Moot Court Assignment General Instructions

1. Each student will be required to participate in one of four debates.

2. During a typical Moot Court session, four students two on each side! will play the role of
lawyers representing particular sides of the issue assigned, and they will present their argu"ents
to the #udges, consisting of "yself plus one or two students depending on the nu"ber of
students enrolled in the class!. Note: $s it happens, the first "oot court debate, on the topic of
the death penalty, has a slightly different for"at. %ee the topic sheet for details.!
&. Each lawyer will write a written brief presenting his or her argu"ent. 'he brief should be
( typewritten pages long) in it you should briefly su""ari*e the question you are addressing, and
then proceed to argue for your position. By 3pm the class period before the debate, each lawyer
will e"ail "e an electronic copy of his or her written brief if you use a word processor other
than Microsoft +ord, please sa,e your file in the -rich te.t- for"at .rtf!) e"ail "e for ad,ice on
how to do this, if you don/t 0now!. My e"ail address is cduncan1ithaca.edu.
2. 3ote that although you and your fellow lawyer will want to di,ide up the "ain points for your
side between you for your indi,idual oral presentations during the in4class debate, your brief
should contain an o,er,iew of your position, and your reasons for thin0ing as you do. 5ou and
your partner can both "a0e si"ilar or e,en the sa"e points in your briefs, if you wish, but please
write your brief in your own words.
(. 6lease include a bibliography sheet at the end of your brief. 7utside research is per"itted,
though it is not required. 8f you do use outside sources, be sure to pro,ide a reference with a
page nu"ber for print sources!, either in the for" of a footnote or in parentheses in the te.t.
9. $s soon as they are recei,ed, the briefs will be posted on our course website
www.ithaca.edu:faculty:cduncan:2(;:2(;.ht"!, so that the #udges "ay prepare so"e questions
in ad,ance of the debate. <awyers are of course encouraged to wor0 together with their partner
in preparing their case. =owe,er, each lawyer should turn in a separate written brief. 5ou will
be graded separately on the quality of your brief.
>. Each lawyer will be allotted 9 "inutes for his:her presentation. ?e aware that probably 1:& of
this ti"e will be de,oted to answering #udges@ questions. Do not bring your written brief up to
the podium; only 2 notecards will be permitted. 8n any case, you won@t ha,e ti"e to "a0e all
your points fro" your brief) you will ha,e to prioriti*e and select the "ost i"portant points. 5ou
should "eet before the debate with your partner to decide who is going first and who is going
second, and di,ide up the "ain points between you.
A. 'he debate will ta0e place according to the following proceduresB %ide $ opening state"ent,
then side ? opening state"ent, then side $ closing state"ent, and then side ? closing state"ent.
C. $t the conclusion of the oral argu"ents, the #udges e.cept for "e! will render a tentati,e
decision the decision only beco"es final after the written opinions are turned in!. 'he students
in the audience will also cast a ,ote and function as a tie4brea0ing #udge if need be. Dnless the
topic sheet says otherwise, by 3pm the day of the second class period after the debate, #udges
will e"ail "e an electronic copy of their written opinion. 'he opinion should be ( pages long)
after briefly su""ari*ing the question you are addressing, you should then proceed to #ustify
your position. Eudg"ents will be posted on the course website after they are recei,ed. Each
udge should turn in a separate written opinion. 5ou will be graded separately on the quality of
your opinion.
1;. $ brief word about the nature of #udges@ opinionsB as a #udge writing an opinion, the
question you will be see0ing to answer is the topic question, rather than the "ore narrow
question of how well the co"peting tea"s of lawyers perfor"ed. For e.a"ple, if the topic were
the constitutionality or not! of hate speech codes at schools, then as #udges you would gi,e and
defend your opinion on the truth of this question. 5ou can refer to the lawyers@ argu"ents, of
course, and e,aluate the", and endorse or re#ect the" if you wish. ?ut if, say, neither lawyer
brought up what in your #udg"ent is a pertinent argu"ent regarding the issue, you are still free to
discuss that argu"entGindeed, you can "a0e it the centerpiece of your written opinion, if you
wish. Hecall that the for"at of the debate is that of the debate in front of the D.%. %upre"e
Court. +hen the Eustices write their legal opinion, their ,erdict is not #ust a perfor"ance report
on the ,arious lawyers who argued in front of the Court. Eustices routinely introduce their own
argu"ents into their legal opinions, and do not feel bound to e,aluate or e,en "ention all the
argu"ents "ade before their court.!
1;. Moot Court grades will be C;I based on your written wor0, and 1;I based on your
perfor"ance at the debate.
11. E,ery lawyer@s brief and #udge@s opinion should be clearly written, logically organi*ed, and
well4argued. 8t should show careful reading of the rele,ant assign"ents and careful thought
about the issue in dispute. Jood argu"ents in philosophy in,ol,e gi,ing good reasons for your
,iew and rebutting the reasons that can be gi,en on the other side. Jood reasons are ones that
would tend to "a0e an i"partial, intelligent, and reasonable person agree with you. 5our
argu"ents should be logically consistent with one another and presented in a logically organi*ed
"anner. Jrades will be based on the following criteriaB understanding of the issues, clarity of
writing, persuasi,eness of the argu"ent, gra""ar and spelling. 6enalties will be assessed for
failure to follow instructions, including failure to hand in assign"ent on ti"e.
Moot Court #1 Assignment
D$'E $3D '8MEB 8n4class, 'uesday, March 9
th
.
?H8EF% DDEB 3pm, Monday, March (
th
e"ail the" to "e as an attach"ent!
7683873% DDEB 'uesday, March 2;
th
e"ail the" to "e as an attach"ent!
C$%E ?$CKJH7D3DB
Head -'rial of the ?order Juards- in your coursepac0, which describes the #udg"ent of
the ?erlin %tate Court, gi,ing -Defendant =- a prison sentence of & years and 9 "onths.
Note: 8n the final sentence of the first paragraph of colu"n two on page 1C $ccording
toL the Dnification 'reaty, $rticle 2, Cri"inal Code, with the "easures regulated in
$rticle &1(L! the Cri"inal Code referred to is that of the JDH i.e. East Jer"any!.
'he Federal Hepublic of Jer"any refers to +est Jer"any.
!ur case ta0es place in the Jer"an %upre"e Court. Defendant =, let us i"agine, has
appealed the ?erlin %tate Court/s ,erdict) he is unhappy with any prison sentence for an
act that he belie,es to ha,e been within the JDH law that pre,ailed at the ti"e of the
act@s co""ission. 8t is up to the Jer"an %upre"e Court to decide whether to let the
%tate Court/s ,erdict and sentence stand, or to re,erse these and set the defendant free, or
e,en to increase the sentence 8 ha,e no idea whether a Jer"an %upre"e Court would
ha,e the power to increase the sentence, but let us agree for the sa0e of argu"ent and
dra"a that it does.!
%ide $ will argue on behalf of the ?erlin %tate CourtGthat is, they will argue in fa,or of
a prison sentence for Defendant =. %ide ? will argue on behalf of Defendant =, against
his prison sentence. 7b,iously, 8 do not e.pect you to 0now the details of Jer"an law
beyond what is presented in the assigned reading) try to "a0e do with the infor"ation
you ha,e and 0eep the focus on the philosophical issues i"plicated in the case. 5ou "ay
always contact "e cduncan1ithaca.edu! with questions you ha,e about the assign"ent.
Moot Court #2 Assignment
D$'E $3D '8ME 7F '=E DE?$'EB 8n4class, 'uesday, $pril &
rd
.
?H8EF% DDEB 3pm, Friday, March &;
th
e"ail the" to "e as an attach"ent!.
7683873% DDEB 'uesday, $pril 1;
th
e"ail the" to "e as an attach"ent!.
'he debate topic will be whether there is any sort of constitutional right to get an abortion.
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7n March 9, 2;;9, Jo,ernor Mi0e Hounds of %outh Da0ota signed into law 'he +o"en/s
=ealth and =u"an <ife 6rotection $ct see coursepage for a lin0 to the te.t of this law, as well
as to a news article about it!. 'he law bans anyone fro" perfor"ing abortions in all cases e"cept
those in which an abortion is necessary to sa,e the life of the pregnant "other. 8n such a case,
the law stipulates that the physician shall "a0e reasonable "edical efforts under the
circu"stances to preser,e both the life of the "other and the life of her unborn child in a "anner
consistent with con,entional "edical practice.! $ccording to the law, indi,iduals who perfor"
an abortion are guilty of a felony punishable by up to fi,e years in prison. 6regnant wo"en who
see0 or obtain an abortion, howe,er, cannot under the law be charged with a cri"e.
%hortly after the passage of the bill, the 6lanned 6arenthood Federation of $"erica announced
its plans to challenge the constitutionality of the law in court.
'he year is now 2;;A. <et us suppose that since the law passage in 2;;9, lower courts ha,e
declared it unconstitutional owing to its conflict with %upre"e Court rulings such as #oe $. %ade
and &lanned &arenthood $. 'asey. =owe,er, the case the title of which is (outh Da)ota $.
&lanned &arenthood! has now reached the %upre"e Court, which is free to o,erturn the
precedents set by these earlier rulings.
%ide $ will argue that the +o"en/s =ealth and =u"an <ife 6rotection $ct is 37' constitutional.
%ide ? will argue that the +o"en/s =ealth and =u"an <ife 6rotection $ct 8% constitutionalG
and thus that earlier precedents such as #oe and 'asey should be o,erturned.
Moot Court #3 Assignment
D$'E $3D '8ME 7F '=E DE?$'EB +ednesday, $pril 1>
th
.
?H8EF% DDEB 3pm, Monday, $pril 1&
th
e"ail the" to "e as an attach"ent!. Note: <awyers
for Moot Court M& will recei,e an auto"atic e.tension on paper M2. For the" paper M2 will be
due 'uesday, $pril 22
th
not $pril 1>
th
, as it is for the rest of the class.!
7683873% DDEB Monday, $pril 22
th
e"ail the" to "e as an attach"ent!. Note: Eudges for
Moot Court M& will recei,e an auto"atic e.tension on paper M2. For the" paper M2 will be due
'hursday May &
rd
not $pril 1>
th
, as it is for the rest of the class.!
C$%E ?$CKJH7D3DB *oodridge $. Department of &ublic +ealth, ,assachusetts 2;;9!
8n this case we will i"agine that the sa"e plaintiffs as in the Massachusetts gay "arriage case
had sued under the -.(. 'onstitution rather than the Massachusetts %tate Constitution. 'hat is,
they argue that their state@s failure to allow gays and lesbian couples to "arry ,iolates the
Fourteenth $"end"ent@s equal protection clause.
%ide $ will argue in fa,or of the plaintiffsGthat is, side $ will argue that the restriction of
"arriage e.clusi,ely to heterose.ual couples is unconstitutional. %ide ? will argue that the D.%.
Constitution does not forbid Massachusetts fro" allowing only heterose.ual couples to "arry.
Moot Court #4 Assignment
D$'E $3D '8MEB 8n4class, 'hursday, May &
rd
.
?H8EF% DDEB 3pm, 'uesday, May 1
st
e"ail the" to "e as an attach"ent!
'he topic will be whether 3ew 5or0 %tate should ha,e the death penalty or not. %ide $ will
argue that 3ew 5or0 should ha,e the death penalty. %ide ? will argue that 3ew 5or0 should
37' ha,e the death penalty.
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'he last person to be e.ecuted in 3ew 5or0 %tate was Eddie <ee Mays, who was electrocuted in
1C9& for the 0illing of a &14year4old wo"an in a bar robbery. 8n 1C9( 3ew 5or0 %tate repealed
its capital punish"ent statute.
'he death penalty re"ained legal in "any other states until 1C>2, when in .urman $. *eorgia the
D.%. %upre"e Court declared the death penalty to be cruel and unusual punish"ent, on the
grounds that the wide discretion gi,en to #uries "ade its i"position arbitrary and capricious.
$fter this decision, states re,ised their statutes to control #ury deliberations, pro,iding for
guided discretion in death penalty cases. 8n 1C>9 in *regg $. *eorgia, the D.%. %upre"e
Court upheld such re,ised statutes as constitutional. 'he 1C>241C>9 nationwide "oratoriu" on
the death penalty thus ended.
?eginning in 1C>>, the 3ew 5or0 %tate $sse"bly as its legislature is 0nown! frequently passed
new death penalty statutes, but Jo,ernors =ugh Carey and Mario Cuo"o consistently ,etoed
the". 8n 1CC( the $sse"bly again passed a death penalty statute and Jo,. Jeorge 6ata0i
fulfilled a ca"paign pro"ise by signing it. Currently there are four in"ates on death row in 3ew
5or0 %tate. 'here ha,e been no e.ecutions under the new 1CC( law.
3or will there be any e.ecutions any ti"e soon, for in Eune 2;;2 3ew 5or0 %tate@s highest court
suspended the state@s capital punish"ent law &eople $. (tephen /a0alle) clic0 here for a news
report!. 'he Court ob#ected to a pro,ision of the 1CC( law the deadloc0 pro,ision! that
requires #udges to tell #urors in capital cases that a deadloc0ed ,erdict will lea,e the #udge no
choice but to i"pose a sentence that allows the defendant to be eligible for parole in 2; years.
%uch a pro,ision, the Court argued, coerces #urors who "ight otherwise oppose e.ecution to ,ote
for it rather than see the defendant e,entually released. 'he Court indicated that a change in this
pro,ision of the law would rehabilitate the constitutionality of the law.
Hather than i""ediately re,ise the law, howe,er, the $sse"bly chose to deliberate further on the
sub#ect of the death penalty. 'oward that end, they ha,e held hearings on the sub#ect, and our in4
class debate will re4create such a hearing. 'he sub#ect of the hearing will be %hould 3ew 5or0
%tate reinstitute the death penaltyN 'o reinstitute the death penalty the state go,ern"ent would
only need to re"o,e the deadloc0 pro,ision fro" the 1CC( law. %upporters of the death penalty
are quite happy to get rid of the deadloc0 pro,ision. 'he current debate is thus not o,er whether
to 0eep pro,ision, but rather o,er whether to ha,e any death penalty law at all. =ence in this
debate you can ignore the details of the deadloc0 pro,ision issue, and argue "ore broadly for or
against ha,ing the death penalty in general.!
3ote, then, that this topic is broader than the narrower question of whether the death penalty is
constitutional. $ debate o,er that would focus on "ainly legal argu"ents to do with
constitutional law!, whereas 8 want to per"it both "oral and prag"atic argu"ents as well.
=ence 8 ha,e broadened the topic.
'his "eans reconstruing the roles of the participants a bit, co"pared with the other three in4class
debates. 'he #udges in this case will be legislators on a panel which will "a0e a
reco""endation to the 3ew 5or0 %tate $sse"bly at large as to the ad,isability or not! of
reinstituting the death penalty. 'hese legislators, we will i"agine, ha,e organi*ed a go,ern"ent
hearing to facilitate debate on the sub#ect. 'he lawyers in this case are participants in this
hearing) they will be ad,ocates for and against the death penalty. 'he for"at will be the sa"e as
the other debates opening speech by side $, then ?) closing speech by $, then ?!.
$d,ocates should get in touch with their partners before the debate to plan their presentation.
8n general, please e"ail "e if you ha,e any questions.