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General Description

Depending on the number of students in the class, one or more "U.S. Supreme Court(s)" will be constituted, and every student will be assigned to serve as a Justice on one of the Courts. 

Each Court will undertake the hypothetical review of a single case.  The case must involve an Internet free-speech controversy that resulted in a state high court, a federal district court, or federal appellate court decision assigned to be read and discussed during the course of the seminar.  The case, however, must not have been reviewed by the U.S. Supreme Court or be pending currently  before it. 

Over the course of the semester, the Justices will produce several opinions regarding determination of the case:  (1) each Justice will render a separate opinion that adjudicates the case from his or her own individual perspective, and (2) collectively, the Court will issue a majority or a plurality opinion announcing the judgment of the Court, accompanied by any concurring or dissenting opinions that are necessitated by the Justices' respective positions.  

Six Stages of the Project

(1)   Initial Organization of the Court(s): 

In the second week of the course, students will be assigned to a group that will constitute a Court, and a group leader will be designated.  The group leader will be responsible for organizing all meetings of the Court, coordinating communication among Court members, and ensuring that deadlines are met for each stage of the Project.  The first task of the group is to determine: (1) what Internet free-speech case will be heard by the Court on appeal, and (2) which current Supreme Court Justice each individual member of the group will represent.

(2)   Order Granting Petition for Writ of Certiorari, Specification of Questions to be Decided on Appeal, and Identification of Justices:

With the consensus of the Court, the group leader will submit a hard copy of an Order Granting Petition for Writ of Certiorari for the case to be reviewed.  The order must specify the precise questions to be decided on appeal.  For a model of such an order (rendered in a totally different substantive context involving no Internet-related First Amendment questions), see the U.S. Supreme Court's order granting certiorari limited to specific questions in Ingraham v. Wright, 425 U.S. 990 (1976).  (Naturally, the model's form would have to be adapted to suit the circumstances of and available information for the group's case.) 

The group leader will also submit a separate form that: (1) identifies each group member's choice of a current Supreme Court Justice to represent, and (2) provides necessary contact information for each group member (i.e., preferred telephone number and e-mail address). 

(3)   Individual Justice's Research Bibliography:

After a group has selected its Supreme Court "alter-egos," each member must begin immediately to determine the position and perspective that his or her Justice would most likely take in adjudicating the pending case.  This task requires a substantial amount of research into the constitutional "world-view" (and, in particular, the First Amendment jurisprudential vision) that would most probably influence the Justice's decision of the issues -- both as a matter of substantive rulings and writing style.

Among the relevant sources of authority, the following should be considered: (1) significant First Amendment opinions (or important non-speech related decisions) either authored or joined by the Justice that might furnish precedential authority for determination of the pending case; (2) books, law review articles, legal speeches, or magazine/newspaper pieces authored by the Justice that might provide valuable information and insight into his or her views on First Amendment law generally and the case issues in particular; and (3) biographical or historical works that might elucidate the Justice's free-speech jurisprudence. 

Each group member will submit a hard copy of a research bibliography listing the sources that will be consulted to "flesh out" the respective Justice's First Amendment viewpoint and to substantiate the reasoning and rulings that the Justice will be required to make in order to resolve the issues in the pending case.

(4)   First Draft Opinions of Individual Justices:

With an eye to the specific questions to be resolved on appeal and to the stylistic preferences of the Justice, each group member will submit by e-mail a Word file containing a completed first draft of an opinion that adjudicates the entire case from the Justice's individual perspective. 

The first draft should address all dimensions of any typical U.S. Supreme Court opinion, including: (1) the basis for appellate jurisdiction; (2) an appropriately framed statement of relevant facts and rulings issued previously by inferior courts; (3) analysis and holdings for all of the issues incidental to the questions specified for decision on appeal by the certiorari order; and (4) final judgment deciding the controversy and orders disposing of the case. 

Typically, the research bibliography will have included opinions that may serve as models or exemplars for the doctrinal directions taken and writing style favored by the Justice.   

Within one to two weeks, the first draft of the individual opinion will be returned with editorial commentary and suggestions for rethinking and reworking.

(5)   First Draft Opinions of the Court:

Upon submission of the individual opinions of the Justices, the group leader must take an aggressive role in organizing the meetings of the Court.  The objectives of the meetings are: (1) to determine the initial and final alignments of the Justices on the questions to be decided; (2) to organize the drafting, substantive and stylistic editing, cite-checking, etc. of all opinions to be rendered by the Court (e.g., majority or plurality, concurring and/or dissenting opinions); (3) to resolve issues that arise in the course of working on the opinions; and (4) to monitor progress on the development and completion of the first drafts of these opinions.

The contents of an opinion will depend, of course, on the character of that piece (e.g., a majority or plurality decision, or a concurrence or dissent) and on the Justices who either author or sign onto the opinion.  In all cases, however, the opinions must clearly indicate the authors and joiners; moreover, not only must the Justices strongly substantiate their key affirmative arguments, but they must strive to respond forcefully to the most powerful counter-arguments offered by their opponents.   

The group leader will submit by e-mail a Word file containing the completed first drafts of all opinions of the Court.  The header on each page should identify the group members and their respective judicial identities [e.g., John Smith (Justice O'Connor); Susan Jones (Justice Scalia)]. 

Within one week, the Court's opinions will be returned with editorial commentary and suggestions for rethinking and redrafting. 

(6)   Finalized Opinions of Individual Justices and of the Court, and Evaluations of Comparative Contributions of Group Members:

At the beginning of the final day of class, the following submissions must be made:

(1)  Each student will submit a hard copy of the finalized individual opinion of the Justice whom he or she represented. 

(2)  The group leader will submit a hard copy of the finalized and collated opinions of the Court.

(3)  Each student will submit an evaluation assessing the comparative contributions of all members (including himself or herself) to the group project. 

It is quite understandable that students may feel awkward when engaging in peer evaluation.  At the same time, the contributions of members to the group project may vary substantially in quantity and quality, and that differential should be recognized when factoring final grades.  In that regard, your forthright and fair assessments of your colleagues' respective participation in the work of the group are essential.

Your evaluation should name each member of the group (including yourself), assign a grade for participation, and provide an explanation for the given grade.  Among the contributions that you might consider in your assessments are: (1) participation in the preliminary stages of the process (e.g., refining and sharing individual opinions, round-tabling, negotiating and influencing the alignment of Justices, creating organizational charts and initial argument outlines, etc.); (2) participation in the middle stages of the process (e.g., contributing to the drafting process of joint opinions, ensuring the substantive strength and stylistic quality of draft opinions, circulating draft opinions to opposing factions, developing strategies to address the strongest counter-arguments of opposing factions, etc.); (3) participation in the later stages of the process (e.g., revising and polishing arguments, conducting substantive and stylistic edits for soundness of reasoning and consistency of style within a joint opinion, formatting the opinions, perfecting citations, etc.); (4) meeting deadlines established by the group or sub-group leaders; (5) creativity and collaboration in resolving issues; and (6) sustaining the energy and morale of the group.

Deadlines

Because the speed at which material is covered in this course must remain somewhat flexible, the Syllabus does not assign exact dates for the reading or writing assignments in this class.  Nevertheless, the deadlines for each stage of the Project are associated with particular reading assignments.  Review the Syllabus carefully to determine when you will be required to submit each writing assignment relating to the Project.

Grading

The writings associated with this project constitute one-half (50%) of the final semester grade.  Percentages will be assigned as follows:

First Draft of a Justice's Individual Opinion:    20% of the final semester grade
Final Draft of a Justice's Individual Opinion:    15% of the final semester grade
Final Draft of the Court's Opinions:                   15% of the final semester grade   

The remaining one-half (50%) of the final semester grade is determined by class participation and evaluations of contributions to the group project.  Percentages will be assigned as followed:

Participation in Classroom Discussion:            40% of the final semester grade
Peer Evaluation of Group Contribution:            10% of the final semester grade