Prof. Mark Tunick tunick@fau.edu

Description: Close reading of important Supreme Court opinions on topics including federalism, property rights, the right to make decisions about bearing children and marriage, and criminal due process. Special attention will be given to theories of how the constitution's text is to be interpreted, to the role the Court has played in the political and economic development of the United States, and to political theories addressing the proper role of government and courts in a democratic society. Students will participate in an in-class moot court. There are no prerequisites.
Requirements: Class will combine lecture and discussion and it is important for students to come to class prepared to discuss the cases scheduled for that meeting. You should outline the cases--you will be permitted to use the outlines you authored on exams. Grades are based on a midterm (40 points), final exam (80 points), moot court brief/opinion (40 points), and class participation (40 points). The participation grade will be based on the overall quality of the student's contributions to class discussion and online discussion boards, and on quizzes to measure whether they are keeping up with and understanding the readings. Because this is a discussion-based course, attendance is important and so the participation grade will be reduced by 3 points for each unexcused absence beyond 2. The final grade will be based on the % out of 200 points that the student earns.The default grading scale is 94-100 (A), 90<94 (A-), 87<90 (B+), 84<87 (B), 80<84 (B-), 77<80 (C+), 74<77 (C), 70<74 (C-), 67<70 (D+), 64<67 (D), 61<64 (D-), <61 (F). I may utilize a curve but only if doing so would yield a higher rather than a lower grade than what the student would earn using the default scale.
Reading: All cases are available in Canvas. Reading listed under each class is to be done prior to that class meeting. All cases are to be briefed. A sample brief is available in Canvas.
Canvas: This course makes use of Canvas: each topic has its own Module with background information and links to the reading, quizzes to help you understand the material, and discussion boards. Be sure to check Canvas regularly.
Office Hours: TR 10:30-12:30, 2-3--no appointment is needed. I can also be reached by phone (799-8670), or email (tunick@fau.edu).
Honor Code: Students are expected to adhere to the honor code, available at http://www.fau.edu/honors/academics/honor-code.php

The following schedule of readings is subject to change: check Canvas for up to date information about readings and recommended readings.

I. The Constitution and its enforcement:
A. Overview
Aug 20 Reading: U.S. Constitution (excerpts); sample brief (online); Articles of Confederation (excerpts)

Aug 22:State action. Reading: Civil Rights Cases, 109 U.S. 3 (1883) (excerpts);Shelley v Kraemer, 334 U.S. 1 (1948)

B. Judicial Review and theories of how to interpret the Constitution
Aug 27: Rdg: Marbury v. Madison, 5 U.S. 137 (1803)
Recommended reading: "The Case of the Missing Commission," in Garraty, ch. 1

Aug 29: McCulloch v. Maryland, 17 U.S. 316 (1819)

Sept 3: Theories of interpreting the Constitution
Rdg: Scalia, "Originalism: The Lesser Evil"; Brennan, "The Constitution of the U.S.: Contemporary Ratification"; Gamble v. U.S. (USSC 2019)(excerpts)

II. Federal and state powers
A. Executive powers
Sept 5: Rdg: Youngstown Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952); Dept. of Commerce v. New York (USSC 2019)

B. Power of federal courts to regulate state redistricting

Sept 10: Rdg: Rucho v. Common Cause (USSC 2019)

C. Congress's power under the commerce clause

Sept 12: Gibbons v. Ogden, 22 U.S. 1 (1824)
Recommended reading: "The Steamboat Case," in Garraty ch. 4.

Sept 17: Rdg: Champion v. Ames (Lottery Case), 188 U.S. 321 (1903); Hammer v. Dagenhart, 247 U.S. 251 (1918); Carter v. Carter Coal Coal, 298 U.S. 238 (1936); Kidd v. Pearson, 128 U.S. 1 (1888)

Sept. 19: Rdg: Background to NLRB (BB); NLRB v. Jones and Laughlin, 301 U.S. 1 (1937); U.S. v. Darby, 312 U.S. 100 (1940); Wickard v. Filburn, 317 U.S. 111 (1942)

Sept 24: Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964); United States v. Lopez, 514 US 549 (1995); National Federation of Independent Business v. Sebelius (USSC 2012, upholding federal health care law)
For those interested: Does the commerce clause authorize Congress to enact laws against prostitution, or immoral acts that are not commercial transactions? See the amended version of the Mann Act. An earlier version, the "White Slave Traffic Act," was upheld in Caminetti v. United States, 242 U.S. 470 (1917).

D. Commerce Clause as constraining State legislative power (the dormant commerce clause)
Sept 26: Rdg: South Carolina v. Barnwell, 303 U.S. 177 (1938); Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945); Baldwin v. GAF Seelig, 294 U.S. 511 (1935)

Oct 1:: Dean Milk v. Madison, 340 U.S. 349 (1951); Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959); Philadelphia v. New Jersey, 437 U.S. 617 (1978); Maine v. Taylor,  477 U.S. 131 (1986)

Oct 3 Mid-term Review
Rdg:Tennessee Wine and Spirits Retailers Association v. Thomas (USSC June 26, 2019, excerpts); and take practice quiz

Oct. 8 Mid-term

III. Constitutional Limits on Government powers
A. Substantive Due process

Economic Substantive Due Process, or 'The Constitution and Capitalism'
Oct 10: Rdg: Slaughterhouse Cases, 83 U.S. 36 (1873); Lochner v. New York, 198 U.S. 45 (1905)

Non-Economic Substantive Due Process and the right to liberty/autonomy/privacy/dignity
Oct. 15 Rdg: Nebbia v. New York, 291 U.S. 502 (1934); Skinner v. Oklahoma, 316 U.S. 535 (1942); Griswold v. Connecticut, 381 U.S. 479 (1965); Roe v. Wade, 410 U.S. 113 (1973)
Also read: Ohio Bill Would Ban Abortion if Down Syndrome is the Reason, NYT 8/23/15, online
For those interested:"Limits on Truckers' Work Hours," New York Times, July 25, 2007; current limits on truckers' hours; Planned Parenthood v. Casey, 505 U.S. 833 (1992); Gonzalez v. Carhart, 550 U.S. 124 (2007)

Oct. 17: Rdg: Obergefell v. Hodges, 576 U.S. .__ (2015)(upholding the right of marriage for same-sex couples)

B. The 4th, 5th and 6th Amendment limits on government: Pre-revolution, Due Process Revolution, and Retreat
Oct 22: Rdg: Brown v. Mississippi, 297 U.S. 278 (1936); McNabb v. U.S., 318 U.S. 332 (1943); Betts v. Brady, 316 U.S. 455 (1942)

Oct 24: Rdg: Miranda v. Arizona, 384 U.S. 436 (1966); Brewer v. Williams (Williams I), 430 U.S. 387 (1977); Nix v. Williams (Williams II), 467 U.S. 431 (1984)

Oct 29: The Exclusionary Rule
Rdg: Wolf v. Colorado, 338 U.S. 25 (1949); Mapp v. Ohio,  367 U.S. 643 (1961); Herring v. US, 555 US 135 (2009)

C. The right to private property and the Takings Clause
Police Powers to Regulate; the 'public use' provision
Oct 31: Rdg: Miller v. Schoene, 276 U.S. 272 (1928); Block v. Hirsh, 256 U.S. 135 (1921)

Nov 5: Rdg: Hawaii Housing Authority v. Midkiff, 465 U.S. 1097 (1984); Kelo v. City of New London, 545 U.S. 469 (2005)
For those interested: see follow-up news article on Kelo; and "Eminent Domain Fight has a Canadian Twist," NYT, Oct 18, 2011, online.

The 'Takings Clause': Regulations vs. Takings
Nov 7: Rdg: Penna. Coal Co. v. Mahon, 260 U.S. 393 (1922); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926); Penn Central v. New York City, 438 U.S. 104 (1978)
For those interested: Boston Taxi Owners Assoc v. City of Boston, 2015 WL 505397 (Does the decrease in value of taxicab medallions due to the rise of Uber and similar transportation network companies amount to a 'taking' given that the city sharply regulates taxicabs but not Uber vehicles?)

The Takings Clause and the Nexus Test
Nov 14: Rdg: Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Lucas v. S. Carolina Coastal Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard, 512 U.S. 374 (1994)
For those interested: Mark Tunick,  'Constitutional Protections of Private Property: Decoupling the Takings and Due Process Clauses', University of Pennsylvania Journal of Constitutional Law 3:885-925 (May 2001): online; Stop the Beach Renourishment v. Florida Dept of Envt Protection, 560 U.S. 702 (2010)

Nov. 19 and 21 Moot Court: Two opposing parties (each consisting of two attorneys) will present their arguments and the rest of the class will serve as Supreme Court Justices. Justices will question the attorneys, and after deliberation, announce a decision. Attorneys will turn in a brief, Justices, an opinion. The oral arguments will take place Nov. 19 and the deliberations on Nov. 21.

Nov. 26. Review session

Dec. 2: Moot court paper due by 2pm.

Final exam: Tuesday, Dec. 5, 10:30am-1pm

• C-Span interviews with Supreme Court Justices
• Westlaw (Campus Research Westlaw) and Lexis-Nexis via the FAU library database. To access off-campus, create a proxy.
• Findlaw (Supreme court cases since 1893)
• LII (Supreme Court cases since 1990, and  historic cases)
• Oyez: Oral arguments
• Supreme Court official website
• Federalist Papers

Additional notes:
Policy on Accommodations: In compliance with the Americans with Disabilities Act Amendments Act (ADAAA), students who require reasonable accommodations due to a disability to properly execute coursework must register with Student Accessibility Services (SAS) and follow all SAS procedures. SAS has offices across three of FAU’s campuses -- Boca Raton, SU 131 (561-297-3880); in Davie, LA 131 (954-236-1222); in Jupiter and all Northern Campuses, SR 111F (561-799-8585). Disability services are available for students on all campuses. For more information, please visit SAS website at www.fau.edu/sas/.

Counseling and Psychological Services (CAPS) Center Life as a university student can be challenging physically, mentally and emotionally. Students who find stress negatively affecting their ability to achieve academic or personal goals may wish to consider utilizing FAU’s Counseling and Psychological Services (CAPS) Center. CAPS provides FAU students a range of services – individual counseling, support meetings, and psychiatric services, to name a few – offered to help improve and maintain emotional well-being. For more information, go to http://www.fau,edu/counseling/

Code of Academic Integrity Policy Statement Students at Florida Atlantic University are expected to maintain the highest ethical standards. Academic dishonesty is considered a serious breach of these ethical standards, because it interferes with the university mission to provide a high quality education in which no student enjoys an unfair advantage over any other. Academic dishonesty is also destructive of the university community, which is grounded in a system of mutual trust and places high value on personal integrity and individual responsibility. Harsh penalties are associated with academic dishonesty. For more information, see University Regulation 4.001 and the WHC Academic Honor Code at http://www.fau.edu/honors/academics/honor-code.php.

Classroom Etiquette Policy: In order to enhance and maintain a productive atmosphere for education, personal communication devices such as smartphones are to be disabled during class.

Attendance Policy: Students are expected to attend all of their scheduled University classes and to satisfy all academic objectives as outlined by the instructor. The effect of absences upon grades is determined by the instructor, and the University reserves the right to deal at any time with individual cases of non-attendance. Students are responsible for arranging to make up work missed because of legitimate class absence, such as illness, family emergencies, military obligation, court-imposed legal obligations or participation in University-approved activities. Examples of University-approved reasons for absences include participating on an athletic or scholastic team, musical and theatrical performances and debate activities. It is the student’s responsibility to give the instructor notice prior to any anticipated absences and within a reasonable amount of time after an unanticipated absence, ordinarily by the next scheduled class meeting. Instructors must allow each student who is absent for a University-approved reason the opportunity to make up work missed without any reduction in the student’s final course grade as a direct result of such absence.

Florida Atlantic University policies regarding incomplete grades can be found in the University Catalog. Late work is subject to a grade reduction.