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Comparative Constitutional Design Seminar Course Description Fall 2008 Professor Eric C. Christiansen

Class Meetings: Thursdays: 10:15-11:55pm

Classroom: Room 3209 Email: Phone: (415) 369-5338


There is no text book for this course. Your assigned class readings will be included in the two Comparative Constitutional Design Course Readers or instructions will be provided to you in the syllabus so you can download the documents yourself.

Office: Rm. 2339 (in Fac. Ctr.), 536 Mission St.

Office Hours

I enjoy meeting with my students and encourage you to stop by and visit. My scheduled office hours are Mondays 3:00-4:00pm and Wednesdays 9:30-10:30am; or email me to schedule an appointment at any other time. When emailing me to request an appointment, please suggest two or three specific times when you are available. Outside office hours or appointments, you are welcome to knock on my door and see if I have time to chat. Often I do, and if I do not we can schedule another time.

Grading Grading for this course will be based on the following:

10% is based on engaged and knowledgeable participation in class discussions. 20% is based on 1-2 page weekly reflection papers and participation in on-line discussion. 20% is based on your in-class presentation of your research paper and your abstract. 50% is based on a final research paper of 9-12 pages, not including footnotes.

Research Paper The research paper will be a 9-12 page (double-spaced text) formal written project that represents substantial engagement by you in the chosen topic. The paper will be graded on both form and substance. “Form” means that it is carefully written and edited prose typical of formal, academic writing. (Footnotes, which are not included in the total length, should allow clear attribution and permit the reader to find the original sources. They need not be in precise “bluebook” format. Endnotes are preferred.) “Substance” means your capacity to present your research and to argue and support your thesis from available resources. Each of you will choose your own paper topic. I encourage you to think about your interests early and then come meet with me to formulate a focused and manageable research topic. Because the course looks at a variety of historical, legal and comparative sources, I have suggested possible kinds of papers below (but feel free to propose anything, as long as it is consistent with the course):

Historical paper about a nation's constitutional process (e.g., Iraq, Nepal, Fiji, Canada, etc.); Comparative (structure): one constitutional design issue in two or three countries; Comparative (substance): compare a right in two or three countries; Comparative (procedure): compare the constitution making process of two or more countries; or Discuss how an element of another country's constitution could improve the U.S. Constitution.

In class-Presentation Each of you will present your preliminary research and thesis at one class during weeks 11-13. You may sign up for your presentation day following the first class meeting. On Tuesday of the week of your presentation, each presenting student should post on TWEN an abstract and outline of their paper. (We will discuss this requirement further in class.) Each student that is not presenting on that day will read each posted abstract and outline in order to prepare questions or reflections upon that topic.

Although the non-presenting students should prepare one question or comment for each presenter, they need only post one (for any one presenter) on the TWEN site—although your colleagues will appreciate it if you post something for each of them. At that Thursday’s class meeting each presenting student will give an 8-10 minute prepared summary of their paper, research and thesis. Following the presentation, there will be time for questions and comments that will help you to complete their research or formulate their arguments.

Weekly Reflection Papers To help you and your colleagues think about the readings and prepare for class, you are required to post a 1-2 page (double-spaced) reflection upon the week’s reading materials. These comments should be posted to the course TWEN website no later than 9pm on Tuesday before each class meeting. Following the posting deadline, please read all of your colleague’s postings and post a comment or question regarding at least one of them prior to class.

Weekly Timeline Tuesday by 9pm.

Before Thursday’s class

Read the week’s assignment and post your 1-2 page reflection paper on the course TWEN website. Read your colleagues’ postings from the course. Please post at least one short response to one of your colleague’s reflection papers before class.

Class Participation Attendance, preparation and active participation are required for each class meeting and will be critical for your success (as well as being required by the American Bar Association). During class, all students should be prepared to address the day’s reading and to participate in discussion. Participation in class includes listening actively and critically to your colleagues as well as joining the discussion. Any absence must also be accompanied by an email to me, informing me that you will be/were absent. Attendance will be checked each class day and your grade may be lowered one-half step (e.g., A to A-; B- to C) if you miss more than one class without genuinely exceptional justification (sent to me in writing following the absence) or are repeatedly unprepared or disengaged from discussion.

Website This class has a Westlaw TWEN website, accessible through your Westlaw account. The site will contain the official syllabus (which may change from time to time), class announcements, the detailed reading syllabus, our online class discussion groups, materials posted by you in connection with course assignments and posted readings.

Class Format This is a discussion-based seminar. You are expected to read carefully and be prepared to discuss the readings with your colleagues. Please prepare for class by making notes of your own responses to the readings and the opinions of your colleagues in relation to the readings. I discourage you from reading too far ahead, because of the inevitable adjustments and so that you remain focused on the current topics.

Questions / Feedback I welcome your input, feedback and suggestions about the course, the topics we cover, or the manner in which class is conducted—especially in light of some of the more unorthodox methods we are employing in this class. Please share any constructive comments with me via email or during office hours. Additionally, I take your views on the course/teacher evaluations quite seriously and appreciate your thoughtful comments.

Comparative Constitutional Design Seminar Detailed Reading Syllabus Fall 2008 Professor Eric C. Christiansen

Thursday, August 21, 2008 1. A Touch of Constitutional Theory I: What are Constitutions? Read pp.1*-9*, “Constitutionalism,” Stanford Encyclopedia of Philosophy [R1] Read pp. 1-16, 39-47 Comparative Constitutionalism, Dorsen, et al. eds. [R1] Read pp. 3-12, “Constitutions, Constitutionalism and Democracy,” in Constitutionalism & Democracy, Douglas Greenberg, et. al, eds. [R1] Read Part I (Constitutions as Precommitment Strategies) in “Constitutionalism and Secession,” 58 U. Chi. L. Rev. 633, 636-43. [R1] After class, you may sign-up for in-class presentation dates on TWEN.

Thursday, August 28, 2008

2. A Touch of Constitutional Theory II: Constitution-Making

Print & Read, “Forces and Mechanisms in the Constitution-Making Process,” Jon Elster, 45 Duke L. J.

364 (1995). Read pp. 111-22, Chap. 3: “Constitution-Making” in Prospects for Constitution-Making in Post- Communist Countries, Levent Gonenc. [R1] Read pp. 303-320, Ackerman and Jacobsohn excerpts from Comparative Constitutional Law, Jackson & Tushnet, eds. [R1]

Thursday, September 4, 2008

3. Popular Power: What Role for the People in the Drafting Process?

Read 290-96, “Consent and Legitimacy,” in Comparative Constitutional Law, Jackson & Tushnet, eds.


Read “Forging a Democratic Constitution: Transparency and Participation in the 1998 Albanian Constitutional Process,” Carlson & Inman for the Internet Forum on Conflict Prevention. [R1] Read pp. 239-250, Chapter 13: “The Public Participation Process,” in The Soul of a Nation, Hassan Ebrahim. [R1] Print & Read “Designing a Constitution-Drafting Process: Lessons from Kenya,” 116 Yale L. J. 1824


* Sunday, September 7, 2008 Post preliminary paper topic and brief description of your proposal (50-100 words) to course website.

Thursday, September 11, 2008

4. Invention: The United States (and England) as Model (and anti-model) for Constitution-

Making Read pp. 8-18, “The Origins of the U.S. Constitution,” in Constitutional Law, Stone, et. al., eds.[R1] Read pp. 3-33, “In the Beginning,” in America’s Constitution: A Biography, Akhil R. Amar. [R1] Read pp. 365-79, “Constitutionalism without a Constitution,” from Comparative Constitutional Law, Jackson & Tushnet, eds. [R1] Read pp. 30-39, “Written vs. Unwritten Constitutions,” in Comparative Constitutionalism, Dorsen, et al. eds. [R1]

Thursday, September 18, 2008

5. Post-Conflict: Germany (and Japan) as Models

Read pp. 8-32, “Introduction,” in The Constitution of the Federal Republic of Germany, David P. Currie

(1994). [R1] Read pp. 191-205, “Constitutional Law – Origins,” in The Japanese Legal System, Milhaupt, et. al, eds. (2006). [R1] Print & Read “Imposed Constitutionalism,” 37 Conn. L. Rev. 857 (2005)

The following assignments will be included in READER 2 [R2]:

Thursday, September 25, 2008

6. Transformation: South Africa as Model

Read pp. 3-14, “The Tale of the Trout Hook” and “On the Banks of the Rubicon,” in Tomorrow is Another Country: The Inside Story of South Africa’s Negotiated Revolution, Sparks (1995). [R2] Read pp. 1002-18 (A Compromise Constitution for a New South Africa), in “Ending the Apartheid of the Closet: Sexual Orientation in the South African Constitutional Process,” 32 NYU J. Int’l L. Pol. 997, 1002-18 (2000). [R2] Read pp.31-48, “Constitutional and Political Options” and “Toward Responsible Transition,” in Shaping a Future South Africa: A Citizen’s Guide to Constitution-Making, Bobby Godsell, Ed. [R2] Read pp. 1-21, 273-279 (and attached three-page summary of judgment) of In Re Certification of the Constitution of the Republic of South Africa, CCT 23/96 (1996). [R2]

Thursday, October 2, 2008

7. Judicial Power: How Much Do We Trust Judges?

Read pp. 99-139 from Comparative Constitutionalism, Dorsen,, eds. [R2] Read “Rendering Justice with One Eye on Re-Election,” from The New York Times (May 24, 2008).[R2]

Read pp. 123-139, Our Undemocratic Constitution. [R2]

Thursday, October 9, 2008

8. Executive Power: Presidentialism v. Parliamentarianism

Read pp. 778 - 825 from Comparative Constitutional Law, Jackson & Tushnet, eds.[R2]

Thursday, October 16, 2008

9. Limiting Government's Power: Social Welfare Rights and Environmental Rights

Read pp. 237-254, “Socio-Economic Rights” in International Human Rights in Context, Alston, ed. [R2]

Print and Read Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Process, 38 Colum. Hum. Rts. L. Rev. 321, access at

Thursday, October 23, 2008 Writing day, no class meeting.

Friday, October 24, 2008 Preliminary abstracts and outlines due. Email your preliminary abstract and outline to Professor Christiansen. You do not need to post them to the course website.

Thursday, October 30, 2008 Case studies I: presentations and discussion Each of the student presenters will post a 1-2 page abstract and outline of their paper. All other students will read the posted abstracts and reply to each abstract posting with one comment and/or thoughtful question for each presenter. Bring a copy of the abstracts to class.

Thursday, November 6, 2008 Writing Day, no class meeting.

Thursday, November 13, 2008 Case studies II: presentations and discussion Each of the student presenters will post a 1-2 page abstract and outline of their paper. All other students will read the posted abstracts and reply to each abstract posting with one comment and/or thoughtful question for each presenter. Bring a copy of the abstracts to class.

Thursday, November 20, 2008 Case studies III: presentations and discussion Each of the student presenters will post a 1-2 page abstract and outline of their paper . All other students will read the posted abstracts and reply to each abstract posting with one comment and/or thoughtful question for each presenter. Bring a copy of the abstracts to class.

Tuesday, November 25, 2008 Final papers due by 5pm in the Faculty Center.

There is no final exam in this course. Good luck on your other exams.