Gideon’s Trumpet (1980)


Week 6 T Sep 28

·         Lecture 06: Choosing Judges I – State Courts and Lower Federal Courts

·         Reading: Law, Politics & Perception, Ch.3.

·         Film: To Kill a Mockingbird (1962).


Week 7 T Oct 5

·         Lecture 07: Choosing Judges II – The Supremes

·         Reading: Law, Politics & Perception, Ch.4.

·         Film: The Supreme Court’s Visitor’s Film (25 min)


Week 8 T Oct 12

·         Lecture 08: Civil Procedure

·         Reading: Law, Politics & Perception, Ch.5.

·         Film: A Civil Action (1998).

Recommended Reading List: Lincoln Caplan, Skadden: Power, Money, and the Rise of a Legal Empire (New York: Farrar, Straus, Giroux, 1993); Steven J. Kumble and Kevin J. Lahart, Conduct Unbecoming: The Rise and Ruin of Finley, Kumble (New York: Carroll & Graf, 1990).


Week 9 T Oct 19

·         Lecture 09: Criminal Procedure

·         Reading: Law, Politics & Perception, Ch.6.

·         Film: The Wrong Man (1956)

Mid-term exam will be available on-line for a 24-hour period starting at the end of class.


Week 10 T Oct 26

·         Lecture 10: Trials.

·         Reading: Concurring Opinion Writing on the U.S. Supreme Court, Ch.1.

·         Film: Twelve Angry Men (1957).


Week 11 T Nov 2

·         Reading: Loving v. Virginia; Bowers v. Hardwick; Romer v. Evans; Boy Scouts of America v. Dale; Lawrence v. Texas.

·         Film: Milk (2008).


Week 12 T Nov 9

·         Reading: Concurring Opinion Writing on the U.S. Supreme Court, Ch.2.

·         Moot Court Exercise Group #1 6:00-7:15pm: 30 min. each side (60 min. total); 15 min. for judges to deliberate and vote. Group #2 7:30-8:45pm: 30 min. each side (60 min. total); 15 min. for judges to deliberate and vote.

All Moot Court papers are due today for Groups #1 and #2.


Week 13 T Nov 16

·         Reading: Concurring Opinion Writing on the U.S. Supreme Court, Ch.3.

·         Moot Court Exercise Group #3 6:00-7:15pm: 30 min. each side (60 min. total); 15 min. for judges to deliberate and vote. Group #4 7:30-8:45pm: 30 min. each side (60 min. total); 15 min. for judges to deliberate and vote.

All Moot Court papers are due today for Groups #3 and #4.


Week 14 T Nov 23

·         Lecture 11: Appeals

·         Reading: Concurring Opinion Writing on the U.S. Supreme Court, Ch.4

·         Film: Real Justice (Part I).

·         Field Report Discussion: Police & Jails – If you observed/participated in policing or corrections, we would like you to discuss your experience in class.


Week 15 T Nov 30

·         Lecture 12: Judicial Decision Making

·         Reading: Concurring Opinion Writing on the U.S. Supreme Court, Ch.5.

·         Film: Real Justice (Part II).

·         Field Report Discussion: Attorneys, Courts & Judges -- – If you observed/participated in the work of attorneys, the court system, and/or the judging process, be prepared to discuss your experience in class. We will also hear from those who have yet to share their experiences.

All Field Report papers are due today.


Week 16

Final exam will be available on-line for a 24-hour period beginning T Dec 7 at 6pm.