Instructor: Brendon Swedlow Political Science (POLS) 412
email@example.com Constitutional Law III
Office: 418 Zulauf Hall DU 461 MW
Hours: MW NIU Spring 2006
This course covers major United States Supreme Court cases interpreting First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment limitations on state power over individuals. Cases in the first part of the course define how state agents must act when searching for and seizing evidence of suspected criminal activity, and how they must treat those they detain, arrest, question, prosecute, and punish. Cases in the second part of the course define the extent to which states may restrict freedom of speech in the interests of national security and public order.
Your grade in this course will be based on class
participation, two take-home midterms, and an in-class final. Class
participation will determine a significant part of your grade (20%) and is
further described on the next page. The
midterms and final will consist of hypothetical fact-patterns that I will ask
you to analyze in terms of the cases we have been reading. Take-home midterm
answers should be six pages in length, double-spaced, with 12 point type. If
you want, the first midterm answer can be jointly authored with one other
person from this class. The final is open-course-pack, open-note. Most readings are in a course-pack that can
be purchased at the
February 13 Midterm #1 (15%) Take-home, can be jointly authored; six pages; due
following Monday, February 20, at beginning of class
March 20 Midterm #2 (25%) Take-home; must be your own work; six pages; due
following Monday, March 27, at beginning of class
May 8 Final (40%) In-class; open course-pack, open note; but no sharing
of materials or discussion during exam; Monday, 2-3:50.
Bring your own blue books.
Participation (20%) See following page for further explanation
Briefing Cases, Study Groups, the Socratic Method, and Class Participation
We will read and discuss many judicial opinions in this course. I will teach you how to read these cases so that you can extract their constitutionally relevant aspects. This specialized form of note-taking is called “briefing cases.” Law students often form study groups to brief and discuss cases. I encourage you to do the same.
In class, I will ask you questions about your readings, particularly about the cases you have read. Your case briefs will be essential to answering these questions. This questioning approach to teaching is called the Socratic Method, and is the most common teaching style used in law schools.
Every day that we meet I will select one or more students from the enrollment roster to answer questions about the readings. Students who are present and prepared to answer those questions, will receive credit for participating in class discussion that day. Students who are absent or unprepared, will receive no credit that day. Other ways to receive no credit for the day include: (1) cell phone or pager-related interruptions and (2) being late, stepping out of and back into class, or leaving early without good reason.
Oral Argument and Class Participation
Periodically, I will ask you to act as prosecutors and defense attorneys, arguing cases before judicial appellate panels composed of your fellow students. Your performance in any of these three roles will contribute significantly to your participation grade.
Prosecutors and defense attorneys will consist of teams of two students each. Judicial panels will be composed of five to seven students each. Judges will have the opportunity to question counsel before discussing and voting on the case.
Oral argument will consist of opening statements by the prosecution and defense, followed by closing arguments/rebuttals by co-counsel. Argument will focus on constitutional not criminal issues in the cases.
You will be given advance notice of which cases we will be arguing in class, and who will be acting as prosecutors, defense attorneys, and judges. This will allow counsel to prepare their arguments and judges to prepare their questions.
Counsel and judges will use majority, concurring, and dissenting opinions in our cases to re-create the arguments and questions that occurred during actual oral argument before the Supreme Court. Each attorney will have 3-5 minutes to make his or her argument, for a total of 12-20 minutes of argument.
For some cases, our readings contain transcripts of the questions that were asked and the answers that were offered when these cases were argued before the U.S. Supreme Court. In some cases, the briefs filed by parties are available online and can also be used to prepare your arguments and questions.
Credit: Jury Service in
There may be an opportunity for you to serve as a juror in mock trials that function as final exams for students of NIU law school’s courses in trial advocacy. The availability of this opportunity will depend on the needs of the law school faculty who teach these courses and on how many public law students wish to serve as jurors.
I encourage all of you to serve as jurors and will give you extra credit for serving and even for observing these mock trials – an opportunity that should be available to everyone.
Other Opportunities to Participate and/or to Receive Extra Credit
At various points during the semester, I may announce other opportunities to improve your class participation grade and/or to receive extra credit. These opportunities may include analyzing law related events on campus, in the community, country, or world. For example, this semester we should learn whether President George Bush’s nomination of Federal Appellate Judge Samuel Alito to the Supreme Court is successful. You could watch some of the Senate’s confirmation hearings and report on what you saw.
I am open to your suggestions for additional opportunities to participate and/or to receive extra credit in the course.
Other Course Requirements
Please do not…
· ask for extensions on turning in your midterms. Midterms will be graded down one third of a grade per day that they are late.
· ask to take make-up exams or an incomplete in the course unless you have a very, very compelling reason to do so.
Definitely do not…
· engage in “academic misconduct,” defined by the NIU Student Judicial Code as the “receipt or transmission of unauthorized aid on assignments or examinations, plagiarism, unauthorized use of examination materials, or other forms of dishonesty in academic matters.”
Department of Political Science Announcements
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
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
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.
Jesse Choper, “The Current Justices of the
David O’Brien, “The Selective Nationalization of Guarantees of the Bill of Rights,” Constitutional Law and Politics, 277-86.
Bill of Rights and 14th Amendment
Reading a Supreme Court Decision
James Q. Wilson and George L. Kelling, “Broken Windows: The Police and Neighborhood Safety,” The Atlantic Monthly, March 1982, 29-38.
Samuel Walker, “Arrest Discretion, Generally,” Taming the System, 39-41.
Fred Inbow, et al, “Outline of Criminal Procedure,” Criminal Law and Its Administration, 5th ed., (The Foundation Press, 1990), 1-15.
Malcolm Feeley and Samuel Krislov, “Searches, Seizures, and the Warrant Requirement,” Constitutional Law, 2nd edition, (Scott, Foresman/Little, Brown, and Company, 1990), 555-69.
Akhil Reed Amar, The Constitution and Criminal Procedure (Yale University Press, 1997), 1, 3-13, 16-24, 31-35, 37-44; as excerpted in Civil Rights and Civil Liberties, David O’Brien, ed., (Lanahan Publishers, 1999), 137-58. (ON E-RESERVES)
Payton v. N.Y. (1980) (homes)
Schneckloth v. Bustamente (1973) (consent exception)
“Entry of Building for Caretaking” (
Phillip Johnson, “Introductory Commentary,” Cases and Materials on Criminal Procedure, (West Publishing, 1988), 200-4. (Robinson, Sibron, Adams)
“Illegal Searches Used in
David A. Harris, “The Use of Traffic Stops Against
African Americans: What Can Be Done?,” Congressional Black Caucus Annual
NOTE: MIDTERM #1 HANDED OUT AT END OF CLASS ON
MONDAY, FEBRUARY 13TH
H. L. Pohlman, “The Exclusionary Rule:
Craig Bradley, The Failure of the Criminal Procedure Revolution (University of Pennsylvania Press, 1993), 37-41, 45, 48-51.
SURVEILLANCE AND PRIVACY
WEEK 6 SEARCHES IN THE ADMINISTRATIVE STATE
NOTE: MIDTERM #1 DUE AT BEGINNING OF CLASS ON
MONDAY, FEBRUARY 20th
Camara v. Municipal Court (1967) (regulatory searches)
People v. Dilworth (1996) (school search)
Wyman v. James (1971) (welfare search)
Skinner v. Railway Labor Executives (1989) (drug testing)
Michigan Department of State v. Sitz (1990) (roadway checkpoints)
Malcolm Feeley and Samuel Krislov, “The Right to Counsel,” Constitutional Law, 2nd edition, 617-19.
Anthony Lewis, Gideon’s Trumpet (New York: Random House, 1964), 3-10, 44-45, 48, 55, 62-63, 168-70, 173, 185, 187, 223, 226, 237; as excerpted in Civil Rights and Civil Liberties, David O’Brien, ed., 177-83.
Gideon v. Wainwright (1963) (right to counsel in state courts)
Randy Bellows, “Notes of a Public Defender,” from Philip B. Heyman and Lance Liebman, The Social Responsibilities of Lawyers (The Foundation Press, 1988), 69-83.
Peter Irons and Stephanie Guitton, “Oral Argument in Miranda v.
William E. Schmidt, “Silence May Speak Against the
WEEK 8 Rhode Island v. Innis (1980) (non-interrogative police methods)
State v. Cayward (1989) (trick interrogation)
Roger Parloff, “False Confessions,” American Lawyer (May, 1993), 58-62.
McCune v. Lile (2002) (sexual abuse treatment program)
Craig Bradley, The Failure of the Criminal Procedure Revolution, 52-59.
Phillip Johnson, “A Statutory Replacement for the Miranda Doctrine,” Criminal Procedure, 595-606.
Eighth and Fourteenth Amendment Rights Against Cruel, Unusual, and Other Punishments
NOTE: MIDTERM #2 HANDED OUT AT END OF CLASS ON
MONDAY, MARCH 20th
David M. O’Brien, “Post-Furman Rulings on Capital Punishment,” Supreme Court Watch – 2003 (W.W. Norton and Company, 2004), 134-5.
David O’Brien, “Recent Rulings of the Rehnquist Court on Capital Punishment,” Supreme Court Watch – 1996 (W.W. Norton and Company, 1996), 211-15.
David O’Brien, “Recent Rulings of the Rehnquist Court on Capital Punishment,” Constitutional Law and Politics, Volume II: Civil Rights and Civil Liberties (Little, Brown and Company, 1991), 222-25.
Malcolm Feeley and Samuel Krislov, “Punishment and Fairness,” Constitutional Law, 2nd edition, 651-55.
McCleskey v. Kemp (1987) (race and capital punishment)
NOTE: MIDTERM #2 DUE AT BEGINNING OF CLASS ON
MONDAY, MARCH 27TH
Callins v. Collins (1994) (Blackmun and Scalia dissents)
National Security and Political Dissent
Geoffrey Stone, et al, “Freedom of Expression,” Constitutional Law (Little, Brown, and Company, 1991), 1011-24.
Geoffrey Stone, et al, “Expression that Induces Unlawful Conduct,” Constitutional Law, 1025-26.
Geoffrey Stone, et al, “Overbreadth and Vagueness: Gooding v. Wilson,” Constitutional Law, 1121-30.
Geoffrey Stone, et al, “From Dennis
Masses Publishing v. Patten (1917) (“direct incitement to violence”)
Parker v. Levy (1974) (Army captain denounces Vietnam war)
Rust v. Sullivan (1991) (family planning clinic and free speech of doctors)
Public Order and Free Speech
INDIVIDUAL SPEAKERS AND HOSTILE AUDIENCES
Feiner v. N.Y. (1951) (white-bashing speaker)
Peter Irons and Stephanie Guitton, “Oral Argument in
Geoffrey Stone, et al, “The Public Forum: Streets and Parks” and “Regulating the Public Forum,” Constitutional Law, 1177-83.
Frisby v. Schultz (1989) (“focused picketing” in residential area)
WEEK 15 International
Geoffrey Stone, et al, “Fighting Words,” Constitutional Law, 1098-1100.
Peter Irons and Stephanie Guitton, “Oral Argument in
Ira Eisenberg, “Fighting Words: Race and Free Speech
Sarah Lubman, “Judicially Suspect: Campus Speech
Codes are Being Shot Down as Opponents Pipe Up,” The Wall Street Journal,
Marc Hardie, “Living Hell: The Price of Dissent,” The Defender, January 1995, 9.
Pohlman, “Hate Speech: R.A.V. v.
in Action, 212-37.