December 8, 2011

POS 282--INTRODUCTION TO AMERICAN LAW
In class today, Thursday 12/8, we finished our discussion of the McIntyre v. Nicastro Supreme Court decision. I then went over two cases regarding the ownership of land in Maine as a basis for personal jurisdiction, Commerce Bank v. Dworman and Tidwell v. Zawacki. We switched to subject-matter jurisdiction, and went over the Edwards v. Direct Access case from the textbook. Finally, I went over a case recently argued before, but not yet decided by, the U.S. Supreme Court, Mims v. Arrow Financial. We will have exam #2, open-book and open-note, at 9:30 - 10:45 on Thursday 12/15. If there is an emergency that prevents your attendance at the exam, you must e-mail me as soon as possible.

POS 359--THE CURRENT SUPREME COURT TERM
In class today, Thursday 12/8, I distributed one handout, the oral argument schedule that the Court has followed for the past two weeks. We spent a little time going over the Zivotofsky paper, which is due by e-mail at noon on Thursday 12/15. I clarified that you must reach and discuss the Congressional power issue, even if your view is that the case is not justiciable. If you would like to get your paper back at the beginning of next semester, let me know. I then went over the highlight reel of the last two weeks' worth of Supreme Court oral arguments. I wish you all a good holiday break.

December 6, 2011

POS 282--INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 12/6, I handed back the Schroeder case briefs. I also distributed two handouts; the comment key to the briefs, and my own version of the Schroeder brief. The class did class evaluations. We went over the Bohlander personal jurisdiction case. I went over the three methods of obtaining general personal jurisdiction over a defendant, and contrasted general jurisdiction with specific jurisdiction. We then started going over the recent U.S. Supreme Court case of McIntyre v. Nicastro. I discussed the plurality opinion that said it was not enough to foresee that a product would enter the stream of commerce; instead, there must be specific targeting into a particular state. I will contrast this with the concurring and dissenting opinions on Thursday. On Thursday as well I will discuss some Maine personal jurisdiction cases. We will also go over the previously assigned subject-matter jurisdiction case of Edwards. There is no additional reading for Thursday; just review Edwards.

POS 359--THE CURRENT SUPREME COURT TERM
UPDATE: The final vote was 6-5 saying that the case was justiciable, and also 6-5 saying that Congress does have the power to direct the State Department in this way. Zivotofsky wins!


In class today, Tuesday 12/6, I distributed one handout, Assignment #3 which is reproduced below. The class filled out class evaluations. We then did our Case Conference. The votes were as follows: 5-3 to find that the case is justiciable; and 4-4 on whether Congress has the power to direct the State Department in this matter. After polling the absent class members, I will update this blog regarding the final vote. That vote will tell you whether you are writing a majority or dissenting opinion for Assignment #3.

Assignment #3
You are the 10th Supreme Court Justice. Your job as a Justice is to write an opinion in the Zivotofsky v. Clinton case.

What you write for an opinion will be based on your view of how the case should be decided. What type of opinion you will be writing (majority; concurring; dissenting; combination) will depend on how the class votes at our case conference on Tuesday 12/6.

Here are some guidelines for writing that I want you to observe:

• You should deal specifically with the issues raised by the side that is opposed to your view of the case. What’s wrong with the positions taken by the other Justices?

• You should have at least three specific references to the oral argument. Your citations to the oral argument transcript should give page and line numbers.

• If it fits into you Opinion, you should include a reference to the class oral argument (posted on the blog) and to the class Case Conference.

• You should deal specifically with both issues that were the issues presented in the case; justiciability (should the Court be hearing this case in the first place?) and distribution of powers (was Congress acting within its powers when it passed the law?)

• You should deal with other sub-issues as you locate them in the briefing and the oral argument.


You should use primarily your own words, quoting only in snippets when the particular words of an exchange or a brief are crucial.


Here’s a fictitious example to demonstrate the format that I’m looking for:

This Court rejects Clinton’s position that the Executive branch has exclusive power to decide what the contents of a passport are. While her brief argues that Congress has no constitutional right to conduct foreign policy, at oral argument Verilli conceded that the Government’s only textual claim was based on the authority of the Executive to receive foreign ambassadors (17:6). This is too thin a reed to bear the weight of exclusive executive passport authority.

The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due at noon on Thursday December 15. You should e-mail the paper to me by that time. I will acknowledge receipt of papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.

The paper will not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you identify specific sub-issues, evaluate them, and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.

The work should be entirely your own, with no collaboration, and no plagiarism.

December 1, 2011

POS 282--Introduction to American Law
In class today, Thursday 12/1, the class handed in the Schroeder case briefs, and we went over them. I distributed one handout, hypotheticals which can be used to test which facts were the key ones for the Court. I plan to hand back those Schroeder case briefs on Tuesday. We will also get over the previously assigned Bohlander case on Tuesday. The additional assignment for Tuesday 12/6 is to read the Edwards case on p. 157 of the text.

POS 359--The Current Supreme Court Term
In class today, Thursday 12/1, the class had our own oral argument in the Zivotofsky v. Clinton case. Following is a summary of that oral argument. The assignment for Tuesday 12/6 is to prepare for a judicial conference on the case. The class will share their opinions, try to persuade others, and then vote on how the case will be decided. This vote will form the basis of the final paper assignment, which will be to write an opinion, which will be some form of majority, concurrence, and dissent.

December 1, 2011
ORAL ARGUMENT OF 10-699, ZIVOTOFSKY V. CLINTON
Question 1 (to Clinton advocates): In Israel, there is only one international airport. It was said by government advocates that people would be offended by putting Jerusalem, Israel on passports. My question is whom would it offend in this case? Who would know?
Answer 1: It would offend Palestinians, because there is recognition that Jerusalem is Israel’s territory, and distinctly not Palestine’s. There may be Palestinians traveling through Israel, who are from Jerusalem, and it would identify them as being born in Israel. This land is at dispute between these two different countries. Recognizing the city as distinctly being on one side is playing favorites. This court’s decision will be made public immediately; this information is not private. Everyone could know.

Question 2 (to Clinton advocates): With the executive not wanting or not recognizing the capital of Israel being Jerusalem, isn’t it by default saying that it doesn’t belong to Israel and instead belongs to Palestine?
Answer 2: We believe that the United States should see Jerusalem as neutral, as controlled by neither Palestine nor Israel. Put neither Israel nor Palestine on the passport

Question 3 (To Clinton advocates): Question 4: Do you think the President is the one who should make the decision? It could change every four years. Even the neutrality you suggest is dependent upon future president’s reaffirming it.
Answer 3: We do support the idea that the President should decide. We are trying to maintain diplomatic ties with all countries. I think it is an executive decision. If we stay neutral, we can let them take care of it themselves. It is the position we are in now, and we feel that staying neutral is the best course of action. The executive branch is the best choice when dealing with volatile situations because he doesn’t have to deal with the bureaucracy of a congressional body.

Question 4 (to Clinton advocates): How do Palestinians have an argument when they aren’t recognized as a state? How are you giving a choice if Israel is recognized and Palestine is not? Isn’t cutting funding for a branch of the UN for their recognition of Palestine a bigger show of support than listing a city on a passport?
Answer 4: Just because we don’t recognize Palestine as a state, that doesn’t mean it isn’t an area with a civilization. It doesn’t mean they aren’t dangerous. We want to stay neutral, so we aren’t picking favorites or taking sides, especially in the Middle East. As far as the cutting of the UN branch’s funding, it’s debatable if that is a bigger show of choosing sides.

Question 5: (to Clinton advocates) Do you think Congress has the power of recognition?
Answer 5: No we do not.

Question 6: (to Zivotofsky advocates) What’s the role of Congress in the decision-making process? Congress has exercised power over passports before.
Answer 6: Congress intentionally gave some power to the president, under the assumption that the President has the power to recognize foreign nations.

Question 7: (to Zivotofsky advocates) What about the rest of the world? Is this a bigger reflection about our foreign policy? What happens when foreign airports see these passports?
Answer 7: We are trying to give people a choice. We aren’t trying to decide what Israel owns and what they don’t own. We are giving them the opportunity to say they are from Israel, which they could use in place of Jerusalem on their passports.

Question 8: (to Zivotofsky advocates) What is the line between Presidential and Legislative power? Where does it fall? Would Congress be able to recognize states?
Answer 8: We do believe that this falls within Congress’ power. We aren’t implying that Congress should have full power over foreign relations. The executive has power when it comes to foreign policy. We are looking to maintain recognition.

Question 9: (to Zivotofsky advocates) This isn’t just an Israel / Palestine issue, this passport can travel the world. This is a reflection on our foreign policy to the entire world.
Answer 9: It’s up to the individual American citizen. The passport wouldn’t be offensive; it would only read “Israel”.

Question 10 (to Zivotofsky advocates): In your ideal ruling what is the line between the President and Congress on the issue of passports?
Answer 10: Congress has all power over passports.

November 29, 2011

POS 282-Introduction to American Law
In class today, Tuesday 11/29, we began by going over several questions and concepts of the Schroeder case and case brief. We then went back into Choice of Law Rules with the Land case. We finished the personal jurisdiction case of Karstetter. The assignment for Thursday 12/1 is to finish the Schroeder case brief, which is due at the beginning of class on 12/1. Also review the Bohlander personal jurisdiction case which was previously assigned.

POS 359-The Current Supreme Court Term
In class today, Tuesday 11/29, we spent the class period going over the oral argument in MBZ v. Clinton. I also reviewed the Youngstown Sheet and Tube case, (the steel seizure case) regarding the relationship between Congressional and Executive authority. Thursday we will have our own oral argument, building on the Supreme Court's oral argument. Four people in class were designated as advocates, and five as Justices, with teams representing the Executive and Zivitofsky. Then next Tuesday we will convene as the Court Conference, each class member saying how they think the case should be decided, and then voting. The final paper will be based on the classroom oral argument and Conference, as well as the Supreme Court oral argument. That final paper will now be due December 15, one week after the last day of class.

November 22, 2011

POS 282--Introduction to American Law
In class today, Tuesday 11/22, I distributed one handout, assignment #2, which is reproduced below, and which is due Thursday 12/1. We began our discussion by going over the Hubbard case, and the concept of common law choice of law rules. I added two Maine Supreme Court cases to the mix, Collins v. Trius and Flaherty v. Allstate Insurance. The case brief assignment regards choice of law rules in the context of a contract dispute. We then started our discussion of personal jurisdiction and full faith and credit by wading into the situation in the Karstetter case. We will continue with Karstetter when we reconvene after the Thanksgiving holiday. The assignment for Tuesday 11/29 is to read two additional cases in the text, Land, starting on p. 180, and Bohlander, starting on p. 162. In addition begin work on the case brief assignment.



Assignment due Thursday, December 1, 2011
The assignment (graded) is to do a Case Brief of the case of Schroeder v. Rynel,
1998 ME 259, 720 A2d. 1164. The case can be found on the website of the Maine Supreme Court.

To access the case, go to
http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml

--scroll down to “1998 Opinions”

--select 1998 ME 259, Schroeder v. Rynel (12/9/98)
or you can go directly to http://www.maine.gov/COURTS/opinions_orders/supreme/opinions_1998.html

Brief all of the issues that you determine that the Court ruled on.

Follow the format from the Sample Briefs that I’ve distributed. Note especially that the Facts, Issues, and Holding are copied and pasted. Everything that you put into the Fact section should appear exactly in your Issue and Holding sections as well. Your Issue and Holding sections should be identical to each other, except that the issue is a question, and the Holding is the answer to that question. Your briefs will be evaluated on the format, as well as the specific content.

Please make two copies of your brief, one to hand in at the beginning of class, and the other for you to have during class for our discussion.

You may e-mail me if you have questions about the brief. The more time that I have to answer your questions, the more likely it is that I can be helpful.

If you cannot be in class on Thursday 12/1, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers. Remember to work by yourselves; do not collaborate.

IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.


POS 359--The Current Supreme Court Term
In class today, Tuesday 11/22, I handed back the Jones papers, and we briefly went over them. We started our discussion of MBZ v. Clinton, going over the Court of Appeals decision, and the two different ways in which the government can, and did, win the case. We went over four of the leading Supreme Court justiciability cases that were part of the Court of Appeals decision. We also discussed how to structure the remaining classes and assignments. Here's the plan we came up with: the assignment for Tuesday 11/29 is to read the Supreme Court oral argument in the case, as well as the "Summary of Argument" in both the Petitioner's and Respondent's briefs. We will go over that oral argument during Tuesday's class. Then on Thursday, 12/1, we will have our own oral argument ("The Return of Zivotofsky")in which some class members will get to grill others to defend their positions regarding how the case should be decided. The final paper, due the last day of class, will then basically be a "how would you decide the case" type of question, but informed by not only the Supreme Court's oral argument, but also the oral argument that we hold in class. Hopefully it will all work out, but I hope that you first work out a way to have a good Thanksgiving.

November 17, 2011

POS 282--Introduction to American Law
In class today, Thursday 11/17, we first went over the Apsey case, and then the Michigan Supreme Court reversal of that Court of Appeals decision. I then went over the recent U.S. Supreme Court decision of Davis v. U.S., in which the Court ruled that the retroactivity rules regarding 4th Amendment decisions do not automatically also apply to the remedy of exclusion of evidence of unconstitutional searches and seizures. We compared the retroactivity rules laid out by the U.S. Supreme Court in Griffith v. Kentucky with those of the Apsey court. We then discussed the Strunk case regarding the absence of precedent. The assignment for Tuesday 11/22 is to read and be prepared to discuss pp. 140-149 of the text. On Tuesday 11/22 I will also distribute the next briefing assignment for the class, which will be due on Thursday 12/1.

POS 259--The Current Supreme Court Term
In class today, Thursday 11/17, we went over the Jones predictions, and I collected the papers. I plan to grade them this weekend, and return them on Tuesday. The assignment for Tuesday 11/22 is to read the Court of Appeals decision in our next case, Zivotofsky v. Clinton, 571 F.3d 1227 (D.C. Cir., 2009). This is the case that came in second in our last balloting. I will also be soliciting your opinions about a preferred specific assignment for the Zivotofsky case.

November 15, 2011

POS 282--Introduction to American Law
In class today, Tuesday 11/15, we spent the first part of the class going over yesterday's grant of cert. in the Affordable Care Act case, and how the case of Gonzales v. Raich might impact the decision in the ACA case. We then returned to the textbook, and I discussed two ex post facto cases, the U.S. Supreme Court case of Smith v. Doe, and the Maine Supreme Court case of State v. Letalien (2009). We then went over the concept of dictum, and the textbook case of State v. Butler. I also went over the later U.S. Supreme Court case of Harris v. N.Y., which cleared up the Supreme's Court holding regarding the use of un-Mirandized statements for purposes of impeachment. The additional reading assignment for Thursday 11/17 is to read and prepare to discuss through p. 140 of the text.

POS 359--The Current Supreme Court Term
In class today, Tuesday 11/15, we talked about how the Justices' specific questions in Jones might give a clue as to their votes. The assignment for Thursday 11/17 is to write the previously assigned Jones paper. The paper is due at the beginning of class on Thursday. After we go over your predictions, we will also discuss the third and final written assignment.

November 10, 2011

POS 282--Introduction to American Law
In class today, Thursday 11/10, we spent the class going over the Gonzales v. Raich opinion. We discussed the institutional power conflicts involved, the use of precedent, and the question left unresolved. I also discussed two Court of Appeals decisions: one Raich v. Gonzales, 500 F.3d 857 (9th Cir., 2007), rejected Raich's substantive due process claim that was left unanswered in the Supreme Court opinion; the other, Sky-Seven v. Holder, __ F.3d __ (D.C. Cir., 2011) decided on Tuesday, applied the Raich case in concluding the Affordable Care Act was constitutional, an issue that seems headed to the Supreme Court soon. The assignment for Tuesday November 15 is to read through p.136 of the text.

POS 359--The Current Supreme Court Term
In class today, Thursday 11/10, we started going over the oral argument in Jones. I went over the background of four of the cases that were cited in the oral argument, Karo v. U.S., Oliver v. U.S., Caperton v. Massey, and Whren v. U.S. On Tuesday 11/15, the class will discuss how they're seeing the oral argument questioning in terms of predicting the votes of the Justices. The assignment is to continue working on the Jones paper.

November 8, 2011

POS 282--Introduction to American Law
In class today, Tuesday 11/8, we first discussed the Penn State situation regarding mandated reporting of child abuse in the football program, and also talked about the Maine Law Court being in Bangor for a few days. We then turned to the Johnson case and punitive damages. I went over the 2007 Supreme Court punitive damages case of Philip Morris v. Williams. We went over the two major issues that the California Supreme Court dealt with in Johnson. We then briefly went over the attorney advertising case of Florida Bar v. Pape. We will pick up with the Gonzales v. Raich case on Thursday. The additional reading assignment for Thursday 11/10 is to read through p. 130 of the text.

POS 359--The Current Supreme Court Term
In class today, Tuesday 11/8, I distributed one handout, the assignment below. Note that it will be due Thursday 11/17, rather than the following Tuesday as we had previously discussed. After going over the requirements of the assignment, we started our discussion of the Court of Appeals decision in our case, discussing how that Court distinguished the Knotts case. The oral argument in Jones was held today, and so the assignment is to read the transcript of that oral argument, as well as the Respondent Jones' Brief to the Supreme Court. We will concentrate our discussion Thursday, though, on going over today's oral argument.

For this assignment, I would like you to predict the outcome of the Supreme Court case of U.S. v. Jones. In addition, I would also like you to write about how you think the case should come out.

The paper should be a minimum of 3 pages long, and no more than 6 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday November 17. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of that class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.

The specific assignment regarding the prediction is this: Go Justice-by-Justice and find some indication of how each Justice might vote in this case. (Take a pass for Justice Thomas, who usually asks no questions). Discuss how the questions asked or the comments made by a Justice may reflect a view of what the outcome should be. Remember that the Court issues two kinds of things: a Judgment (whether the decision of the Court of Appeals is affirmed or reversed); and an Opinion (the reasoning used to get to the result), Justices may agree on a result (a judgment) without agreeing on an opinion.

Your citations to the oral argument transcript should give page and line numbers.

You should use primarily your own words, quoting only in snippets when the particular words of an exchange are crucial.

The predictive portion of this paper is not intended as a discourse on the history of the case, or a synopsis of the case, or a full legal analysis of the issues in the case--it is intended to be “I think that this Justice will vote this way because of these indications that I find in the oral argument”. I don’t need any introduction to the case, its facts, the proceedings below, or precedent.

Your prediction should be directed not only to the final vote (for or against Jones), but also rather to the distinct issues and positions raised by the parties. An important part of the assignment is for you to identify those issues. For this, you will need to be guided by the arguments raised by the parties in their briefs, as well as the assigned Court of Appeals decision. The issues may include, but are not limited to, questions such as whether these issues makes a difference: how unlikely it would be that anyone would be observe all of a person’s movements for a month; how different the intrusion into a person’s privacy is when viewing a few snapshots of person’s movements, as opposed to all of them; how a ruling one way or the other will affect police work and will affect privacy of all individuals; whether the attachment itself of the GPs device was a search or seizure.

Here’s a fictitious example to demonstrate the format that I’m looking for:

Justice Thomas raised questions about Jones’ predictions regarding the dire consequences if the warrantless GPS attachments are allowed. He asked Leckar (Jones’ lawyer) whether the consequences wouldn’t be even worse if he ruled against the government, since then they might be limited in conducting even a long-term visual surveillance of a suspect. Leckar replied that the means of a GPS intrusion is important, even if other means such as visual surveillance might be permitted. (25:14). Thomas retorted that if the Founders had had GPS, they would have allowed it, just as they allowed the use of a spyglass (26:2). This exchange indicates that Thomas thinks that the original intent of the Fourth Amendment did not prohibit GPS use, or alternatively, that the government should win because Lecker’s test would hamper law enforcement too much. I predict therefore that Thomas will vote against Jones.

For your own thoughts about how the case should be decided, deal specifically with the issues raised by the party that is opposed to your view of the case. For example, if you think that the government’s position is correct, how do you answer Jones’ objections that permitting such searches would allow police too much leeway?

You papers will not be graded on the accuracy of the predictions, but rather on how well you support your position by reference to the oral argument. The paper will also not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try used an outline. I encourage you to use the UM writing center to help with your English.

The work should be entirely your own, with no collaboration, and no plagiarism.

November 3, 2011

POS 282--Introduction to American Law
In class today, Thursday 11/3, I distributed one handout, the Maine statute saying that all crimes are codified (no common law), and the Maine statute that mandates that some people report some specific crimes. We started our discussion of the Johnson punitive damages case, and will continue with that case next Tuesday. The additional reading assignment for Tuesday 11/8 (election day--don't forget to vote) is to read through p. 121 of the text.

POS 359--The Current Supreme Court Term
In class today, Thursday 11/3, we started going over the U.S. Brief in the Jones case. I gave a brief history of the Katz case and its progeny. The assignment for Tuesday 11/8 is to read the case of U.S. v. Knotts, 460 US 276 (1983) and the Circuit Court decision in our case, U.S. v. Maynard, 615 F.3d 544 (D.C. Cir., 2010). Both decisions are available from the Lexis database on the Fogler Library site by entering the citation of the case (e.g. "460 U.S. 276").

November 1, 2011

POS 282--Introduction to American Law
In class today, Tuesday 11/1, I distributed one handout, the Maine statute regarding the crime of hindering apprehension. We went through the Gregg case, outlining the Stewart opinion and then talking about the different approaches in the three opinions in the text. We then discussed both the majority and dissenting opinions in the Mobbley case, especially the differing views regarding legislative intent. We started looking at the Maine statute to see how Maine deals with the problem addressed by the New Mexico legislature in the Mobbley case. We will begin on Thursday by finishing up our look at the Maine statute. The additional reading assignment for Thursday 11/3 is to read in the text pp. 79-97.

POS 359--The Current Supreme Court Term
In class today, Tuesday 11/1, I returned the Florence papers. The class then made presentations in the cases that were assigned last week. We then voted on the next case that we'll concentrate on. The winner was United States v. Jones, the GPS Fourth amendment case which will be argued on Tuesday 11/8. The assignment for Thursday 11/3 is to read the Petitioner's brief in U.S. v. Jones.

October 27, 2011

POS 282--The Current Supreme Court Term
In class today, Thursday 10/27, I handed back last Tuesday's exams, and we went over them. We then had a brief discussion about the role of ethics and morality both in the formation, as well as in the enforcement, of public policy. We will start next Tuesday with the Gregg capital punishment case. The additional assignment for Tuesday, 11/1 is to read through p. 78 of the text (the Mobbley case).

POS 395--The Current Supreme Court Term
In class today, we held our Judicial Conference in which each student Justice explained how they ruled, and why. I will return the Opinions on Tuesday. The assignment for Tuesday 11/1 is to prepare an oral presentation to the class about the case that you chose or that was assigned to you. Go to the merits briefs tab on the Supreme Court website, find the case on the ABA site that you are directed to. Read enough of the briefs so that you can talk for about 5 minutes on the issues presented in the case, the scope of the question presented, and any previously decided cases that have set the rules for the resolution of your case (like Bell v. Wolfish set the background for the Florence case). Try to make your presentation interesting and understandable. After the presentations we will vote on the next case for the class to tackle.

October 25, 2011

POS 282--Introduction to American Law
In class today, Tuesday 10/25, the class took Exam #1. I will return the exam and we will go over it on Thursday. The additional reading assignment for Thursday 10/27 is to read pp. 63-76 of the text.

POS 359--The Current Supreme Court Term
In class today, Tuesday 10/25, I distributed one handout, a recent article by Linda Greenhouse discussing "judicial activism" and "judicial engagement". We then discussed the two Court of Appeals decisions assigned for today, Florence and Roberts (which is reported at 239 F.3d 107). The assignment for Thursday 10/27 is to finish your Florence opinion, which is due at the beginning of class on Thursday.

October 20, 2011

POS 282--Introduction to American Law
In class today, Thursday 10/20, I began by going over federal court jurisdiction, both diversity jurisdiction and federal question jurisdiction. I had a sample test for the class, going over the types of questions that you might expect on Tuesday's test. We then finished the Lawrence case, and also discussed Connecticut v. Doe. The assignment for Tuesday 10/25 is to prepare for the open-book, open-note test on Tuesday. It will cover all of the material covered in class thus far.

POS 359--The Current Supreme Court Term
In class today, Thursday 10/20, we went over the Essex County Brief, and the Carter Phillips oral argument in which Phillips occasionally defended that brief. The assignment for Tuesday October 25 is to read two Court of Appeals decisions in this line of cases. One is the Florence 3rd Circuit decision, Florence v. Board, 621 F.3d 296 (3rd Cir., 2010) and the other is an older First Circuit case, Roberts v. Rhode Island, 239 F.2d 107 (1st. Cir., 2001). These opinions can be accessed from the Fogler site by going to library.umaine.edu; select Indexes and databases; select Lexis Nexis Academic, and put in the citation. You should also be working on your Opinions, which are due on Thursday 10/27.

October 18, 2011

POS 282--Introduction to American Law
In class today, Tuesday 10/18, I began by letting the class know that we will have Test #1 on Tuesday 10/25. The test will be open-book and open-note. On Thursday 10/20 I will go over some sample questions. We then finished our discussion of the Glucksberg case, tracing the process by which the Court decided that the asserted right was not "fundamental". We then went to Lawrence v. Texas, and looked at the process there in terms of defining the right and deciding whether it was fundamental. We left off with the question of how Justice Kennedy analyzed the "legitimate" state interest involved. We will pick up with that question on Thursday, as well as going over the previously assigned case of Connecticut v. Doe (p.44) The assignment for Thursday 10/20 is to review Lawrence and Doe.

POS 359--The Current Supreme Court Term
In class today, Tuesday 10/18, I distributed Assignment #1, which is reproduced below, and which is due Thursday, October 27. After going over that assignment, we went into a discussion of the oral argument in Florence, comparing the position taken by Goldstein at oral argument with the positions taken in the Florence brief. I also went over an additional case, Atwater v. City of Lago Vista (2001) in which the Court upheld the constitutionality of an arrest of a woman for a seatbelt violation. The assignment for Thursday 10/20 is to read the brief of respondent Essex County, again comparing the positions taken in the brief with those taken at oral argument.

Assignment #1
Good news! In order to foster a more youthful outlook at the Supreme Court, Congress has increased the membership of the Court to ten, and you, because of your outstanding dedication to The Law, have been chosen to be that 10th Justice.
Your first job as a new Justice is to write the Court’s opinion in the Florence v. Board case.
Your opinion is not a prediction of the votes; don’t worry about the other Justices, just concentrate on reaching and justifying the decision that you think makes the most sense. Where you cite to the oral argument, you’re looking to the response of the lawyers rather than the viewpoint expressed by the other Justices.

Since this will be your first Supreme Court opinion, here are some guidelines for writing that I want you to observe:
• You should deal specifically with the issues raised by the party that is opposed to your view of the case. What’s wrong with the argument raised by the losers, both in their brief and in the oral argument?
• You should have at least two specific references to each party’s position in the briefs (two for Florence and two for Essex County) , with specific reference to the page number of the argument.
• You should have at least three specific references to the oral argument. Your citations to the oral argument transcript should give page and line numbers.
• You should deal specifically with how Bell is to be interpreted in light of the present case.
• You should deal with other sub-issues as you locate them in the briefing and the oral argument.

You should use primarily your own words, quoting only in snippets when the particular words of an exchange or a brief are crucial.

Because of the particular factual situations raised by this case, it would be helpful for us to use a common vocabulary. Please use these terms with these meanings:
Visual strip search: observing the naked body of the arrestee, with no particular cavity focus.
Visual cavity search: close observation of the body cavity, with the arrestee opening his mouth, etc.
Squat and cough: just like it sounds.
Cavity search: digital search by the jailers of body cavities.
Here’s a fictitious example to demonstrate the format that I’m looking for:

This Court rejects Florence’s position that the reasonableness of the visual cavity search depends on the proximity of the jailer to the arrestee. While his brief argues that the state has no constitutional right to conduct a visual cavity search absent probable cause (Florence Brief, p. 47), at oral argument he conceded that such routine practices do not require probable cause at all, and that the only constitutional question is the proximity of the jailer to the arrestee (17:6). We refuse to establish such a yard-stick test as a principle of our constitution.

The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday October 27. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.

The paper will not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you identify specific sub-issues, evaluate them, and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.

The work should be entirely your own, with no collaboration, and no plagiarism.

As I write this assignment, the Supreme Court has not yet decided this case; naturally, I hope they don’t decide it before October 27, because that would really complicate the process of evaluating your analysis. But, if they do decide the case before then, I will post a modification to the assignment on the blog, as well as e-mail you through the MaineStreet portal. Be sure to check the blog (even if you don’t miss any classes) to see if the other Justices on the Court have written their views before receiving the benefit of your view.

October 13, 2011

POS 282--Introduction to American Law
In class today, Thursday 10/13, I handed back the Price-Rite case briefs, as well as distributing a key to the numbered comments that I made on the briefs. We then finally went over the Maine criminal statute regarding use of force in defense of premises, and how it might relate to the situation in Katko v. Briney. We started our discussion of the Glucksberg case, going over the consequences of whether a right is put into the box called "fundamental" or not. We will pick up next Tuesday with an examination of how the Court went about figuring out which box to put this right into. The additional assignment for Tuesday 10/18 is to read in the text the case of Texas v. Lawrence, starting on p.83 of the text, and briefing the case for yourselves.

POS 359--The Current Supreme Court Term
In class today, Thursday 10/13, I distributed one handout, a Bangor Daily News editorial regarding strip searches and the Florence case. We went over several aspects of the Florence case and the Petitioners Brief: the vocabulary of "reasonable suspicion"; the vocabulary of strip searches; the four categories of questions of concern to the Justices that we discussed last week; and the precedents of Bell v. Wolfish and Turner v. Safley, and the way that the Florence brief tries to distinguish those cases. The assignment for Tuesday 10/18 is to read the oral argument transcript in the case, paying particular attention to those questions by the Justices that highlight ambiguities in the Petitioners brief, (At the end of the week the Court should also post the audio of that oral argument, so that you can listen and read along at the same time.)

October 6, 2011

POS 282--Introduction to American Law
In class today, Thursday 10/6, the class handed in the Price-Rite briefs, and we spent the class period going over them. I will hand them back when we next meet on Thursday 10/13. The assignment for Thursday 10/13 is to read in the text pp. 28-46. It would be helpful to you to prepare a brief (at least the issues) of the Glucksberg and Connecticut v. Doe cases (although nothing will be passed in or graded).

POS 359--The Current Supreme Court Term
In class today, Thursday 10/6, the class first voted on which case which we should study for our first writing assignment. The winner was Florence v. Board of Chosen Freeholders, which will be argued on Wednesday October 12. The assignment for our next class meeting on Thursday October 13 is to read the Petitioner's Brief in that case. The brief can be accessed by going to the Supreme Court website, selecting Merits Briefs, then on-line merits briefs, and then (once you're at the ABA site) selecting Florence either through the alphabetical listing of cases or going through the October cases.
For the remainder of the class we discussed the Douglas oral argument again. I suggested four categories of questions that the Justices were asking: questions about the institutional implications of a decision (separation of powers, federalism); the practical implications of a ruling; the conformity with precedent; and the scope of the rule that should be established.

October 4, 2011

POS 282--Introduction to American Law
In class today, Tuesday 10/4, we went over various aspects of the State v. Price-Rite opinion. We went over the outline of the case, the idea of questions of law and questions of fact, subject-matter jurisdiction, and examples of bad lawyering committed by both sets of lawyers. The assignment for Thursday 10/6 is to complete the Price-Rite case brief, which is due at the beginning of class on Thursday. Please make two copies of your brief, one to hand in at the beginning of class, and one to use for our class discussion.

POS 359--The Current Supreme Court Term
In class today, Tuesday 10/4, I first gave a preview of an interesting case set for oral argument on Wednesday, Hosanna-Tabor Church V. EEOC. We spent the rest of the class doing a first pass over the Douglas oral argument. We looked at how the arguments made by Schwartz mirrored the structural power questions that we've previously discussed in class, and we also looked at the various types of issues that the Justices were concerned with. I also went over Gonzaga v. Doe, the 2002 Supreme Court decision that cut back the recognition of private causes of action in Spending Clause cases. The assignment for Thursday 10/6 is to read again the Davis oral argument, this time looking for the specific issues that the questions from the Justices centered around, and the viewpoints of the specific Justices as expressed in their questions.

September 27, 2011

POS 282--Introduction to American Law
In class today, Tuesday 9/27, I distributed two handouts: my version of the Suggs v. Norris brief, and the graded briefing assignment for next Thursday 10/6. There will be no class meeting this Thursday 9/29. In class today, we discussed the issues of intent in both the majority and dissenting opinions in Katko, and the question of punitive damages in both of those opinions. We went over the Suggs v. Norris case and brief. I discussed the graded briefing assignment, (which is posted below). The assignment for our next class meeting on Tuesday 10/4 is to begin work on the case brief for State of Maine v. Price-Rite, 2011 ME 76. Also the website for the Attorney Generals Complaint in that case is http://www.maine.gov/ag/about/cases_of_interest.shtml

THERE WILL BE NO CLASS THURS. 9/29

Assignment due Thursday, October 6, 2011
The assignment (graded) is to do a Case Brief of the case of State of Maine v. Price-Rite Fuel, 2011 ME 76, ___ A3d. ____. The case can be found on the website of the Maine Supreme Court.

To access the case, go to
http://www.courts.state.me.us/opinions/supreme/index.html

--scroll down to “2011 Opinions”

--select 2011 ME 76, State of Maine v. Price-Rite Fuel (7/5/11)

Brief all of the issues that you determine that the Court ruled on.

Follow the format from the Sample Briefs that I’ve distributed. Note especially that the Facts, Issues, and Holding are copied and pasted. Everything that you put into the Fact section should appear exactly in your Issue and Holding sections as well. Your Issue and Holding sections should be identical to each other, except that the issue is a question, and the Holding is the answer to that question. Your briefs will be evaluated on the format, as well as the specific content.

Please make two copies of your brief, one to hand in at the beginning of class, and the other for you to have during class for our discussion.

You may e-mail me if you have questions about the brief. The more time that I have to answer your questions, the more likely it is that I can be helpful.

If you cannot be in class on Thursday 10/6, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers. Remember to work by yourselves; do not collaborate.

IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.



POS 359--The Current Supreme Court Term
In class today, Tuesday 9/27, we first decided that the class will watch the "John Marshall" episode of the PBS Supreme Court series on Thursday 9/29 (a day when I cannot be in class). So there will be an attendance sheet passed around on Thursday, and the class will watch that program. The assignment for Tuesday 10/4 is to read the transcript of the Douglas oral argument that will be held on Monday 10/3. The transcript should be posted on the Supreme Court website by around 2 or 3 o'clock on Monday. To get to the transcript, go to supremecourt.gov, select oral argument, and select oral argument transcript. The url is http://www.supremecourt.gov/oral_arguments/argument_transcripts.aspx
This is the case which we previously discussed that raises the question of whether the Supremacy Clause of the constitution itself supplies a cause of action for a challenge to California's Medicaid cutbacks. I'm not sure how technical the oral argument will be (how many unexplained precedents and doctrines will be brought up), but try to make sense of what the parties are arguing, and what the Justices are getting at in their questions to the advocates.

September 22, 2011

POS 282--Introduction to American Law
In class today, Thursday 9/22 I distributed two handouts: my own version of the Katko brief, and the Maine criminal statute dealing with use of force in defense of property. We continued with our discussion of the Katko brief, getting as far as the first issue that the Court dealt with (can you set a spring gun under the circumstances?). We went through the authority that the Court relied upon in reaching its decision, secondary and primary authority, mandatory and persuasive authority. We will finish with Katko next Tuesday, first exploring the role of Briney's intent to injure, and the question of notice of the spring gun, and then finishing with the punitive damages issue and the disposition. The assignment for Tuesday 9/27 is to look over the two handouts. In addition, read in the text pp. 54 -57, and write out a brief (again, not handed in or graded) of the Suggs v. Norris decision.

POS 359--The Current Supreme Court Term
In class today, Thursday 9/22, we talked a little about the Davis execution in Georgia. Then I distributed a page of letters that were published this week about the Toobin New Yorker article , and we used the letters as a springboard to discuss such issues as the meaning of originalism, consistency v. flexibility and compromise in judging, and the rules for recusal. I also went over one more Supreme Court oral argument scheduled for the first week, Howes v. Fields, that raises the issue of when someone is in custody for Miranda purposes when the person is already imprisoned for another offense. The assignment for Tuesday 9/27 is to finish reading the Burns book.

September 20, 2011

POS 282--Introduction to American Law
In class today, Tuesday 9/20, we first finished up our discussion of the Parade ordinances by going over the Augusta fix for the problems identified in the Sullivan case, and then we went over the money charges in both the Dearborn and Augusta ordinances. We also went over the Bangor ordinance, which is far more friendly to the idea of marches. We then started with the Katko brief that I asked you to write out for today. We got as far as the Prior Proceedings in the case . We will pick up with the Present Proceedings on Thursday. The homework for Thursday 9/22 is to simply review your brief that you wrote out, or, if you didn't write one out, to do do.

POS 359--The Current Supreme Court Term
In class today, Tuesday 9/20, we first discussed last year's Holder v. Humanitarian Law Project case, and how it might apply to the Iranian President's current visit to America. We then talked about habeus corpus, discussing the case of Troy Davis, and then two Supreme Court arguments for October 4, Maples v. Thomas and Martinez v. Ryan. The assignment for Thursday September 22 is to read Chapters 10 and 11 of Burns. As you read, ask yourself what system of Constitutional enforcement he would like to see in place, and how would such a system work.

September 15, 2011

POS 282--Introduction to American Law
In class today, Thursday 9/15, I distributed two handouts; Dearborn's fix to its parade ordinance, and Augusta's fix to theirs. We went through how the holdings of a case should lead to an identification of what is needed to fix a problem, and how Dearborn fixed the First Amendment problems cited by the Sixth Circuit. I talked about a First Circuit case, Sullivan v. Augusta, that raised many of the same issues as had been discussed in the AAC case, and we looked at the Augusta ordinance that I distributed on Tuesday. Next week we will look at how Augusta fixed the problem in their new ordinance, as well as the Bangor ordinance. In addition to looking at the new Augusta ordinance, the other assignment for Tuesday September 20 is to read in the text pp. 47-53, and to write out your own brief of Katko v. Briney (though it will not be handed in or graded).

POS 359--The Current Supreme Court Term
In class today, Thursday 9/15, I distributed one handout, the Supreme Court's oral argument schedule for October. We went over one case from that docket, the Reynolds case that raises the issue of standing to challenge the federal sex offender registry law. We spent most of the class watching clips from the PBS series on the Supreme Court, which ranged from John Marshall to Sandra O'Connor. The assignment for Tuesday 9/20 is to read chapters 8-9 of Burns.

September 13, 2011

POS 282--Introduction to American Law
In class today, Tuesday 9/13, I distributed one handout, the Augusta and Bangor parade ordinances. We went through the Brief Template and the AAC brief that I had handed out last week, getting to all but the Disposition segment. The assignment for Thursday 9/15 is to read through the handout, and figure out whether those ordinances are sufficient under the holdings of AAC v. Dearborn.

POS 359--The Current Supreme Court Term
In class today, Tuesday 9/13, we went over two main Constitutional questions that have been discussed in the Burns book. We discussed the role of the President and Congress in deciding whether laws are constitutional by looking at the Obama administration defense of the Don't Ask, Don't Tell law, and the Defense of Marriage Act. We also discussed the Supremacy Clause and preemption in the context of the trial that started Monday in the Vermont Yankee nuclear power plant relicensing. The assignment for Thursday 9/15 is to read chapters 6-7 of Burns.

September 8, 2011

POS 282--Introduction to American Law
In class today, Thursday 9/8, I distributed three handouts: a case brief template, a sample brief of AAC v. Dearborn, and a paragraph by paragraph classification of the AAC opinion. We spent the class identifying the issues in the AAC case, reviewing the law that the Court was applying, and looking at the key facts that the Court used to resolve the questions. The assignment for Tuesday 9/13 is to read over the three handouts, studying how the Court opinion gets translated into the format of a case brief.

POS 359--The Current Supreme Court Term
In class today, Thursday 9/8, we went over the briefs in the Douglas case. We reviewed the function of Section 1983, and of a direct action under the Supremacy clause. We also went over the appeal to original intent found in both briefs, as well as the position of the amicus brief by the U.S. The assignment for Tuesday 9/13 is to read Chapters 4 and 5 of the Burns book.

September 6, 2011

POS 282--Introduction to American Law
In class today, Tuesday 9/6, we began by reviewing the Maine voting residency statute that I had distributed last class. I went over some concepts that were discussed in the Introductory section of the text, including natural law, common law, and equitable relief. I went over the structure of the Maine state court system, with the Maine District Court, Maine Superior Court, and Maine Supreme Court. We began going over the Dearborn ordinance that was at the heart of the AAC v. Dearborn case. The assignment for Thursday 9/8 is to reread the AAC v. Dearborn case. Read it once to go paragraph by paragraph and decide what the role of each paragraph is--what is the Court doing in each paragraph. Read it again to decide exactly which questions the Court is answering--what issues are they dealing with. Prepare to discuss these questions, but there is no writing that will be collected.

POS 359--The Current Supreme Court Term
In class today, Tuesday, 9/6, I distributed one handout, excerpts from the briefs in the upcoming Douglas cases. We went over the federal and state court systems, federal jurisdiction, and the Supreme Court cert. process, and we discussed the Supremacy Clause issue in the Douglas case. The assignment for Thursday 9/8 is to read the Douglas handout, especially as it relates to the "original intent" of the Supremacy clause as discussed in the Burns book.

September 1, 2011

POS 282--Introduction to American Law
In class today, Thursday 9/1, I distributed one handout, 21-A MRS §112 (available from the Maine legislature website http://www.mainelegislature.org/legis/statutes/
We finished going over the assigned case of Mills v. Wyman. We went over many legal concepts, including: common law as opposed to enacted law (constitution, statutes, ordinances and regulations); mandatory authority v. persuasive authority; distinguishing, following, extending, overrruling and reversing prior cases; citation format for both caselaw and statutes; and updating law through shepards and keyciting. I went over a Maine 1904 case that discussed Mills v. Wyman, Inhabitants of Freeman v. Dodge. Finally we talked about today's newspaper article regarding voter registration requirements, and the Republican challenge to student voting. The assignment for Tuesday 9/6 is to read the statutory handout, and to read pp. 1-28 of the textbook.

POS 359--The Current Supreme Court Term
In class today, Thursday 9/1, we first finished discussing the two 2008 Medellin v. Texas cases, and the talked about this summer's Leal Garcia v. Texas case. I showed a short clip of a Clarence Thomas speech before the Heritage Society, and we began our discussion the the Toobin article about Thomas. We will continue with that discussion next Tuesday, as well as beginning a discussion of the Burns book. The assignment for Tuesday 9/6 is to read the first three chapter of the Burns book, Packing The Court, pp. 1-62.

August 30, 2011

POS 282--INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 8/30, I distributed two handouts: the syllabus and the case of Mills v. Wyman. We went over the syllabus, and began going over the Wyman case. The assignment for Thursday September 1 is to finish reading the Wyman case, figuring out what the Court is doing in each paragraph of the opinion.


POS 359--THE CURRENT SUPREME COURT TERM
In class today, Tuesday 8/30, I distributed four handouts: the syllabus, a list of the Justices and selected web sites, selections from the Constitution, and an article from the New Yorker by Jeffrey Toobin about Justice Clarence Thomas. We went over the first three of those handouts, and the Toobin article is the reading assignment for Thursday 9/1. The Toobin article may also be found on the web at

http://www.newyorker.com/reporting/2011/08/29/110829fa_fact_toobin

I also began a discussion about the most recent Supreme Court decision, Leal Garcia v. Texas, which I will continue with on Thursday as well.

April 28, 2011

POS 359--The Current Supreme Court Term--2011
In class today, Thursday 4/28, the class handed in the Ashcroft papers, and we spent most of the class period discussing how the case should be decided. I also went over yesterday's 5-4 decision in AT&T v. Concepcion, regarding arbitration clauses that preclude class-action arbitration proceedings. If you indicated that you want your paper returned, I will place in my mailbox in 229 N. Stevens by 10:30 on Thursday 5/5. Have a good summer.

POS 282--Introduction to American Law
In class today, Thursday 4/28, I distributed one handout, an excerpt from the Maine Rules of Evidence regarding the rules of privilege. We went over the remainder of the cases in the text to the end of Chapter 5. I also discussed two Maine cases, St. Paul Insurance v. Hays, 2001 ME 71 (discovery sanctions) and Fortin v. Roman Catholic Bishop, 2005 ME 57 (religious privilege). The exam will be Thursday 5/5 from 10:30-11:45, open-book and open-note, (but only, as always, your own).

April 26, 2011

POS 359--The Current Supreme Court Term 2011
In class today, Tuesday 4/26, I first went over two Supreme Court oral arguments that are taking place this week. Both involve free speech; one is about the rights of data-mining companies to have access to prescribing information of doctors, and the other involves the rights of a local politician to be free of the conflict-of interest state rules that limit the participation of that politician when his former campaign manager turns into a lobbyist for an applicant before the city government. We then went through parts of the al-Kidd oral argument, looking for sub-issues which you should address in your papers. Those papers are due at the beginning of class on Thursday, and finishing them up is your homework.

POS 282--Introduction to American Law
In class today, Tuesday 4/26, I distributed one handout, an excerpt from the Maine Rules of Civil Procedure (MRCivP) regarding service of process. I went over the final cases in Chapter 4, about the amount in controversy requirement for federal diversity jurisdiction, and then we went over the Salmon and Dorsey textbook cases. We went over the handout through MRCivP 4(d)(1), and then I also talked about two Maine Supreme Court cases, Brown v. Thaler, 2005 ME 75, and Ireland v. Carpenter, 2005 ME 98. The assignment for Thursday 4/28 is to finish reading Chapter 5 of the text, as well as the remainder of the MRCivP handout.

April 21, 2011

POS 359--The Current Supreme Court Term 2011
In class today, Thursday 4/21, I briefly went over yesterday's Supreme Court decision in Sossamon v. Texas, regarding waiver of sovereign immunity. We then went through Ashcroft's Reply Brief, once again labeling the sub-sections of the brief, and also filling in some of the substance within those sections. We also tied some of those arguments in the briefs to questions asked and positions taken during the oral argument. I've already assigned the oral argument in this case, and so review it (looking for where the argument deals specifically with our corner of the case). Other than that, the assignment is to continue working on the previously assigned paper, which is due Thursday 4/28 at the beginning of class.

POS 282--Introduction to American Law
In class today, Thursday 4/21, we went over the Edwards case and the Ruhrgas case from the textbook. I also discussed two Maine Supreme Court cases, Landmark Realty v. Leasure, 2004 ME 85, and Hawley v. Murphy, 1999 ME 127, and one U.S. Supreme Court case, Bowles v. Russell, 551 U.S. 207 (2007). These cases dealt with various aspects of the concept of subject-matter jurisdiction. Next Tuesday I will talk a little about the subject of the last two cases in Chapter 4, the amount in controversy requirement for federal court diversity jurisdiction. The assignment for Tuesday 4/26 is to read in the text pp. 189-204.

April 19, 2011

POS 359--The Current Supreme Court Term
In class today, Tuesday 4/19, the class first did class evaluations. I talked about a case that was being argued in the Court today, American Electric Power v. Connecticut, regarding the ability of states to sue polluters directly under federal common law, rather than relying on enforcement through federal environmental agencies. We went through the labeling of the al-Kidd brief. We will start with the labeling of Ashcroft's Reply Brief on Thursday. If you had any problem finding the Reply Brief through the ABA site, you can access the Reply Brief by looking up the Reply Brief in the Shindler Elevator Company case that got switched with ours, or find it through links through oyez.org or scotusblog.com. The additional reading assignment for Thursday 4/21, is to read the transcript of the oral argument, and highlight those sections of the oral argument that deal with the constitutionality of the Ashcroft policy.

POS 282--Introduction to American Law
In class today, Tuesday4/19, the class did class evaluations. I returned the Flaherty case briefs, together with the Flaherty comment key, and we briefly went over those papers. We then discussed the Bohlander and Karstetter cases, going over both personal jurisdiction and full faith and credit. The assignment for Thursday 4/21 is to read and prepare to discuss pp. 152-171 of the text (skipping over the pages that we've previously covered).

April 14, 2011

POS 359--The Current Supreme Court Term
In class today, Thursday 4/14, I began by going over in more detail the Edmond case, and how it was distinguished from those cases that did allow road checkpoints. We then went through the Ashcroft brief, and put labels on those subparts of the brief that were not labeled; we also sketched in a summary of the substance of the arguments that fit within those subparts. These subparts are the "subissues" that I said would be what I'd be looking for you to discuss in your paper. We then did the same with the beginning of the al-Kidd brief. We got as far as I(A)(1)(a) in that brief. The assignment for Tuesday 4/19 is to finish doing this labeling exercise with the rest of the al-Kidd brief, and to read the Ashcroft reply brief (especially part II(A)) and subject it to the same look for subissues.

POS 282--Introduction to American Law
In class today, Thursday 4/14, I collected the Flaherty briefs, and we went over them. I plan to return them on Tuesday. I then discussed two more cases regarding personal jurisdiction, Commerce Bank v. Dworman, 2004 ME 142, and Tidwell v. Zawacki, 645 F.Supp.2d 7 (D. Me., 2009). The assignment for Tuesday 4/19 is to read in the text pp. 159-165 and 144-148.

April 12, 2011

POS 359--The Current Supreme Court Term--2011

In class today, Tuesday 4/12, I distributed one handout, assignment #3, which is reproduced below. We went over the assignment, highlighting the parts of the al-Kidd case that are not included in the assignment. I also discussed the Whren and Edmond cases, as they are used by both sides of the al-Kidd case. The assignment is to start working on assignment #3, as well as to read the portion of Respondent's brief that deals with the constitutional issue (Part I(A)of the al-Kidd brief).

Assignment #3
Good news! In order to foster a more youthful outlook at the Supreme Court, Congress increased the membership of the Court to ten, and you, because of your outstanding dedication to The Law, have been chosen to be that 10th Justice.

Your first job as a new Justice is to write a part of the Court’s opinion in the Ashcroft v. al-Kidd case. The specific part that you’ve been assigned is a portion of the qualified immunity question: whether an arrest based on a material-witness warrant violates the Fourth Amendment when the purpose of that warrant is for investigation and detention, rather than to secure the testimony of the arrestee at a trial. This discussion is found at Part II (B) of Ashcroft’s brief, Part I (A) of al-Kidd’s brief, and Part II (A) of Ashcroft’s Reply Brief.

Your opinion is not a prediction of the votes; don’t worry about the other Justices, just concentrate on reaching and justifying the decision that you think makes the most sense. Where you cite to the oral argument, you’re looking to the response of the lawyers rather than the viewpoint expressed by the other Justices.

Since this will be your first Supreme Court opinion, here are some guidelines for writing that I want you to observe:
• You should deal specifically with the issues raised by the party that is opposed to your view of the case. What’s wrong with the argument raised by the losers, both in their brief and in the oral argument?
• You should have at least two specific references to each party’s position in the briefs (two for Ashcroft, and two for al-Kidd), with specific reference to the page number of the argument.
• You should have at least two specific references to the oral argument. Your citations to the oral argument transcript should give page and line numbers.
• You should deal specifically with how Whren and Edmond are to be interpreted in light of the present case.
• You should deal with other sub-issues as you locate them in the briefing and the oral argument.

You should use primarily your own words, quoting only in snippets when the particular words of an exchange or a brief are crucial.

Here’s a fictitious example to demonstrate the format that I’m looking for:

This Court rejects al-Kidd’s position that dual-motive arrests can be distinguished from the single-motive arrests that he seeks to forbid. While his brief argues that how the distinction between the two is made is of no concern for this Court (al-Kidd Brief, p. 47), at oral argument he conceded that there is no way (short of an outright admission by a prosecutor) that a fact-finder could ever distinguish these two situations (17:6). We refuse to establish such a charade as a principle of our constitution.

The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday April 28. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.

This due date is the last day of class. If you would like me to return your paper to you, please indicate that on the top of your paper. If you want the paper returned, I will leave your paper in my mailbox in the Political Science Office in 229 N. Stevens on the morning of Thursday May 5.

The paper will not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you identify specific sub-issues, evaluate them, and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.

The work should be entirely your own, with no collaboration, and no plagiarism.

As I write this assignment, the Supreme Court has not yet decided this case; naturally, I hope they don’t decide it before April 28, because that would really complicate the process of evaluating your analysis. But, if they do decide the case before April 28, I will post a modification to the assignment on the blog, as well as e-mail you through the MaineStreet portal. Be sure to check the blog (even if you don’t miss any classes) to see if the old Justices on the Court have written their views before receiving the benefit of your view.

POS 282--Introduction to American Law
In class today, Tuesday 4/12, I distributed one handout, the Maine long-arm statute. I began class by clarifying the Flaherty assignment for Thursday: as for Count II of the Complaint (Section IV of the Opinion), omit this from the Facts, Issues, and Holding of the case brief, but include it in all of the other sections. I then talked about the concept of personal jurisdiction. I contrasted it with subject-matter jurisdiction, and with Conflict of Law Rules. We discussed the ways in which a court may assume jurisdiction over a defendant, including domicile, service of process within the state, consent, and constitutionally sufficient contacts with the forum state. I talked about the Maine case of Connelly v. Doucette, 2006 ME 124, a personal jurisdiction case that was decided on the question of whether the Massachusetts driver could have reasonably anticipated litigation in Maine. We then went over the Maine long-arm statute which I had distributed, detailing the kinds of actions that will subject an out-of-state defendant to personal jurisdiction in Maine. The assignment for Thursday 4/14 is to finish up your Flaherty case briefs, which are due at the beginning of Thursday's class.

April 7, 2011

POS 359--The Current Supreme Court Term 2011
In class today, Thursday 4/7, we went over the dissenting opinion in the 9th Circuit decision in the al-Kidd case. We discussed the different views about both absolute and qualified immunity, as well as going over the Rule 8 pleading issue and the Iqbal case. I also solicited ideas about what exactly should be the writing assignment for the al-Kidd case, and I hope to distribute that assignment next Tuesday. The class assignment for Tuesday 4/12 is to read the petitioner's brief in the U.S. Supreme Court for the al-Kidd case, available through the U.S. Supreme Court website (via the ABA site).


POS 282--Introduction to American Law
In class today , Thursday 4/7, I distributed one handout, the next case brief assignment, which is copied below. We went over the Hubbard case and the Land case from the textbook, and I also gave some background to the assigned Flaherty case. The assignment for Tuesday 4/12 is to begin work on the Flaherty case brief assignment.
Assignment due Thursday, April 14, 2011

The assignment is to do a Case Brief of the case of Flaherty v. Allstate Insurance 2003 ME 72, 822 A.2d 1159 . The case can be found on the website of the Maine Supreme Court.

To access the case, go to
http://www.courts.state.me.us/opinions/supreme/index.html
--select “2003 Opinions”
--select 2003 ME 72, Flaherty v. Allstate Insurance

Do not brief the final issue (Part IV) of the decision, but brief the other issues.

Follow the format from the Sample Briefs that I’ve distributed. Note especially that the Facts, Issues, and Holding are copied and pasted. Whatever you put into the Fact section should appear exactly in your Issue and Holding sections as well. Your Issue and Holding sections should be identical, except that the issue is a question, and the Holding is the answer to that question. Your briefs will be evaluated on the format, as well as the specific content.

Please make two copies of your brief, one to hand in at the beginning of class, and the other for you to have during class for our discussion.

You may e-mail me if you have questions about the brief. The more time that I have to answer your questions, the more likely it is that I can be helpful.

If you cannot be in class on Thursday 4/14, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.

IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.

April 5. 2011

POS 359--The Current Supreme Court Term 2011
In class today, Tuesday 4/5, I first finished going over the Davis oral argument (good faith exception to the exclusionary rule when following precedent). I then discussed yesterday's Arizona Christian School decision (no taxpayer standing to challenge tax credit to religious schools). We began our discussion of the al-Kidd Court of Appeals decision. We went over the three causes of action by al-Kidd, and the Court's disposition of the absolute immunity defense. We will continue with the Court of Appeals decision on Thursday. The additional assignment for Thursday 4/7 is to read the dissenting opinion in that same Court of Appeals.

POS 282--Introduction to American Law
In class today, Tuesday 4/5, we first went over the Apsey case, and discussed retroactive v. prospective application of court decisions. I also reported that the decision in the text was reversed on appeal to the Michigan Supreme Court. We then talked about a recent Maine Supreme Court decision, Guardianship of Jeremiah T., 2009 ME 74, which discussed retroactive v. prospective application of a statutory change in Maine's law regarding termination of a guardianship. We also covered the Strunk case about the absence of precedent. We began a discussion of Conflict of Law rules and the Hubbard case. We will pick up with Hubbard on Thursday. The additional reading for Thursday is to read the Land case on p. 180 of the text. For both cases, prepare for yourself a case brief of the decision to aid in our discussion (not to be handed in).

March 31, 2011

POS 359--The Current Supreme Court Term
In class today, Thursday 3/31, I went over the background and procedural history of the case we're tackling next, Ashcroft v. al-Kidd. I also went over several legal vocabulary terms, such as a "Bivens" action, and Rule "12(b)(2)" and "12(b)(6)" motions to dismiss. At the end of class I also went over yesterday's 5-4 Supreme Court decision in Connick v. Thompson. The assignment for Tuesday 4/5 is to read the Ninth Circuit's decision in the al-Kidd case. That decision can be found through the Lexis/Nexis research site on the Fogler Library website. The citation to the case is 580 F.3d 949. (I'm only assigning the majority decision for Tuesday, but I'll be assigning the dissent next, so feel free to continue to that portion if you have more time on the weekend than you will during the week.)

POS 282--Introduction to American Law
In class today, Thursday 3/31, we finished our discussion of Gonzales v. Raich, including the outcome of the case in the Court of Appeals (after it was remanded for a decision on the substantive due process claim). We discussed also the power distribution questions underlying the Court's decision, including federal v. state power, and the power of the Court v. the power of Congress. I then gave some examples of some of the topics covered in the chapter, talking about Rowe v. N.H. Motor Transport in terms of the supremacy clause and preemption, and the ex-post fact cases of Smith v. Doe (U.S. Supreme Court) and State of Maine v. Letalien (Maine Supreme Court). We discussed the concept of dictum from the Butler case in the text, including the follow-up 1971 U.S.Supreme Court case of Harris v. New York. We left off with with an introduction to the concept of retroactive v. prospective application. The assignment for Tuesday 4/5 is to read and prepare to discuss through p. 143 of the text.

March 29, 2011

POS 359--The Current Supreme Court Term
In class today, Tuesday 3/29, the class voted on which case we should tackle next. The winner was Ashcroft v. Al-Kidd, which was argued on March 2. We then started a discussion of the Davis case regarding the exclusionary rule. We'll continue our discussion of Davis next class. There's no specific additional assignment (beyond what I had already asked you to read in Davis), but we will eventually be reading the parties' briefs and the oral argument in Ashcroft, so feel free to get started on those.

POS 282--Introduction to American Law
In class today, Tuesday 3/29, I distributed one handout, the Maine Rule of Professional Conduct regarding lawyer advertising. We discussed the Pape case, both as decided in Florida, and how the case would come out under the Maine Rules. We began our discussion of Gonzales v. Raich; we will continue with that case on Thursday. The assignment for Thursday 3/31 is to read through p. 136 of the text.

March 24, 2011

POS 359--The Current Supreme Court Term
In class today, Thursday 3/24, we continued talking about the background to, and decision in, the Bryant case. Justice Scalia seemed somewhat disappointed in the outcome of the case. Next week we'll decided which case will be the subject of the next paper for the class. The assignment for Tuesday 3/29 is to read the oral argument in one possible contender for that case, a recent 4th Amendment/exclusionary rule case, Davis v. United States, argued 3/21.

POS 282--Introduction to American Law
In class today, Thursday 3/24, we continued out discussion of the constitutional limits on punitive damages awards. We went over the Johnson case in the text, and I also discussed three U.S. Supreme Court cases: BMW v. Gore; State Farm v. Campbell; (both discussed in the Johnson case)and Philip Morris v. Williams. The assignment for Tuesday 3/29 is to review the Pape case at the end of Chapter 2, and to read pp. 108-121 of Chapter 3 the text.

March 22, 2011

POS 359--The Current Supreme Court Term 2011
In class today, Tuesday 3/22, I handed back the King papers, and we discussed them. I also distributed a paper with my own thoughts about how King should be decided. We then started our discussion of Michigan v. Bryant. We got through the facts of the 2004 Crawford case, and we'll continue with that discussion on Thursday. The assignment for Thursday 3/24 is to read the Michigan v. Bryant decision, if you have not already done so.

POS 282--Introduction to American Law
In class today, 3/22, the class listened to Jim Tierney's talk on nation building. On Thursday, 3/22 we will finish talking about the cases in Chapter 2 of the text (previously assigned).

March 17, 2011

POS 359--The Current Supreme Court Term
In class today, Thursday 3/17, I first went over some more information about Jim Tierney's talks next week. If you are interested in attending the Wednesday talk about law school, he recommended that you read the 1/9/11 article in the NY Times (NYTimes.com) by David Segal entitled "Is Law School a Losing Game", which can be found at the URL:
http://query.nytimes.com/gst/fullpage.html?res=9C02E6DE143DF93AA35752C0A9679D8B63&ref=davidsegal
I collected the Kentucky v.King papers, and we discussed the case. I'm planning on returning those papers on Tuesday. The assignment for Tuesday 3/22 is to read the 2/28 U.S. Supreme court decision in Michigan v. Bryant, including Justice Scalia's dissent.

POS 282--Introduction to American Law
In class today, Thursday 3/17, I first went over some more information about Jim Tierney's talks next week. Rather than a regular class meeting next Tuesday, we will have him talk in our classroom about "Building Legal Infrastructure-in Bosnia and Elsewhere". (This is a change in location from what I announced in class and what was in the poster announcing the talk, which had put the talk in the Schoenberger Lounge).

If you are interested in attending the Wednesday talk about law school, Jim Tierney recommended that you read the 1/9/11 article in the NY Times (NYTimes.com) by David Segal entitled "Is Law School a Losing Game", which can be found at the URL:
http://query.nytimes.com/gst/fullpage.html?res=9C02E6DE143DF93AA35752C0A9679D8B63&ref=davidsegal

In class, we went over the Mobbley and Holland cases, and the Maine statute regarding hindering apprehension. We'll have Jim Tierney's talk on Tuesday, and on Thursday we'll continue with the Johnson punitive damages case, and so the only homework is to review the readings in the rest of Chapter two that were previously assigned.

March 15, 2011

POS 359--The Current Supreme Court Term--2011
In class today, Tuesday 3/15, I distributed one handout, my analysis of the recent Snyder v. Phelps decision. After I made announcements regarding upcoming events and scholarship opportunities,we spent the remainder of the class discussing that decision. The assignment for Thursday 3/17 is to finish the previously-assigned King paper, predicting the outcome of the King exigent circumstances case, as well as discussing how you think that the case should come out. That assignment is due at the beginning of class on Thursday 3/17.

POS 282--Introduction to American Law
In class today, Tuesday 3/15, I returned the exams from before the break, and we went over them. I also distributed one handout, the Maine statute regarding the crime of hindering apprehension. We began our discussion of the Mobbley case. The assignment for Thursday 3/17 is to finish reading Chapter Two of the text.

February 24, 2011

POS 359--The Current Supreme Court Term 2011
In class today, Thursday 2/24, I distributed assignment #2,which is copied below. After going through the assignment, we waded through the beginning of the oral argument, seeing the places in which Farley got sidetracked or into a thicket.The assignment for Tuesday March 15 is to work on the King assignment. I hope you have a fun and safe spring break.


Assignment #2
For this assignment, I would like you to predict the outcome of the Supreme Court case of Kentucky v. King. In addition, I would also like you to write about how you think the case should come out.

The paper should be a minimum of 3 pages long, and no more than 6 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday March 17. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.

The specific assignment regarding the prediction is this: Go Justice-by-Justice and find some indication of how each Justice might vote in this case. (Take a pass for Justice Thomas, who as usual asked no questions). Discuss how the questions asked or the comments made by a Justice may reflect a view of what the outcome should be. Remember that the Court issues two kinds of things: a Judgment (whether the decision of the Kentucky Supreme Court is affirmed or reversed); and an Opinion (the reasoning used to get to the result), Justices may agree on a result (a judgment) without agreeing on an opinion.

Your citations to the oral argument transcript should give page and line numbers. Start out the paper by telling me whether the page numbers from the transcript from which you are working are located on the bottom of the page, or at the top right of the page (so that I can follow the version of the transcript that you are working from).

You should use primarily your own words, quoting only in snippets when the particular words of an exchange are crucial.

The predictive portion of this paper is not intended as a discourse on the history of the case, or a synopsis of the case, or a full legal analysis of the issues in the case--it is intended to be “I think that this Justice will vote this way because of these indications that I find in the oral argument”.

Your prediction should be directed not only to the final vote (for or against King), but also rather to the distinct issues and positions raised by the parties. An important part of the assignment is for you to identify those issues. For this, you will need to be guided by the arguments raised by the parties in their briefs, as well as the assigned Amicus Brief. The issues may include, but are not limited to, questions such as whether “lawful” is the correct legal standard for testing police-created exigent circumstances; does it allow the police too much leeway; if “lawfulness” is accepted as the standard, does it gut the warrant requirement too much; if the Court does not accept the “lawfulness” standard, what standard should it choose for police-created exigencies; does it make any difference whether the knock is a request for consent, rather than just a prelude to kicking the door in; does it make a difference whether the police made a demand for the door to be opened or not.

Here’s a fictitious example to demonstrate the format that I’m looking for:

Justice Thomas raised questions about Drake’s proposed test of overall reasonableness of the search. He asked Drake why kicking down doors isn’t justified, and therefore “reasonable”, as soon as the police smelled the marijuana (25:7) Drake replied that, while the smell of marijuana would supply probable cause for the police to get a warrant, there still has to be an exigent circumstance before the police can enter without a warrant (25:14). Thomas replied that if “reasonableness” is the standard, he doesn’t see why it’s unreasonable to just kick down the door once the police know that there’s marijuana behind the door (26:2). This exchange indicates that Thomas either accepts overall reasonableness as a standard, (and since the police action is reasonable, King loses) or that reasonableness is not a good standard (in which case King also loses). I predict therefore that Thomas will vote against King.

For your own thoughts about how the case should be decided, deal specifically with the issues raised by the party that is opposed to your view of the case. For example, if you think that Kentucky’s position is correct, how do you answer King’s objections that the “lawfulness” standard allows police too much leeway?

You papers will not be graded on the accuracy of the predictions, but rather on how well you support your position by reference to the oral argument. The paper will also not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try used an outline. I encourage you to use the UM writing center to help with your English.

The work should be entirely your own, with no collaboration, and no plagiarism.

As I write this assignment, the Supreme Court has not yet decided this case; naturally, I hope they don’t decide it before March 17, because that would really complicate the process of evaluating a prediction. But, if they do decide the case before March 17 , I will post a modification to the assignment on the blog. Be sure to check the blog (even if you don’t miss any classes) to see if the Court has complicated my life.


POS 282--Introduction to American Law
In class today, Thursday 2/24, the class took Exam #1. I will return the exams, and we will go over them, when we return on Tuesday 3/15. The additional assignment for that day is to read in the text pp. 72-89. Have a fun and safe Spring Break.

February 22,2011

POS 359--The Current Supreme Court Term 2011
In class today, Tuesday 2/22, we first talked about today's oral argument in Bond v. U.S., raising Tenth Amendment and standing issues. We also decided that I would distribute the King assignment on Thursday (2/24) but that it would not be due right away after Spring Break. We then went back to work on the King case. We outlined the U.S. amicus brief, and then tried to clarify the positions staked out in the King brief that did not go to the issue that the U.S. Supreme Court granted cert on. The assignment for Thursday 2/24 is to re-read the oral argument, focusing on the reaction of various Justices to the arguments presented.

POS 282--Introduction to American Law
In class today, Tuesday 2/22, we finished the Gregg case, and then discussed Connecticut v. Doe and Suggs v. Norris. We will have Test #1 on Thursday. Remember that if, for any reason you cannot be in class, contact me as soon as possible to see if a make-up test can be scheduled.

February 17, 2011

POS 359--The Current Supreme Court Term 2011
In class today, Thursday 2/17, we finished going over last part of King's brief, in which Drake argued that acceptance of the "lawfulness" standard would lead down a slippery slope of evasion of the warrant requirement. In our discussion, I also reviewed the cases of Brigham City (2006) and Fisher (2009), as a demonstration of how the slippery slope might operate in successive Supreme Court cases. We did not really get the amicus brief of the U.S., and so we will start with that brief on Tuesday. The additional reading assignment for Tuesday 2/22 is to listen to and read the Supreme Court oral argument in this case, available from the Supreme Court website and from c-span.org.

POS 282--Introduction to American Law
In class today, Thursday 2/17, I began the class by announcing that the first exam in the class will be on Thursday 2/24. The exam will be open-book, open-handout, open-note (but, in each case, only your own). I gave a sample test, with four multiple choice questions. In addition to the multiple choice questions on the exam, there will also be some short answer questions. We went over several concepts that will be important for the exam, including understanding: the holding of the court; court organization; federal jurisdiction; types of authority; treatment of precedent; and citation form for both legislation and court decisions. We then began our discussion of Gregg v. Georgia, going through Justice Stewart's opinion. We will pick up next Tuesday with the dissenting opinions in Gregg, and then also discuss the previously assigned Connecticut v. Doe. The additional assignment for Tuesday 2/22 is to read the remaining case in Chapter 1 of the text, Suggs v. Norris on pp. 54-57.

February 15,2011

POS 359--The Current Supreme Court Term 2011
In class today, Tuesday 2/15, we went over King's brief in Kentucky v. King. We discussed the 1948 Johnson case, the connection between the sound of movement and the destruction of evidence, and the test that King proposed to decide whether evidence should be suppressed when the police actions create an exigency. We left off in the King brief with the discussion of what's wrong with the "lawful action" standard proposed by Kentucky. The assignment for Thursday 2/17 is to read the amicus brief of the United States.

POS 282--Introduction to American Law
In class today, Tuesday 2/15, we went over Lawrence v. Texas. We also discussed the 1986 Bowers case, which Lawrence overruled. The assignment for Thursday 2/17 is to read in the textbook pp. 63-70 (Gregg v. Georgia) and 43-46 (Connecticut v. Doe).

February 10,2011

POS 359--The Current Supreme Court Term
In class today, Thursday 2/10, we went over the Kentucky Supreme Court's decision in the King case. We concentrated on the choice of tests that courts have developed regarding how to judge when evidence obtained by police-created exigencies are admissible. The assignment for Tuesday 2/15 is to read King's (Respondent's) Brief in Kentucky v. King, available from the abanet site via the supremecourt.gov site.

POS 282--Introduction to American Law
In class today, Thursday 2/10, we finished our discussion of the Glucksberg case. We also discussed the concepts of following versus distinguishing precedent. We went over some basic power distribution questions in our legal system, including: the power of the individual to decide things,versus the power of government to dictate what is allowed; the power of the federal government versus the power of state government; and the power of the judiciary versus the power of the legislature (and the executive). The assignment for Tuesday is to read again the Lawrence v. Texas case that was assigned on Tuesday, comparing it to the Glucksberg decision in terms of the characterization of the liberty interest at stake, the analysis of the history of that interest, and the hurdle that must be met (the test) for the constitutionality of the law involved.

February 8, 2011

POS 359--The Current Supreme Court Term
In class today, Tuesday 2/8, I returned the Snyder papers, and we discussed them. I told the class about the opening of the Graton Constitutional Law Essay contest, and we discussed the possible application to the WBC Epic. We went over the context of the Kentucky v.King case, and the kind of issues that are at stake in the case.
The assignment for Thursday 2/10 is to read the opinion of the Kentucky Supreme Court in the case of King v. Commonwealth of Kentucky (as the case was called in the Kentucky Supreme Court). Go to the Fogler library site
http://library.umaine.edu/
Select Indexes & Databases
In “databases a-z” go to “L” and select LexisNexis Academic
The dialogue box for “Easy Search” should appear. In “Look up a Legal Case” /”By Citation” enter the citation: 302 S.W. 3d 649
This should bring up the Opinion for you.
(Remember to use periods in “S.W.3d”)

POS 282--Introduction to American Law
In class today, Tuesday 2/8, I distributed three handouts: the comment key to the Lyman brief, my sample brief of the Glucksberg decision, and an alternate version of Glucksberg issues, together with the Maine statute regarding assisted suicide. I handed back the class's Lyman case briefs, and we went over my comments to the brief. We also discussed the difference between a subjective and an objective test (in determining whether the distress was so severe that no reasonable person could be expected to endure it). We then got back to our discussion of Glucksberg. I went over the two bases of federal trial court jurisdiction. We got as far in Glucksberg as the ways in which the majority distinguished the Cruzan and Casey cases. We will continue with Glucksberg on Thursday. The additional reading for Thursday 2/10 is to read in the text pp. 82-88, Lawrence v. Texas.

February 3, 2011

POS 359--The Current Supreme Court Term -- 2011
In class today I collected the Snyder v. Phelps papers, and we discussed how the case might and should turn out. It is my intent to hand back those papers next Tuesday. The class then voted on which case we should grapple with next. The winner of our vote was Kentucky v. King, argued on January 12, which had the police in hot pursuit of a drug dealer, but then not sure about which door he had ducked into. Finally, I went over three recent Supreme Court decisions: one dealing with liberty interests in a state parole system; one dealing with retaliation against a fiance of an employee who had claimed Title VII sex discrimination; and the last dealing with the power of credit card issuers to raise interest rates without giving specific notice of that rate increase. The assignment for Tuesday 2/8 is to read the Petitioners Brief in the case of Kentucky v. King. The brief can be found through the Supreme Court website/ merits briefs/ online merits briefs (to the abanet site) and scrolling down to Kentucky v. King.

POS 282--Introduction to American Law
In class today, Thursday 2/3, I first apologized for not having completed the grading of the Lyman case briefs. I'll finish them this weekend, and return them on Tuesday. I distributed one handout, my own version of the Lyman brief. We finished our review of the Maine statute (distributed last Thursday) regarding use of force in defense of premises. We then began our discussion of the Glucksberg case, exploring both the methodology of determining whether a give right is "fundamental", and the consequences if the the right does belong in that category. The assignment for Tuesday 2/8 is to re-read Glucksberg in light of today's (hopefully) clarifying explanation of what the Court was doing.

February 1,2011

POS 359--The Current Supreme Court Term
In class today, Tuesday 2/1, we first went over questions regarding the Snyder v. Phelps paper due Thursday. I then discussed some general aspects of the Supreme Court operations, such as the assignment of opinion-writing, and different types of concurring opinions. I then introduced 8 current cases before the Court, and (barring bad weather) the class will vote on Thursday to decide which case to tackle next. The merits briefs for the cases, and the oral arguments,can be accessed via the Supreme Court's site. The cases are (with date of oral argument):
1) October 13--Skinner v. Switzer: the procedural mechanism for how a death-row inmate can try to force the state to test for DNA.
2) November 2--Schwarzenegger v. Entertainment Merchants: whether the First Amendment bars a state from restricting the sale of violent video games to minors.
3) November 3--Arizona Christian School v. Winn: the standing of a taxpayer to challenge an alleged establishment of religion by religious school tax credits, and the legality of such a scheme.
4) December 8--Chamber of Commerce v. Whiting: whether Arizona's law sanctioning employers who hire illegal aliens is preeempted by federal law on the subject.
5) January 11--McIntyre Machinery v. Nicastro: whether a foreign manufacturer is subject to personal jurisdiction in whatever state a consumer has bought their stuff.
6) January 12--Kentucky v. King: Under the Fourth Amendment, whether a warrantless search is allowed under either the "exigent" circumstances or the "hot pursuit" exceptions to the general need for a warrant.
7) January 19--FCC v. AT&T: whether a corporation has "privacy" interests that are protected by the federal Freedom of Information Act.
8 February 22--Bond v. U.S.: whether a person convicted under a federal anti-chemical and biological warfare statute has standing to challenge that federal law as violating the Tenth Amendment.


POS 282--Introduction to American Law
In class today, Tuesday 2/1, I collected the Lyman case briefs, and we spent the class going over them. My intention is to return them on Thursday. The assignment for Thursday 2/3 is to read in the text pp. 28-42.