Tentative Syllabus

Maxwell L. Stearns

Fall 2000

August 21-23 (four hours):

Topics: The Constitution -- An Introduction; The Power of Judicial Review; Supreme Court Authority to Review State Judgments and Political Restraints on the Supreme Court: May Congress Strip the Court of its Jurisdiction?

Appendix A: A1-A15 (the Constitution); 1-27; 60-87

Total 69 pp. (including the Constitution)

August 28-30 (four hours):

Topics: Tools of constitutional interpretation (the necessary and proper clause); An introduction to Federalism; Implied limits on state powers under a delegated powers model.

87-140 (National Powers and Local Activities: Origins and Recurrent Themes); 27-60 (Constitutional and Prudential Limits on Constitutional Adjudication); Supplement 1-10

Total 96 pp.

Notes: Toward the end of this unit, we will cover the modern standing cases. After we have had a more comprehensive introduction to constitutional law and doctrine, we will reconsider standing along with other cases and doctrines for their implications for Supreme Court decision making processes.

September 6 (two hours) (no class September 4):

Topic: The Commerce Power: An Introduction.

141-42; 159-206 (end at note with header "the Eleventh Amendment as protector of state sovereignty . . .")

Total 49 pp.

Teacher's note: I will cover much of this material by lecture, and continue some coverage the following week. Also, please note that I have reworked these materials to present them in closer to a chronological order, with New York and Lopez at the end.

September 11-13 (four hours):

Topic: The Commerce Power: An Introduction continued.

206-24; 142-59; Supplement 10-35; 258-291; Supplement 35-38.

Total 96 pp.

September 18-20 (four hours):

Topics: Sate Regulatoin and the Dormant Commerce Clause continued; Restructuring the Political Process; The Market Participant Exception to the Dormant Commerce Clause; The Privileges and Immunities Clause of Article IV

291-322; 789-93 (stop at note E.); 322-328; Supplement 38-39 (Camps Newfound/Owatonna, Inc. v. Town of Harrison); 328-336; Supplement 39 (Saenz v. Roe)

Total 52 pp. (not including recommended reading)

Notes: Although I will not assign these materials, I will briefly discuss the cases presented at 337-44 (Preemption of State Authority). In addition, in this session, I will lecture on the dynamics of Supreme Court decision making using the framework of social choice. I recommend that you read one of the articles or the book chapters listed and described under optional readings at the end of the syllabus. In this unit, will revisit standing, along with other aspects of Supreme Court decision making, using the perspective of social choice theory.

September 25-27 (four hours):

Topics: Consent to State Laws; Separation of Powers in its multiple dimensions

344-50; 354-415; Supplement 42-57

Total 82 pp.

No class on October 9 (Fall Recess)

October 2-4 (four hours):

Topics: The Pre-Civil War Situation and the Purpose and Impact of the Post-Civil War Amendments; Substantive Due Process and Economic Regulation; The Lochner Era, Rise and Decline, the Modern Era; the Meaning of Due Process: Criminal Procedure and the Incorporation Controversy

418-432; 454-460; 460-86; 432-453.

Total 65 pp.

October 11 (two hours):

Topics: The Fundamental Interests Strand of Equal Protection Analysis

840-72; Supplement 80-82

Total 34 pp.

Class cancelled October 23-25

October 16-18 (four hours):

Topics: The Fundamental Interests Strand of Equal Protection Analysis continued; The Revival of Substantive Due Process

872-917; Supplement 82-98; 516-37

Total 82 pp.

October 30 through November 1 (four hours):

Topics: The Revival of Substantive Due Process continued

557-584; Supplement 60-63; 584-614;

Total 60 pp.

November 6-8 (four hours):

Topics: Equal Protection, Overview, Rationality Requirement; Race-based classifications

628-662; Supplement 78-79; 662-681;

Total 55 pp.

November 13-15 (four hours):

Topics: Gender or sex-based classifications; Mental retardation; Sexual orientation

681-720; Supplement 79-80; 728-34; 737-49;

Total 59 pp.

November 20-22 (four hours):

Topics: Purposeful Discrimination; Proving Purpose; De Jure/De Facto Discrimination in the School Context; Benign Use of Racial Criteria; the Problem of State Action

749-93; 793-814; 828-40; 919-21

Total 80 pp.

Note: I have not assigned Croson (pp.814-28 for reasons that I will explain in class, but I will discuss the case briefly in a lecture format. You might wish to scan the case prior to the lecture).

November 27-29 (four hours):

Topics: Congressional Power to Reach Private Interferences with Constitutional Rights

962-1021; Supplement 98-112

Total 73 pp.

Suggested Readings for September 25 to 27 Session


Should Justices Ever Switch Votes?: Miller v. Albright in Social Choice Perspective, 7 S. CT. ECON. REV. 87 (1999)

This article will provide an overview of social choice and its application to individual case decision making, which will be the first part of the lecture on Supreme Court decision making rules.

Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309 (1995)

This article will provide an overview of social choice and its application to standing. This will be the focus of the second half of the lecture. The article's emphasis is in developing the model, with a relatively brief summary of applications at the end.

Standing and Social Choice: Historical Evidence, 144 U. PA. L. REV. 309 (1995).

This article will provide a briefer overview of social choice and a more detailed application to standing, with many actual case illustrations. This will be the focus of the second half of the lecture.


This book provides a comprehensive overview of social choice in chapter 2, an application to individual case decision making in chapter 3, and develops the model of standing in chapter 4, which applications and a relevant historical overview in chapters 5 and 6.