RELIGION & LAW FALL 2011:
INFORMATION MEMO #1 (8/15/11)
TABLE OF CONTENTS
A. TENTATIVE COURSE OVERVIEW (IM1)
B. INFORMATION ABOUT THE COURSE (IM2-5)
C. INFORMATION ABOUT THE INSTRUCTOR (IM5-7)
A. TENTATIVE COURSE OVERVIEW
I. Introduction
A. The Free Exercise Clause & Related Statutes (FEX)
B. The Establishment Clause (EST)
C. No Religious Decisions (EST & FEX)
II. The Non-Discrimination Principle
A. No Discrimination Against Religious Practices (FEX)
B. No Discrimination Among Religions (EST)
C. No Discrimination Against the Irreligious (EST & FEX)
III. Addressing Indirect Establishment/Implicit Discrimination
A. No “Endorsement” (EST)
B. No “Primary Religious Purpose” (EST)
C. No “Coercion” (EST)
IV. The Debate About Excluding Religion
A. Delegation to Religious Institutions (EST)
B. Government Funding & Religious Institutions (EST)
V. The Debate About Accommodating Religion
A. Compelled Exemptions (FEX)
B. Substantial Burdens (FEX & Statutes)
B. INFORMATION ABOUT THE COURSE
Welcome to Religion & the Law. In this class, we primarily will examine cases and problems arising under the Free Exercise and Establishment Clauses of the U.S. Constitution, with an occasional glance at religious issues arising under state constitutions and federal statutes. This is only my second time through this material, but the issues raised intrigued and engaged me the first time through and provoked a lot of good discussion from the class. I hope that you will be similarly caught up in the complex problems of operating a secular democracy that nonetheless takes religion very seriously.
Mechanics of the Class
Materials: You will need to purchase the textbook for the course, which is Eugene Volokh, The Religion Clauses and Related Statutes. Daily reading assignments and supplementary materials will be posted on the course web page, located at:
http://tripoli.law.miami.edu:81/facultysites/mfajer/ral11f.htm
You can also access the course page by going through the UM School of Law homepage to the faculty directory to my website. Among the most important postings will be informational memos with clarifications of points from class discussions, answers to student e-mails, and write-ups of discussion problems we cover in class. You should treat these memos as required reading for the course.
Class Meeting Times: My experience strongly suggests that eighty-minute classes push at the limits of many students’ attention spans and bladders. Thus, we’ll take a ten-minute break each class about 8:30. To accommodate the break, beginning on Monday August 29, we will start class at 7:50 a.m. (You’ll get the break for free for the first three class meetings).
Office Hours and Other Out-of-Class Contact: My fall semester office hours will be Tuesday and Wednesday mornings from 10:00 a.m. to noon (in my office) or by appointment. You can set up appointments with me in person or by or e-mail <>. My assistant does not keep my calendar, so please only try to schedule appointments with me directly.
Feel free to stop by my office (Law Library Room 280) without an appointment. If I’m free, I’ll be happy to talk to you; otherwise I’ll make an appointment for a later time. Note that I also teach Tuesday & Thursday from 7:50-9:20 a.m. and I am likely to be preparing for class before 7:50 am every day, so these are not optimal times to stop by absent a crisis.
If you have questions about the course or about law school generally, e-mail is a good way to communicate. I check my messages at least daily during the work week, and I am likely to respond as soon as I get the message. If I think a question you ask is worth sharing with the class, I may copy your question and my answer and circulate them to everyone, deleting your name and other references to you.
In the Classroom
Courtesy: This is a small class and I intend to run it fairly informally. However, please try not to make noise when I’m lecturing or when other students are talking. Before coming to class, turn off cellular phones. If you use a laptop computer in class, turn the sound off. In addition, as a courtesy to me and your fellow students, please try to be seated and ready to start when the class is scheduled to begin and again at the end of the break.
Free Speech and Responsibility. Religion is often a controversial subject and the class may get a bit heated up at times. It is incredibly important that we be able to explore all possible points of view on these issues, so I want you to feel free to raise any substantive point arguably related to the discussion (whether or not you yourself believe it strongly or at all). If you think a point ought to be on the table, but are unsure how others will react to it, feel free to raise it in the third person: “But some people might believe ....” or “How do we respond if someone says ....?”
With free speech comes responsibility. I'd like you to be responsible to your fellow classmates for keeping discussions courteous. Please try to remember to attack people's positions rather than their persons. Please try to think carefully about what you intend to say, even if you are angry. Overbroad generalizations can inadvertently hurt others, and are not particularly good examples of lawyering anyway. An important role of lawyers in our society is to facilitate rational discussions of controversial issues and to help allow people who passionately disagree to co-exist peacefully. This course can be a workshop for practicing that role.
Problems, Discussion Questions, Reading Assignments & Attendance: The textbook relies heavily on the use of problems to explore the materials. It obviously would be possible to ask you to go through the cases yourselves and then to spend all of our class time working through the problems. Some experimentation last year made clear that it usually worked better to run through the cases in each segment to ensure that the class understood the major points before attempting the problems. To facilitate this process, for each set of readings, I will provide a set of “Discussion Questions” to focus our class discussions and to help elucidate both the cases and the problems.. Throughout the semester, I will post updated assignment sheets that will include a rough schedule for each class of what materials you need to read and of the Discussion Questions we will cover.
You will get the most out of the class if you to try to answer the questions thoroughly before the class in which we discuss them. If I ask you to make a list, really make the list. If I ask for arguments about a problem using a particular case, try to formulate as many different arguments as you can using the case. In the end, most of you will learn best if you work through the questions fairly thoroughly by yourselves, then refine your answers after the class discussion. We will not spend class time on every Discussion Question, but you should find that thorough preparation of all of them will pay off in understanding the material and the themes of the course.
I expect all of you to be fully prepared for the first four classes. After that, I will divide up the assigned material and make two to five students primarily responsible for each segment. Your assignment sheets will indicate which students are on-call for which material. During class, anyone is free to volunteer to participate whether or not they are on call, but I generally will start the discussion of assigned material by calling on the people who are listed. A few of the discussion questions on the assignment sheets will be listed as “ALL.” All of you should prepare those questions as though you were on call. If you are unprepared more than once when called on for material you were specifically assigned, that will lower your participation grade.
In addition, for each problem we cover, I will assign one student to act as “recorder” to keep track of the major arguments raised in class. The recorder will then create an outline of the arguments and submit it to me. After editing, I’ll post it so there is an official record of the discussion of each problem. Note that you are on call or a recorder for particular material, not for a given time slot. Thus, if the discussion of a case at the end of a class continues until the next meeting, so too does your responsibility.
When you are on call, be prepared to discuss your assigned material carefully. If you have primary responsibility for a case, make sure you are familiar with the important facts, the holding(s), and the primary rationale(s). If you are assigned discussion questions, don’t merely skim them; be prepared to discuss them in some depth. In addition, if I ask you to respond to one of the Discussion Questions, I expect you to be ready with an answer or to be able to find it very quickly in your notes or on your laptop. Please don’t keep us waiting while you fumble through your notes or scroll through several screens.
Life does not always permit you to be as prepared as you’d like. If I call on you and you have not done the reading, please say so. I will try to give you questions you can answer regardless or I will ask someone to fill you in and then ask you questions. I won’t let you off the hook, but I will try not to embarrass you more than you will be already. If you are on-call and haven’t done the reading, show up anyway. If I intend to call on you and you are missing without excuse, I will treat it as being unprepared when called on. However, if you know you will not be able to attend a session when you are scheduled to be on call, let me know in advance if possible, and I’ll make appropriate adjustments.
I understand that your lives are complicated and I will try to help where I can. I will not take attendance (beyond the panel system) and I will not monitor whether you are doing the reading when you are not on call. In return, I expect you to approach the class responsibly. The purpose of the class is to try to develop and improve important lawyering skills. You obviously will learn more if you do the reading and show up.
Evaluation
Grading Contract & Components: There will be three graded components of the course: a Take-Home Final Exam; a Lawyering Project; and Class Participation. Each of these is described in more detail below. You will be allowed to decide (within the ranges listed) what percentage of your grade will be attributed to each component. Once we get past the add/drop deadline and you’ve had a chance to review the instructions for your project, you will fill out a “grading contract,” setting the values for each component.
For example, if you only have one or two other exams, you don’t love talking in class, and you anticipate having a lot of work during the semester, you could put 75% of your grade on the final and just 15% on the project and 10% on participation. On the other hand, if you have four other exams, but not a lot of major projects during the semester, you could assign just 40% of your grade to the final exam and take 30% each on the assignments and participation.
Final Exam (35-75% of Grade). This will be a two-question take-home exam available to you for the entire exam period. One question will be a traditional issue-spotter, and one will ask you to write a judicial opinion and a shorter dissent on a focused issue. You will be allowed seven pages per answer (using specified formatting). Later in the semester, I will post last semester’s exam questions, along with model answers and my comments on the students’ collective work on the question.
Project (15-50% of Grade): For your project, you will be randomly assigned a set of eight cases, all on a particular topic. You will write summaries of each of the cases, then write a closed memo based on your cases and one or two Supreme Court opinions. You will be assigned a code name to use for the various components of the project so I can grade your work blind. I will provide you with more detailed instructions before you have to turn in your grading contract.
The submission schedule is designed so that I can provide feedback on the first two stages in time for you to incorporate my comments into your next submission. The relevant due dates are:
· Thursday 9/15: 1st two case summaries due.
· Thursday 10/6: Rest of case summaries due.
· Monday 11/20: Memo due.
Class Participation (10-30% of Grade): Because this is such a small class, participation is required and must make up at least 10% of your grade. In determining your score for participation, I will try to reward careful preparation of discussion questions, thoughtful engagement with the material and with the ideas of others, and bringing otherwise absent perspectives to discussions (whether or not the positions taken represent the student’s own opinion). I also will reward thorough organized work from recorders. Except for the recorder submissions, your score will be based only on contributions in class, not on out of class comments or on good attendance (although poor attendance will tend to lower the score because it means you cumulatively contribute less to class discussions).
Conclusion: Given the small class size, this course should provide a wonderful opportunity for participating in thorough discussions of very interesting issues. I look forward to exploring them with you and getting to know you as the semester progresses.
C. INFORMATION ABOUT THE INSTRUCTOR