PPD 314
Public Policy and The Law
Spring 2012
Professor Nancy StaudtClass Meeting: Mon/Wed: 12:-00-1:50PM
Gould School of Law Office #410 Class Location: RGL 219
As every student of American government and policy understands, the Framers of the U.S. Constitution created three separate and distinct branches of government: the Executive, the Legislative, and the Judicial. The goal of this class is first to outline the means by which the president and the legislators create law and public policy, and second to focus on how courts both enable—and undermine—the elected branches’ policymaking choices. We will consider the formal constitutional powers granted to courts and then read and analyze a series of judicial opinions and case studies in an effort to understand the full extent of judicial power. As we will see, judges have addressed and shaped major policy issues throughout history, including slavery, marriage, drugs, taxes, and guns.
By investigating judges and courts, the class will highlight an important (though often hidden) field of public policymaking. For this reason, the course is ideal for undergraduate students interested in law and public policy generally, but also for those students considering Law School.
The objectives of our class include the following: 1) identifying the division of policymaking powers across the three branches of government, 2) understanding the specific nature of courts’ policymaking powers, 3) reading and analyzing judicial opinions, and 4) objectively presenting and discussing controversial law and public policy topics.
Course Requirements and Grading
1.Class Participation—10%
2.Short Assignments—30%
Due February 27:Case Brief on Loving v. Virginia(1 page)
Due February 29:Case Brief on Perry v. Schwarzenegger(1 page)
Due: March 21:Case Brief on District of Columbia v. Heller(1 page)
Due March 28:Opinion on Dept. of Health and Human Services v. Florida(1-2 pages)
Due April 2:Case Brief on your choice of a case in the reading (1 page)
Due April 25:Response to the movie The Amistad (2-3 pages)
4.Midterm Examination—30%
5.Final Examination—30%
Reading Assignments
The reading assignments are presented on pages 3-8 below. The readings are available in the bookstore.
A Few Technical Issues
1.Due Dates. Assignments are due on the dates marked *** below.
2.Late Submissions. Assignments are due on the dates indicated. Students turning in late assignments will incur a grade reduction every 24 hours. For example, a “case brief” that is due on March 27th and that would have received an A if turned on that date—but is submitted on March 28th will received a B; if it is turned on March 29th it will received a C; and so forth.
3.Disability accommodations. Any student requesting academic accommodation based on a disability must register with Disability Services and Programs (DSP). A letter of verification for approval of accommodations can be obtained from DSP. Please be sure the letter is delivered to me as early in the semester as possible. DSP is located in STU 301 and is open 8:30 a.m. to 5:00 p.m., Monday through Friday. The phone number for DSP is (213) 740-0776.
4.Academic Integrity & Plagiarism. Students should maintain strict adherence to standards of academic integrity, as described in the University Student Conduct Code (available at Please note that the paragraph 11.11 of the code lists the following as an example of a code violation:
A.The submission of material authored by another person but represented as the student's own work, whether that material is paraphrased or copied in verbatim or near-verbatim form.
B.The submission of material subjected to editorial revision by another person that results in substantive changes in content or major alteration of writing style.
C.Improper acknowledgment of sources in essays or papers.
Note: Culpability is not diminished when plagiarism occurs in drafts that are not the final version. If any material is prepared or submitted by another person on the student's behalf, the student is expected to proofread the results and is responsible for all particulars.
Outline and Assigned Readings
Week 1—Background Issues
This week we examine the three branches of government that compose the U.S. government, their unique roles, and how power is separated to create a system of checks and balances in the policymaking process.
January 9:Introductionto the Course
The United States Constitution (please focus on Articles I, II, & III)
January 11:William B. Gwyn, The Separation of Powers and Modern Forms of Democratic Government 65-89 in Robert Goldwin and Art Kaufman (eds), Separation of Powers—Does it Still Work?(American Enterprise Institute for Public Policy Research 1986).
Week 2—The Policymaking Players
This week we investigate a widely debated issue among scholars of law and public policy: does civic virtue or individual self-interest motivate federal policymaking choices? We then consider the critical roles of institutional design and political parties for promoting good policy outcomes.
January 16:Martin Luther King Day
January 18:James Gardner, Can Party Politics Be Virtuous?, 100 Columbia Law Review 667-701 (2000)
Week 3-- The Policymaking Players
This week we continue our investigation of partisan politics. We first consider whether policy outcomes can EVER be rational in democratic regimes due to the problem of cycling. We then explore the policies and laws that emerge when a single political party controls the decision-making process, and finally turn to the role of public opinion.
January 23:Daniel Farber and Philip Frickey, Arrow’s Theorem and the Democratic Process 38-62 inDaniel Farber and Philip Frickey, Law and Public Choice: A Critical Introduction (University of Chicago Press 1991)
January 25: Charles Shipan, Does Divided Government Increase the Size of the Legislative Agenda? 151-170 in Scott Adler and John S. Lapinksi (eds) The Macropolitics of Congress (Princeton University Press 2006)
Robert Erikson, Michael MacKuen, and James Stimpson, Public Opinion and Congressional Policy: A Macro-Level Perspective 79-95 in Scott Adler and LaohnLapinksi (eds) The Macropolitics of Congress (Princeton University Press 2006)
Week 4-- The Policymaking Players
This week we consider political activism and the effects of mass movements, such as the Tea Party and Occupy Wall Street, on national policymaking.
January 30:IlyaSomin, The Tea Party Movement and Popular Constitutionalism, 105 Northwestern University Colloquy 300-314 (2011)
Vanessa Williamson, ThedaSkocpol, and John Coggin, The Tea Party and the Remaking of Republican Conservatism, 9 Perspectives on Politics 25-43 (2011)
February 1:[Name of Article] in Sarah van Gelder and the Staff of Yes! Magazine (eds), This Changes Everything: Occupy Wall Street and the 99% Movement(Barrett-Koehler Publishers 2011). NOTE: This article will be distributed in class.
James Oliphant, Herman Cain Steps Up Occupy Wall Street Criticism, Tribune Co. (October 2011)
Week 5-- The Policymaking Players
How do judges make decisions? This week’s readings investigate the factors that motivate judges, thereby setting the stage for discussions later in the semester when we consider specific policy decisions rendered by judges in the courtroom context.
February 6:Judge Richard Posner, Nine Theories of Judicial Behavior 19-56 in Richard Posner, How Judges Think (Harvard College Press 2008)
February 8:Lee Epstein and Andrew Martin, Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Note Sure Why), 13 U. Pa. J. Const. Law 263-281 (2011)
Week 6— The Policymaking Players
This week we focus on contemporary judicial practices, including 1) the appeals process, 2) case selection at the highest levels, 3) oral arguments, and 4) opinion writing. We will then listen to a lecture by the Law Professor Lee Epstein, a scholar specializing in Supreme Court politics. She will offer insights into the current Supreme Court, the individual justices, and their policymaking preferences
February 13:Lee Epstein and Thomas G. Walker, Understanding the U.S. Supreme Court 13-53 in Lee Epstein and Thomas Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints (CQ Press 2007)
February 15:Reading Judicial Opinions—An Introduction to the Law School experience
Guest Lecture by Law Professor Lee Epstein: The Current Supreme Court: Who’s Left? Who’s Right?
Week 7
February 20:President’s Day
February 22:Midterm
Week 8—The Right to Marry
This week we will read two widely discussed court cases involving the right to marry. The first case addresses an early race-based bar to marriage, and the second case addresses the recent controversy involving the LGBT’s demand for marriage equality.
***February 27:Loving v. Virginia, 388 U.S. 1 (1967)
John DeWitt Gregory and Joanna Grossman, The Legacy of Loving, 51 Howard L.J. 15-52 (2008)
Due Today: Case Brief
***February 29:Perry v. Schwarzenegger, 740 F. Supp.2d 921 (N.D.Cal. 2010)
Due Today: Case Brief
Week 9—The Right to Smoke Marijuana
The use of drugs has long been regulated by the federal government. This week, we examine federal regulations vis-à-vis marijuana, the widespread move among states to permit the use of marijuana for medial purposes, and the interesting dynamic that has emerged between the state and federal governments on the topic.
March 5:Kenneth Meier, The Policy History of Government Antidrug Efforts: Or Its Déjà Vu All Over Again, 20-65 in Kenneth J. Meier, The Politics of Sin: Drugs, Alcohol, and Public Policy (M.E. Sharpe Inc. 1994)
March 7:Gonzales v. Raich, 545 US 1 (2005).
David Ogden, Memorandum for Selected U.S. Attorneys on Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana (October 19, 2009)
Ethan Nadelmann, Reefer Madness, New York Times (November 6, 2011)
Week 10
March 12: Spring Break
March 14: Spring Break
Week 11— The Right to Carry a Gun
The right to carry a gun has long been debated, and in two recent cases the U.S. Supreme Court affirmed an individual’s right to carry a gun. This week, we examine the policy debate, the court opinions, and the way in which local government officials have sought to undermine and weaken the judicial policies set out by the Supreme Court justices.
March 19:James Jacobs, Dissecting the Gun Problem, 3-18 in James Jacobs, Can Gun Control Work? (Oxford University Press 2002)
James Jacobs, Impediments to More Gun Controls, 37-57 in James Jacobs, Can Gun Control Work? (Oxford University Press 2002)
***March 21:District of Columbia v. Heller, 554 U.S. 570 (2008).
Amanda Carey, Chicago City Council passes new gun ordinance on handgun possession proposed by Mayor Daley (The Daily Caller, July 2, 2010)
Due Today:Case Brief
Week 12—The Right to Health Care
Why is national health care perceived to be necessary and yet still so controversial? This week we consider “ObamaCare” as the controversy winds its way through the courts. We read the briefs filed in the Supreme Court by the United States government (supporting the health care bill) and 26 states (opposing the health care bill). Whether “ObamaCare” survives the constitutional attack will depend on how the Supreme Court justices decide the case later this year.
March 26:U.S. Department of Health and Humans Services v. State of Florida, United States Petition for a Writ of Certiorari (September 2011)
***March 28:U.S. Department of Health and Humans Services v. State of Florida, State Respondents’ Brief for a Writ of Certiorari (October 2011)
U.S. Department of Health and Humans Services v. State of Florida, United States Reply Brief (October 2011)
Due Today: Opinion on the health care controversy.
Week 13—The Duty to Contribute Property to the Greater Social Good
Federal and state officials are permitted to seize private property for the greater social good. A recent case that allowed local Connecticut officials to “take” several families’ homes and then transfer those homes to a developer generated substantial controversial among individuals and the policymaking community more broadly.
***April 2:Lee Epstein and Thomas Walker, The Takings Clause, 652-84 in Lee Epstein and Thomas Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints (CQ Press 2007)
Due Today: Case Brief on one of the cases discussed in the reading.
April 4:Amanda Goodin, Rejecting the Return to Blight in Post-Kelo State Legislation, 82 NYU L. Rev. 177-208 (2007)
Week 14—The Duty to Pay Taxes and General Welfare Issues
The Constitution permits Congress to adopt taxing and spending laws for the general social welfare. This week, we examine Congress’ power of the purse and note that the judges are able to exercise their own purse powers and will do so in times of crisis.
April 9:Lee Epstein and Thomas Walker, Taxing and Spending for the General Welfare, 537-549 in Lee Epstein and Thomas Walker, Constitutional Law for a Changing America: Institutional Powers and Constraints (CQ Press 2007)
April 11:Nancy Staudt, Pulling the Purse Strings 51-73 in Nancy Staudt, The Judicial Power of the Purse (Chicago University Press 2011)
Week 15-- Are Judges Effective Policymakers?
Are judges more or less effective policymakers than elected officials in the legislative and executive branches of government? This week, we examine various perspectives and then return to the issue that we discussed on the first day of class: namely, policymaking occurs because of—and in spite of—the interbranch system of powers set up by the Framers of the Constitution.
April 16:Gerald Rosenberg, Introduction & Abortion and Women’s Rights, 175-201 (Chicago University Press 2008)
April 18:Louis Fisher, Judicial Finality or an Ongoing Colloquy?, 153-169 in Mark Miller and Jeb Barnes (eds.), Making Policy, Making Law: And Interbranch Perspective (Georgetown University Press 2004)
Week 16
April 23:Movie: The Amistad
***April 25:Final Lecture
Due Today: Response Paper on The AmistadMovie
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