Law 6226, Midterm

Due in class, at the start of class, on Thursday, March 1

 

Read Federalist 78, Hamilton’s discussion of the powers of the judiciary under the US Constitution. For the midterm, I would like you to consider (and then, obviously, discuss) Hamilton’s description of the bases of judicial review, its purpose, and its extent in light of the other documents we have read on the power to review the laws.  In your essay, you should consider how his views resemble, or differ from other discussions of review, judicial or otherwise, that we have read, and come to some sort of conclusion (ie, that he is basically offering a theory of review that resembles most of those we have read, or that he is offering one that differs significantly from those of the other documents we have examined, or that his analysis falls somewhere in between).

 

To put it another way, your mission is to decide if those documents in their entirety indicate that there was some sort of historical change going on here (in the manner of the change we discussed in Massachusetts Bay), or they reveal that there were conflicting theories of review percolating around the US, or if there is no difference between what Hamilton wrote and what everyone else wrote.

 

Please bear the following points in mind when writing your essay: 

 

  1. Hamilton is considering review under the Constitution. We have, of course, discussed it in other contexts as well, so you should not limit your discussion to documents relating to the Constitution.  You may rely on any documents we have read so far in class, and the book if you find it helpful.  (This does not mean you must use all the materials, merely that you may use any that seem relevant to you. Once again, think of this as an effort in putting together a case and then arguing it, use that which helps you, but don’t ignore those things that hurt you, lest I remember they are there and ask you why you ignored them. Think of me as a particularly sharp, and not terribly pleasant, appellate judge, who is perfectly prepared to point out your failings in painful detail.)

 

  1. A good analysis is more than a summary of the documents. You must impose an argument on them, not merely string collections of quotes together and hope that I will understand what your argument is. Just as a good brief makes use of the materials in cases to advance a particular argument (and tries to distinguish those points which are harmful), so too a good historical essay builds an argument out of the materials available, but recognizes (and tries to distinguish, rather than ignore) points that seem to contradict the argument.

 

  1. Given the page limits, see below, long quotes don’t do you much good and will simply take away space you need to develop your ideas. A good, short quote that helps make your point clearer is fine, but don’t lard your paper with quotes. If you do quote, or where you are referring to a particular document, you should indicate what document you are referring to. It is sufficient to put the reference in parentheses, as follows: (Charter of Mass Bay), if the paragraphs in the document are numbered, you might add those numbers, of the purposes of clarity.

 

  1. I am, as I mentioned in class, not interested in having you do historical research as part of this assignment. I want you to build your analysis from the materials in class and this document. (If you want to get a little background on the Federalist Papers, simply so you know what they are about, I recommend looking at an encyclopedia article, or something of the sort). But elaborate summaries of other people’s theories about Federalist 78 are not only unnecessary, they are inconsistent with this assignment. So resist the urge to go read up on this subject in your favorite law review, in order to dazzle me with, for example, Bruce Ackerman’s theories of the document. I will not be dazzled; I will be very annoyed.  (It goes without saying that turning in something taken out of a law review without citing it is plagiarism, and that would be very bad indeed.)

 

  1. There is no right answer; this is law school after all. Nor is there an answer that I prefer. Your grade will reflect the quality of your argument – how complex it is, how well you support it, how well it deals with the materials at hand.

 

 

Your papers should be typed, double spaced (normal margins, normal font size) and 7-10 pages long. I am, as I mentioned in class, moderately flexible about length. If your essay is 12 pages, I can live with it. If it is 6 pages, that might be okay. A paper that is five pages long is presumptively superficial; a paper 15 pages long means that you didn’t take the time to edit your writing.  It goes without saying that it is unwise to do things that will make me think, before I even read your essay, that your paper is superficial or evidence of self-indulgence on your part.