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LAW 602, R / Fall 1999 / 4 Credits
Mon. 6:00-7:50 p.m. & Wed. 7:35-9:25 p.m.
204 Library Building, HARRISBURG


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Constitutional Law | Legal Research | Sloane Home | The West Education Network (TWEN)

REQUIRED: Farber, Eskridge & Frickey, Cases and Materials on Constitutional Law (West, 1998)
REQUIRED: Farber et al., 1999 Supplement to Cases and Materials on Const. Law (West, 1999)
RECOMMENDED: Barron & Dienes, Constitutional Law in a Nutshell, 4th edn. (West, 1999)

"The law is a sort of hocus-pocus science, that smiles in yer face while it picks yer pocket;
and the glorious uncertainty of it is of mair use to the professors than the justice of it."

--Charles Macklin, Irish actor/dramatist (1690-1797), Love la Mode, Act ii, Sc. 1


Mon 23 Aug
v-xiii; [1]-[37] iii Prefaces and Appendices
Wed 25 Aug
1-43 . . . A Prologue on Constitutional History
Mon 30 Aug
43-86 . . . An Introduction to Constitutional Decisionmaking: Brown; Marbury
Wed 1 Sep
86-131 . . . Original Intent, Representation-Reinforcement, Normativist, Deference
No Class
Mon 6 Sep
. . . . . . . . .
Wed 8 Sep
133-174 . . . The Constitution and Racial Discrimination: After Brown
Mon 13 Sep
174-217 . . . Judicial and Congressional Power
to Address Racial Discrimination
Wed 15 Sep
217-264 1-3 The Affirmative Action Controversy: Benign or Discriminatory?
No Class
Mon 20 Sep
. . . . . . . . .
Wed 22 Sep
264-296 3-11 Gender Discrimination and
Other Equal Protection Concerns
Mon 27 Sep
296-337 13-15 Minimal Scrutiny (Rational Basis);
Sex and Gender Discrimination
Wed 29 Sep
337-379 15 What Level of Scrutiny for
Other "Suspicious" Classifications?
Mon 4 Oct
379-418 15-21 Protecting Fundamental Rights: Enforce Unenumerated Rights?
Wed 6 Oct
418-452 23-31 Protecting Economic Liberty and Property; "Fundamental Interests"
Mon 11 Oct
452-490 31-38 Fundamental Privacy Rights:
Contraception, Marriage & Abortion
Wed 13 Oct
490-533 38 The "Right to Die":
Washington v. Glucksberg
Mon 18 Oct
533-566 38-47 Procedural Due Process;
The First Amendment
Wed 20 Oct
566-610 . . . Free Speech and Competing Values:
R.A.V. v. St. Paul; U.S. v. O'Brien
Mon 25 Oct
610-655 49 Regulation of Harmful Messages:
Advocacy; Libel; Obscenity; Hate
Wed 27 Oct
655-684 49-64 Speech with a Government Nexus:
Public Forum; Public Employees
Mon 1 Nov
684-722 64-65 Process-Based Protections for Speech; Association; Religion (Free Exercise)
Wed 3 Nov
722-768 . . . Religion (Establishment);
Federalism: McCulloch
Mon 8 Nov
768-811 . . . The Commerce Clause; Taxing and Spending Powers as Alternatives
Wed 10 Nov
811-853 . . . Intergovernmental Immunities;
State Immunity from Federal Courts
Mon 15 Nov
853-893 67-71 The Dormant Commerce Clause:
Theory and Practice
Wed 17 Nov
893-938 71 Separation of Powers: Supremacy; Federal Preemption; Steel Seizure
Mon 22 Nov
939-977 73-87 War Powers; Dames & Moore; Nixon; Nondelegation; Art. I, 7; Chadha
Wed 24 Nov
977-1005 87-89 Gramm-Rudman Case;
Independent Counsel Case
Mon 29 Nov
1005-1050 . . . Limits on the Judicial Power: Jurisdiction; Political Questions
#28 (6 pm):
Wed 1 Dec
1050-1090 91-92 Standing, the Passive Virtues,
and the "New Standing"
Sat 18 Dec

SCOPE AND EMPHASIS: The purpose of this course is to familiarize students with judicial/constitutional doctrine, with a focus on selected issues of contemporary importance such as discrimination, individual rights, and dispersion of governmental power.

REQUIREMENTS: (1) Students should read all of the casebook and supplement assignments according to the above schedule. (2) Students should check the course TWEN page before each class for announcements and other information posted by the instructor or by other students. (3) Students will take a traditional, in-class, closed-book final examination consisting of five essay questions, each weighted equally. The questions will be based on issues raised in the casebook and/or class discussion.

ATTENDANCE: The ABA and Widener University policy is that students must attend at least 22.4 classes without exception. No excuses can be accepted for failing to meet this residency requirement. Anyone who misses 5.7 or more classes will receive a course grade of "F"; the instructor will endeavor, but does not guarantee, to notify students who are approaching this limit. Arriving late or leaving early is counted as a partial absence (i.e., every 12 minutes or major fraction thereof = 0.1 cut). A student who misses the roll call at the beginning of class is irrebuttably presumed to be absent unless he/she makes his/her presence known to the instructor immediately after class.

COMMUNICATION: Students are encouraged to contact the instructor at any time, either privately via email or phone, or publicly via the TWEN bulletin board for the course. Individual meetings can be arranged at a mutually convenient time and place.

GRADING: The course grade will be determined by the grade received on the final examination, which may be raised or lowered by one grade (e.g., from B+ to A-, or from C to C-) on the basis of the student's class participation. The instructor will be available in January to review the final exams with any student who is interested and to suggest means for improvement in writing successful essay answers.

Selected First Amendment "Macro-Issues"

(1) Access Theory: Freedom v. Competition; Speaking v. Hearing; Kant v. Mill

Associated Press v. United States (1945)

Red Lion Broadcasting Co. v. Federal Communications Commission (1969)

Columbia Broadcasting System v. Democratic National Committee (1973)

Miami Herald Broacasting Co. v. Tornillo (1974)

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)

Central Hudson Gas & Electric Co. v. Public Service Commission (1983)

Muir v. Alabama Educational Television Commission (1983)*

Syracuse Peace Council v. Federal Communications Commission (1990)

(2) "Strings Attached" & "Waiver of Rights" v. "Constitutional Right to a Subsidy"

Grosjean v. American Press Co. (1936)

American Communications Association v. Douds (1950)

*Muir v. Alabama Educational Television Commission (1983)

Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (1983)

Federal Communications Commission v. League of Women Voters of California (1984)

Central Intelligence Agency v. Sims (1985)

Arkansas Writers' Project v. Ragland (1987)

Leathers v. Medlock (1991)

Rust v. Sullivan (1991)

Weathers v. Churchill (1994)

Rosenberger v. Regents and Visitors of the University of Virginia (1995)

Can you think of any other cases that should be included on either list?

Minimum Fault Standard for Each LIBEL Element


After New York Times Co. v. Sullivan (1964)

After Gertz v. Robert Welch, Inc. (1974)

After Dun & Bradstreet v. Greenmoss Builders (1985)

After Philadelphia Newspapers v. Hepps (1986)


At least negligence

At least negligence

At least negligence

At least negligence

At least negligence


Strict liability

Strict liability, but must actually identify

Strict liability, but must actually identify

Strict liability, but must actually identify

Strict liability, but must actually identify


Strict liability

Strict liability

Strict liability, but P who cannot prove actual malice (as to falsity) must prove actual injury

Strict liability, but P who cannot prove actual malice (as to falsity) must prove actual injury

Strict liability, but P who cannot prove actual malice (as to falsity) must prove actual injury


Strict liability, with burden on D to prove truth

Strict liability, with burden on D to prove truth; but if P is a public official being criticized for performance of official duties, then P must prove actual malice

(Topic is of public concern): At least negligence, with burden on D to prove truth; if P is seeking presumed or punitive damages, or if P is a public figure seeking ANY damages, then P must prove actual malice

(Topic is of private concern): Same as before, but as long as P is a private figure, then negligence is sufficient to receive presumed or punitive damages

If there is a media D and the topic is of public concern, then P (public or private figure) must prove falsity



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Wm. M. Sloane

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