Hornbooks
I did it once, and it was the single biggest mistake I've made in ten years of teaching. My two experiences with a hornbook as the primary reading material in class -- one as a student, one as a professor -- were both unequivocal disasters. At 11:48 AM 11/4/2003 -0800, you wrote: I am thinking about teaching Constitutional Law next spring (a 4 unit course here) by assigning a hornbook, some current or very recent cases, and problems for the bulk of the class (so the students can learn the black letter law), and then looking at individual justices, approaches to legal reasoning and the workings of the Court. I've got a few questions: Has anyone out there tried this, or something like it? If so, how did it go? Does anyone know of a good set of problems to use or select from? Does anyone know of a good, relatively concise and up to date, description of the basic approaches and attitudes of each of the current justices? Does anyone know of any movies or other videos that students can watch, be interested in, and learn from? I'd greatly appreciate any comments/suggestions/advice since I will be venturing into (for me, at least) uncharted waters. Yhanks. Joshua D. Rosenberg, JD, LLM, MA, EdD Professor of Law University of San Francisco School of Law [EMAIL PROTECTED] phone: (415) 422-6413 fax: (503) 907-6204 John Copeland Nagle Professor of Law Notre Dame Law School Notre Dame, IN 46556 (574) 631-9407 (574) 631-8078 (fax)
Re: WELFARE, FOREST FIRES, AND THE CONSTITUTION
The balancing of disaster relief with federal land mismanagement has a certain theoretical appeal, but it makes two presumptions that are rather heroic. First, it posits that we can identify mismanagement which is the proximate cause of the costs of the disasters. Mismanagement is notoriously difficult to identify, and much of what some describe as mismanagement is defended by others as necessary to retain the value of the ecosystem services on the affected land. Second, the mismanagement label could be affixed to all sorts of government actions for which private parties then seek disaster relief, including the loss of homes in floodplains due to foreseeable acts of nature. The extent of federal control of river flows by the operations of the Army Corps of Engineers could be said to contribute to flooding in the precisely the same way that the USFS and BLM land management decisions allegedly contributed to the scope of the destructive fires. At 10:15 AM 10/31/2003 -0500, you wrote: I'm not suggesting a legal remedy that California could pursue in court. I am suggesting is that assuming the provision of national forests, BLM lands, and the like serves the general welfare, then it would seem that compensating local communities for the costs of mismanagement would simply be part of the cost of providing the public goods in question. Thus, disaster relief in this instance could serves the general welfare in a manner that, say, compensating landowners for the loss of homes in floodplains due to foreseeable acts of nature would not. JHA --- Jonathan H. Adler Assistant Professor of Law Case Western Reserve University School of Law 11075 East Boulevard Cleveland, OH 44106 ph) 216-368-2535 [EMAIL PROTECTED] -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] Behalf Of Sanford Levinson Sent: Thursday, October 30, 2003 5:24 PM To: [EMAIL PROTECTED] Subject: Re: WELFARE, FOREST FIRES, AND THE CONSTITUTION Jonathan Adler writes: At 03:13 PM 10/30/2003, you wrote: Insofar as a plausible case could be made that federal (mis)management of federal lands (national forests, BLM forests, etc.) and federal restrictions on land-use under various environmental statutes (such as the Endangered Species Act) contributed to the severity of the fires, could not one then argue that there is a basis for federal assistance? I am not saying that such a demonstration could be made in this case. While there is clear evidence either or both factors played a role with various fires in prior years, I do not know of any conclusive evidence in this case. My only suggestion is that insofar as one could demonstrate some level of federal culpability in the disaster, would not there also be a justification for federal compensation? What this reminds me of is Brennan's dissent in DeShaney. I.e., he's unwilling to junk the whole state action analysis and instead claims that Wisconsin is really responsible for Poor Joshua. Assuming no sovereign immunity, what result if California sues the United States for mismanaging the forests and otherwise restricting California in its efforts to fight forest fires? sandy John Copeland Nagle Professor of Law Notre Dame Law School Notre Dame, IN 46556 (574) 631-9407 (574) 631-8078 (fax)
Re: Lopez and as applied considerations of congressional power
But that is circular. The only reason why cumulative facial analysis protects congressional power from too much judicial intrusion is because few statutes are held facially unconstitutional, and few statutes are held facially unconstitutional because their effects are aggregated. If more statutes were held unconstitutional under the commerce clause on their face, then there would be much more pressure to conduct as-applied challenges instead of facial challenges. Consider what would happen if the commerce clause rule was used in first amendment jurisprudence. The court could aggregate all of the valid applications of a statute to justify the facial validity of a statute, then ignore particular invalid applications as de minimis. That is a bad rule because it tolerates the unconstitutional applications of statutes, but is equally bad for the commerce clause and the first amendment. At 11:41 AM 7/30/2003 -0400, you wrote: In general, as-applied challenges are disfavored in the commerce clause area. The Court has held that the validity of a challenged provision under the commerce clause depends upon the aggregate effect of that provision on commerce, and that the diminimis impact of any particular application does not matter. That principle remains viable, at least as to provisions regulating non-commercial activity, post-Lopez. Notice that while we normally think of a preference for as applied challenges as involving judicial deference to democratic branches, in this area, the reverse is true. The insistence of cumulative facial analysis aims to protect Congressional power from too much judicial intrusion. David M. Driesen Associate Professor Syracuse University College of Law E.I. White Hall Syracuse, NY 13244-1030 (315) 443-4218 Fax (315) 443-4141 [EMAIL PROTECTED]
Re: Government Speech and Special Assessments
I am curious about Howard's proposed distinction. Candidate elections are about the public policy that will prevail in the community, too. And the dangers of elected officials using public funds to entrench their position could easily be matched by non-elected officials doing the same thing. By the way, if the tobacco assessment is permissible, could the government also tax movie studios to fund an educational campaign against violent entertainment? At 01:50 PM 7/24/2003 -0400, Howard Wasserman wrote: Scarberry, Mark wrote: Government's ability to speak in the public debate must be limited to some extent when campaigns are involved. As I noted once before on this list, at one time the state of California was running ads suggesting that tobacco companies would lie to the voters who were being asked to decide referenda on various smoking related issues. I don't know where the funds for the ads came from, but this was very troubling to me. In the analogous context of a political campaign for public offices, there must be limits on the government's ability to campaign. Otherwise a party in power could perpetuate itself by voting to spend as much as was needed to defeat all opposition.I would agree as to candidate elections (in which the current officeholders could be using the government entity itself, and government moneys, to perpetuate thier positions of power), but not as to referena. If the question before the electorate is the public policy that will prevail in the community, then the government (which we ordinarily entrust to make policy decisions and which always will be responsible for carrying out those decisions) should be involved in that conversation to the same degree (and with the same amounts of money) as everyone else. I would not have been troubled by the California ads, although I would take momentary pause if (as in the recent California case) they were funded by assessments on the tobacco companies themselves. Howard Wasserman Florida International University College of Law John Copeland Nagle Professor of Law Notre Dame Law School Notre Dame, IN 46556 (574) 631-9407 (574) 631-8078 (fax)
