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CONSTITUTIONAL LITIGATION
How to Win Constitutional Cases
CML 2314
PROFESSOR JOSEPH ELIOT
MAGNET
SYLLABUS
COURSE
DESCRIPTION
Constitutional Litigation is an advanced
seminar that develops skills for designing, researching and litigating
constitutional cases. Constitutional Litigation teaches how to succeed in
court. Seminar participants explore the essentials of successful litigation
– good case design around a plausible and provable theory of the case.
Students inquire into the elements of
good case design – from investigation of facts and selection of parties
through to planning for effective remedies. Throughout, emphasis is on case
design and litigation strategies that win in court.
REQUIRED
TEXTS
Joseph Magnet, Constitutional Litigation 2008 [herein after “Casebook”]
Supplementary readings will be handed
out.
Readings are assigned for each class according to the
schedule below. Students are expected to read the assigned materials prior
to class, and be prepared to discuss the material in class.
SKILLS
At the conclusion of this course, should
be able to:
1. Plan for, design and construct a constitutional
case;
2. develop and assess evidence;
3. prepare persuasive pleadings and affidavits;
4. be strategic and think tactically about how to
advance constitutional issues and secure remedies; and
5. do in-dept, directed research.
REQUIREMENTS
1. Attendance, Contribution, Theory and Theme (5%)
Students must attend each
seminar meeting and contribute to the discussion. Teams must bring to class
on a diskette in .doc, .wpd, or .ppt, the ‘theory’ and ‘theme’ of their
case for the beginning of seminar #3)
2. Student Seminars (20%)
Seminar participants must form into 6 teams (generally of two). Teams must
select a constitutional issue and conduct research in-depth into that issue
to prepare to bring the chosen issue to court. Teams will lead a seminar
about the chosen issue for 85
minutes on one of the dates below. Presentations should describe the
subject, demonstrate familiarity with the knowledge base, describe what
kind of proceeding is envisioned and why, who the parties will be and why,
what witnesses are envisioned or available and why they have been chosen,
what remedies will be sought and why, and identify other significant
choices made and the reasons therefore.
Seminar leaders should try to stimulate discussion about the issues.
3. Research Essay (50%)
Essay topics must be
approved in seminar number two. Research essays are due one week prior to
the team’s seminar and must be distributed to all seminar participants on
that date. An opposing team must be selected to critique the essay
(described below).
The research essay should be 30 – 50 pp. long. It may explore any aspect of
the team’s seminar topic. It should
begin with a 1 – 3 page “executive summary”. The research essay should be
divided into 3 parts. Part I should describe the subject addressed, state
the contentious issues, identify major constitutional doctrine that is
relevant to resolution of the issue, and should take and defend a position
on the issues. Part II should deal with how the issue will be litigated:
who will you sue among the possible defendants and why; what actions will
you challenge and why; what type of action will you bring and why; what
remedy will you seek out of the possible choices and why; and other
relevant choices that show exactly how you have managed to squeeze the
issue into a manageable lawsuit.
Part III should deal with the evidence you propose to use to advance
your issue: what sources have you consulted, what witnesses are available,
where have you looked, what choices have you made and why.
The research essay must contain an annotated bibliography which resumes the
existing doctrine base in the cases and legal literature.
The research topic may be registered with the law school administration is
satisfaction of the school’s major paper requirement.
4. Affidavit & Pleadings (15%)
Teams must prepare either (1) a Notice of Application and expert affidavit,
or (2) a Statement of Claim. These
must be exchanged for those of an opposing team at the beginning of seminar
#5.
5. Critique of Notices of Application &
Affidavits & Statement of Claim (5%)
Each team will be given 15
minutes in seminar #6. During this
time, the team must briefly explain the theory of the notice of application
& affidavit or statement of claim it has received, and what they are
trying to establish. The opposing
team must then critique the documents, showing specifically what is done
well, and how what is done could be improved as to theory, particulars,
design, organization, required or prohibited elements, expression or
otherwise
6. Critique of Research Essays and Presentations
(5%)
Each team will be given 20
minutes at the end of the seminar presentation of the team that has
provided it with a research essay. During this time, the team must critique
the research essay and presentation, showing specifically how they could be
improved as to theory, particulars, design, organization, presentation,
expression or otherwise.
Graduate Students are
required, in addition, to prepare a ten page memorandum on a point of
procedure, strategy or tactics. The topic must be pre-
approved.
The results will be averaged with the research essay, which together
will count for 50%.
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