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Friday, September 21, 2012

Teaching (Off-Line) in Real Time

This year at Western New England (WNE) I am co-teaching an independent study tutorial on the same-sex marriage cases in which petitions for certiorari are currently pending at the SCOTUS.  In addition to the Prop 8 case, Perry v. Brown (captioned Hollingsworth v. Perry in th SCOTUS), there are currently four cases challenging the Defense of Marriage Act (DOMA) in which cert petitions are pending at the Court -- two cases from the Second Circuit, one from the First Circuit, and one from the Ninth Circuit.  (This scotusblog post by Lyle Denniston provides an overview of the cases, including in its total three cert petitions from the First Circuit case).  Our WNE group will meet three times this semester, and, if certiorari is granted, three times next semester to track the progress of these cases. 

At our first meeting, in mid-September, we discussed the opinion in the First Circuit case, as well as SCOTUS certiorari procedure.  We plan to read some of the cert stage filings at our next meeting, in mid-October.  By that time, we may well know the fate of these cert petitions.  (The AP reported this week that Justice Ginsburg told a University of Colorado audience that it was "most likely" that the Court would consider these issues "toward the end of the current term.")  If certiorari is granted, we plan to read merits briefs and pre-argument commentary, and continue on through the life cycle of the case(s). 

I think there are some real pedagogical advantages to teaching this way, in real time. Here's what's so great about it: 1) We read legal documents other than published appellate opinions.  In many law school classes, students read a court's opinion after the litigation has concluded, but, in this tutorial, we're reading a variety of pleadings; 2) We discuss procedure and substance in tandem.  Rules regarding the cert process, for example, or cert before judgment, which is sought in some of these cases, are more interesting when discussed in conjunction with a case you're following; 3) Obviously, we're discussing current events, which makes the class all the more timely and compelling.  There is lots of great commentary and analysis to read, including this week a piece by Emily Bazelon at Slate, and an online symposium at scotusblog, featuring, inter alia, this piece by Bill Eskridge; and 4) While reading briefs and listening to audio of oral argument (available from some Courts of Appeals as well as from the SCOTUS), we can talk about lawyering technique in addition to doctrine; and 5) The uncertainty of the situation gives students a more real-world view of litigation.  While appellate opinions may give the impression that the result was always a fait accompli, our students in the tutorial read the briefs on both sides and watch the process unfold.

Although last year's ACA argument might have been a high-water mark of SCOTUS-watching, there will be plenty of action this term too at the High Court.

Posted by GiovannaShay on September 21, 2012 at 03:33 PM | Permalink

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