Con Law I Constitutional Law Methods Prof. Steven Jamar January 2008 Constitutional Law Methods Prof. Steven Jamar January 2008

Reading Cases - Generally  3 things  Rules, policies, principles of law  Factual settings in which they arise  Reasoning used by courts  Analysis  Enthymeme (rule-based reasoning)  Comparison (analogizing and distinguishing)  3 things  Rules, policies, principles of law  Factual settings in which they arise  Reasoning used by courts  Analysis  Enthymeme (rule-based reasoning)  Comparison (analogizing and distinguishing)

Reading Con Law Cases  Rules, policies, principles of law  Factual settings in which they arise  Power relationships of Federal, State, & the People  Powers and Limitations of Executive, Legislative, and Judicial branches of federal government  Reasoning used by courts  Analysis  Enthymeme (rule-based reasoning)  Comparison (analogizing and distinguishing)  Methods of/approaches to constitutional interpretation  Rules, policies, principles of law  Factual settings in which they arise  Power relationships of Federal, State, & the People  Powers and Limitations of Executive, Legislative, and Judicial branches of federal government  Reasoning used by courts  Analysis  Enthymeme (rule-based reasoning)  Comparison (analogizing and distinguishing)  Methods of/approaches to constitutional interpretation

Constitutional Interpretation  Text  History  Purpose  Effect  Living Constitution  Originalist understandings  Text  History  Purpose  Effect  Living Constitution  Originalist understandings

Interpretation– Considerations  Federalism  Justice  Balance of powers  Efficiency  Rights  Majoritarianism  Federalism  Justice  Balance of powers  Efficiency  Rights  Majoritarianism

Con Law – Exams  Doctrine (rules)  Issue-spotting (knowing when to use which rules)  Application (connecting law to facts) (“because” structure)  Use of Con Law principles of federalism, balance of powers, modes of interpretation  Doctrine (rules)  Issue-spotting (knowing when to use which rules)  Application (connecting law to facts) (“because” structure)  Use of Con Law principles of federalism, balance of powers, modes of interpretation

Con Law Exam Answer Structure  IN GENERAL – there are exceptions  Issue  Statement of legal rules; development of legal rules as needed  Application of rules to facts  “This rule applies to this fact with this result because”  Analogizing to other cases  Using federalism, balance of power, modes of interpretation, and other policies and principles as appropriate to reach an answer (these are rules in this context –apply them to the facts of the problem )  Conclusion  IN GENERAL – there are exceptions  Issue  Statement of legal rules; development of legal rules as needed  Application of rules to facts  “This rule applies to this fact with this result because”  Analogizing to other cases  Using federalism, balance of power, modes of interpretation, and other policies and principles as appropriate to reach an answer (these are rules in this context –apply them to the facts of the problem )  Conclusion

Forest and Trees  Forest – Standing  What is standing all about? How does it fit in with ideas of federalism and balance and distribution of powers?  Trees – Standing  Basic test for standing  Refinements  Special situations (e.g., groups; environment)  Forest – Standing  What is standing all about? How does it fit in with ideas of federalism and balance and distribution of powers?  Trees – Standing  Basic test for standing  Refinements  Special situations (e.g., groups; environment)

For Bar Exam  Issue spotting – Which fact patterns give rise to what issues?  Rules – instrumental understanding – black letter law – especially standards of review  Application – “because”  Conclusion – decide the issue  Issue spotting – Which fact patterns give rise to what issues?  Rules – instrumental understanding – black letter law – especially standards of review  Application – “because”  Conclusion – decide the issue

NOT on Bar Exam (mostly)  Methods of interpretation  Principles and Policies (as distinguished from hard-edged rules and legal tests)  Why?  Political theory  Economic impact  Evaluation of rules: do they produce justice?  Methods of interpretation  Principles and Policies (as distinguished from hard-edged rules and legal tests)  Why?  Political theory  Economic impact  Evaluation of rules: do they produce justice?