Department of History, Philosophy, Religion, and Social Sciences

Choate Rosemary Hall

Wallingford, Connecticut

History 411HO


Rev. Dr. Ned Gallagher

Hypertext Course Syllabus

Spring 2014 term

Goals of the Course
Course Policies and Grading
Texts and Course Materials
Paper Topics
Program and Workload
Schedule of Meetings and Assignments
Mock Court Program
Mock Court Schedule
Internet Database Search Engine

Contact Information
Memorial House #114, 697-2340
Johnson Athletic Center #105, 697-2418
preferred e-mail:

"The greatest dangers to liberty lurk in the insidious encroachment by men of zeal--
well meaning but without understanding."

- Justice Louis Brandeis

U.S. Supreme Court Building [Ned Gallagher photo, July 2004]
The U.S. Supreme Court Building in Washington, DC.

Goals of History 411

History 411 considers how changes in the law have resulted in changes in American society, and vice versa. The course studies the U.S. Supreme Court and how this institution has affected the basic rules of American life. We'll read a history of the Court, work in and extended Mock Court exercise, and review the recent state of affairs. Along the way you'll acquire some valuable skills: the abilities to analyze sophisticated issues alone, to write about them in a coherent and concise fashion, to argue about them persuasively, and to appreciate the relationship between the law and social change. Included in these cases are questions of abortion, police brutality, capital punishment, pornography, the Vietnam War, and many other things that make life so interesting.

Course Policies and Grading

A summary of course policies and grading standards can be found online by clicking here.

Texts and Course Materials

Please immediately buy the following text in the school store:

There should be used copies available.

By class #2, each student must have two hard copies of the U.S. Constitution: one to be brought to class every day and marked as you see fit, and the other to serve as the "unmarked" Constitution you will be allowed to use during tests. You may write your name on the second copy, but nothing else. Should any other mark be discovered during a test, you'll fail the test, and will be turned in to the deans for disciplinary action.

The Andrew Mellon Library has an admirable collection of U. S. Supreme Court Reports and articles in The New York Times on the modern cases. Nowadays nearly all legal research takes advantage of digital resources; I'll show you how to use the relevant databases.

Paper Topics

The first two papers will have a maximum length of two pages, leaving at least one-inch margins all around for reader comments. You may want to read and take class notes in the opening weeks with an eye to these topics. Paper topics are as follows:

(1) Think about the nature of the Anglo-American legal tradition and respond to the following statement: Since there exist court systems that do not have the power of judicial review, why was that power inevitable in the American system? The answer is in your head if you know what judicial review means. (Remember that "judicial review" is nowhere to be found in the Constitution.) Do not forget the Honor Code pledge.

(2) While the central role of the U.S. Supreme Court is to interpret the law and particularly the Constitution, the High Court historically has played a role in the great struggles between the "haves" and the "have nots" in our society. Respond to the following statement with specific reference to the history of the Court: With few exceptions, the U.S. Supreme Court consistently favored vested interests (the "haves") in American society through 1910. Do not forget the Honor Code pledge.

Program and Workload

As this course has been recognized by the department with an honors designation, the expectations for workload are higher than normal. In particular, you will be exposed to challenging readings and a demanding schedule of preparation for Mock Court.

The first part of this course will be orthodox in its presentation: in general, you'll read something before each class meeting, and in class we'll discuss what you've read--what I call "Socratic discussion." You'll be expected to write a couple of short papers, take a midterm (and possibly a final) examination, and participate regularly in class.

Every effort has been made to keep the length of daily assignments manageable. Many worthwhile assignments were abbreviated or scrapped from the syllabus altogether. It's important, therefore, that you commit yourself now to keeping up with what is included among the assignments below; you'll be expected to complete the assigned homework before each class. Only rarely will the assignments in Schwartz be long in pages. But you'll find most sophisticated and occasionally difficult. Do the work diligently, concentrating very sternly and looking up elements in the Constitution. Try to get ahead in the reading, so you can have plenty of time to work on your papers.

What follows is what we'll try to cover during the term. It may be adjusted from time to time for any number of reasons. The homework for the next class is always the next assignment unless you are told differently. You'll find each entry on the schedule below contains some instructive questions and ideas you should consider in preparing for class; get into the habit reading the syllabus carefully each night as you begin your homework.

Schedule of Meetings and Assignments

1. "Stand And Unfold Yourself."

No assignment. We'll get to know each other in this session and discuss an overview of the course.

2. The Anglo-American Legal Tradition

Read Schwartz, pp. 3–14 and Article III of the Constitution of the United States. You will need to have two hard copies of the Constitution for this course: one for marking and a clean copy for use on tests. Work hard at this assignment, but do not get bogged down in what you don't understand. Make sure you understand the basic underpinnings of the Anglo-American legal tradition: what is common law? How is it reflected in our modern legal system in the U.S.? What does the Constitution tell us about the Framers' intentions regarding the federal judiciary? Since Supreme Court justices are removed from the people because they serve "for good behavior," isn't the institution inherently undemocratic?

3. Establishing Judicial Power.

Read Schwartz, pp. 15–31. Learn the organization of the federal judicial system, and what the High Court and the other courts do. Be sure you understand the difference between original and appellate jurisdiction for the Supreme Court. Why was little expected of the Court in the early days of the United States? Do you think the Supreme Court is a willful policy-making arm of the United States government?

4. John Marshall And The Case of The Missing Commission.

Read Schwartz, pp. 32–47. Recall your U.S. history course: for what values did the Federalist Party stand? How did John Marshall reflect the Federalist philosophy? What was he trying to accomplish in the Marbury v. Madison case? How did his landmark decision reflect good politics? What was the case's greater legacy? Volunteers needed for Dred Scott; see #7, below. It's an early start on mock court work. Mention it in class and you and a teammate get it.

5. The Marshall Court.

Read Schwartz, pp. 47–68. Learn the facts in the following cases mentioned in the reading: Fletcher, Martin, Cohens, McCulloch, Gibbons, and Dartmouth. (Note that some of these cases were covered in the previous night's assignment.) What pattern(s) do you detect in the Court's rulings in these cases? What sort of reading of the Constitution did the Marshall Court have?

6. The Taney Court.

Read Schwartz, pp. 69-88 and the section on the Cherokees' conflict with Georgia on pp. 93-94. To what extent did the Taney Court continue Marshall's legacy? How was it different? What kind of man was Roger Taney? How did he reflect the values of Jacksonian democracy? (See a U.S. history textbook if need be.) Learn the impact of the following cases: Charles River Bridge, Briscoe, New York, and Cooley. The Cherokee case was decided on Marshall's watch, but how did it affect the Taney Court? What is judicial restraint? Paper due next class for all but the "lawyers" in Dred Scott. Ask in class about my extension policy.

7. Mock Court I.

Scott (_______ & _______) v. Sandford (_______ & _______), 19 How 393 (1857). Rules of procedure for the mock court session are available here. Paper on judicial review due from all but the lawyers; see assignment above. Remember to include the Honor Code pledge on your final draft. The ONLY acceptable ways to submit papers in this course are: (a) hand it to me in class; (b) enclose it as an e-mail attachment--Microsoft Word or a text file, please; or (c) leave it with my secretary in the athletic department office. Do NOT put your paper in one of my mailboxes or slip it under the door of my office or my apartment. If you need general writing help, I have posted some useful information online here and here.

8. The Error.

Read Schwartz, pp. 105–125. Dred Scott was the worst decision ever handed down by the U.S. Supreme Court. Using what you have learned about how Marshall and Taney had built the Court's prestige and power, be prepared to show why the decision was such a mistake. Volunteers needed for the case at #12 below.

9. Reconstruction.

Read Schwartz, pp. 126–146, and the 14th Amendment to the Constitution. Look for three important clauses in section 1 of the 14th Amendment: incorporation, due process, and equal protection. Know the details and decisions regarding four major cases relating to civil rights during, and immediately following, wartime: Merryman, Vallandigham, McCardle, and Milligan. Consider how the rulings in these cases affect judicial sovereignty in the wake of Scott v. Sandford.

10. Regulation of Business.

Read Schwartz, pp. 147–173 and essay online. Define substantive due process in a way that you can understand. Then be sure you can trace the history of the doctrine from Hepburn to Knight. Be able to cite the Constitutional passages that apply.

11. Welfare State.

Read Schwartz, pp. 174–202. Keep substantive due process in mind. Why did the Court shift on the question of the income tax? How did Congress respond to the shift? To what do you attribute the apparent lack of consistency by the Court regarding governmental regulation of business affairs?

12. Mock Court II.

Lochner (_______ & _______) v. New York (_______ & _______), (1905). Rules as in Dred Scott. Paper #2 due today from all but the lawyers; see assignment above. Remember to include the Honor Code pledge on your final draft.

13. Progressivism?

Read Schwartz, pp. 203-224. Consider the work of the Court in light of paper topic #2: have things changed after 1910? If so, why? What effect did World War I have on the Court's decisions? Is this consistent with what you saw during the Civil War?

14. Rear Guard.

Read Schwartz, pp. 225–245. Stop a moment and consider: what was the major social change that occurred during 1905–1937, and what role did the Court play in furthering it? How did the cases given here relate to that role? Account for both the Court's early opposition to Franklin D. Roosevelt's policies, and its later shift.

15. About Face.

For today, as assigned, read one of the following cases in the U. S. Supreme Court Reports or via and be able to describe the case to the rest of the class, including the contentions of both parties and the decision of the Court. Your notes on the case--about half a page is expected--must be submitted. The cases:

Schechter v. U.S. 295 U.S. 495 (1935) (__________ & __________)

Morehead v. N.Y ex rel Tipaldo 298 U.S. 587 (1936) (__________ & __________)

U. S. v. Butler 297 U.S. 1 (1936) (__________ & __________)

West Coast Hotel v. Parrish 300 U.S. 379 (1937) (__________ & __________)

NLRB v. Jones and Laughlin 301 U.S. 1 (1937) (__________ & __________)

Helvering v. Davis 301 U.S. 619 (1937) (__________ & __________)


Briefs for both sides of the first batch of cases are due along with assignment #17. Look ahead to the mock court schedule to see if you have one of them, and get the work done.

16. Judicial Activism.

Read Schwartz, pp. 263-285. Make a list of the areas in which the Warren Court became active. Can you name a case which occurred within each of those areas? Analyze the holdings and see if you agree with them. Be sure you can distinguish between civil rights and civil liberties. Also, keep track of the justices on the Court in this era; you will read opinions written by most of them in the course of your Mock Court preparations and you should get a sense of their various judicial philosophies as well as their personalities.

17. The Burger Court.

Read Schwartz, pp. 311-336. Note: the first eight case briefs are due in class today; see the schedule below. To what extent does the work of the Burger Court reflect continuity with the legacy of the Warren Court? Any significant departures? How do retirements and new appointments in the 1980s affect the Court?

18. Midterm Examination.

The test will be comprehensive, covering all the material studied since the beginning of the term. You may bring (a) an unmarked copy of the Constitution and (b) an unmarked paperback dictionary for use during the test. By clicking here you can access a useful guide to preparing for the exam.

Mock Court Program

From this point in the course onward, the syllabus becomes quite complicated. Read it carefully now so that you can ask questions if you have them. Some past students in this course have made some very bad mistakes by not reading this part of the syllabus closely. Read it now and carefully.

The Approach. Case work is the best way to study the law. We'll spend the rest of the term engaged in Mock Court proceedings. On Thursday, April 21, Mock Court will convene for the first time. Most days we will argue two cases per day back-to-back. The Mock Court will hear all oral arguments for the day's cases and then spend the remaining time deliberating. As counsel before the Mock Court, you must plan your arguments to fit the time limits. Petitioner gets six minutes and may reserve up to ninety seconds of that time for rebuttal. Respondent also gets six minutes, but may only use it in one presentation. During conference, counsel may remain, but they must not be noticeable in any way or they will be thrown out of the room and penalized in grade. Note that we hear cases in the same chronological order as the Real Court. That will skew some of our results. Insofar as counsel can remind the Mock Court of the contemporary situation, it will be a good idea to do so.


(1) Cases will be heard and briefs and opinions will be due the first class after Long Weekend. Deal with it.

(2) Look ahead to all your cases, so you can plan your personal workload. The schedule is not symmetrical and you may go periods without much to hand in, only to find yourself crushed for a few days. It is possible you will need to submit briefs on back-to-back days, though it shouldn't happen to any student more than once. It is also possible that you have a brief due the day of an oral argument. Plan now, because everyone does the same amount of work for the entire course, and so no leniency will be granted. Each of you will prepare briefs for and argue five cases, write three per curiam opinions, and write two dissenting opinions.

(3) If for any reason you will miss a class, it is your responsibility to inform me well in advance, so that I can help arrange a swap or a substitute for you if it is necessary to do so. You must do all written work on of the day due if you will miss a class when you have deadline for written work. The casework schedule is intricate and will not long endure if absences mount up. Try to schedule your trips to colleges, etc., so that they do not conflict with our work here. In any case, failure of early notification will cost you a heavy grade penalty.

Please read the following schedule carefully. There may be an error that only you will pick up. It is not an error if you find that you are doing more than one thing on a given day. For help deciphering the important due dates below, there is a tutorial online here.

Mock Court Schedule

# Day/Date Case Counsel
Per Curiam
Briefs Due
by 10 p.m.
Opinions Due
in class
Thu., 4/24
Schenck v. U.S.
249 U.S. 47 (1919) III
A v. N
Near v. Minnesota
283 U.S. 697 (1931) III
G v. H
Tue., 4/29
Missouri v. Canada
305 U.S. 337 (1938) I
B v. M
Smith v. Allwright
321 U.S. 649 (1944) I
C v. L
Thu., 5/1
Morgan v. Virginia
328 U.S. 373 (1946) I
D v. K
Yates v. U.S.
354 U.S. 298 (1957) III
E v. J
Fri., 5/2
Roth v. U.S.
354 U.S. 476 (1957) III
F vs. I
Gomillion v. Lightfoot
364 U.S. 339 (1960) I
M vs. N
Tue., 5/6
Mapp v. Ohio
367 U.S. 643 (1961) II
L vs. A
Baker v. Carr
369 U.S. 186 (1962) IV
K vs. B

Thu., 5/8

Engel v. Vitale
370 U.S. 421 (1962) III
J vs. C
Gideon v. Wainwright
372 U.S. 335(1963) II
I vs. D
Fri., 5/9
New York Times v. Sullivan
376 U.S. 254 (1964) III
H vs. E
Griffin v. Board of Education
377 U.S. 218 (1964) I
G vs. F
Mon., 5/12
Escobedo v. Illinois
378 U.S. 478 (1964) II
M vs. L
Griswold v. Connecticut
381 U.S. 479 (1965) III
N vs. K
Tue., 5/13
Memoirs v. Massachusetts
383 U.S. 413 (1966) III
A vs. J
Cohen v. California
403 U.S. 15 (1971) III
B vs. I
Thu., 5/15
Lemon v. Kurtzman
403 U.S. 602 (1971) III
C vs. H
New York Times v. U.S.
403 U.S. 713 (1971) III
D vs. G
Fri., 5/16
U.S. v. Caldwell
408 U.S. 665 (1972) II
E vs. F
Roe v. Wade
410 U.S. 113 (1973) III
K vs. L
Mon., 5/19
Milliken v. Bradley
418 U.S. 717 (1974) I
J vs. M
Gregg v. Georgia
428 U.S. 153 (1977) II
I vs. N
Tue., 5/20
Regents v. Bakke
438 U.S. 265 (1978) I
H vs. A
Board of Education v. Pico
457 U.S. 853 (1982) III
G vs. B
Thu., 5/22
Lynch v. Donnelly
465 U.S. 668 (1984) III
F vs. C
Texas v. Johnson
491 U.S. 397 (1989) III
E vs. D
Fri., 5/23
Lee v. Weisman
505 U.S. 577 (1992) III
K vs. J
Church of Lukumi Babalu Aye v. Hialeah
508 U.S. 520 (1993) III
L vs. I
Tue., 5/27

Reno v. ACLU
521 U.S. 844 (1997) III

M vs. H

National Endowment for the Arts v. Finley
524 U.S. 569 (1998) III

N vs. G
Thu., 5/29
Ashcroft v. Free Speech Coalition
535 U.S. 234 (2002) III
A vs. F
Super Bowl


Lawrence v. Texas
539 U.S. 558 (2003) III
B vs. E
Fri., 5/30
District of Columbia v. Heller
000 U.S. 07-290 (2008) III
C vs. D

Fri., 5/30
Conf. Block

Super Bowl Case:



Notes on the Schedule:

1) This is the key to the counsel assignments above:

A Ms. Corbett E Mr. Judd I Ms. Pal M Ms. Wallace
B Mr. Cuomo F Ms. King J Mr. Polur N Ms. Wu
C Ms. Hills G Mr. Newhouse K Mr. Saha    
D Mr. Holmes H Mr. Olcott L Mr. Valente    

The letters also identify the "Justice" who will write the opinion of the Court. Unlike what happens in the Real Court, our per curiam will be written by the assigned Justice no matter how she or he voted. See the column "Opinions Due" for the class in which the per curiam is due. An opinion must not exceed one page in length, giving the correct citation for the case and the Mock Court's vote. Otherwise the opinion must mimic the way the Real Court writes. You can here.

2) Citations are to "U.S. Reports," which you can translate from the L.Ed and S.C. Reports we have in our Library or, even better, access online at the database (see below). Do not overlook The New York Times, which is a splendid resource on those cases after 1960 or so.

3) The roman numerals following the citations indicate the type of case. Key: I = civil rights; II = rights of the accused; III = civil liberties; IV = other (political issues, states' rights, etc.)

4) Legal briefs, comprised of only one side of one sheet, must be submitted at least two class days before the case is to be argued, as per the schedule above. Be careful here: submit a copy to me and one to the opposing lawyer in class on the day the brief is due. You may send it as a Microsoft Word document via e-mail attachment if submitted by the deadline. You must be prepared to distribute a photocopy to each member of the class on the day your case is to be argued, so that all can read them before the oral argument. Late briefs will be severely penalized. You may have to write opinions and prepare other cases during this time, too, so plan your work carefully.

5) In addition to the assigned per curiam opinions, each student must write at least two additional opinions in a case where he or she dissents. You may not write a dissent in a case when you are assigned the per curiam. Don't wait here: if you dissent in an early case, write the dissenting opinion then, because you may be trapped later on if you delay. Dissents are due the same day as the per curiam in the case. Late dissents will not be accepted. A model of a dissenting opinion is available online by clicking here.

6) Near the end of the term, the class will select the four best lawyers and I will select the best opinion writer to argue the "Super Bowl case." Presuming all work is completed in good faith, the super bowlers will earn grades of "A+" or "A" for these cases and opinions. Any student may dissent for extra credit.

7) The first eight briefs are due in class #17. Thereafter, all briefs will be due as assigned above; copies must be distributed to all in the class before oral argument.

8) Each student has five cases to prepare and argue and two per curiam opinions and two dissents to write this term. The written work will be short but demanding. Grades for Mock Court work will be awarded as follows: (a) to "counsel" for research, analysis--i.e., how well arguments were tied to the Constitution, statutes, needs of the people in changing times, common sense, and whatever else is applicable--clarity, quality of written and oral work, and whether you were able to keep the Mock Court consistent with the Real Court or were able to "reverse" history; and (b) to "justices" for quality and especially clarity of writing, since millions of Americans must be able to understand what you say the law is, and analysis in deliberations and opinions. In both roles, you are to seek verisimilitude: pretend that it is the day the case was heard by the Real Court, and that you know only what was known then. You may, of course, make reasonable speculations about the future, but you may not know it.

9) Be cooperative with the others in this class. Most of you will use online resources, but the Andrew Mellon Library's law collection may still be of use. Sometimes several students will need the same volume of the Reports, so don't walk away from the reference section with a book causing a panicky search. If anyone is uncooperative, I will take disciplinary action. Don't ever rip a page out of the Reports. One student did so some years ago; a relentless investigation uncovered the culprit, who was expelled.

10) Lawyers may help each other in the research and in understanding the cases. There are two limits: (a) no student must exploit another, and no student must allow himself to be exploited; and (b) once writing has begun, all consultation must stop. If you do get help from other students, write a note that tells me about it and staple it to the brief. If you are graceful in this matter, both will be rewarded, but anything dishonest will be punished.

Internet Database of U.S. Supreme Court Opinions

FindLaw's searchable database of the Supreme Court decisions since 1893 (U.S. Supreme Court Decisions: U.S. Reports 150-, 1893-). Browsable by year and U.S. Reports volume number and searchable by citation, case title and full text.


Citation Search

Title Search

Full-Text Search

Links to Resources

Constitution of the United States of America

U.S. Supreme Court Multimedia

Thoughts on Substantive Due Process

Guide to Writing Legal Briefs

Glossary of Legal Terms