PSC 332 Syllabus: Summer 2020

PSC 332: The Judicial Process

Summer II 2020 online

Instructor: Dr. Rebecca Gill

rebecca.gill@unlv.edu

Course Description

As Americans, much of what we know about our legal system comes from the television. We learn about criminal justice from shows like “Law and Order” and we learn about trials on shows like “Perry Mason” or “Boston Legal.” Indeed, one of the first reality shows on television was “The People’s Court,” and the real-life legal drama surrounding our most famous people (OJ, Lori Loughlin, Harvey Weinstein, etc.) continues to captivate the American public. In fact, some people have become famous just because of their involvement with the court system (Casey Anthony, George Zimmerman, Adnan Masud Syed, Steven Avery, etc.).

While some of the information we get from popular culture is grounded in fact, much of it is not. In order to gain a more accurate and comprehensive understanding of the role of courts in America, we will augment our popular perceptions with evidence from theoretical and empirical research. We will also be investigating the social and political impact of our justice system on different segments of society.

The main aim of this course is to systematically answer questions and dispel the myths surrounding the American legal system. We will begin with a basic introduction to the structure and function of our court system and judicial selection. We will discuss the role of judges and other court actors, both in terms of what they should do and what they actually do. We will examine the function of courts as they address matters of criminal law and civil law, focusing specifically on the consequences of various attributes of criminal and civil procedure. Next, we will study the appellate process. We will conclude the term with a look at how the courts t in to the larger political landscape, and how they work to shape life and law in America.

Required Materials

Course Objectives

After completing this course, the successful student will:

  1. Have a working knowledge of American court system structure, function, and procedures;
  2. Understand the way that procedures and institutions impact the nature of justice that results;
  3. Be able to analyze the merit of particular legal arguments and approaches, both from a socio-political and legal perspective;
  4. Interpret the various outcomes of the court system in terms of the political, institutional and social characteristics of the American legal system; and
  5. Be able to contribute meaningfully to the current debate about judicial selection in the American states.

Requirements & Evaluation

This course is taken completely online. All assignments must be completed online through the course WebCampus page by the time and date indicated. Please be sure to check your WebCampus and RebelMail accounts regularly throughout the term. Your grade will be assigned on the basis of my assessment of your work according to the scheme laid out below. There are no in person office hours, but I will be available via e-mail at rebecca.gill@unlv.edu during regular business hours for the duration of the semester.

Quizzes: 40% of Final Grade

Each module has specic has a specific set of readings. You should complete the readings before beginning the module. Each module consists of multimedia materials to help you make sense of the readings and they presuppose your familiarity with the facts and concepts from the readings.

Practice Quizzes. There will be a number of practice quizzes sprinkled throughout the modules. This quiz will elements from the module, but it will also include questions about information from the readings that weren’t presented in the module. You can take these quizzes multiple times and your highest grade will count. The practice quizzes will count for half of your quiz grade (or 20% of your final grade).

Mastery Quizzes. At the end of each module, there will be a mastery quiz. Your mastery quiz grades make up half of your quiz grade (which is 20% of the overall grade). They are not timed, but all of the quizzes must be completed by Friday at 10 pm of the week for which they have been assigned. Missed quizzes cannot be made up, so make sure you take these on time!

Participation: 20% of Final Grade

Because of the online format of the course, all of the participation will take place through WebCampus. The discussions will happen in groups, which will be assigned randomly in WebCampus on the first day of class. Each of the groups will consider the same weekly question; the group setting is intended to make the conversations more manageable and meaningful for students. On Monday of each week, a new conversation thread will open up in your group. The conversation starter will be a general topic, and it will be followed by several specific questions. By Wednesday at 6pm, each student in the group must answer a question that nobody else in the group has answered yet. By Sunday at 6pm, each student must respond to the posts of the other students in the group. Participation counts for 20% of the overall grade.

Final Exam: 40% of Final Grade

The final exam must be taken sometime on the last Friday of the course. You may begin the exam anytime that day before 10:00 pm, and you will be allotted two hours to complete the exam. The exam will cover information from the quizzes, but it will also include additional questions from the readings, the modules, and the discussion boards. It is a cumulative exam, and it is intended to confirm that students have mastered the material. The course is open book, but rules against plagiarism and academic dishonesty apply. Collaboration is not allowed. General use of internet sources and searches are not allowed for the test. You may consult the material from the course, but you should not be Googling the questions in an attempt to find the answers.

Schedule of Topics

Week 1 : Courts and Lawyers

  • Read American Judicial Process chapters 1-3.
  • Complete the Module 1.
  • Respond to Discussion 1 by Wednesday at 6 pm.
  • Take Mastery Quiz 1 before 6 pm on Friday.
  • Engage in dialogue with colleagues about Discussion 1 by Sunday at 6 pm.

Week 2: Court Organization and Staffing

  • Read American Judicial Process chapters 4-5.
  • Complete Module 2.
  • Respond to Discussion 2 by Wednesday at 6 pm.
  • Take Mastery Quiz 2 before 6 pm on Friday.
  • Engage in dialogue with colleagues about Discussion 2 by Sunday at 6 pm.

Week 3: Criminal and Civil Law

  • Read American Judicial Process chapters 6-7.
  • Complete the Module 3. 
  • Respond to Discussion 3 by Wednesday at 6 pm.
  • Take Mastery Quiz 3 before 6 pm on Friday.
  • Engage in dialogue with colleagues about Discussion 3 by Sunday at 6 pm.

Week 4 (June 25-29) – Trials and Appeals

  • Read American Judicial Process chapters 8-9.
  • Complete Module 4
  • Respond to Discussion 4 by Wednesday at 6 pm.
  • Take Mastery Quiz 4 before 6 pm on Friday.
  • Engage in dialogue with colleagues about Discussion 4 by Sunday at 6 pm.

Week 5: Courts as Policymaking Institutions

  • Read American Judicial Process chapters 10-11.
  • Complete Module 5.
  • Respond to Discussion 5 by Wednesday at 6 pm.
  • Take Mastery Quiz 5 before 6 pm on Friday.
  • Take the Final Exam on Friday starting sometime before 10:00 pm.
  • Engage in dialogue with colleagues about Discussion 5 by Sunday at 6 pm.

UNLV Policies

Please see the Syllabi Content Memo (Links to an external site.) for select, useful information for students. This document can be found at: https://www.unlv.edu/sites/default/files/page_files/27/EVPP-SyllabiContent-MinimumCriteria-Spring2020.pdf (Links to an external site.) 

Call for Papers:

Special Issue of Justice System Journal on “Gender, Race & the Courts”

Justice System Journal will publish a special issue devoted to the topic of “Gender, Race & the Courts.” This special issue will be guest edited by Dr. Rebecca Gill and Dr. Allison Harris.

With the advent of the #MeToo and Black Lives Matter movements, a crucial question concerns how the courts address issues related to race and gender, as well as how race and gender influences individuals’ interactions with the judicial system, from those who experience harms, to those who choose to file cases, to those who represent various plaintiffs and defendants, to those who ultimately decide the cases.

Possible topics for manuscripts include, but are not limited to: how the gender and/or race of litigants influences their interactions with the judicial system (including with respect to identifying harms, pursuing litigation, and case outcomes); how the gender and/or race of lawyers influences their interactions with the judicial system; how the gender and/or race of judges influences case outcomes, collegial interactions, political ambition, and other areas; and how gender and/or race may influence judicial elections and judicial ambition from the vantage point of both voters and candidates.

Submissions on any topic concerning gender, race and the courts or law will be considered. Articles intended for consideration for inclusion in this issue should be submitted by October 15, 2019, via the journal’s online submission process at https://mc.manuscriptcentral.com/ujsj.

Questions about potential submissions should be directed to Rebecca Gill (rebecca.gill@unlv.edu) and/or Allison Harris (allison.p.harris@gmail.com).

#24: The Amazon Tax

Like Nevada, many states rely very heavily on sales tax income to fund government services. In the olden days, states required businesses within their borders to remit a percentage of their sales as taxes to the state government. These taxes, of course, are passed along to the customer, who often sees them added on to total purchase prices on their sales receipts.

When the vendor of the product lives out of state, this poses a big problem for the state government. As of the Court’s decision in Quill Corp. v. North Dakota (1992), states have been stymied in their attempts to force vendors to collect and remit these taxes. In-state consumers are still required to pay the taxes, of course. But it is incredibly difficult to enforce this kind of requirement when the state has no idea how much money any particular individual rightly owes.

Enter Direct Marketing Association v. Brohl. The Supreme Court has just granted certiorari in this case, which deals with Colorado’s attempt to get around the restrictions in Quill. The SCOTUSblog page for the case lays out some of the details. Although the Court of late has denied certiorari on direct tax remission law challenges, the Court’s willingness to hear this case is an important development.

Paper Topic #24: Are the case facts in Brohl different enough from those in Quill to mandate a different finding? Given the holding in Quill, coupled with the changing nature of the internet economy, is it likely that the Court will feel pressure to adopt a new strategy here? If Congress stepped in to force remote retailers to remit state sales taxes, would that change the calculus in Quill?

Suggested Reading: Haile, A. J., Gamage, D., & Shanske, D. (2013). A Potential Game Changer in E-Commerce Taxation. State Tax Notes67(10).

FGM and the Commerce Clause

In the United States, the federal code prohibits “female genital mutilation” procedures on minors. A Michigan doctor and several parents were charged with violating this law in US v. Nagarwala. Recently, a district court judge struck down this law. This article from the Detroit Free Press provides additional details. In short, the judge found that Congress did not have the power to ban these procedures. 

Image from cnn.com.

Although women’s rights activists were stunned by the ruling,  this article from Reason.com (a libertarian publication) argues that the decision is correct, given the Supreme Court’s existing jurisprudence about the breadth of the Commerce Clause. What do you make of this case? How might the Supreme Court rule in this instance? Is there a way that Congress could institute such a ban using some other provision in the Constitution? Or is this something that must be left to the states to incorporate into their own criminal codes?

#23: Obamacare and Clean Air

As you will no doubt recall, the Supreme Court in NFIB v. Sebelius (2012) held that Congress did not have the power under the Commerce Clause to uphold the individual mandate to purchase health insurance coverage. The conservatives on the Court joined in this assessment. However, the Court also decided additional major questions in this case: one about taxing and the other about spending.

Chief Justice Roberts joined with the liberal members of the Court in upholding the individual mandate as a tax. However, the Court struck down the expansion of the Medicaid program as a violation of the spending power. The Court held that this expansion was unconstitutional, even though it did not literally “force” the states to participate in the expansion.

This is a curious line-up of holdings. In two of the three major questions, the Court struck down exercises of congressional power (under both the Commerce Clause and the General Welfare Clause). The only part that was upheld was perhaps the least controversial argument (under the Taxation Clause).

Some commentators argue that this is one of the more important, if underpublicized, parts of the Court’s decision in Sebelius. For example, read Johnathan Adler’s piece over at SCOTUSblog. What does he think the implications are for the balance of power between the federal government and the states? Take special note of Adler’s point about how this might impact the Clean Air Act.

Adler delves into this issue more deeply in this post on the Property and Environmental Research Center website. Read the article. How might the Court’s decision in Sebelius encourage states to challenge the Clean Air Act’s conditional grants? Does it go beyond the impact of South Dakota v. Dole (1987)? What alternative measures could the federal government take to try to increase compliance among states?

Paper Topic #23: How might the Court’s decision in Sebelius encourage states to challenge the Clean Air Act’s conditional grants? Does it go beyond the impact of South Dakota v. Dole (1987)? What alternative measures could the federal government take to try to increase compliance among states?

Suggested Reading:  Baake, D. (2012). Federalism in the Air: Is the Clean Air Act’s “My Way or No Highway” Provision Constitutional After NFIB v. Sebelius?. Harvard Environmental Law Review Online, 1.

#13: ISIS and the Gitmo Problem

Late in the Obama administration, a very interesting separation of powers issue developed out of the saga over the chemical weapons attack in Syria. The issue arose after President Obama asserted his authority to conduct military action in Syria without congressional approval, but decided to seek such approval anyway.

There is a good deal of debate as to whether the president actually has to go to Congress for approval. One member of the Obama’s own party seemed to think so …

Some prominent Republicans stepped in to defend the President Obama’s power to initiate such actions:

There’s an update to this, of course. President Trump has also launched military strikes against Syria, also without any updates to the original AUMF. Earlier this year, a new Senate resolution was initiated that would limit President Trump’s war powers. Learn more about that here.

Paper Topic #13: How much power does the President have to go around the wishes of Congress in the war on Terror? How much power does the President still have to deal with issues of fighting ISIS and dealing with the enemy combatants from the various campaigns in the war on terror? Does the Court’s recent jurisprudence on the separation of powers issue in foreign policy give us any hints?

Suggested Reading: Vladeck, S.I. 2011. “The Supreme Court, the War on Terrorism, and the Separation of PowersHuman Right Magazine 38(1).

#12: Passports and Diplomacy

The Supreme Court’s decision in MBZ v. Clinton (2012) is an example of a three-way separation of powers battle. Amanda Frost over at SCOTUSblog summarizes the debate this way:

Federal law requires the Secretary of State to record the birthplace of an individual born in Jerusalem as “Israel,” which is at odds with State Department policy. The question for the Court in M.B.Z. v. Clinton … is whether that law interferes with the President’s constitutional authority to recognize foreign nations, and whether that dispute between the branches is a political question beyond the power of the courts to decide.”

More details can be found in this National Journal article.

The Court’s decision in MBZ v. Clinton (2012) did little to clear up the dispute between the executive branch and the legislative branch; however, it did assert the power of the judiciary to decide the dispute. Read Lyle Denniston’s astute commentary on the Court’s decision.

Paper Topic #12: As Lyle points out, the question remains as to whether Congress has the power to legislate about how a birthplace is listed on a passport. How will the lower courts answer this question? Is § 214(d) of the Foreign Relations Authorization Act constitutional? What implications will the decision have for striking a balance in this foreign policy separation of powers game?

Suggested Reading: Hand, A. (2012). Forbidden Territory or Well-Defined Boundaries-MBZV Clinton and the Overzealous Application of the Political Question Doctrine. Duke J. Const. L. & Pub. Pol’y Sidebar7, 61.

#11: Dodd-Frank

In the arena of domestic affairs, there has been a lot of separation-of-powers debate surrounding the attempts of Congress to reform the financial system. In Free Enterprise Fund v. Public Company Accounting Oversight Board (2009), the Court struck down an arrangement in Title I of the Sarbanes-Oxley Act. Here’s a quick summary of the act from the SEC’s website:

“On July 30, 2002, President Bush signed into law the Sarbanes-Oxley Act of 2002, which he characterized as “the most far reaching reforms of American business practices since the time of Franklin Delano Roosevelt.” The Act mandated a number of reforms to enhance corporate responsibility, enhance financial disclosures and combat corporate and accounting fraud, and created the “Public Company Accounting Oversight Board,” also known as the PCAOB, to oversee the activities of the auditing profession.”

In a 5-4 decision, the Court held that the Act violated the separation of powers doctrine. This is because it gave broad powers to the PCAOB (an entity of the executive branch) while simultaneously keeping the President from appointing or removing the members of the PCAOB. Read this CS Monitor article decribing the separation of powers issue in Free Enterprise Fund v. PCAOB.

As a 2012 article in Compliance Week explains, the most recent attempt at financial sector regulation, known as “Dodd-Frank”, is facing a similar legal challenge. The suit’s main points are that the CFPB was established with too much independence—that Congress cannot set the CFPB budget (its funding is determined as a total portion of the Federal Reserve’s budget); that the president cannot remove the CFPB director except in special circumstances; and that the courts must give CFPB decisions extra deference.

“As a whole, Dodd-Frank aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,” said former White House Counsel C. Boyden Gray, attorney for the plaintiffs and founder of Boyden Gray & Associates.

“Dodd-Frank is to financial reform like a tsunami is to a slightly dry lawn—all-enveloping, hugely destructive, and pretty much unaccountable to whoever unleashed it,” said Sam Kazman, CEI’s general counsel. (The rest of the article is here.)

Part of the problem with Dodd-Frank, according to its critics, is that it violates the nondelegation doctrine in much the same way that Sarbanes-Oxley did. Read this short analysis by Professor Bainbridge.

Indeed, a lawsuit challenging the constitutionality of Dodd-Frank on separation of powers grounds is in the works. As one conservative analysis explains,

“The challenge to Dodd-Frank is … serious. As former White House Counsel C. Boyden Gray and his co-author, Adam White, wrote in a recent Weekly Standard cover story: “Dodd-Frank is a gift to big banks,” and “Even if we take President Obama, Sen. Dodd, Rep. Frank, and the rest of Dodd-Frank’s supporters at face value when they protest that they actually intended to rein in Wall Street banks, the laws they passed accomplish the opposite result. Intentional or not, a kiss is still a kiss.”

“Dodd-Frank’s kiss is intensified by an unconstitutional regulatory structure. The Consumer Financial Protection Bureau grants its director czar-like power, combining the authority with little legislative, executive or judicial oversight. Similarly, Dodd-Frank’s Orderly Liquidation Authority authorizes unaccountable corporate death panels, which are unrestrained by meaningful judicial scrutiny, while the Financial Stability Oversight Council has unchecked power to define “too big to fail.” In each instance, Dodd-Frank ignores our Constitution’s mandate for separation of power into three branches of government, housing it instead in one unaccountable agency.” (The rest of the article is here.)

The case State National Bank of Big Spring v. Mnuchin is currently at the U.S. Supreme Court awaiting a decision on a petition for a writ of certiorari. Here is a summary of the case and links to relevant court documents from the perspective of one of the challengers of Dodd-Frank, the Competitive Enterprise Institute.

The decision to keep the new agencies independent from the Fed and other executive agencies accountable to the President was a conscious one. As this HuffPo article explains:

“Specifically, Dodd’s bill takes away the Fed’s regulatory power in some key areas. “I really want the Federal Reserve to get back to its core enterprises,” Dodd said. “We saw over the last number of years when they took on consumer protection responsibilities and the regulation of bank holding companies, it was an abysmal failure. So the idea that we’re going to go back and expand those roles and functions at the expense of the vitality of the core functions that they’re designed to perform is going in the wrong way.” …

“Dodd said that despite removing a fair amount of regulatory authority from the Federal Reserve, the bill shouldn’t be seen as a criticism of Chairman Ben Bernanke himself. “This is not about ego,” he said. “It’s about putting together an architecture that works.” …

“Dodd’s bill protects the independence of financial accounting standards …”

Topic #11: Given what we know about the Supreme Court’s separation of powers and nondelegation jurisprudence, will these independent agency provisions from Dodd-Frank survive judicial review? Is it even possible for the Congress to develop a mechanism for creating truly independent watchdog groups?

Suggested Reading:

#10: Fast and Furious Privilege

Blog Post #10

You may remember hearing about the ATF’s controversial program, nicknamed “Fast & Furious.” Here’s John Stewart to give you the rundown:

As you might imagine, this controversy has made its way to the courts. The case is Committee on Oversight and Government Reform, US House of Representatives v. Holder.  The district court judge denied a motion to dismiss the case. Read this story from Politico summarizing the judge’s reaction to the administration’s arguments. Most recently, the Judge has allowed the Department of Justice more time to show why these particular documents should be subject to the “deliberative process” privilege (or, executive privilege to keep secret the deliberative process the DOJ went through in regards to this program). The current situation is summed up nicely in this article Daniel Wilson, which you should read.

Paper Topic #10: Given what we know from previous cases like U.S. v. Nixon (1974), will this claim of executive privilege hold up? Does it matter that the president himself has (as far as we can tell) very little to do these documents, personally?

Suggested Reading: Klukowski, Kenneth A. 2011. “Making Executive Privilege Work: A Multi-Factor Test in an Age of Czars and Congressional Oversight. Cleveland State Law Review, 59:31.

PS. In the midst of the case, the Attorney General moved to certify a question in the case to the Court of Appeals.