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Real Life FantasySCOTUS and Health Care Litigation

A recent opinion by the 11th Circuit Court of Appeals declared unconstitutional a portion of the 2010 Patient Protection and Affordable Care Act (the official tongue-twisting name of the 2010 health care bill often referred to by its supporters and detractors as “Obamacare”). Because the 11th Circuit’s opinion is in direct conflict with a recent opinion by the Sixth Circuit Court of Appeals, the issue is now in a prime position for Supreme Court review, likely late in the coming October 2011 term.

The current litigation over the PPACA has demonstrated that Supreme Court prognostication is not just an educational tool limited to the Harlan Institute and FanstasySCOTUS.org; it also has consequential real-life applications. In a search for the correct answer on the constitutionality of the PPACA, the health care legal battle has thus far resulted in several other contrasting opinions: for example, in just the past year, a judge in the U.S. District Court for the Eastern District of Virginia struck down the Act while a judge in Western District of Virginia upheld it. These contradictory results serve as a useful reminder for students of the truth behind Yogi Berra’s oft-quoted adage that “it ain’t over ‘till it’s over” – particularly when it comes to the Supreme Court.

For instance, Professor Orin Kerr of the George Washington University Law School gave a useful example of this uncertainty when he predicted in a recent blog post on SCOTUSBlog.com that the Supreme Court would uphold the Act by a vote of somewhere between 8-1 and 6-3. While it may be frustrating for students (and lawyers, for that matter) to be unable to pin down a precise vote, Professor Kerr’s two-vote range illustrates an important point that students participating in FantasySCOTUS would do well to heed as they participate: FantasySCOTUS – and real-life Supreme Court prediction – can be as much art as it is science. In a February story, NPR’s Nina Totenberg illustrated the historical difficulty of deciding how the Supreme Court will eventually rule based on the tea-leaves of lower courts’ opinions. Totenberg notes that, while such opinions might be useful as guides to whether certain arguments will carry any weight with the Supreme Court (a point particularly apt in PPACA litigation), the ultimate lesson may simply be that students playing FantasySCOTUS should, “in short, assume nothing, at least until the U.S. Supreme Court rules.”

Allie Myers and Charles Kruly wrote this post.

New York Times Article Calls for a “Digital-Age Upgrade” in the American Classroom

recent opinion piece in the New York Times highlighted the need to revamp the traditional American classroom to meet the rapidly changing culture of technology. The article specifically focuses on the research of Cathy N. Davidson, co-director of the MacArthur Foundation Digital Media and Learning Competitions, who sets the tone by pointing out that “65 percent of today’s grade-school kids may end up doing work that hasn’t been invented yet.”

While some educators curse the Internet as a distraction from learning and view evolving technology as an obstacle to overcome, Davidson suggests that embracing digital technology may be more useful for students in the long run. She proposes that teachers alter their methods by encouraging virtual collaboration and even calls into question one of the cornerstones (or nightmares) of any students’ education: the research paper. Davidson asks: “What if bad writing is a product of the form of writing required in school — the term paper — and not necessarily intrinsic to a student’s natural writing style or thought process?”

Of course, not everyone’s embrace is so eager.  Nicholas Carr, in a recent Atlantic Monthly article, “Is Google Making Us Stupid?”, questioned the effect of the Internet – particularly its emphasis on short-form blog and news articles rather than more traditional long-form books and articles – on the way we think, read and process information.  Carr notes that the Internet  encourages “a different kind of reading, and behind [that] lies a different kind of thinking—perhaps even a new sense of the self.”

Davidson might respond, however, that this “different kind of reading” is part of digital literacy and that there is value in encouraging, rather than stifling, the skills gained by participating in Internet culture. She notes: “Online blogs directed at peers exhibit fewer typographical and factual errors, less plagiarism, and generally better, more elegant and persuasive prose than classroom assignments by the same writers.”

As students participate in blogging exercises as a part of FantasySCOTUS, I would be interested in hearing from teachers how the quality of their students’ contributions to the blog compares to that of more traditional written assignments. Is a student’s work about, say, James Madison substantially more engaged, well-written and creative simply because of the medium in which the student produced the assignment? Regardless, we look forward to seeing students engage with upcoming Supreme Court cases as they create blog posts and podcasts on FantasySCOTUS.org this fall.

This post was co-written by Allison Myers and Charlie Kruly.

Congratulations to the Winners of the inaugural season of FantasySCOTUS.org

Congratulations to the winners of the inaugural season of FantasySCOTUS.org. The grand prize winner was Mr. Chris Zanoni’s Honors Government class at Somerset High School in Somerset, PA. In addition to making very accurate predictions about our five cases decided this term, Mr. Zanoni’s class put together an exemplary class blog. I encourage you to read some of the blog posts about Connick v. ThompsonChamber of Commerce v. WhitingBrown v. EMANASA v. Nelson, and Snyder v. Phelps. This writing is at such a high level, and the analysis is superb. This could pass muster in a law school class.Mr. Zanoni’s class will be awarded the grand prize of an iPad.

In second place was Ms. Dayna Laur’s government class from Central York High School in York, PA. Ms. Laur’s class will receive a $100 Amazon.com Gift Card.

In third place was Ms. Erin Olson’s AP Language & Composition class in Sioux Rapids, IA. Ms. Olson’s class will receive a $50 Amazon.com Gift Card.

The runner-up class was Mr. Ben Ewald’s Constitutional Law class in Frisco, TX.


School Location Teacher Points Blog
1. Somerset High School Somerset, PA Mr. Chris Zanoni 8650 http://www.harlaninstitute.org/mrzgov3/
2. Central York High School York, PA Ms. Dayna Laur 2500 http://www.harlaninstitute.org/centrallaw/
3. Sioux Central High School Sioux Rapids, IA Ms. Erin Olson 1800 http://www.harlaninstitute.org/eolsonteacheraplc/
4. Frisco CTE Center Frisco, TX Mr. Ben Ewald 1700 http://www.harlaninstitute.org/friscocte3a/

The Supreme Court Upholds Video Games as Protected Speech in Brown v. EMA

The Supreme Court handed down an opinion for Brown v. EMA (formerly Schwarzenegger v. EMA) on June 27, 2011. In a 7-2 decision, the Court affirmed the Ninth Circuit’s holding and struck down the California law that would restrict the sale of violent video games to minors.

Justice Scalia, writing for the majority, began by explaining that video games — like books, movies, or other forms of entertainment — communicate ideas, and therefore qualify for First Amendment protection. He disagreed with California’s assertion that violent video games, like obscenity, should not be protected by the First Amendment when directed towards children, calling the argument “unprecedented and mistaken.” Scalia then discussed several children’s stories and high school reading list favorites that include violent or gruesome scenes, from Hansel and Gretel to Dante’s Inferno, to make his point that our country has no tradition of restricting depictions of violence aimed toward children. He concludes by noting that California has not provided convincing evidence that violent games have a negative effect on children, and therefore their argument fails the strict scrutiny test. Because the law restricts too much speech and does not serve a narrow, compelling state interest, it must be struck down.

Justice Alito, joined by Chief Justice Roberts, wrote a concurring opinion in which he agreed that the California law was unconstitutional, calling it “impermissibly vague,” but cautioned the majority against hastily comparing new technology like video games to more familiar forms of expression like books and movies. Alito believes that the interactive nature of the games, as well as evolving technology that makes the gaming experience exceedingly realistic, should distinguish video games from other forms of media.

Justices Thomas and Breyer filed separate dissenting opinions for this case. Thomas disagrees with the majority based on historical evidence that the drafters of the First Amendment would not have intended for absolute free speech rights to extend to children. Breyer would uphold the law as well, writing that California has the right to restrict minors from buying violent games and that, based on the evidence presented, they have a legitimate reason for doing so. In the spirit of new technology, Breyer became the first Supreme Court Justice to cite a YouTube video in his opinion.

Harlan Institute Participates in National History Day 2011

This year, Harlan Institute had the honor of participating in National History Day by judging the senior division of the competition. High school students from all 50 states competed in various categories– paper, exhibit, documentary, website, performance – and shared high-level research projects with their audience, judges, and peers.

The middle school and high school students who competed on June 12 – June 16 at the University of Maryland were the state level winners, representing over half a million students nationwide who created individual or group projects this year. While topics ranged from the triumph of the Polish Solidarity movement to the legacy of Native American boarding schools, each project was tied in to this year’s theme of Debate & Diplomacy in History.

The “debate” aspect of the theme inspired many students to explore influential decisions by the Supreme Court and the controversy that surrounded them. Student projects discussed the impact of Brown v. Board of Education, the famous case that declared “separate but equal” schooling for black and white students was unconstitutional, and criticized the holding in Boy Scouts of America v. Dale, where the Court held that 1st Amendment freedom of association allowed for the Boy Scouts organization to exclude a homosexual scoutmaster. Other students engaged with constitutional law in other ways, for example, by exploring the tension between personal privacy and national security and how it relates to the Constitution.

In the wake of sobering reports about students performing poorly on nationwide American history tests and their failing grades on civics exams, the students who showed their work at National History Day provided a refreshing counterpoint. They displayed both an eagerness to engage with history and the ability to conduct impressive research and analysis. Congratulations to all the participants for their hard work and to the finalists and winners for their exceptional presentations.

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