"We may not shelter in place when the Constitution is under attack." --Gorsuch on Free Exercise
Richard F. Duncan: Room 220 Law,
email:rduncan2@unl.edu
email:rduncan2@unl.edu
Free Speech and Academic Freedom: At UNL Law (and in this class) we strictly respect the right to free
speech of everyone in our community of scholars and learners. That right
is sacrosanct in this class and is possessed by faculty and students
alike. With the aim of advancing and deepening everyone’s understanding
of the issues addressed in the course, students are urged to speak their
minds, explore ideas and arguments, play devil’s advocate, and engage
in civil but robust discussions. There is no thought or language
policing. We expect students to do business in the proper currency of
intellectual discourse—a currency consisting of reasons, evidence, and
arguments—but no ideas or positions are out of bounds. In the words of Justice Gorsuch, "learning how to tolerate speech or prayer of all kinds is 'part of learning how to live in a pluralistic society,' a trait of character essential to "a tolerant citizenry.'"
General Information: This class will meet on M-T-W from 1:30 p.m. until 2:30 p.m in Room 113. In addition, I am assigning videos of my teaching of many of the cases we will read this session. Notice that this class meets for 60-minutes per class. Therefore, we
will meet 35 times (as opposed to the 42-class sessions for a 50-minute
class). This will allow us to cancel seven (7) classes during the
Semester without the need for make-up sessions. In addition, the video lectures will allow us to cancel an additional 3 (3) classes without the need for make-up classes. One of those ten classes will be Monday September 9, when I will be speaking on the no-compelled-speech doctrine at Wyoming Law. Two of those 10 classes will be canceled on the Monday and Tuesday before Thanksgiving Break; so you will have that entire week to rest and be grateful for the many blessings in your lives.
Office Hours: Regular office hours are in the lobby in front of the library
immediately after class on Tuesdays and Wednesdays. I will also give you
my cell phone number and we can always
arrange for a phone call. Please do not
hesitate to text or email me to set up a phone call. I work mostly from
home, and I am happy to chat on the phone, whether to answer questions
or discuss the Constitution.
Attendance Policy: Live, in person class attendance is required. Zoom attendance will not be an option. I often use problems discussed in class as the clay from which I sculpt exam questions. Absences may be excused at my discretion, provided the student seeks permission before or soon thereafter. If you miss class, you should get class notes from classmates for the class you missed. I don't routinely record classes, so please be aware that missing class means missing the substance of what was covered in that class.
SNOW DAY Policy: If the University declares a snow day (or cancels
classes for a more important sports event), we will have a snow day. I
am 100% finished with Zoom. We will use one of our pre-made-up classes
to cover it. I may also declare a snow day. If it is snowing, be sure to
check the blog to see whether I have cancelled classes due to unsafe
road conditions. I hate automobile insurance claims. For other general policies see: https://uofnelincoln.sharepoint.com/sites/UNL-Law-Students/SitePages/College-and-University-Policies.aspx
Grading: The exam for this course will be in person, in the classroom and on the day scheduled for the exam. The exam will be closed book.
Your
grade for the course will be based 100% upon your performance on the
exam. The exam will be a combination of medium and shorter essay questions.
Book: Varat, Amar & Caminker Constitutional Law (16th
Edition)(Foundation Press 2021). This is the same book I assigned for all my Con Law courses.
I will post links to the videos for many topics, and I will inform you which assignments the recorded classes cover.
Be sure to check this blog every day for
announcements, additional required and optional reading, and discussion
of cases and issues raised in the reading. In fact, if you scroll down
you will see that I will soon be posting a couple of items for our first
class discussion.
LIST OF ASSIGNMENTS (some adjustments may be forthcoming)
I. Establishment Clause
1. Read (as a Preview) Stephanie Barclay's article The Religion Clauses After Kennedy v. Bremerton School District (free download here): Dreisbach article; Casebook p. 1763-1779
2. Engel v. Vitale (Link).;Allegheny County case (link); Stone v Graham, 449 U.S. 39 (1980) (get PDF from Hein on Line); Kennedy case (link); Our class discussion will focus primarily on: the American Legion case p. 1801-1812 and on the Kennedy case and Stone v Graham.
3. Legislative Prayers: Marsh v. Chambers (link); Town of Greece (casebook p. 1792-1801). When reading the Town of Greece opinions, do not overlook Justice Thomas' concurring opinion
(at p. 1797) in which he speaks of the EC as a "federalism provision." What does that mean?
4. Widmar v. Vincent (Link);Casebook p.1813-1826; Rosenberger (link); Rosenberger Oral Argument: https://www.oyez.org/cases/1994/94-329
5. Casebook p. 1827-1856
II. Free Exercise Clause
1. Reynolds case (Link); Casebook p. 1856-1886;; Cuomo ; Fulton (link); Nebraska First Freedom Act
II. Free Exercise Clause
1. Reynolds case (Link); Casebook p. 1856-1886;; Cuomo ; Fulton (link); Nebraska First Freedom Act
3. Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900(notice Justice Thomas's concurring opinion in particular) ; Carson v. Makin (link); My article on School Choice and the First Amendment (link)
4. City of Boerne case (casebook p. 1214-1223); Casebook p. 1900-1907; Groff v. DeJoy (link)(follow link to opinion)
III. Free Speech: Content and Viewpoint Restrictions, Public Forum Analysis,
Public Schools, Subsidized Speech, Compelled Speech, Expressive Association, and Election
Campaign Speech
1. Reed v. Town of Gilbert (Casebook p. 1514-1518); Casebook p. 1459-1482; Snyder v. Phelps (link)
1. Reed v. Town of Gilbert (Casebook p. 1514-1518); Casebook p. 1459-1482; Snyder v. Phelps (link)
2 Casebook p. 1482-1499; Casebook p. 1520-1541; Mahanoy School District
3. Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592;
4.Casebook p. 1597-1609; Barnette (link); Wooley v Maynard (link); 303 Creative (link); my article on the no-compelled-speech doctrine (link); Prof. Garnett's article on 303 Creative (link)
3. Casebook p. 1541-1546; Re-read Rosenberger (link); Casebook p. 1585- 1592;
4.Casebook p. 1597-1609; Barnette (link); Wooley v Maynard (link); 303 Creative (link); my article on the no-compelled-speech doctrine (link); Prof. Garnett's article on 303 Creative (link)
5. Obscenity and Pornography: Read the cases (Stanley, Smith, Miller, Jenkins) and discussion set forth here (link) ; handout articles from Washington Post (Halverson) and ABA (Stone)--I will email PDFs to you
6. Christian Legal Society v. Martinez (link);Citizens United (link)
End of Duncan's Syllabus: And now for something completely different.
_____________________________________________________________________________
ABA Requirements for Study: The ABA requires students to spend approximately two hours studying out of class for every hour spent in class. I should not have to even mention this—because you spend much more than 2 hours per class hour preparing for class and studying the materials—but to satisfy the powers that be in the ABA, I am hereby explicitly and emphatically requiring you to spend at least 2 hours studying this course for each one hour spent in class. I anticipate that you will spend the out-of-class time reading and re-reading class materials until you have mastered the issues and reasoning of the cases and problems, thinking rigorously about the materials, writing notes both before and after each class on the materials and issues assigned for that class and discussed in class, reading and thinking about the posts I write on our class blog and discussing materials with your classmates. Obey the ABA!
"Learning Outcomes"
Basically, I am old school about "learning outcomes." This is law school, not community college, so our major focus is on developing a sophisticated legal intellect by careful legal analysis of cases, statutes, constitutional text, and hypotheticals. Every day my job is to try to make the assignments and class discussions as challenging, clear, lucid and helpful as I can. Your job is to prepare for class, pay careful attention in class, participate in class discussions, and master the materials, questions, concepts, and issues we cover. Your individual outcomes depend in large part on how much effort you put into studying and class discussions. All of this being said, here are the "learning outcomes" for this course. If you work hard to master the course, you will:
(1) acquire a deep understanding of the First Amendment of the US Constitution including free speech, free exercise, and the establishment clause
End of Duncan's Syllabus: And now for something completely different.
_____________________________________________________________________________
ABA Requirements for Study: The ABA requires students to spend approximately two hours studying out of class for every hour spent in class. I should not have to even mention this—because you spend much more than 2 hours per class hour preparing for class and studying the materials—but to satisfy the powers that be in the ABA, I am hereby explicitly and emphatically requiring you to spend at least 2 hours studying this course for each one hour spent in class. I anticipate that you will spend the out-of-class time reading and re-reading class materials until you have mastered the issues and reasoning of the cases and problems, thinking rigorously about the materials, writing notes both before and after each class on the materials and issues assigned for that class and discussed in class, reading and thinking about the posts I write on our class blog and discussing materials with your classmates. Obey the ABA!
"Learning Outcomes"
Basically, I am old school about "learning outcomes." This is law school, not community college, so our major focus is on developing a sophisticated legal intellect by careful legal analysis of cases, statutes, constitutional text, and hypotheticals. Every day my job is to try to make the assignments and class discussions as challenging, clear, lucid and helpful as I can. Your job is to prepare for class, pay careful attention in class, participate in class discussions, and master the materials, questions, concepts, and issues we cover. Your individual outcomes depend in large part on how much effort you put into studying and class discussions. All of this being said, here are the "learning outcomes" for this course. If you work hard to master the course, you will:
(1) acquire a deep understanding of the First Amendment of the US Constitution including free speech, free exercise, and the establishment clause
(2) develop a deep
understanding of Supreme Court case law interpreting the First Amendment,
including important dissenting and concurring opinions in landmark cases
(3) acquire a deep
understanding of statutory protections of religious liberty, such as RFRA and
RLUIPA
(4) become familiar with
the political forces and policy rationales that shape First Amendment law
(5) Gain insight into the many ways that the First Amendment protects religious diversity and intellectual diversity in a society as deeply-divided on first principles as our Nation has become.
(5) Gain insight into the many ways that the First Amendment protects religious diversity and intellectual diversity in a society as deeply-divided on first principles as our Nation has become.
The primary means of assessing
these outcomes is your self-assessment during and after each class. You should evaluate
what you learned in each class when you review your notes and thoughts from
each class.
Volunteering for discussion during class is also an excellent means of assessment.
Volunteering for discussion during class is also an excellent means of assessment.
The final
exam is, as always, the more formal method of assessing many of these outcomes.
A Message From The Dean, A Message From The Dean
"If you think you will need any disability-related accommodation to succeed in this class, please contact the Dean's Office and/or the Office of Services for Students with Disabilities as soon as possible for a confidential conversation."
A Message From The Dean, A Message From The Dean
"If you think you will need any disability-related accommodation to succeed in this class, please contact the Dean's Office and/or the Office of Services for Students with Disabilities as soon as possible for a confidential conversation."
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