Questions for Class Discussion and Pop Quizzes:

• Jan. 17:
• Wasserstrom, S & S, p. 866, questions2 or 3
• Tison v. Arizona, S & S, p. 872, question 1 or 2
• Lords' Decision, p. 874, question 2
• Estrich, p. 882, question 1 or 2
• Commonwealth v. Sherry, pp. 885-6, question 1, 2 or 6
• Jan. 24:
• Epstein, p. 834, question 2, 4, or 5
• Weinrib, p. 847, question 3 or 4
• Farwell v. Keaton, p. 844, question 2, 5, 8 or 9
• January 26:
• Morris, pp. 905-6, question 1
• Bonnie, pp. 911-2, question 1, 2 or 3
• John Hinckley trial, question 1, 3 or 6
• Jan. 31:
• Exclusionary rule: S & S, pp. 975-6, question 1, 2 or 4 (this week, choose only one question)
• Feb. 7:
• Tussman and ten Broek, p. 553, question 2
• Fiss, p. 561, question 1, 2 or 3
• Brown v. Board of Education, pp. 564-5, question 1, 2, 3, 6, or 8
• D'Amato, p. 504, question 1, 2, or 3
• Feb. 9:
• Dworkin, p. 580, questtion 1, 2, or 3
• Cohen, p. 589, question 1 or 2
• Regents v. Bakke, p. 598, question 1, 2, 3 or 4
• Metro v. FCC, pp. 604-5, question 4, 8, 9 or 12
• Feb. 28: Free Speech
• Paris Adult Theatre (pp. 373-5, S & S)
1. In restricting the freedom of press -- as in obscenity laws -- must the state prove some actual harm to society or to individuals? Must there be compelling or at least substantial evidence of a connection between pornography and crime, the denigration of women, or the breakdown of the family? Why or why not?
2. Is Chief Justice Burger right in arguing that a right of privacy and a place of public accommodation (like a public theater) are "mutually exclusive"? Should the right of privacy include the right to attend the entertainment of one's choice, so long as adequate information is provided to prospective audience members in advance?
3. Is the obscenity standard inherently vague and unworkable?
• Catharine MacKinnon (pp. 376-379, S & S)
1. Is MacKinnon arguing that pornography should not be protected (despite the fact that it consists only of words and images) simply because it is harmful? Should all harmful speech be subject to governmental prohibition? If not, what level of harm should be required? Must the harm be imminent, before prohibition is allowed? Do the harms of pornography (as described by MacKinnon) qualify?
2. If harmful speech can be prohibited, what standard of proof or evidence of harm should be required? Does the evidence of the harm of pornography to women meet this standard?
3. What is the essential difference between the feminist argument in favor of the prohibition of pornography and the older, moralistic argument (as represented by Burger in Paris Adult Theatre)? Which basis for limiting the scope of the First Amendment poses the greater threat to other forms of speech, and why?
• American Booksellers' Association (pp. 380-383, S & S)
1. Is Easterbrook right in characterizing the Indianapolis ordinance as "thought control"?
2. Is Easterbrook right in arguing that the principle behind the Indianapolis ordinance would logically lead to the suppression of Nazi, Communist or racist propaganda? Should such propaganda be restricted?
• Ronald Dworkin (pp. 383-388, S & S)
1. According to Dworkin, the equality argument MacKinnon uses would justify denying the vote to racists and anti-Semites. Can MacKinnon make a distinction between limiting the power of sexists to use pornography and limiting their power to vote for misogynist candidates?
• Collins v. Smith (pp. 388-390, S & S)
1. Judge Pell quotes Getz v. Robert Welch, "Under the First Amendment, there is no such thing as a false idea." Can this be literally true? Is there no idea, no matter how dangerous or unreasonable, that can be considered beyond the pale of constitutional protection? Why or why not?
• Charles Lawrence (pp. 393-3, S & S )
1. Is Lawrence right in arguing that there is an equivalency between fighting words and face-to-face racial insults? Should this equivalency be extended to every kind of insult? Why or why not?
• Nadine Strossen (pp. 393-6)
1. Is Strossen right in arguing that the restriction of racial insults will inevitably lead to the censorship of opinions?
• UMW Post, Inc. v. Board of Regents
1. Is the University of Wisconsin correct in arguing that "unanswerable" speech is unprotected, since it does not contribute to the existence of a free marketplace of ideas? Can the category of "unanswerable speech" be clearly defined?
2. Can the fighting words exception to the First Amendment be used to defend campus speech codes? Why or why not?
• John Stuart Mill (pp. 356-462): questions 3 or 4.
• Thomas Scanlon (pp. 362-266): question 3.
• Frederick Schauer (pp. 366-372): question 2.
• March 9:
• John Stuart Mill, Dworkin: p. 337, questions 1, 2, 3 or 5.
• Devlin, Hart, Bowers v. Hardwick: p. 352, questions 2, 3, 4 or 5.
• March 23:
• John Stuart Mill, On Liberty: p, 313, questions 1 or 2.
• James F. Stephen: p. 319, questions 1, 2 or 3.
• Feinberg, p. 325: question 2
• New England Naturalist Association, p. 328, question 1.
• Planned Parenthood v. Casey: p. 442, questions 1 or 2 (ignore the references to Noonan and MacKinnon)

• March 28: Religious Liberty (in this case, pick two questions concerning court cases)

o Wallace v. Jaffree, question 3 (page 472).

o Employment Division v. Smith, question 4 (page 472).

o Look up one or more of the following cases: Cantwell v. Connecticut (310 US 296, 1940), U. S. v. Seeger (380 US 163, 1965), Wisconsin v. Yoder (1972, 406 US 205). What does ’Äúreligion’Äù mean, as it occurs in the First Amendment?

o Look up one or more of the following cases: Wisconsin v. Yoder (1972, 406 US 205), Goldman v. Weinberger (1985, 475 US 503), Lyng v. Northwest Indian Cemeteries Protective Association (485 US 439, 1988). Does the fact that some practice is ’Äúcentral’Äù to a religion give it some special protection from state prohibition? Why or why not?

o Look up one or more of the following cases: Lemon v. Kurtzman (1970, 403 US 602), Marsh v. Chambers (463 US 783, 1983), Lynch v. Donnelly (465 US 668, 1984). Is there a ’Äúwall of separation’Äù? Does the fact that a political practice has a long and unbroken tradition exempt it from the Establishment Clause? Can the official celebration of Thanksgiving, chaplains in the military or the U. S. Congress, or ’Äúunder God’Äù in the pledge of allegiance be reconciled with the Establishment Clause?

• April 11: Interpretation of the Constitution
• Schauer & Sinnott-Armstrong:

1. p. 130, #1 or #2.
2. p. 141: #2
3. p. 160: #3, 4 or 5

1. Is Bork's "original understanding" theory workable? Is he correct in thinking that it is necessary for the existence of democracy?

2. Does Bork ignore the danger of a tyranny of the majority? Why or why not?

3. Does Dworkin's theory of constitutional interpretation replace the rule of law with the rule of judges? Why or why not?

4. Think of an example in which the "original understanding" of some provision in the Constitution was based on faulty moral ideas. In such a case, on what should the Supreme Court base its decision: the original, morally flawed understanding, contemporary standards of what is right, as enacted by legislatures (whether faulty or not), or their own sense of what is morally right? Defend your answer.

• April 18: Judicial Review

1. Is the doctrine of judicial review (in its strong form, according to which the Supreme Court is the sole final arbiter of the interpretation of the Constitution) consistent with the doctrine that the federal government consists of three equal branches? Is it compatible with democracy?

2. Is some form of "judicial restraint" necessary to prevent judicial tyranny? If so, what kind of restraint, and from what source? Is self-restraint by federal judges sufficient?

3. Was Hamilton right in thinking that the judiciary would be the "least dangerous branch"? What assumptions was he making? Were his assumptions consistent with the principle of democratic self-government? (You might want to refer to The Federalist Papers, Number 78)

• April 27: Legal Positivism
• Schauer and Sinnott-Armstrong:

1. p. 39: #1 or #2.
2. p. 49: #1, or #4.
• May 2: Natural Law Theory
• Schauer and Sinnott-Armstrong:
1. p. 14: #1, 3, 4
2. p. 18: #3, #4
3. p. 27: #3
4. p. 115: #2 or #4

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Last updated January 12, 2006
Created by: Robert C. Koons
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