Con Law II, S 2004

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Con Law II, S 2004

Constitutional Law, Spring 2004

Professor Noveck, A-1005

Syllabus

Unless otherwise noted, all page references are to Brest, Levinson, Balkin and Amar, Processes of Constitutional Decisionmaking (4th ed. 2000). Readings in the 2003 Supplement to the casebook are noted. Materials on the First Amendment will be available in a separate reading packet and on-line.

Weblog URL: http://nyls.weblogger.com/conlawblawg

WEEKS ONE AND TWO

Slavery

(Tuesday, January 13)

Dred Scott v. Sandford and Notes, pp. 182-207
Frederick Douglass, The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery? and Notes, pp. 207-211

Reconstruction and Reaction

A. Introduction

(Thursday, January 15)

The Gettysburg Address
History of the Adoption of the Fourteenth Amendment, pp. 241-249
Note on The Unusual Procedural History of the Fourteenth Amendment, pp. 249-255
The Fourteenth Amendment, pp. li-lii
Strauder v. West Virginia and Notes, pp. 259-265

B. The Reconstruction Amendments and Race

(Tuesday, January 20)

Plessy v. Ferguson and Notes, pp. 270-281
Charles Black, the Lawfulness of the Segregation Decisions, pp. 281-283
Note on The Spirit of Plessy, pp. 283-285
The Civil Rights Cases and Notes, pp. 285-296

The Reconstruction Amendments and the Privileges and Immunities of National Citizenship

(Thursday, January 22)

The Slaughterhouse Cases and Notes, pp. 315-330
Note on The New Departure pp. 265-270
Bradwell v. Illinois and Notes, pp. 330-332

WEEK THREE

The Lochner Era

(Tuesday, January 27)

Notes on the Rise of Substantive Due Process, pp. 332-337
Lochner v. State of New York and Notes, pp. 337-343
Notes on the Jurisprudence of the Lochner Era, pp. 343-351
Constitutional Innovation during the Progressive Period, pp. 387-399

The New Deal and the Emergence of the Modern Paradigm

(Thursday, January 29)

Nebbia v. New York and Notes, pp. 415-417
Home Building & Loan Association v. Blaisdell and Notes, pp. 417-426
Notes and West Coast Hotel v. Parrish, pp. 426-428

WEEK FOUR

The Modern Paradigm of Constitutional Scrutiny

(Tuesday, February 3)

U.S. v. Carolene Products Co., pp. 428-435
Williamson v. Lee Optical Co. and Notes, pp. 435-442
Notes on Incorporation, pp. 401-410

The Modern Debate over Racial Equality

Brown and Its Legacy

(Thursday, February 5)

Notes on the Original Understanding of the Fourteenth Amendment and the Background to the School Desegregation Case, pp. 737-742
Brown v. Board of Education and Notes, pp. 742-746
Notes on Brown and the Original Understanding, pp. 746-763
Reflections on the Opinion in Brown, pp. 764-768

WEEK FIVE

The Antidiscrimination Principle

A. Anticlassification and Antisubordination

(Tuesday, February 10)

Loving v. Virginia and Notes, pp. 801-810
Korematsu v. United States and Notes, pp. 810-822 plus Supp.pages
Note on Discrimination Against Asian-Americans and the Black/White Paradigm, pp. 823-824
What Justifies the Suspect Classification Standard, pp. 824-831

B. What is "Race"?

(Tuesday, February 12)

Hernandez v. Texas and Notes, pp. 831-835
Note on the Social and Legal Construction of Race, pp. 835-841
Note on Custody, Adoption, and Race, pp. 841-846

WEEK SIX

What Constitutes Discrimination "based on" Race?

Intent

(Tuesday, February 17 - No Class)
(Thursday, February 19)

What is a "Race-Dependent" Decision, pp. 846-849
Note and Griggs v. Duke Power Co., pp. 849-851
Washington v. Davis and Notes, pp. 851-860
Commentaries on the Intent Standard, pp. 860-867
Village of Arlington Heights v. Metropolitan Housing Development Corp. and Notes, pp. 867-873.

WEEKS SEVEN AND EIGHT

Race and the Criminal Process

(Tuesday, February 24)

United States v. Clary and Notes, pp. 873-876
Batson v. Kentucky and Notes, pp. 876-884
McCleskey v. Kemp and Notes, pp. 884-892
Note on Racial Profiling and the Equal Protection Clause, pp. 892-894
Brown v. City of Oneonta, 2003 Supp., pp. 135-39

Affirmative Action

Reading 1

(Thursday, February 26)

City of Richmond v. J.A. Croson Co. and Notes, pp 927-953
Grutter v. Bollinger, Supp. 139-78

Reading 2

(Tuesday, March 2) and (Thursday, March 4)

Gratz v. Bollinger, Supp. 178-194
Note on Affirmative Action and Original Intention, pp. 967-973

WEEKS EIGHT (cont.) AND NINE

Gender Classifications and Gender Equality

A. Basic Theoretical Issues

(Tuesday, March 9)

Notes and Frontiero v. Richardson, pp. 985-994
Note on the Equal Rights Amendment, pp. 994-996
What Justifies Special Constitutional Scrutiny, pp. 996-1007

B. "Archaic and Overbroad" Generalizations

(Thursday, March 11)

The Rejection of "Archaic and Overbroad" Generalizations, pp 1007-1015
J.E.B. v. Alabama and Notes, pp. 1015-1021
Note on Discrimination Against Women of Color, pp. 1021-1022
Note on Sex, Gender, and Sexual Orientation, pp. 1022-1025

Separate Facilities for Men and Women

(Tuesday, March 16)

United States v. Virginia and Notes, pp. 1025-1044

WEEK TEN

What is Discrimination "on the basis of" Sex?

A. Intent

(Thursday, March 18)

Personnel Administrator of Massachusetts v. Feeney and Notes, pp. 1053-1060
Note on Domestic Violence and the Equal Protection Clause, pp. 1060-1065

B. Pregnancy

(Tuesday, March 23)

Geduldig v. Aiello and Notes, pp. 1065-1073
The Feminist Legal Debate about Pregnancy and Equality, pp. 1073-1078
Notes and Michael M. v. Superior Court and Notes, pp. 1089-1102
Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, pp. 1102-1104

WEEK ELEVEN

Women in the Military

(Tuesday, March 23)

The History of Women's Military Service and the Combat Exclusion, pp. 1104-1106
The Constitutionality of the Combat Exclusion, pp. 1106-1108
The Draft, pp. 1109-1113
Affirmative Action, pp. 1113-1119

WEEK TWELVE

Modern Substantive Due Process: "Privacy," Sexual Autonomy or Tradition?

(Thursday, March 25)

Notes and Griswold v. Connecticut, pp. 1131-1146
Theories of Fundamental Rights Adjudication, pp. 1146-1155
Cruzan v. Director, Missouri Department of Health and Notes, pp. 1326-1340

Abortion and Gender Discrimination

(Tuesday, March 30)

Roe v. Wade and Notes, pp. 1172-1188
Note: Was Roe a Political Mistake?, pp. 1188-1190
Abortion and the Equal Protection Clause, pp. 1190-1199
Note on Decisions After Roe, pp. 1199-1202

WEEKS THIRTEEN AND FOURTEEN

Sexual Orientation -- Due Process or Equal Protection?

(Thursday, April 1)

Baker v. State, 2003 Supp. 265-270
Lawrence v. Texas, 2003 Supp. 238-265

Spring Break! (April 5 - 9)

The First Amendment

(Tuesday, April 13)

NYT v. Sullivan (libel, false speech)
Planned Parenthood v. ACLA (The Nuremberg Files) (True Threats)
Texas v. Johnson (What is Speech, expressive conduct)

The First Amendment

(Thursday, April 15)

Reno v. ACLU (Indecency and the Internet)
Ashcroft v. The Free Speech Coalition (Pornography, Obscenity, Child Porn)
RAV v. St. Paul (Group libel and racist speech)

The First Amendment

(Tuesday, April 20)

Schneider v. State (Content neutral regulation)
City of Ladue v. Gilleo (Public forum)
International Soc. For Krishna Consciousness, Inc. v. Lee (Non-public forums)

(Thursday, April 22)

Catch-up and Review