Study Guide for the Final Exam (Non-comprehensive)
May 12, 2-5 PM
The following are
typical of the kind of questions that will appear on the non-comprehensive
final exam. The comprehensive final will consist of two parts: on identical to
the non-comprehensive final, and one (a review section) drawing on questions
from the first two midterm study guides.
If you take the comprehensive final, then the grade you receive on the
review section will replace the lowest of your three exam grades. If the grade
on the review section of the final is lower than all of your exam grades, then we will drop the review
The new-material section of the final exam will supply 25% of the course
grade for all students.
are the central differences between the intentionalist and the textualist
models for interpreting the text of the Constitution? Give one argument in
support of each model, and explain which argument you find most
persuasive, and why.
- Why is
the interpretation of phrases like "cruel and unusual
punishment" especially controversial? Does the fact that the Bill of
Rights refers to the death penalty three times definitively settle that
the death penalty is not, and never could be, "cruel and unusual"?
Defend your answer against at least one objection.
- Is the
intentionalist model of constitutional interpretation impractical and
unworkable? Consider arguments on both sides, and cite at least one
specific historical example.
- Is the
intentionalist model of constitutional interpretation self-refuting?
Explain the argument for the conclusion that it is, and consider at least
one intentionalist response. Explain which side you find most convincing,
is Thayer's principle? Present one argument in support of it, and one in
opposition. Which do you find most persuasive, and why?
the following hypothetical situation. The Congress passes (with wide
margins in both houses) a law, The Flag Protection Act, which permits the
states to ban flag-burning by excluding flag-burning from the scope of the
liberty protected by the due process clause of the 14th Amendement.
Congress cites section 5 of that Amendment, giving the Congress the right
to "enforce, by appropriate legislation, the provisions of this
article". The President signs the FPA. The Supreme Court, citing City
of Boerne v. Flores, rules unanimously that the FPA is unconstitutional,
insisting that state laws banning flag-burning remain invalid. Several
states decide to defy the Supreme Court decision. Civil libertarians call
on the President to deploy the National Guard to enforce the decision. The
President believes that the Court was in error. Assuming for the sake of
argument that the President is right, and given the President's oath to
"preserve, protect and defend" the Constitution, what should he
do? Defend your answer, considering at least one objection.
the two main versions of legal positivism: the command theory and the
convention theory. What is the main advantage to each theory? On balance,
which theory provides the better account of the nature of law? Defend your
would a legal positivist analyze the Fugitive Slave cases, like that of
Sims? How would the natural law theorist analyze the case? Which analysis
gives the best guidance to a judge? Defend your answer, considering at
least one objection.
World War II, Churchill argued that the Nazi leaders should be summarily
executed, without the trappings of a legal proceeding. The Americans
insisted on an international tribunal, charging Nazi leaders with the
crimes of initiating aggressive war (in conflict with the Hague and Geneva
Conventions) and of genocide, a "crime against humanity." Who
was right? Which decision would have had the greater tendency to undermine
respect for the rule of law? Defend your answer, considering at least one
Study Guide for the Review Section of the Final
For the review section of the
final, concentrate on questions 3, 6, 9, 11, and 14 of the first study guide,
and questions 2, 4, 5, 7, and 10 of the second study guide. For the multiple choice questions, review your class notes,
especially our discussions of the following cases and essays:
o Tison v. Arizona (pp. 866-872)
o Glanville Williams and Susan Estrich, pp.
o Norville Morris, pp. 899-905.
o United States v. Leon, pp. 973-5.
o Owen Fiss, pp. 554-561.
o Brown v. Board of Education, pp. 562-564.
o Dworkin and Cohen, pp. 572-589.
o Regents of U of C v. Bakke, pp. 589-598.
o John Stuart Mill & Thomas Scanlon,
o MacKinnon, Dworkin and American
Booksellers v. Hudnut, 376-383.
o John Stuart Mill, from on Liberty, and
Gerald Dworkin, pp. 328-337.
o Bowers v. Hardwick, pp. 347-352.
Last updated May 2, 2006
Created by: Robert C. Koons
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