Possible Term Paper Topics and Instructions

You will research, prepare, and write a 10-15 page term paper for this class. You have two choices as to how you can approach this paper: Track A and Track B. Regardless of which “track” you choose, the same general guidelines and expectations apply to all papers. The topics listed below do not define the entire universe of subjects available to you. If you have another idea for a paper topic, check it out with me. Once you select a topic, and I would suggest that this be done promptly, stop by my office to discuss your research endeavor.

Track A: Issue-centered paper.

Those choosing this track will research and write a paper on a specific issue of constitutional law. The paper will focus on the Court’s treatment of an issue and competing perspectives on it (both on and off the Court), and provide an evaluation and critique of those perspectives. It will culminate in a defense of its own thesis. Possible topics include:

• The history, functions, and uses of one of the various “technical barriers” • Scope and limits of the presidential power to pardon • Federalism as a value in the Warren and post-Warren Supreme Court • Federalism as a constitutional concept in the Rehnquist Court • How far did the Rehnquist Revolution in federalism go? • The constitutional status of the War Powers Act (1973) • The concept of Executive Privilege • Are there limits to the Court’s recent “takings clause” jurisprudence? • The impact of I.N.S. v. Chadha (1983) • An analysis of the contemporary understanding and constitutional significance of (a) the reversal of New Deal legislation by the Supreme Court, or (b) the Court Pack Scheme of F.D.R. • Congressional attempts to restrict the jurisdiction of the federal courts • The Rehnquist Court and executive power • The constitutional doctrines of nullification and secession • The constitutional grounding for a concept of “liberty of contract” • “Emergency Powers,” limited government, and the Supreme Court • The constitutional dimensions of the Iran-Contra Affair • The “Pocket Veto” • The “Line Item Veto” • The jurisprudence of “original intent” • The imposition of term limits on members of Congress after U.S. Term Limits v. Thorton (1995) • Presidential Immunity from Civil Actions after Clinton v. Jones (1997) • A rebirth of judicially imposed limits on the regulatory powers of Congress? • New life for the Eleventh Amendment? Ex Parte Young (1908) and the Rehnquist Court • The Constitutionality of the Federal “Defense of Marriage” Act • The Scope of Executive Authority over Enemy Combatants during times of Presidental War • What does Boumediene v. Bush (2008) mean for the war powers of the national government? • The Theory of the “Unitary Executive” • The Constitutional Status of Presidential “Signing Statements”

• The Impact of the Roberts and Alito Appointments on: (a) federalism-scope of national power cases, or (b) separation of powers cases, or (c) presidential power cases, or (d) the Court’s approach to technical barriers

Track B: Justice-Centered Paper.

Those choosing this track will research and write a paper on a particular justice’s approach to a narrowly defined issue of constitutional law. The paper will articulate his or her perspective, examine competing approaches to it (both on and off the Court), assess the justice’s consistency or evolution on the issue, and evaluate the significance of the justice’s perspective on the development of the relevant legal doctrine. It will culminate in a thorough critique of the strengths, weaknesses, and influence of the justice’s perspective. Possible topics include:

• The development of the position of a Justice in a significant (to the course) area of law • Justice Sutherland on economic rights (liberty of contract) • Justice Harlan I or Justice Holmes on economic rights (liberty of contract) • Justice Scalia’s theory of separation of powers • Justice Brennan or Chief Justice Warren on standing and political questions • Justice (later Chief Justice) Rehnquist and technical barriers • Justice Scalia and judicial protection of economic rights • Justice/Chief Justice Rehnquist • Justice O’Connor and the Scope of the “New Judicial Federalism” • Justice Kennedy and the Scope of the “New Judicial Federalism” • Justice Thomas and the Scope of the “New Judicial Federalism” • Any significant (check with me) justice’s conception of the judicial role • Justice Scalia’s conception of presidential power • Chief Justice Robert’s conception of presidential power • Chief Alito’s conception of presidential power

Guidelines.

1. Papers will be 10-15 pages long and typed.

2. A prospectus (topic, thesis, and annotated bibliography) will be due in class on Wednesday, 8 October. The prospectus will be graded and returned to you, with comments, for your consideration in the preparation of the final version of the paper. It must be turned in with the final copy of the paper.

3. Papers will be prepared in standard term paper style (consult Turabian, A Manual for Writers, or the MLA Handbook), and will have a title page on which-- and only on which-- your name will appear with a signed Honor Pledge.

4. Papers will be due Friday, 21 November, at the beginning of class.

5. Late papers will be penalized one third of a grade for each calendar day they are tardy.

Prospectus. A prospectus provides an introduction to your topic, a research question your paper will address, the plan of action you will undertake to assess the research question, and a thesis. It will give you a chance to work out an initial topic and research strategy, and give me an opportunity to assess your project before you are too deeply into it.

There are five elements to a prospectus:

1. Topic. The general area of law and politics that your paper will address (eg., gender discrimination in employment).

2. Research Question. The specific question your paper will address and answer (e.g., Has the Rehnquist Court relaxed the standards used to evaluate establishment clause issues?).

3. Outlined Plan of Action. The strategy your paper will pursue to evaluate and answer your research question. This refers both to the logic by which you will do your reading and research and the way you structure (using internal section headings to demarcate the descriptive and analytical blocks with which you build your argument - your answer to the research question you posed). Think of these sections of research and writing as the blocks you place, one on top of the other, to build the wall of your argument. Block A leads to and supports block B, and so on. Each block - each section of your paper - will stand on its own as well as lead to the next block. Outline your plan of action in the prospectus.

4. Thesis. The argument your paper will make; the answer to your research question.

5. Annotated Bibliography. Each bibliographic entry will have a few sentences that describe 1) the argument of the piece, and 2) its relevance for addressing your research question. I do not expect you have read all the citations in your bibliography by the time you turn it in, but you will want to have skimmed them – and read their introductory and concluding sections closely – before you cite them (otherwise, it will be hard for you to determine their relevance to your research). Do not simply restate the titles of the works in your description of proposed sources (see points 1 and 2 above).

The prospectus will be graded and returned to you, with comments, for your consideration in the preparation of the final version of the paper. It must be turned in with the final copy of the paper.

The Final Paper

• Expectations and Structure. In assembling your research and writing your paper, structural concerns become critical. An intelligible and logical structure is needed to convey information and arguments coherently and persuasively. Any well-prepared research paper has three essential sections.

1. INRODUCTION: Frame a topic and a research question. What topic will your paper address? Why is the topic worthy of investigation? What questions, related to that issue, will the paper seek to answer? What is the answer at which you arrive? (The answer to this last question will be your thesis – the argument that will organize and drive your paper.)

2. BODY: a. Everything here will directly relate to your thesis. Use the thesis to keep your paper focused and structured. b. Review a relevant body of literature. (e.g., What has been written – both on and off the Court – about this topic? What arguments have these various authors made? What are the common analytical agreements and disagreements that surface in them? Can you identify schools or patterns of thought in them? On what assumptions do they rest and to what conclusions do they come?) c. Analyze that body of literature in light of the research question you are asking. (e.g., What does that literature say about your research question? What are the strengths and weaknesses of the various approaches to your question contained in the literature? What is -- and why is it -- the most intelligent approach to (or explanation of) the topic question you addressed?)

3. CONCLUSION: Discuss your analysis. This should be more than just a “this is what I said above” section. It should note your conclusions and discuss their implications. What is the significance of your conclusion – the answer to the research question that framed your research and analysis?

To do the paper well, you will need to read extensively in both case opinions (NB: read and cite these only from unedited sources; i.e., use no caselaw texts) and secondary materials (e.g., political science journals, law reviews, and books). The better you organize, integrate, and critique these bodies of literature, the better you will do on your paper.

It almost goes without saying that a well-structured paper is grammatically correct, stylistically clear, and internally coherent. The reader should not be jarred by misspellings, sudden and unexplained transitions in thought, paragraphs that go on well past the confines of their introductory sentences, and sentences that are fragments, run-ons, or so convoluted as to convey no clear idea at all. Do yourself (and your grade) a favor. Finish a first draft of your paper a week before handing it in. Put it aside for a day or two to let it “rest,” and then return to it and give it a thorough edit and rewrite. It will amaze you how much this improves the clarity and quality of the paper’s presentation.

One final suggestion on the organizational front: make judicious use of headings and subheadings to demarcate the analytically and substantively different sections of your paper. The headings provide a rough outline of the terrain your paper will cover and move it over that terrain in a coherent and orderly fashion. The subsections note the particular points of emphasis (importance) within each section. When well done, each section will have an introductory and thesis paragraph, subsections (if needed) to demonstrate and advance that thesis, and a concluding paragraph that pulls the material treated in the section pointedly into the general topic and thesis of the paper. These sections can stand alone: a sort of mini essay on a component of your general topic. You will, in this way, develop the general argument of the paper in an internally coherent and clearly and logically structured fashion.

• Resources. Book-length sources are available in both Fondren and the Law Library. You will find the micro-filmed New York Times and its printed Index to be of great assistance. They are in Fondren Library. A variety of popular and scholarly journals and magazines may contain articles relevant to your research. Articles in them can be tracked down through the Reader's Guide to Periodical Literature, Social Science Index, America: History and Life (in Fondren Library), The Index to Legal Periodicals (in the Underwood Law Library), and the computer-based Lexis-Nexis or Academic Search Premier (EBSCO) research databases (Fondren Library – check in at the Reference desk – or access through the SMU homepage [http://www.smu.edu/cul/or/freq.html], via the “Electronic Resources link”on the “Libraries” page). The U.S. Reports (Supreme Court cases) can be found in either library; the Lawyers' Edition and the Supreme Court Reporter are only housed in Underwood: “findlaw.com” is accessible over the world-wide web; Lexis-Nexus through the SMU homepage.

Studies of the Supreme Court and legal topics will also be useful. Law reviews and journals (e.g., Harvard Law Review, Yale Law Journal) come immediately to mind, but you may also find articles of relevance in relevant discplinary (e.g., political science, history, and sociology) journals and “middle-brow” journals of opinion and commentary (e.g., The New Republic, National Review, and The Nation). Generally, you would be well served to search them for articles of relevance to your topic. From a computer, these can be found via sources like lexis-nexis, JSTOR, Academic Search Premier (EBSCO) and INFOTRAK. While all of these web-based resources are very useful, do not slight the tried and true reference sources found in Fondren Library (e.g., The Readers Guide to Periodical Literature) and Underwood Law Library (e.g., The Index to Legal Periodicals).

Nota Bene: Students often ask me, “How many sources do I need to use?” The honest answer is “As many as you need to flesh out the analysis you want to make. The more the better.” However, I have found that honesty too often provides insufficient guidance: I get skimpy bibliographies that do not allow students to explore the contours of their topic adequately. Thus, here are some guidelines:

Books: At least one Law Reviews: At least five articles Newspapers: At least the New York Times and Washington Post Magazines/Journals of Opinion: At least five articles Political Science or History Journals: At least two articles Supreme Court Opinions: At least the leading opinions relevant to your topic

It may be the case that you will not find, for example, two articles in political science or history journals on your topic. If you can find no such articles in these journals, just look for more in law reviews, book chapters, or journals of opinion

Remember, this is a course in constitutional law. As such, your paper will make extensive use of cases and opinions. The cases you use will, of course, depend on the topic you select. However, it is my clear and unambiguous expectation that your research will go well beyond the cases we read for and discuss in class. This paper is an independent analytical project, not a simple regurgitation of class material. Supreme Court opinions can be found in the U.S. Reports (U.S.), the Supreme Court Reporter (S.Ct.), the Lawyer's Edition, United States Supreme Court Reports (L.Ed.), or on the internet at FindLaw. Only the former is housed in Fondren but all three sources are available in the Underwood Law Library. Other information about Underwood’s holdings follows.

Finally, come in to see me when you have questions. It really is too late to ask “is this what you wanted?” as you hand in a paper. I’m not hard to get a hold of – phone, email, office hours – so get a hold of me. I can be helpful, but I have to be asked.

Select Bibliography Of United States Supreme Court
Research Sources In Fondren Library

Opinions -United States Reports -Lexis/Nexis Computer Searchable Database: all American courts, federal and state
Briefs
-Lexis/Nexis Computer Searchable Database: all American courts, federal and state
Oral Arguments -New York Times [all issues on microfilm in Fondren, June 1980-present issues on Lexis/Nexis
Guides to Legal Literature -Poni Cataloguing System (books) -InfoTrak Reference System (articles) -Lexis/Nexis Computer Searchable Database: all American courts, federal and state)

Select Bibliography Of United States Supreme Court
Research Sources In The Underwood Law Library

Opinions -United States Reports -United States Supreme Court Reports, Lawyers’ Edition -Supreme Court Reporter -Supreme Court Bulletin [current volume on reserve]
Briefs
-Landmark Briefs and Arguments of the Supreme Court of the United States-- selected cases, 1789-present -Petitions and Briefs In _____________-- contains briefs for cases in the areas of criminal law, labor, securities, taxation and trade regulation -United States Supreme Court Records and Briefs - [microtext] --contains records and briefs for all cases for the years 1832-1880 and for argued cases only for the years 1930-present
Oral Arguments -Landmark Briefs and Arguments of the Supreme Court of the United States-- selected cases, 1978-present
Docket Information -Supreme Court Review [monthly publication of the American Bar Association] -Supreme Court Bulletin [current volume on reserve] -U.S. Law Week [current volumes on reserve]
Guides to Legal Literature -Poni Cataloguing System (books) -InfoTrak Reference System (articles) -Index to Legal Periodicals (articles)

Select Bibliography Of Legal Research Sources On The Internet

1. FindLaw (http://www.findlaw.com/casecode/supreme.html) A searchable database of the Supreme Court decisions since 1893 (U.S. Supreme Court Decisions: US Reports 150, 1937-). Browsable by year and US Reports volume number and searchable by citation, case title and full text.

2. Lexis-Nexis (via the “Libraries” link at www.smu.edu) Cases, briefs, law review articles. Somewhat awkward and difficult to search, but an enormous database.

3. The LII and Hermes: overview and recent developments (http://supct.law.cornell.edu/supct/search/search.html) “This archive contains (or will soon contain) all opinions of the court issued since May of 1990

4. U.S. Supreme Court (http://www.supremecourtus.gov/) The homepage of the U.S. Supreme Court, with a variety of links, including those to calendar, cases recently decided, briefs, etc.
5. FedWorld/FLITE Supreme Court Decisions Homepage (http://www.fedworld.gov/supcourt/index.htm) This system contains the full text of 7,407 U.S. Supreme Court Decisions from 1937 to 1975.
6. Historic Supreme Court Decisions (http://supct.law.cornell.edu/supct/cases/name.htm) A collection of “historic” Supreme Court cases dating back at least to 1796. Listed by party name

7. The Federal Bulletin Board Online via GPO Access (http://fedbbs.access.gpo.gov/court01.htm) “Supreme Court opinions and related documents in WordPerfect 5.1 format.” From 1992 Term on.

8. Oyez Oyez Oyez (http://www.oyez.org/oyez/frontpage) The recorded oral arguments in major constitutional cases heard and decided by the Supreme Court of the United States since 1955.

9. Supreme Court Case Digests/Summaries For cases, by topic, decided since May 1990: http://supct.law.cornell.edu/supct/topiclist.html For “historic” cases: http://tqd.advanced.org/2760/cases.htm

10. Jurist: The Law Professor’s Network (http://jurist.law.pitt.edu) A wide variety of pieces on law and courts, include a particular focus on the Supreme Court.

11. American Law Sources On-line (http://www.lawsource.com/also/)

12. The New York Times and the The Washington Post both of have special sections of their web pages devoted to the Supreme Court and its doings. Their Court reporters – Linda Greenhouse for the Times and Charles Lane for the Post – are top notch.