During the first half of this semester, we will spend quite a bit of time and effort learning the concepts, doctrines and vocabularies of Constitutional Law, as well as the conceptual, big picture, separation of powers issues they create. This learning process entails several levels of “Learning Outcomes” itemized in the Basic Learning Outcomes document that I am also sharing with you today. Similarly, the User’s Mini-Guide that I am distributing today expands and deepens the points that the materials and our discussions thus far have introduced. This document is designed to distill for you the essential aspects of the four-step process that should be coming together in each of your minds, as well as providing a checklist to help you prep professionally for any lawyering situation, whether a meeting, a hearing or a class. Please review both parts of this document carefully, making sure to connect the points emphasized below with the contents of the other course materials and class discussions. I look forward to your questions during our next class sessions.
The four-step process
- Learn the concepts, doctrines and vocabularies well and clearly: case briefings and connecting dots.
- Examine critically how each judge applies the concepts, doctrines and vocabularies in each case, in light of the big picture, separation of powers issues: will versus judgment.
- Highlight any and all inconsistencies, and attempt to reconcile them: “think like a lawyer.”
- The result is both a map of legal doctrine and its current incoherence, or its pending paradoxes: now you are prepared to act professionally in various lawyering settings involving constitutional issues.
Con Law prepping checklist
- Pay close attention to all opinions.
- Spot and track exact terminology and its repetition (or not) and variations (or not) across and within all opinions.
- Compare and contrast differences in the presentation or description of “facts” in the various opinions in a case.
- Notice and trace the use of all sources in each opinion.
- Map or chart dates, chronologies and sequences, and notice trends, contradictions, etc.
- Isolate and list any and all inconsistencies in each opinion based on the totality of your knowledge thus far.
- Identify and consider the jurisprudential viewpoint(s) of the various opinions in a case.
- Notice and trace compliance with, or violations of, the canons of constitutional interpretation in each opinion.
- Reflect on the distinction between will and judgment in Constitutional Law and related separation of powers issues regarding judicial review. See the User’s Mini-Guide.
- Go to hearing / meeting / class prepared to discuss.