Q and A Final Writing Assignment

Question 2: Are we a judge in a particular district court, such as the Federal District Court for the District of Massachusetts so we should be looking for First Circuit opinions to cite in our opinion?

Answer 2: I deliberately didn’t identify a specific district court because I didn’t want you to be tied to citing cases from a specific Circuit. In addition, since citing to lower court opinions isn’t a required part of this assignment, I didn't want to assign you to a particular district which might both limit the lower court opinions you use in your analysis and suggest you are bound by cases decided by a particular circuit and need to rely on them.

For this assignment, since you aren't required to rely on sources beyond the Supreme Court cases you were assigned as required reading, my advice is that you write a draft of your opinion relying on some of those Supreme Court cases. Once you write a draft, you could then, if you want, add some references to lower court opinions to further support the conclusions you reach.

Question 3: How tall is the wall behind the cross?

Answer 3: The wall is 8 feet tall.

Question 4: I was wondering if you were expecting there to be a right answer we should provide in our opinion or is it how we justify our outcome?

Answer 4: One of the things I say at the beginning of the assignment when I describe what you are required to do is that "You are free to reach whatever result you think is appropriate in the case. You will not be graded based on the result you reach, but instead on the way you support your opinion with analysis of the law as applied to the facts.” I really do mean that. When I write this kind of problem, I don’t even think about what the answer should be. Instead I’m trying to create a problem where there are credible arguments for both outcomes. The Establishment Clause is an area where the result you reach to a great extent depends on what legal standard you apply and given the level of uncertainty as to exactly what standard you need to apply, that gives you some latitude that wouldn’t exist in areas of constitutional law where the Supreme Court’s approach is clear. As long as you can come up with arguments that you find convincing, you’re free to “go with your gut.”

Question 5: I had a question pertaining to the Order portion of the Opinion. The Judicial Writing Handout indicated that the final portion of our opinion should include an Order portion which includes the disposition and instructions to a lower court. Since we are writing as a District Court judge, the instructions on remand are not relevant here. My question is to we need to include an order portion that is more specific or are we just ruling that there was/was not a violation of the Establishment Clause?

Answer 5: The final section is described on p. 13 of the Manual as "the disposition and necessary instructions." In this case, there are no necessary instructions and you just need to rule that there was or was not a violation of the Establishment Clause and nothing more since that is the disposition of the case.

Question 6: As part of our legal discussion, do we need to start with the standard of review? And if so, do we use summary judgment?

Answer 6: I deliberately avoided providing a specific procedural context for the case, such as a motion for summary judgment, a motion to dismiss, a motion for a preliminary injunction, a request for declaratory relief, or any other specific kind of relief or procedural posture. That was because adding any of those issues creates one or more additional issues in addition to the merits of the Establishment Clause issue and those additional issues are beyond the scope of the Law & Religion course. So the short answer to your question is you shouldn't start with the kind of standard of review that you're describing. The only standards you need to discuss are whichever ones you decide are relevant to the Establishment Clause issue on the merits of that claim.