Seminar on Judicial Power
Georgia State University College of Law

Clark D.Cunningham
W. Lee Burge Chair in Law & Ethics
Spring Semester 2018/2019

Copyright © 2028

Last updated
May 27, 2018
Web Site Address:
www.clarkcunningham.org/JP/index.htm
Course Number: Law 7293 

2 credits (Spring 2018) 3 credit (Spring 2019)
This course satisfies the upper level writing requirement
Prerequisites: Constitutional Law I and II, Criminal Procedure: Investigations, or permission of the instructor. Enrollment may be limited.

This course is administered through a website on The West Educational Network (TWEN) No textbook to purchase at bookstore. All required readings handed out in class, distributed by email, and/or linked to the on-line syllabus posted on TWEN.
Syllabus - Spring 2018 (pdf)

Big Data Meets the Constitution in New Originalism Project
Georgia appellate judges evaluate cutting-edge inquiries
into what the Constitution's framers meant from
Georgia State University law students.
Meredith Hobbs, Daily Report, May 1, 2018

"This is revolutionary,” said Georgia Appeals Court Chief Judge Stephen Dillard. “It’s like Westlaw for originalism.”


Heather Eleanor Miller  

Students Present New Insights on Original Meaning
of Constitution to Judges using “Big Data”
of Corpus Linguistics

GSU College of Law News, May 21, 2018

“I thought the students were all exceptionally well prepared, the writing was very strong, the research was very strong, and it’s grappling with some of the most difficult questions that courts have to deal with today.” Justice Nels Peterson, Supreme Court of  Georgia

Research Projects Presented Wednesday, April 11, 2018
Ceremonial Courtroom

All presentations videorecorded: webcast links below

Judicial Panel 1:  3:15pm – 4:15pm
Justice Nels S.D. Peterson, Supreme Court of Georgia and Presiding Judge Sara L. Doyle, Georgia Court of Appeals

Professor Clark D. Cunningham: Introduction to Corpus Linguistics (video 9:40 minutes)

Pearson Cunningham & William Lasker: 1st Amendment, “Congress shall make no law . . . abridging . . . the right of the people . . . to petition the Government for redress of grievances.” (video 26:43 minutes)

When the colonial governments were formed, the right to petition was protected by many colonial charters; this right was later established in state constitutions. Each of these petition clauses protected the right to petition the legislature, as did proposed amendments submitted by states during the ratification process. Madison’s proposed draft of what became the First Amendment likewise guaranteed the right to petition the legislature; however, during deliberations in the First Congress, Government was substituted for legislature. Was the original meaning of “Government” in the First Amendment all three branches of government, including the judiciary? After studying the historical context of the right to petition, and the drafting history of the First Amendment, we applied a textual analysis using corpus linguistic methods. We found that petition is an ambiguous term as it appears in the Petition Clause. Our modern sense of the term incorporates a more collective process sense (e.g., we received 300,000 signatures on our petition and sent it to the committee). But, petition also connotes a lawsuit (in both legal and ordinary dictionaries). Our linguistic analysis revealed that “petition” has undergone linguistic drift. While recently it is more commonly interpreted as the collective process sense, in contrast, during the founding era, “court” is the most common noun associated with the verb form of petition (e.g., he petitioned the court). Finally, we turned to “redress” and “grievances” and found that both terms do occur in the context of petitions filed with courts.

Eleanor Miller & Heather Obelgoner: Article II, Sec. 1, “executive power” (video 26:06 minutes)

This paper uses both linguistic and historical analysis in an effort to discern the original public meaning of the phrase “executive power” in Article II of the United States Constitution. Part I engages in a linguistic analysis of the phrase “executive power,” drawing primarily on corpus linguistic methodology surrounding founding era usage of the phrase. Part II analyzes the history of Article II, with particular attention to the public discourse concerning the scope and reach of the king’s powers. Part III fuses these two areas of analysis and propose a synthesized original meaning of the phrase “executive power.” Finally Part IV considers the Supreme Court cases of Myers v. United States and Steel Seizure, seminal cases in executive power jurisprudence, as well as the public discourse surrounding those cases at the time of their decision.

 

Judicial Panel 2:  4:30pm – 5:30pm
Justice Keith R. Blackwell, Supreme Court of Georgia
Chief Judge Stephen Louis A. Dillard, Georgia Court of Appeals and Judge Carla Wong McMillian
, Georgia Court of Appeals

Professor Clark D. Cunningham: Introduction to Corpus Linguistics (longer version of Introduction to Judicial Panel 1) (video 17:56 minutes)

Isaac Godfrey: 8th Amendment, “excessive bail” (video 27:03)
            Every year people accused of violating state laws or city ordinances are kept in jail while they await trial because of their inability to pay their bail. The English Bill of Rights was enacted in 1689 to address many of the abuses including King-appointed judges demanding excessive bail solely to keep the King’s political enemies in jail to punish them pre-trial. For bailable offenses, the English Bill of Rights required judges to set a sufficient bail after considering the importance of a person’s freedom and the circumstances of his or her case. It is from this that the Excessive Bail Clause of the Eighth Amendment finds its genesis. The Corpus of Founding Era American English is a collection of nearly two-thirds of all early American writings from 1760-1799. By analyzing the use of “excessive bail” and other related terms from this time period, we are better able to understand the original meaning of the Excessive Bail Clause. The appropriate standard for setting a sufficient bail is one focused on the reasonableness of the bail and not the amount. A sufficient bail is one that is no more than is necessary to address the government’s concern in setting the conditions of release, and this should be arrived at in a fair and sensible way.

Anna Celia Howard & Aaron Smothers: 8th Amendment, “cruel and unusual punishments” (video 18:24 minutes)
The purpose of this paper is to explore the original public meaning of the Cruel and Unusual Punishments Clause. Looking first to well-known originalists Justice Antonin Scalia and Professor John Stinneford, we discovered that while they both used original British and American documents to support their arguments they reached different conclusions about whether the original meaning of the clause could apply to punishments that were greatly disproportional to the crime committed. We then examined the origins of the Clause in events taking place in 17th Century England which gave rise to this language in the 1689 English Bill of Rights: “excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” After our historical review, we took the words of the Clause, particularly focusing on “cruel,” and inserted them into multiple databases to conduct a linguistics analysis of the Clause. A thorough look into the digital edition of The Documentary History of the Ratification of the Constitution did not reveal any use of the word “proportionality” by the Framers; the concept of proportionality seemed to arise when it came to voter representation and numerical quotas. “Excessive” appeared somewhat more often, and while its use suggested a meaning synonymous with “unjustly disproportionate,” it was rarely used in the context of punishments. Finally, “cruel” provided a somewhat unexpected twist. Unlike any other word in the Cruel and Unusual Punishments Clause, it was often accompanied by another adjective.    Additionally, “cruel” was often used to describe a measure as “tyrannical” or “oppressive.”


Course Description

This course addresses the use of doctrine to constrain judicial power, especially in the United States Supreme Court. The course will be of particular value to students interested in a judicial clerkship after graduation.

One of the most well-known doctrines used for interpreting statutes and constitutional provisions is “originalism”: the idea that judges should be constrained by the specific words of the text as understood in the original historical context in which they were written. Justice Antonin Scalia was the most famous proponent on the Supreme Court of originalism (which he preferred to call “original meaning”) and Justice Neil Gorsuch, who replaced Scalia on the Court, is on record as equally committed to this approach. Students will learn in this seminar how to meet the standards of “original meaning” interpretation by constructing persuasive arguments using the tools of textual analysis and historical research.

The course grade will be calculated as follows:
20%: Class participation
40%: Paper: First Draft 
Minimum page length: 15 pages including footnotes or 25 pages for co-authored papers

Due: Thursday, 3/1/18, at 5pm
40%: Paper: Final Draft 
Minimum page length: 25 pages including footnotes or 35 pages for co-authored papers plus one paragraph abstract 
Due: Thursday, 3/29/18, at noon

The grade for either the first draft or final draft will be reduced by the equivalent of a full letter grade (e.g. A to B, D to F) if submitted late without good cause. Further grade reduction is possible depending on how late the paper is submitted. A failing grade for the paper may be entered if submission is very late without good cause.

With the permission of the instructor, students may work in teams of two or three to write their paper. Each student will need to carefully document his or her contribution to the research underlying the paper and the writing of the paper itself, including submission of a detailed research log.

There will not be a final exam.


Attendance and Preparation
 Students are expected to attend every class absent good cause for absence. A student may be required to withdraw from the course without credit based upon repeated absence and/or a pattern of being tardy or leaving early without good cause. If a student believes he or she has good cause for being absent, arriving late, or leaving early, it is the student’s responsibility to email the instructor with the explanation of good cause. Students will be evaluated on their attendance, preparation, and contribution to class discussion for the class participation component of the course grade.

Required Materials
All required readings will either be posted on the TWEN course web site, linked to the syllabus, or handed out in class. There is no text to purchase at the bookstore.

General Information
Clark D. Cunningham
Office 210 
Phone: (404) 413-9168
Fax: (404) 413-9225
Email: cdcunningham@gsu.edu  
Home page: www.ClarkCunningham.org  
Senior Administrative Specialist:
Karen Butler
Office 202
Phone: (404) 413-9082
Email:
kpbutler@gsu.edu