Federal Courts
Professor Howard WassermanFall 2015
Office: RDB 2065RDB 2001
Phone: 348-7482Monday/Wednesday, 10:30-11:45 a.m.
e-mail:
Course Evaluation Information
Opinions and Oral Arguments
About a month into the semester, I will distribute a list of lower-court decisions, along with a Question Presented. Two of your assignments will be based on these cases.
Twenty-five (25) points will be based on your participation in Supreme Court appellate arguments as both an advocate and a justice. I will assign each student one case to argue and one case to judge.
Fifty (50) points will be based on a written Supreme Court opinion reviewing the lower court in one of the remaining cases (that is, other than the two cases/issues you each have been assigned to judge and to argue). Several cases will have multiple Questions Presented; you only should write on one of them. If you are assigned to argue or judge one issue in a case, you may not write on a different issue in that case.
Opinions
The opinion should follow the form, structure, writing, and argument style of a Supreme Court opinion (you have read enough of them at this point to know what it should look and sound like). The opinion should be a maximum of 2,358 words.[1] You will have approximately 2 ½ months to write the opinion, so it should be carefully and thoughtfully written.
Your arguments should rely on the case under review and all prior lower-court decisions leading to that opinion (especially for the facts), all cases cited and discussed in the lower-court opinions (both the court of appeals and district court), all the materials assigned, read, and discussedin class, and any outsidelegal research you choose to do. You may notuse the briefs or other materials filed in court in these cases. You may discuss your opinions with anyone in the world except me.
Your opinion should be structured and written as a judicial opinion and you should adhere to all rules of good legal writing and analysis. You need not use full citations or provide pin cites. For Supreme Court decisions, the short-form name citation is sufficient; for decisions of other courts, please provide the full name, the court, and the year; and statutes can be reference as § ____. Please go to primary sources; for example, rather than cite to the treatise’s summary of a case, go to the actual case and cite to that. Only quote language that is truly unique or significant. When discussing prior cases, only discuss the part of the case that is relevant to your analysis. Given the word limits, you should keep the fact section shorter so you can spend more time on the legal analysis.
Remember that the Supreme Court is not bound by lower-court cases, so your opinion should primarily rely on whatever binding Supreme Court precedent there is, while using lower-court opinions as persuasive or informative. You are free to overturn prior precedent, although you must make clear that you know what current doctrine is and that you are reversing, expanding, or modifying it and why this new approach is preferable. Your opinion should focus not only on the pure doctrine, but also venture into the theoretical and normative principles underlying the law of federal courts and federal jurisdiction.The key is to create a vigorous argument engaging the doctrine, theory, and normative principles of the doctrine, policy, and theory of federal courts and federal jurisdiction.
Opinions are due at the beginning of the final day of class. You must get your Blind ID # from the Registrar and use that for the opinion. Opinions must contain a cover page with a caption; a sample caption is below. The caption does not count towards the word count on the assignment.
Sample Caption for Opinion
(this should be single-spaced as the cover sheet of your opinion)
SUPREME COURT OF THE UNITED STATES
No. _____
______, Petitioner
v.
______, Respondent
ON WRIT OF CERTIORARI TO [COURT FROM WHICH THE CASE CAME]
[Date Opinion is Due]
[Blind ID #], J., delivered the Opinion of the Court.
Oral Arguments
Arguments will last 12 minutes (with no rebuttal). Advocates will appear before a panel of three: two classmates and myself.[2] One student will be designated as Chief Justice and will preside over the argument. We follow all formalities of Supreme Court arguments (calling cases, timing, dress, robes, etc.).[3]
In preparing to argue and to judge, your level of planning and preparation should be the same as for your opinion. In preparing for arguments, you may (unlike in your written opinions) look at the briefs and cert. petitions in the Supreme Court and in the lower courts for arguments (all can be obtained on Westlaw, SCOTUSBlog, the Supreme Court website, or other sites), although you should make the arguments your own. Advocates are expected to be well prepared, familiar with the cases and materials, able to present an organized argument, and to answer questions and hypotheticals from a potentially active bench. Justices are expected to be similarly prepared and familiar with the materials and able to engage in an active colloquy from the bench.
As with your written opinion, arguments and questions should focus not only on the pure doctrine, but venture into the theoretical and normative principles underlying the law of federal courts and federal jurisdiction. You are not bound by existing doctrine in arguing for a particular outcome (or in asking a particular question), since this is the Supreme Court of the United States, although you must make it clear that you know what current doctrine is and that you are arguing for the reversal, expansion, or modification of that doctrine. Evaluation will be based on how well you grasp and apply the concepts to the case at hand and how well you present your ideas in your arguments and in your questions from the bench.
The primary pedagogical goal of this exercise is to apply the jurisprudence, theory, policies, and principles of the law of federal courts and federal jurisdictionto real-world situations, while forcing you to talk clearly and coherently about those principles and their application to real facts. By doing it in the “real time” of an argument (as opposed to your written opinions), you can quickly can challenge and correct one another if someone starts down a strange path. A secondary pedagogical benefit is to give you additional practice and experience standing up and engaging in oral advocacy. Regardless of what career path you choose, part of being a lawyer is speaking to groups and trying to explain and persuade listeners about factual and legal issues. Of course, these goals are achievable only if everyone is prepared and takes this project seriously. A third pedagogical goal is to have some fun.
Arguments will be held in the Courtroom, RDB 1009, on Wednesday, December 16, 2015.Lunch will be provided. You should be dressed as you would for a court appearance.
Commentary
You willwrite two (2) short op-ed-style commentaries, of maximum 500 words. Each will be worth 15 points and 30 points total.
You will write on any two of topics for which you served as panelist. You can write about anything within that subject--what was discussed or not discussed in class, including a short opinion explaining how you would have dissented in a particular case or suggesting how some doctrine might change;commentary on a recent case or news storythat relates to this subject;or anything else within that area of federal courts and federal jurisdictionyou can think of and would like to write about.The Blog containsa “Blogroll” with links to a number of web sites and blogs that report on and discuss new legal developments, cases, and issues; this may be a great way to find some new cases, issues, or events to write about.
These are meant to be short and informal, although they should still be vigorously and seriously written and they should reflect careful and coherent legal analysis. Quality of argument and quality of writing both count. Don’t just tell me what you “think” or “feel.” Explain a problem and offer a solution that is grounded in the doctrine, theory, policy, and ideals we have been discussing in class. Citations are unnecessary; you can reference a case by a single name and a statute by “§ ____”.
Your commentary is due one week afterwe finishing discussing a subject. Commentaries must be submitted via Blind ID #. Please include a cover page with your exam number, the topic, and a word count (identifying the program used to generate the word count); do not put your exam number anywhere in the body of the paper other than that cover page. I will post commentaries to the Blog, with author names removed; the rest of the class is free (and encouraged) to post to responses and further comments.
[1] That is the length of Justice Holmes’ dissent in Abrams v. United States (1919), the decision that laid the groundwork for modern free speech doctrine. If Justice Holmes can do all that in 2,358 words, you can write an opinion on federal jurisdiction.
[2] Depending on the number of students, I also may argue one case before a panel of the entire class.
[3]The arguments from my Fall 2014 class can be found here: (log-in via PantherID required).