• David M. O'Brien: Storm Center (4th edition, 1996)
• Craig R. Ducat: Constitutional Interpretation, Powers of the Government (7th edition, 1999)

The following are on reserve in the library:

• C. Edward Good, Mightier Than the Sword: Powerful Writing in the Legal Profession (1989)
• Peter Irons & Stephanie Guitton: May It Please the Court (1993) [both book & audio tape]
• William C. Louthan: The United States Supreme Court (1991)
• Albert P. Melone: Researching Constitutional Law (1990)
• Helene S. Shapo, Marilyn R. Walter & Elizabeth Fajans: Writing and Analysis in the Law (1991)
• Lawrence H. Tribe & Michael C. Dorf: On Reading the Constitution (1991)
• UCLA Moot Court Honors Program: Handbook of Appellate Advocacy (revised edition, 1986)

Library Resources: The following are among the more valuable study and research aids available in Russell Cole Library. Use them, but don't abuse them.

The library has a complete set of the United States Reports. These are the official records of the decisions and opinions of the United States Supreme Court. Since 1994 the U.S. Reports has been available on microfiche. The library allows you to make free hard copies from microfiche sources. The microfiche version will be found at "Microfiche, Government Documents, Ju6.8."

In the reference section of the library you will find the following:

• Ref 340.03 B564b Black's Law Dictionary, 5th ed. West Publishing Co.
• Ref 342 Un3u United States Statutes at Large. GPO.
• Ref 342.73 B283s Summaries of Leading Cases on the Constitution, 12th ed. Roman and Allanheld.
• Ref 342.73 C361c The Constitutional Law Dictionary, 2 vols. ABC-Clio.
• Ref 342.73 F825 The Founders' Constitution, 5 vols. U. of Chicago Press.
• Ref 342.733 Un3c The Constitution of the U.S.A. Annotated. GPO.
• Ref 345.2 Un3 The United States Code. GPO.
• Ref 347.73 C76c Guide to the U. S. Supreme Court. Congressional Quarterly.
• Ref 347.73 Sh47 Shepard's Acts and Cases by Popular Names, 2 vols. McGraw-Hill.
• Ref 348.73 B61s United States Supreme Court Index to Opinions, 2 vols. Kraus.
• Ref 348.73 G935u United States Supreme Court Decisions: an Index to Excerpts, Reprints, and Discussions. Scarecrow Press.

Also recommended:

• 342.73 C81con Corwin, Edward S. The Constitution and What it Means Today, 12th ed. (1958, 1978 supp.)
• 347.99 Su7 Kurland, Philip B., ed. The Supreme Court Review (University of Chicago Press, 1961- )

Recommended in the periodical collection:

• Civil Liberties. 1973-
• Harvard Law Review. v. 79, 1965-
• Law and Society Review. 1979-
• Yale Law Journal. v. 75, 1965-

The University of Iowa Law Library: Located in the Boyd Law Building just southwest of the intersection of Burlington and Riverside in Iowa City, the library is open to the public for long hours, seven days per week. This is an exceptional--and reasonably user-friendly-resource. There is much here you might use for this course, but Cornell's Russell Cole Library--including its Internet connection--has all the resources you will need for this course.

Internet Resources: The premier Internet site for the kind of work you will be doing this term is the Legal Information Institute (LII) at Cornell University Law School. You also might be interested to know that an alumnus of this class, Marlow Green, Cornell College Class of 1994 and Cornell Law School Class of 1997, was an editor on this site while he was in law school. Another exceptionally useful site is Find Law. Links to these sites and many more are usefully arranged at the Department of Politics Research Links page.

Synopsis: This course addresses itself to three broad and interrelated themes of constitutional interpretation:

1. The Separation of Powers (The Struggle for Governmental Supremacy)
2. The Federal System (The Struggle for Inter-Governmental Supremacy)
3. The Regulation of Business (The Struggle for Economic Supremacy)

I have expressed each of the three central themes in terms of struggle in order to remind you that the study of "law" is also the study of politics and power. Court cases have winners and losers, and court decisions help determine the configuration of our society. Although the chapters of the text book and the structure of the course begin with the separation of powers and move through federalism to business regulation, the three themes overlap extensively. Indeed, that is what suits them for consideration in a single course.

Requirements: Your grade for this course will be based upon the following factors:

1. Readings, Exams and Quizzes [40%] -- All reading must be completed by class time on the day for which it is assigned. Reading assignments are part of the Calendar & Assignments. Please allow yourself plenty of time for careful study. You will discover that casual reading of court cases is not terribly productive. There will be a total of four quizzes in the course of the term. They may or may not be announced in advance. The quizzes will preview most of the kinds of questions you will confront on the final exam. Your best three quiz grades will each account for 5% of the final course grade. A comprehensive final examination will count for an additional 25%. For the purposes of exams and quizzes you may bring and use unlimited notes and briefs so long as they are composed by you. Exams and quizzes are conducted on an honor system. In each instance, you will be required to certify that you have not accepted aid from another student, given aid to another student, or used notes or materials except those composed by you. These provisions are not meant to discourage group study or group preparation for exams and quizzes--both of which are encouraged--but "group notes" or "group briefs" may not be used in exams and quizzes.
2. Case Briefs [20%] -- Each student will submit two case briefs in the course of the term. Each brief will count for 10% of the final grade. This is your best chance to pad your grade.
3. Appellate Brief and Oral Argument [30%] -- Each student prepare an appellate brief and argue a constitutional case before the class. An exceptionally good Model Brief is available for your scrutiny.
4. Class Participation [10%] -- The final 10% of the course grade will reflect the total subjective evaluation of your instructor as to your contribution to the class.

NOTES ON "BRIEFING" SUPREME COURT CASES

Purpose: This assignment is designed to bring to the student a greater familiarity with specified cases than can be achieved by reading the predigested material of a casebook. It is also designed to enhance familiarity with the documentary record of the court, improve critical reading skills, and introduce a technique for reading and understanding court cases upon which law students and lawyers depend heavily. For further information see Appendix D in Ducat (6th ed.) or Melone (on reserve).

The Brief: Most of the material for American Constitutional law consists of judicial opinions, the intelligent reading of which is both an art and a science. In order to make the critical information more accessible, law students and others who read such opinions regularly will generally evolve some standard format for their notes on a case--these notes are the "brief." You are encouraged to "brief" all the cases we study. There are two ways in which you will be formally encouraged to develop your briefing technique: (1) Use of personal notes will be permitted on quizzes and exams. (2) In the course of the term you will be required to submit two special briefs which will be graded. While you may use any format which pleases you for your personal notes, the graded briefs must adhere to the format which follows.

Please center the title and full citation (with inclusive page numbers) on the top two lines, use the seven labels which appear in italics below, and double-space between sections. See the Model Case Brief for an acceptable example.

Smith v. Allwright

321 U.S. 649-83 (1944)

Facts: The fact pattern (Who did what to whom?) that created a controversy for the court to decide?

Issues: The questions of constitutional or statutory interpretation raised by the case. Legal questions should be stated with precision and capable of being answered "yes" or "no."

Decision and Action: "Decision" asks how the Court decided the questions in the previous section. "Action" asks how the Court disposed of the case.

Opinion of the Court: Which justice wrote the opinion of the court? Which justices joined in the opinion? What are the central arguments in support of the court's decision of each question?

Concurring and Dissenting Opinions: (List each opinion separately.) Which justices concurred? Which dissented? How do these opinions differ from the opinion of the court?

Summary (Holding): An extremely precise and concise statement of the legal principles established by the decision.

Significance: What was the real-world political, social, or economic impact of this decision?

Assignment:

1. Select two of the primary cases for this course. The 81 primary cases appear on separate lines in the Table of Contents for Constitutional Interpretation, chapters 1 through 7. Limit your selection to cases decided by the Supreme Court of the United States. Do not select Marbury v. Madison or Baker v. Carr because they are used as examples in your course materials. Select at least one case that exceeds 29 pages in the U.S. Reports.
2. Read each case in the original and prepare a brief according to the format above.
3. Submit briefs printed, single-spaced, and no longer than 900 words.
4. The first brief is due no later than the second Wednesday of the term. The second is due no later than the fourth Monday. Earlier submissions are encouraged. Indeed, the ideal plan is to impress your instructor twice by selecting a case and preparing your brief in time to make a particularly expert contribution to the discussion in the class for which the case was assigned.

Note: At 163 pages, Baker v. Carr is one of the longest Supreme Court decisions you are likely to encounter. In spite of its length and complexity, the following brief contains only 793 words. An excellent brief will capture all the pertinent elements while minimizing length. The brief that follows has been adapted from Albert P. Melone, Researching Constitutional Law (Glenview, IL: Scott, Foresman, 1990), pp. 112-14.

Facts:

In 1901 Tennessee enacted a statute apportioning the state legislature and providing for subsequent decennial reapportionment on the basis of qualified voters resident in each of the state's counties as determined by the population census. For 60 years Tennessee became increasingly urban, but no reapportionment took place. Finding themselves underrepresented in the state legislature, Baker and other urban citizens sued in U.S. District Court under federal civil rights statutes charging that they were being denied equal protection of the laws contrary to the 14th Amendment. The plaintiffs sought a court declaration that the 1901 law was unconstitutional and asked the court for the alternative remedies of election of state legislators at large or elections from districts based on the 1950 census. The district court agreed that the plaintiffs' rights had been abridged but dismissed the suit as lacking any judicial remedy.

Issues:

1. Does the district court have jurisdiction of the subject matter in this case?
2. Do the litigants have standing to sue?
3. Is the issue of malapportionment of state legislatures a nonjusticiable political question?

Decision and Action:

(1) Yes, (2) Yes, (3) No. Reversed and Remanded.

Opinion of the Court:

Brennan (joined by Warren Douglas, Black, Clark, Stewart):

1. There is a distinction between jurisdiction of the subject matter and justiciability of the subject matter. There is no jurisdiction if the cause of action (a) does not arise under the Constitution, laws, or treaties of the United States or (b) is not a case or controversy within the meaning of Article III § 2. However, the matter of equal representation arises under the Equal Protection Clause of the 14th Amendment, and the U.S. District Court is authorized to hear such cases by statute (28 U.S.C. § 1314).
2. Voters alleging facts which disadvantage them as individuals have standing to sue. The 1901 statute injures the appellants because they are voters in the counties which are underrepresented in the Tennessee state legislature. Voters have judicially enforceable rights against arbitrary impairment of the full enjoyment of that privilege.
3. The fact that this suit seeks protection of a political right does not render the case a political question and therefore nonjusticiable. Claims based upon the Guaranty Clause have been dismissed by this court as political questions better left to legislative and executive branches. Appellants' claims are based not on the Guaranty Clause but on the Equal Protection Clause of the 14th Amendment. The concept of nonjusticiable political questions applies to cases requiring judicial deference to the other branches of the federal government. Appellants' claim are against the state government where the doctrine of political questions does not apply.

Concurring and Dissenting Opinions:

Douglas concurring: There is no question that under the Equal Protection Clause of the 14th Amendment the federal courts may restrain state agencies from violating citizens' rights. However, the test is whether the state has made "an invidious discrimination" as when it oppresses a race or nationality. The appellants should have an opportunity to prove that "invidious discrimination" exists in this case.

Clark concurring: It is not a good idea for the Supreme Court to intervene in such a delicate matter as legislative representation. However, the appellants in this case have no recourse but to appeal to the courts for remedy. The ordinary political channels are effectively closed to them.

Stewart concurring: The Court's opinion is limited to three points and nothing more:

1. the Court possessed subject matter jurisdiction;
2. the case represents a justiciable cause of action; and
3. the appellants have standing to challenge the Tennessee apportionment statutes.

Frankfurter (joined by Harlan) dissenting: The Court reverses a uniformly decided set of cases on this subject. The case involves political questions, and when the Court involves itself in such matters, it may suffer a loss of public confidence. Moreover, the Court does not provide any guidelines for the district court to enforce the claim. Finally, this case is not a simple one of blatant discrimination. Rather, Tennessee uses a form of geographical representation that is not preferred by the appellants.

Harlan (joined by Frankfurter) dissenting: The complaint should be dismissed for "failure to state a claim upon which relief can be granted." There is no equal protection requirement that legislative institutions must provide an equal voice for each voter. If the Supreme Court is to remain a respected institution, it must exercise judicial restraint.

Whittaker did not participate in the decision.

Summary: Aggrieved citizens may challenge state legislative malapportionment in federal court.

Significance: The vicious cycle of malapportionment was broken as the legislators who benefited from malapportionment were no longer the only people with the power to change it. In a relatively short period of time the rural domination of state legislatures came to an end as cities and suburbs achieved representation based on their populations.

NOTES ON APPELLATE BRIEF AND ORAL ARGUMENT

Purpose: The purpose of the Appellate Brief and Oral Argument assignment is to practice the research and advocacy skills which are characteristic of liberal education and essential for the legal trade, and to do so in a situation which simulates to some degree the real-world legal environment.

Stages in the Assignment:

1. CASE ASSIGNMENT: On the first Wednesday of the term a random device will be used to assign students to cases. Each case will have two students assigned, one to the petitioner (appellant in the case of an appeal) and one to the respondent (appellee in the case of an appeal). The same day you will receive a schedule of dates on which particular cases will be argued.
2. THE APPELLATE BRIEF: After you have your assignment and before your presentation date you have the following duties:
   
   a. Study your case with great care. Learn "everything" (see note below) you can about it, particularly about the constitutional issues on which the case must be decided. The best single source for this research is the original synopsis and decision with associated concurring and dissenting opinions printed in the United States Reports. You should also consult previous cases relied upon in the decision of your case, the U.S. Constitution Annotated, and other legal resources as appropriate. Part of the task is to learn to do some creative searching for information, but pages 3 and 4 of this syllabus will get you started. (Note: The actual briefs filed with the court and the transcripts or recordings of oral arguments are off limits. Using them is prohibited and probably counter-productive. You might be seduced into copying when you should be thinking with the result that you don't understand your own argument. Furthermore, the actual briefs often raise issues--both substantive and procedural--that go beyond the scope of this class. You risk confusing yourself and the court.)
   
   b. Prepare a written brief of your argument. This is not a study brief of a decision already made like those discussed on pages 5 through 7. Those briefs are designed to help you learn the basic elements of the cases we read. This is an advocacy brief--a synopsis of the most critical arguments and precedents which favor your side of this controversy. Briefs should follow the form set out in the Handbook of Appellate Advocacy except that you may omit Topical Index, Table of Authorities, Opinions Below, Jurisdictional Statement and Summary of Argument. The Handbook of Appellate Advocacy provides detailed guidance for preparing an effective brief. (Note: It is even more important for you than it would be for an attorney arguing to real judges that you explain the pertinence of every precedent to your case. Never make an assertion supported simply by a case reference. Describe the pertinent elements of each precedent you cite and explain why that precedent ought to be determinative in your case.) Your brief must be printed and distributed to every member of the class on the class-day prior to the day of your oral argument. Your opponent will also get a copy of your brief at that time. (Notes: To save paper and minimize your copying expenses, your briefs may be printed single-spaced. An exceptionally good Model Appellate Brief is available for your scrutiny.)
   
   c. Study your opponent's brief and concentrate on how you can most effectively counter the arguments that he/she intends to make. If you have done your research well, your opponent's brief will contain no surprises.
   
   
3. FORMAL ORAL PRESENTATION: On the day of the oral argument attorneys for petitioner (appellant in the case of an appeal) and respondent (appellee in the case of an appeal) will be given 10 minutes each to present their cases to the court (made up of the professor and the rest of the students in the class). Students whose initial presentation to the court consumes less than the full 10 minutes allowed may reserve the remainder for rebuttal. As in the Supreme Court, the time limit will be rigidly enforced. Attorneys are reminded that preparing the written brief and preparing the oral argument are different tasks. Although our format differs significantly from that of a real appellate (or law school moot court) hearing, the general advice on preparing for and delivering an oral argument in the Handbook of Appellate Advocacy still applies. You may want to listen to some experts argue real cases before the Supreme Court. See Irons: May It Please the Court (1993) [live recordings of oral arguments before the Supreme Court] on reserve for this course.
   
   
4. QUESTIONS: Following the formal presentations, attorneys will be questioned by members of the court. Again, consult the Handbook of Appellate Advocacy for general advice. Subsequently, attorneys will be dismissed, and the court will deliberate "in conference." Eventually, the court will vote a decision, attorneys will be recalled and informed of our decision, and the real world outcome of the case will be revealed and discussed.
   
   
5. EVALUATION: Your brief, formal oral presentation, and response to the court's questions will be evaluated independently, and your grade for the project will reflect the quality of its three components. You will receive a written evaluation of each component.

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   Additional Links that Form Part of the Syllabus

   "Briefing" Supreme Court Cases

   Model Case Brief

   Appellate Brief & Oral Argument

   Sample Appellate Brief