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Live: The 2013 Harlan Institute – ConSource Virtual Supreme Court Competition: Fisher v. University of Texas, Austin

April 22, 2013

The Harlan Institute-ConSource Virtual Supreme Court Competition

The Harlan Institute has partnered with The Constitutional Sources Project (ConSource) to host the inaugural Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Fisher v. University of Texas.

Resolved: Is the Fourteenth Amendment Color-Blind?

Monday, April 22, 2013

Introduction: 10:15-11:20 EDT

Josh Blackman, The Harlan Institute

Championship Round: 10:20-1045

Team 1 (Petitioner - Fisher) v. Team 2 (Respondent - Texas)

Team 1 (Petitioner): DJ Anderson & Jason Parson (Frisco CTE Center, Frisco, Texas)

Team 2 (Respondent): Sarah Sietmann, Konnor Rodriguez (Frisco CTE Center, Frisco, Texas)


  • Petitioner-Anderson (5 minutes)

  • Respondent-Sietmann (5 minutes)

  • Petitioner-Parson, Rebuttal (3 minutes)

  • Respondent- Rodriguez, Rebuttal (3 minutes)

Runner-Up Round:10:45-11:10

Team 1 (Petitioner - Fisher) v. Team 2 (Respondent - Texas)

Team 1 (Petitioner): Katie Gibson, Amber Decker (Sioux Central High School, Sioux Rapids, Iowa)

Team 2 (Respondent): Baylee Hammonds and D. Wiggins (Frisco CTE Center, Frisco, Texas)


  • Petitioner 1 (5 minutes)

  • Respondent-Hammonds (5 minutes)

  • Petitioner 2 (3 minutes)

  • Respondent-Wiggins (3 minutes)


Concluding Remarks: 11:10-11:15

Julie Silverbrook, ConSource

The October 2012 Season of FantasySCOTUS Starts Today – Grand Prize: All-Expenses Paid Trip to Washington, D.C. for Constitution Day 2013

October 1, 2012
In honor of the start of the Supreme Court's term today (the First Monday in October!), the Harlan Institute's OT 2012 season begins today. We are offering offering three contests this season: Fantasy Predictions, Fantasy Blogs & Badges, and our Virtual Supreme Court--the grand prize is an all-expenses paid trip to Washington, D.C. for Constitution Day 2013 for the winning team. Teachers--sign up today for our free programs.

Fantasy Predictions

FantasySCOTUS Predictions challenges students to make predictions about pending Supreme Court cases and write analytical blog posts exploring the different constitutional issues in the cases. After studying cases currently pending before the Court with these lesson plans, students will make predictions about how each of the nine Justices will vote. Based on the individual student predictions, each class will submit a set of group predictions for each case. All predictions will be due by March, 31, 2012.    

Fantasy Blogs & Badges

In addition to making predictions, each class will write a series of analytical blog posts for each case.  By signing up your class for FantasySCOTUS, you will automatically receive a free WordPress blog hosted at the Harlan Institute. All Blog posts will be due by March 31, 2013. The winner of the FantasySCOTUS Blogs & Badges Contest will be determined based on the class with the most points from badges on May 15, 2015. The top class in the United States will be awarded the “Chief Justice” Prize, an iPad.  

Virtual Supreme Court

The Harlan Institute has partnered with The Constitutional Sources Project (ConSource) to host the inaugural Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct.

This year the competition focuses on Fisher v. University of Texas.

ResolvedIs the Fourteenth Amendment Color-Blind?

The members of grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration on September 17, 2013.


Nate Silver Writes on New York Times Blog About The Wise High Schoolers Who Predicted On FantasySCOTUS

June 30, 2012
Who came out looking better than the pundits? Interestingly, it may be high school students. High school students participating in a Supreme Court “fantasy league”sponsored by the nonprofit Harlan Institute had been about evenly divided in predicting the court’s decision, with 57 percent thinking the mandate would be overturned and 43 percent saying it would be upheld. Nor did the oral arguments in the case, which substantially affected the conventional wisdom, alter the students’ opinions much. Instead, they had seen the case as a tossup from the beginning. I suspect these students would have been wise enough to avoid some of the counterintuitive speculation about the decision’s political effects that you will now be seeing on television.
Read more at 538 Blog.

Final FantasySCOTUS.net Predictions for Health Care Cases #SCOTUS

June 28, 2012
In approximately twelve hours, the Supreme Court will decide the consolidated Health Care Cases. Here are our final predictions. The mandate is going to be struck down, and it will be severed.
The threshold question is whether the suit is permitted by the Anti-Injunction Act? The 11th Circuit held that suit was not barred by the AIA.
  • 94.28% predict that the suit can proceed, notwithstanding the AIA.
  • 5.72% predict that the suit will be barred by the AIA
Since oral argument, the numbers have increased somewhat as to whether the AIA will serve as a jurisdictional bar.
The most critical question is whether the individual mandate exceeds Congress’ powers, and is unconstitutional. The 11th Circuit held that the mandate exceeded Congress’s powers and is unconstitutional.
  • 57.14% predict that the Court will find the mandate unconstitutional.
  • 42.86% predict that the Court will uphold the mandate.
  • Of particular interest, 58.1% of members predict that Justice Kennedy will vote to strike down the mandate. Chief Justice Roberts, as well as Justices Scalia, Thomas, and Alito are all predicted to strike down the mandate at 72.1%, 82.9%, 89.0%, and 83.4% respectively.
Following oral argument, the percentage of voters who think the mandate will be struck down as jumped from about 51% to 57%. There has been a lot of movement in the last week or so.
Assuming the mandate is unconstitutional, the Court will next consider whether the mandate is severable from the remainder of the Patient Protection and Affordable Care Act of 2010. The 11th Circuit held that the mandate was severable.
  • 68.67% predict that the Court will sever the mandate from PPACA.
  • 31.33% predict that the Court will find that the mandate is not severable.
  • Of note, 67.5% of members predict that Justice Kennedy will vote to find the mandate severable.
The severability numbers have dropped, while the mandate unconstitutional numbers has increased. This tells me that people think that the entire ACA is going down.
The final question is whether the expansion of Medicaid is constitutional. The 11th Circuit found that the expansion was in fact constitutional.
  • 74.38% predict that the Court will uphold the Medicaid expansion.
  • 25.62% predict that the Court will find the Medicaid expansion unconstitutional.

This is really the sleeper issue. The numbers dropped right after argument, but have leveled off.

A Note From Our Friends at ConSource To The Winners of the ConSource Badge

June 27, 2012
Dear ConSource Badge Winners, Thank you for participating in the FantasySCOTUS program and congratulations on earning the ConSource badge. The blog posts you submitted display a great amount of effort and creativity.  It is clear that you put active thought into the meaning of the First Amendment as it pertains to student speech both inside and outside of school.  What was particularly impressive was your use of examples from your own school policies, as well as facts drawn from J.S. v. Blue Mountain School District and Layshock v. Hermitage School District. As students, you should always strive to improve your writing. One way to construct a more compelling legal argument is to cite additional source materials outside of the case law itself. For example, a number of you reference the idea that citizens of the United States should have the freedom to voice their own opinions, no matter the content. To explore the extent to which this broad statement is true, you may want to look to the history of the First Amendment. Start with a direction citation to the First Amendment’s broad and absolute terms. From there, you can seek out the meaning of those words by looking at the ideas the Framers discussed and debated before they settled on the language “Congress shall makes no law […] abridging the freedom of speech.” For instance, the Framers often referred collectively to “the rights of Conscience,” which were closely intertwined with both the freedom of religion and the freedom of speech. Take a look at the Senate’s debates on the Bill of Rights amendments, in letters exchanged between the Amendment’s Framers, and in the state ratification records to determine if the freedom of conscience is broader or different than the freedom of speech. Consider why the Framers might have decided not to use the language “freedom of conscious.” Would swapping the word “speech” for “conscience” impact the rights of students to express themselves inside and outside of school? With these questions in mind, and the tools available to answer them on the ConSource website and elsewhere, you will be able to further develop your already excellent legal arguments. If you would like to continue working on your legal analysis of student speech, please feel free to email me at Julie.Silverbrook@consource.org. I am always delighted to work with students to help you develop your legal and historical reading and writing skills. Keep up the good work! Julie Silverbrook Executive Director The Constitutional Sources Project

Harlan Institute's Work On Big Data Featured in ABA Journal

June 5, 2012
The ABA Journal featured a post on Big Data and the Law, and featured the work of the Harlan Institute:
Databases of historical legal information are being built that could help lawyers calculate the odds of winning a case and how to craft the arguments. • The nonprofit Harlan Institute, which promotes interest in the Supreme Court, is also investigating quantitative legal prediction. It’s an outgrowth of a Supreme Court fantasy league launched by lawyer Josh Blackman. He suggests in a law review article that it could be “quite conceivable for a bot to crawl through all of the filings in Pacer ... and develop a comprehensive database of all aspects of how each court works."

Congratulations to the Winners of FantasySCOTUS.org October Term 2011

June 2, 2012
Congratulations to the winners of the second season of FantasySCOTUS.org. The grand prize winner is Ms. Dayna Laur's AP Government Class at Central York High School in York, Pennsylvania. Ms. Laur's class scored a record 25,300 points from earning over 125 badges. The quality of their work is simply astonishing, and each student in the class should be commended. Ms. Laur's class will receive an iPad as a prize. The second-place team is Ms. Erin Olson's AP English class at Sioux Central High School in Sioux Central, Iowa. Ms. Olson, whose class was featured on the front page of the New York Times for her ingenuous use of technology in the classroom. Ms. Olson's students wrote a number of important blog posts, and earned several badges for our special Bill of Rights Institute and ConSource contests. Ms. Olson's class will receive a $100 Amazon.com Gift Card as a Prize. The third-place team is Ms. Wendy Wolfe's Constitutional and Criminal Law class at Totino-Grace High School in Fridley, Minnesota. In Ms. Wolfe's first season participating in FantasySCOTUS, her team narrowly missed second place. Ms. Wolfe's class will receive a $50 Amazon.com Gift Card as a Prize. We also had several runner-ups who will each receive a $25 Amazon.com Gift Card: Congratulations to all of the teachers and students who participated in FantasySCOTUS this year. We hope you all return next year.

Congratulations to the Winners of the Bill of Rights Institute Badge on FantasySCOTUS.org

June 2, 2012
This year, the Harlan Institute partnered with our friends at the Bill of Rights Institute to offer a BRI Badge. For this badge, students considered whether the Fourth Amendment places any limitations on a school’s power to search students (including their backpacks and cell phones). Check out some of the best posts written by students that received the badge: One student remarked on the reasonable suspicion standard necessary to search students in schools:
The question being asked involves having reasonable suspicion that a student is communicating with someone else (whether it be with another student or not) about selling drugs. A school should still not have the right under the Fourth Amendment of the United States Constitution to search that particular student’s phone. This Amendment states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” If a school authority is truly and reasonably suspicious that a student is using their cell phone or other electronic device during school hours to communicate with another person about selling drugs, said school authority should contact a higher authority (i.e., the police) and obtain a proper warrant to seize and search the student’s device. The Fourth Amendment protects such searches and seizures from happening without “probable cause, supported by oath or affirmation”, and that right should not be violated.
Another student drew a conceptual distinction between searching a backpack, and searching a cell phone:
Searching a person’s phone and searching a person’s backpack are two totally different things. A backpack is used for school supplies and things you would need during a school day. A phone is a personal connection to other people that doesn’t have anything to do with school. A phone allows us to communicate about and with out of school people and things. What is on phones is personal.
Another student focused on the Supreme Court's holding in Safford United School District # 1 v. Redding, which concerned a strip search of a student who had was suspected of having ibuprofen:
In the Safford Unified School District #1 v. Redding I think they went way over board on a girl having ibuprofen on her in school grounds.  They didn’t need to go that far when ibuprofen is legal to have and the girl was only 13 years old. They did not need to strip search her for an ibuprofen tablet. I don’t necessarily think that random drug test follow the fourth amendment they don’t have probable cause to search people or test them for drugs.  I don’t necessarily think its a bad idea but I can see where people would want to deny the test because of their rights.  They shouldn’t have to get tested unless the person testing has a cause to do so. Student athletes should be tested for drugs in case they are using them in a way that could better their skills while playing that sport.  They should be notified that if they are going to play the sport they are probably going to get tested and that if they don’t want to be tested they shouldn’t try out for the sport.  So I think that the fourth amendment does allow schools to look at your phone under certain circumstances.  There is also a fine line as to what circumstances are just and which ones aren’t.
A student drew a distinction between searching students who participate in extra-curricular activities (in the form of drug testing) and those who do not engage in such activities:
If a school wants to drug test students who want to participate in extra curricular activities, they can have students take them. Because the extra curricular activities are extra and not a have to do like attending school.  When a student chooses to be in activities beyond just school, they have to follow a good conduct code. Students represent a school and how the system works. When there are drug tests in the student athletes, that prevents those students from taking drugs because they do not want to lose their spot on the varsity line up. A majority of students are apart of one extra curricular activity or another. The Fourth Amendment protects students from a random search. But if say, a drug dog comes onto campus, and detects drugs, that is probable cause to be searched.
Congratulations to all of the students who participated.

Congratulations to the Winners of the ConSource Badge on FantasySCOTUS.org

June 2, 2012
This year, the Harlan Institute partnered with our friends at ConSource to offer a ConSource badge. By researching primary sources from the time of the Founding available from ConSource, students considered whether the First Amendment places any limitations on a school’s power to punish students for things the students say on the Internet outside of school. Check out some of the best posts written by students that received the badge. One student noted, quite astutely, that when the Constitution and Bill of Rights were authored two centuries ago, the Framers could not have possibly conceived of computers or the Internet:
225 years ago, in the year 1787, the original Constitution was proposed in Philadelphia as The Bill of Rights.  When they wrote the first ten amendments, I don’t think they had computers, cell phones, or the internet in mind.  They weren’t expecting all the technology we have now.  So it’s hard to base court cases now with all the technology we have with the Amendments which seem old to some of us.
One student commented on the dangers of bullying, especially in cyberspace:
The First Amendment should not protect those students for what they had done. If someone has an opinion like that, don’t take it to Facebook where the whole world can see. Bullying is illegal in the state of Iowa and no one seems to be enforcing it, even after someone takes their life. That law should be enforced all of the country, their has been more suicides recently then there has been in a long time. Just because something like this was said online doesn’t mean anything. It just shows that there is proof to do something about it, even if someone deleted a comment or a wall post. More lives are being put at risk because people don’t seem to be doing much to stop it.
Another student researched James Madison's Resolution for Amendments to the Constitution from June 8, 1789 to understand what the freedom of speech protects:
This student is legal when it comes to the first amendment for the freedom of speech, but by making this profile of someone else, they then crossed the line of identity theft. Also, if they would have said it on their profile on MySpace as a “Status,” then it would be different, because it is their own expression of their thoughts. However, in the first amendment it says freedom of speech, press, assembly, petition to the government, and to their own religion (United States Constitution). This is beyond the freedom of speech and the other four do not permit it to be right either. Along with the Madison’s Resolution for Amendments to the Constitution (June 8, 1789) also says they can publish opinions, speech, writing, and press, but this is more than writing, opinions, speech, and press. They do not protect this student from being able to do this act.
Another student commented on the threats to reputation that hurtful comments on Facebook can create:
The freedom of speech is protected by the first amendment, but there are limits. A case where a person has been hurt, especially in a professional manner, should not go unpunished. When lies have been made up and started to endanger a person’s job, it cannot go unnoticed. Even if an incident happened outside of school, he/she should be punished because of the factors that it was hurting someone’s reputation, and could even cause the loss of a job. Does it matter that it was a student to principal or teacher? Would the situation actually be the same, under the same circumstances if it was co-worker to co-worker? There have been situations that a worker has either made a comment about their boss, and they have gotten fired, even though they’ve made the comment outside of the work site. It is the same concept, with the making a hate page or a page with lies that were claimed to be “confessions.” Reputations can be hurt, and if the administration would have believed what they saw on the page then a job could have been lost.
One student commented on the Supreme Court's line of cases beginning with Tinker v. Des Moines Independent Community School District, noting that conduct that occurs outside the school cannot be punished by the school--but conduct that disrupts the classroom can result in discipline.
As far as the First Amendment goes, if a student publishes anything online off campus, then they are safe from any consequences from the school. This is the law, but there has to be line drawn. People have the right to freedom of speech, but they do not have the right to create a fake profile or account so they can make vulgar confessions of a made-up sexual encounters dealing with their peers and principal, or false possession of alcohol and drugs. In many ways the act should depend on the malignity of the situation. For example if a student is venting their feelings of the day on a status or tweet, this is completely different to the cases that have been addressed to the Supreme Court.
Congratulations to all of the students who completed the ConSource badge. Stay tuned. ConSource and Harlan have some cool plans in the works for next year!

The Harlan Institute and FantasySCOTUS Featured In The Law Technology News

June 1, 2012
Law Technology News interviewed several members of the Harlan Institute, and wrote an article about how FantasySCOTUS is transforming the way predictions about the Supreme Court are made:
"Wait, does Vegas take odds on u.s. supreme court decisions?" That was the question posed by George Mason University law student Josh Blackman as he kidded around with colleague Yaakov Roth, speculating on the outcome of the U.S. Supreme Court case,Citizens United vs. Federal Elections Commission in 2009. They chatted about how cool it would be for law nerds to test their skill at predicting Supreme Court rulings — like playing manager in a fantasy football league. The next day, Blackman registered FantasySCOTUS.net, and started designing the website. Launched that November, it attracted 5,000 users who made more than 11,000 predictions for all 81 cases decided during the Supreme Court's 2009-10 term. With another law student, Corey Carpenter (who has a degree in economics and econometrics), Blackman analyzed the results of that first season. Overall, the predictions were like a coin toss: right slightly more than half the time. But when looking only at the "power predictors" (the serious players who made the most predictions), the accuracy rate shot to 70%. Soon, Blackman was getting emails from high school teachers who wanted to use the site to teach students about the court and the Constitution. So they set up a non-profit educational organization, the Harlan Institute (after Supreme Court Justice John Marshall Harlan), and created a spinoff designed to be a teaching tool. Today, about 13,000 people play on the primary site, and about 1,000 students on the educational site, says Carpenter, director of analysis for the institute. (Blackman is president.) The players are not just lawyers and law students, but include people from all walks of life who simply enjoy following the court. In fact, last year's "chief justice" (the title given to the highest-scoring player) is a librarian and math tutor from Queens, N.Y. Jacob Berlove, who has degrees in mathematics and Judaic studies and aspires to be an actuary, says he found the site link on a law blog, and was thrilled to find a community of like-minded people. "None of my friends really shared my interest in the court," he says. Berlove may capture the title again this year — as of April, he had the top score. He denies a secret formula, attributing his success to careful analysis: He knows the law, looks at precedents, and carefully reviews oral arguments looking for patterns of emphasis. He reviews the comments of each justice, to hone in on each justice's reasoning, he says.
The work of the Harlan Institute was also featured in another article in the Law Technology News, titled "Big Data Meets Big Law."
Another organization investigating quantitative legal prediction is the Harlan Institute, a non-profit organization that promotes interest in and education about the Supreme Court. It grew out of what started as more of a lark by Josh Blackman, a law student and self-professed Supreme Court nerd, who in 2009 launched a web-based fantasy league for predicting Supreme Court decisions (see "Place Your Bets" for more on the league). Called Fantasy SCOTUS, the site has built up a database of crowd-sourced opinions and analyses of many Supreme Court cases. In an academic paper published in the Northwestern Journal of Technology & Intellectual Property [Vol. 10, p. 125, 2012], Blackman and co-authors suggest that Fantasy SCOTUS could combine the crowd-sourced data with data from publicly available court filings, then use an algorithm and decision engine to make predictions: "It would be quite conceivable for a bot to crawl through all of the filings in Pacer . . . and develop a comprehensive database of all aspects of how each court works."
Josh Blackman will be presenting a paper on FantasySCOTUS at LawTechCamp at the University of Westminster in London on June 29, 2012.