Constitutional Law I-B
Spring 1997

Class policies Mr. Froomkin
This file last modified on Feb 3, 1997.

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    I. Introduction

    My office is in Room 382 in the new building. I welcome questions before, during, and after class. My office telephone number is 284-4285. You should feel free to call me at any time during normal business hours. Since I am out of the office more than I am in be prepared for voice mail; if you get my voice mail, please leave your name, number, and when would be a good time to call back.

    I urge you to contact me if you have questions, comments, or suggestions about the class. I cannot stress strongly enough how important it is to come and see me early in the semester if you think you need help understanding something. If you are doing the reading but still feel lost or confused, don't wait until the last three weeks of class. I can help--but not at the last minute.

    In addition to asking questions in class, I encourage you to use email to ask me questions about the substance and procedure of the course because:

  • You can ask the question any time day or night, whether I am in or out;
  • I can answer it more thoughtfully since I have more time to mull over my answers;
  • I can send you the answer any time day or night, whether you are in or out;
  • I can copy the exchange (without your name, if you prefer) to the class mailing list, allowing everyone to benefit from your question.

    Indeed, I give class participation credit for participation in the class mailing list. Whether or not you post questions to class mailing list, you are required to sign up to receive messages from it (see below).

    II. Class Policies

    Classes will be a mixture of lecture and question and answer. You should feel free to interrupt to ask a question (or to disagree!) by raising your hand at any time. If time is pressing, I may have to ask you to wait until after class. Please do not take it personally.

    Constitutional law is a political subject. I encourage the expression of all points of view. You have my assurance that your expression of a political opinion will not harm your grade, so long as it is expressed with civility.

    A. Attendance.

    I expect regular attendance, which I enforce by taking attendance on a random basis. While I do not get excited about a rare absence, missing classes on a regular basis is a serious matter. Since first year students are not supposed to have outside employment, there is really no excuse for being late to class. Nevertheless, it is better to be late than not to come at all.

    In any case, you are on your honor to attend at least 85% of the classes. If I notice that you have missed more than this, and you do not have a cast-iron medical excuse or a family tragedy, you may be asked to withdraw from the course.

    In class, I call on people randomly, although I often look for volunteers before picking on people. You will find it to your advantage to volunteer, and not to your advantage to be obviously unprepared when I call on you (I allow everyone a free pass, however). In addition to calling on people at random, I will select a few people in alphabetical order to serve as the 'resource" -- they will be called on if no one else is ready willing and able to discuss an issue. Resource people are of course free to volunteer like anyone else.

    B. Make-up Classes

    Regrettably, I will have to cancel a number of classes this term in order to attend conferences I am involved in organizing out of town. There will be no classes on Feb. 26, 27, 28. There will be no class on March 12-14. This means we will have to make up at least six and possibly more. The official makeup time is Monday at 11:30. On the theory that it is easier to have five classes a week early in the semester I have booked room 219 for every Monday in the semester at the usual class time of 11:40 - 12:30. For the first half of the semester, you may as well think of this class as meeting five times a week with frequent cancellations, rather than four times a week with frequent makeups...

    We will have makeup sessions on Jan. 27, Feb. 3, 10, 17, 24, and March 3, and more as needed.

    C. Grading.

    Grading will be based primarily on a final exam, adjusted for class participation.

    Extraordinarily good class participation will raise your grade by one level (five to ten students in a large class tend to fall into this group); good class participation will raise your grade by one level if you are close to the line between two grades (at least ten students in a large class tend to fall into this group, most of whom are usually close enough to a line to benefit from it). Outrageous class participation (i.e. disruptive or offensive behavior) will lower your grade (no one has yet sunk to this level). You will find it highly costly to disrupt class by talking or making noise in a manner that disturbs your neighbors. Disturbing your neighbors during class is my pet peeve.

    Any student who believe (s)he suffers from acute "stage fright" and underperforms in public should see me early in the semester to work out special arrangements, which will probably involve writing.

    D. The Exam.

    The exam will be three and a half hours, open-book, open-notes, open-everything-except-other-people.

    E. Taping.

    No classes may be taped without my specific permission, which will not be given for reasons other than verified medical emergencies, or to students with particular disabilities. Tape recorders make me nervous.

    F. Disabilities.

    This class, like most law school classes, is heavily oriented toward reading a large quantity of material in a small amount of time. If you are aware that you have a learning disability, or if you just think that it takes you twice as long to learn things by reading as other people, please talk to me or to Marni Lennon, the disabilities issues coordinator, who can tell you about resources here that you may find valuable. All discussions will be totally confidential.

    G. Class World Wide Web Site

    Additions and changes to the class materials will be on-line at

    H. Class Email List

    I will operate an electronic mailing list for this class. Any message sent to the list will be transmitted to me, and to all other members of the list, as will replies. I hope this will provide a convenient way for you to share questions and answers about the course. Participation in the list is like class participation: providing good answers to your colleagues' questions is another way to rack up class participation credit. You are required to join this mailing list and to at least skim messages on it.

    I. How to subscribe to the mailing list

    To subscribe to the mailing list:

    Send an email message to (If you are doing this from the UM Law School system, entering just "majordomo" should do, but if doesn't work the entire address is guaranteed to work)

    Leave the subject line of the e-mail blank.

    The first line of your message should read:

    subscribe Conlaw1B


    subscribe Conlaw1b

    You should get a message back confirming your subscription.

    Once you are subscribed, to send e-mail to the list, address the e-mail to:

    Mail will be distributed to each subscriber.

    III. Answers to frequently asked questions:

    1. How do I "brief" a case for this class?

    This is the most commonly asked question at the start of the semester. Sadly, there is no perfect answer that works for everyone. You have to do what works for you, which may be very different from what works for me, or for the person sitting next to you. The same technique may not work in every course. Experiment.

    Some people find it useful to head the case brief with "question presented". I do not object to this, but I do not advocate it for several reasons. First, it suggests that there is only one question, when in fact there are usually several. Second, it suggests that the court limited itself to questions raised by the litigants -- not always the case. Third, I find it confusing when there are fractured opinions in which the Justices do not all discuss the same issues. Fourth, even in the best of circumstances there is no way to figure out what the question presented might be until you have fully digested the case. Personally, I find it easier to put this information nearer the end, under "holding".

    Whatever method you use, I would hope you know the answers to the following questions about a case if called upon (some parts of the following may not apply to a particular case):

    1. Parties. Who was the plaintiff in the original action (i.e. at the trial court level)? Who was the defendant? Were there other parties, and if so what were they doing in the case?

    2. Original verdict(s)/ruling(s). What did the court decide in the original action? Why?

    3. Arguments. First year students frequently overlook the great importance of this element. Figuring out the parties' legal and factual arguments may be more important than figuring out the court's decision. After all, the court tells you its decision; figuring out the arguments takes work. But it is important work: parties rarely make frivolous arguments on appeal, if only because appeals are expensive. If the court does not identify one side's argument as sanctionable, it's a good bet that they had a serious argument (maybe better than the one that the court adopted), and that you need to understand it. Indeed, you may be called upon in class to make it. And only by knowing what argument the court rejected can you possibly understand (1) what the court decided; (2) why (whether) this is an important case; (3) whether the court got it "right".

    4. The holding. What did the court actually decide? Did it address all of the parties' arguments? If not, why not? If the opinion is from a multi-member court, and is not unanimous, be certain you understand where and why the opinions differ. In reading fractured Supreme Court opinions it is particularly important to be absolutely certain you know how many Justices agree with each significant point in an opinion, even if you have to annotate the case paragraph-by-paragraph to be certain. Remember, it takes five Justices to make up a majority; anything less is not binding on the lower courts.

    5. Loose ends. What's not decided by the opinion (explicitly or implicitly)? What's the next case of this kind going to be about?

    Do not expect to be able to capture all this in a single paragraph or on your first try. Ordinarily it is just not possible. Especially when you are starting out, more may be better than less; you can worry about summarizing it when you do your review at the end of the semester and have a clearer idea of what is important. First year students often find that they need to make two drafts of their notes: a first draft just noting the key points, and a second, more polished version, re-ordering the facts in a coherent manner (which may be very different from the order that the court sets out the facts).

    2. How long should I be spending on homework each week?

    A long time. One of the hardest things to learn in law school, especially for liberal arts students who did well in college, is how slowly you need to read cases to understand them in the first year (it gets a bit faster later on). Reading slowly, and pausing to make sure you understand what you read (and then writing it down), is even more important than reading a case over and over again, although that has its place. If you are doing the work very quickly this is a surer sign that something is wrong than if the work is taking a long time. Whizzing through cases might mean that you are a legal eagle; odds are, it means you have completely missed the point.

    3. Where can I look things up if I'm confused?

    A good place to start, believe it or not, is the dictionary. DO NOT, and I mean DO NOT, ever read past a word in a case or other legal material until you are absolutely sure you know what it means. Don't guess. Don't try to infer meaning from the context. LOOK IT UP. Some day this advice will save you a fortune in sanctions.

    If your confusion persists, there are several excellent reference works on the Constitution available in the Library. Larry Tribe's American Constitutional Law would probably be a good first choice for most issues.

    4. Should I buy a commercial outline or hornbook?

    You do not need one. Indeed, some of the them are positively dangerous as they contain errors and misinformation or outdated information. Consider this e-mail message, reprinted with permission:

    From jdressler@uop.eduMon May  6 14:22:53 1996
    Date: Mon, 6 May 1996 13:02:16 -0500
    From: Joshua Dressler <>
    As an author of two commercial outlines, you must take my comments here
    with many grains of salt, but my views on the subject have not changed 
    over the years.  
    1.  Commercial outlines are among the less desirable study aids you 
    might use, well below a recognized hornbook or law review articles.  
    (There are worse study aids, however.) Over the years, as a professor, 
    I have found students sometimes parroting back incorrect statements, 
    only to learn later that they came from a commercial outline.  This is 
    less a problem today than in the more distant past, but I recommend 
    that you not use any outline that is not explicitly authored by a law 
    professor, and better yet, by a well-recognized one.
    2.  Use of a commercial outline, even a good one, can do more harm 
    than good.  It depends on how you use it.  It is NO substitute for 
    class attendance, careful reading of the assigned materials, or a 
    hornbook.  Therefore, if you are likely to use an outline as a 
    crutch, to reduce your class preparation/attendance, or to make 
    you less likely to use a good hornbook, then STAY AWAY FROM OUTLINES.  
    Only you can know whether you are likely to use it this way.
    3.  Remember that an outline does not purport to give you the 
    depth of understanding your professor is likely to expect.  Its 
    purpose is simply to help you put the pieces of the jigsaw 
    together --- to help you see how the legal doctrine you are 
    learning in class fit together, and to give you a *brief* discussion 
    of the pertinent legal doctrine relevant to your class.  If you use an 
    outline in this limited manner, then an outline can be quite helpful, 
    if you are otherwise confused in class.  (Also, the outlines usually 
    include same exam questions/answers, which can be helpful.  But, 
    remember that these are generic questions.  Old exam copies of your 
    own professor are more useful.) 
    Thus, I would only purchase an outline if:
    (1) You know enough about yourself to be confident you will use the 
    outlines in the limited manner for which they are intended;
    (2) You are having difficulty in a specific subject; and
    (3) The outline is written by a recognized law professor.

    5. I'm going to buy an outline or hornbook. Any suggestions?

    Some students find it reassuring to have a source to check their notes against, or to make sure they didn't miss anything important as they review for the final. This is the least pernicious use of an outline; indeed, if you could rely on any of them it would make some sense. What you want to be sure to avoid is the temptation to look in an outline until you have finished reading and re-reading an entire section of the casebook and briefed all the cases to your satisfaction. The process of learning how to extract useful information from cases is a major part of what you learn in the first year. Indeed, it is probably more important than any black letter rules you may learn in the first year, since it is a skill you will probably be using for your entire professional life, long after the rules have changed or been forgotten. If you "peek" in an outline or rely on a "canned" brief you will not only be embarrassed when it turns out to be in error (or, even more likely, woefully under-detailed), but you will be cheating yourself of the opportunity to acquire this essential skill.

    If you must buy an outline or hornbook, spend some time looking through the various ones in the bookshop to see what you feel comfortable with. Styles vary greatly. (I can't conceive of a reason why you would want more than one.) When I was a student, people usually said that the Emmanuels was the most sophisticated commercial outline; opinions varied as to whether that was an advantage. Remember, they all have errors: When in doubt, the casebook is right.

    6. Will this be on the exam?

    Any reading assigned, and anything that is said in class by anyone is fair game for the exam, unless I specifically say otherwise. Please note that all casebook assignments implicitly include the relevant pages of the supplement. Check the supplement often!

    7. What can I do to get a better grade on the exam?

    The number one most common error on law school exams, especially first year exams, is a failure to read the question carefully. Students tend to prepare by subject, e.g. "the Erie doctrine". When they see a question with the word "Erie" in it, they take it as a cue to write down everything they remember about the Erie doctrine and the Erie line of cases regardless of its relevance to the question. This is rarely a good move, if only because you waste time you could have spent writing something relevant. Read the question. Try to figure out what the point of it is. Stick to the point in your answer. My questions are rarely as simple as "tell me everything you remember about the Erie doctrine". And I do not give partial credit for correct but irrelevant information. (I do sometimes give partial credit for correct but misplaced analysis of a complex problem caused by a "wrong turn" at an earlier stage of the analysis, but that's a different scenario.)

    The number two most common error on first year exams consists of misunderstanding the nature of legal writing. Good legal writing is clear, precise, and well-organized. It is written in plain, simple English, with as few long words as possible. (Yes, many judges do not write well.) There is no point in trying to be clever or funny. At all costs avoid using fancy words if you are not absolutely certain what they mean. You are being graded on substance, not style. Resist the temptation to use slang ("Get real!" and "Strike three!" are unfortunate examples from a past year's exams). Resist the temptation to use legal or Latin terms if a simple English word will do. Don't quote cases or rules at length if they are being given to you as part of the exam or if the exam is open book. But do be sure to cite rules and cases where relevant, and to explain the relevance.

    A related, and also frequent, error on law school exams is a failure to be sufficiently specific. Legal writing is a form of technical writing. It thrives on precision and often on detail. I suggest that you always avoid the passive voice because it allows you to neglect to specify the identity of the actor in your sentence. It's far better to use a boring writing style -- "Subject, verb, predicate" over and over again -- than to be confusing or to leave out something important.

    A fourth, surprisingly frequent, error is forgetting the point of view you are supposed to take in answering a question. Some questions ask you to be the judge; others ask you to be the advocate for a party; still others may require that you step back from the fray and adopt a policy perspective. There are differences between these roles. For example, a judge is quite likely to be concerned about judicial economy. A litigant is only going to urge a course of action that furthers judicial economy if it furthers her interests; otherwise, a litigant is going to try to explain to the court why a particular outcome is just even though it is not the most efficient. On the other hand, just because you are a litigant does not mean that you ignore authority contrary to your position. The best arguments are those that take full account of the strongest possible argument on the other side and demolish it; the worst arguments are those that sound like the author never heard of the other side -- and if there is authority for the other side, the author of the weak argument may be facing Rule 11 sanctions. If a question asks for an argument, make one; if it asks for both sides, make two arguments -- and be sure you label which is which.

    I strongly advise you to spend a few minutes making an outline of your answer to any essay for which you have 30 minutes or more. The way to write a convincing essay is to have an introductory paragraph that summarizes your whole argument. Writing a strong introduction means that the reader will understand the purpose of each of the following paragraphs; it inspires confidence in your reader too. Then start in and make the whole argument, in detail. If you have time, you can write a summary paragraph at the end, but this is only essential if you covered material that wasn't in the introductory paragraph.

    8. My first semester grades were disappointing. What can I do to improve?

    The first thing to do is to make an appointment with the professor who gave you the grade in order to discuss the exam. Although your professor cannot change the grade, you should find out what went wrong so that you can avoid making similar mistakes in the future.

    9. I never did much writing in college, where I can I get writing help now?

    This is one of the things that we hope to achieve via the tutorial system. If you have reason to believe that you need additional help, feel free to talk to me or to any one of your professors. Also, you should watch for announcements about the U.M. Writing Center. Note, however, that the kind of help you are likely to be offered from your professors will probably mean extra work for you, such as writing additional practice essays. No pain, no gain.

    10. What can I do to help me become a better lawyer?

    One of the best things you can do is become well-informed about the world around you. Subscribe to a national newspaper such as the New York Times or, if you are particularly interested in international law or international business, try the Financial Times (daily) or The Economist (weekly). Then get in the habit of reading every issue. Don't fool yourself that the Miami Herald will suffice, although it's better than nothing. You should also read U.S. Law Week every week. Start now.

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    		DAY 1
    WOLF, SARAH M.				
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    WEBB, ERIN A.				
    WARREN, JAMES S.				
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    WAGNER, BARRY S.				
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    SIRIN, OJEN				
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    RUIZ, MARIA H.				
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    ROWE, STEPHEN J.				
    ROHER, MARK S.				
    RIZZO, ERIC M.				
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    REYES, SARA L.				
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    RAWL, KRISTEN A.				
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    PEREZ, ROBERT M.				
    PAYOR, LOUIS G.				
    PATZ, DARREN E.				
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    PAGE, JODI C.				
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    NETTLES, ALAN H.				
    MILLER, ERIN L.				
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    McKAY, SCOTT D.				
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    MALLARD, ODIA M.				
    LUPO, DAVID T.				
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    LERNER, BRIAN L.				
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    LEGER, GLENN P.				
    LASSEN, BRETT H.				
    KUHL, RYAN C.				
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    KROIZ, RYAN E.				
    KNOTT, SCOTT A.				
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    JARET, KEITH C.				
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    HUGHES, JOHN E.				
    HORSLEY, KIRK W.				
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    HODGE, EDWIN, C.				
    HOCKIN, JOHN A.				
    HELLER, DARA S.				
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    HANFT, RIKKI S.				
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    GRALIA, MARIA A.				
    GOULD, SCOTT R.				
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    GATTO, FRANK L.				
    GAST, DAVID A.				
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    GAEDE, BROOKE L.				
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    FEDO, JASON M.				
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    ERLICH, SHARI M.				
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    DRAY, SIMON				
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    DIAZ, OSVALDO M.				
    		DAY 34  May 24, 1997
    DAY, GRANT T.				
    DAVIS, HAROLD H.				
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    CLOUGH, JOHN C.				
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    CARREJA, LUIS D.				
    CARLSON, CARL E.				
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    CANTOR, LORNE S.				
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    BARR, LISA A.				
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