POS 359--The Current Supreme Court Term 2011
In class today, Thursday 1/27, I distributed one handout, the assignment that is reproduced below. We talked about that assignment, and then about some vocabulary in the Hustler v. Falwell case that may not have been familiar. We discussed the Hustler case, and then went back and continued our look into the Snyder oral argument. Here's the assignment that's due next Thursday 2/3:
Assignment #1
For this assignment, I would like you to trace how the argument of the parties as developed in their legal briefs in Snyder v. Phelps was reflected in the oral argument that was held in the case, and what kind of reception that argument received. I had previously assigned the three briefs of the parties: Snyder’s Brief [S-B] and Reply Brief [S-RB], and the Brief of Phelps (P-B].)
I want you to pick three specific points on which the two parties disagreed in their briefing, and which were the subjects of at least some questioning during the oral argument. At least one of the points should be a point of law (e.g. is this “conduct”, as opposed to “speech”), and at least one should be a question about how a prior case should be either followed, distinguished or extended by the Court.
For each of the three points:
1) identify the position of each side’s argument in the briefing, giving specific page references to that brief;
2) identify where that position was presented in questioning by the Justices during the oral argument, giving specific page and line references to that portion of argument and showing how the Justices involved in the questioning reacted to those positions taken by the parties;
3) discuss what the questions by the Justices seem to indicate about the Justices’ view regarding which side has the better argument in that particular clash between the parties.
Here’s one sample (fictitious) point to demonstrate the format that I’m looking for:
The first point I’ll discuss will be the question of the treatment of Hustler v. Falwell, 485 U.S. 46 (1988).
1) Snyder had argued in his brief that the Hustler case is distinguishable from his case, because that case stands only for the proposition that “parody” is protected by the First Amendment, and the funeral demonstration and the “epic” were not a parody at all, but serious commentary, that was meant by WBC to be taken seriously (S-B, p.31). Furthermore, he argued, there was a specific disclaimer in the magazine that alerted readers to the fact that this “ad” was a parody. (S-B p. 32). Phelps answered that Hustler cannot be distinguished, and should be followed, because that case dealt with the morality of certain conduct, and the signs of the WBC and their epic were also making a point about the morality of our country (P-B, p.4). Snyder replied that Hustler is still different, because the reasoning of that case was that the Court must look to the underlying motivation of the speaker in deciding whether the First Amendment bars the claim, and the motivation of Hustler magazine (poking fun) was far different from the motivation of the WBC (condemning to hell) (S-RB, p.14).
2) At oral argument Justice Thomas asked Summers why Hustler should not apply to this case, since in both cases the state tort action was dependent on a jury finding of the outrageousness of the defendant’s conduct, and that standard was too vague to be acceptable under the First Amendment (37:17). Summers replied that outrageousness was too vague a standard for parody, but not too vague a standard for funerals (37:21) Summers said that a jury is fully capable of judging the outrageousness of conduct at a funeral, regardless of the content of the message (38:3). Justice Thomas then asked whether this case really was about conduct, as opposed to speech, but then other Justices interrupted, and the argument went to other issues (38:15).
3) Justice Thomas’s question, and his comment responding to Summers (“Is that really what we said in Hustler?”) (38:2) indicate that Thomas is skeptical of Summers’ position, and that Thomas is thinking that Hustler should indeed be followed in this case, and that the First Amendment will bar the IIED claim here as it did in that case.
The paper should be a minimum of 2 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 February 3. The paper needs no introduction (“I found Snyder v. Phelps to be an interesting and important case…”). Just launch right into the points that you’ve chosen.
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. In terms of timeliness, any attachment that I cannot open will not be considered received; so the safest course is to copy and paste the paper into your e-mail as well as to attach it.
You papers will be graded on how well you support your position by reference to the briefs and the oral argument. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I encourage you to use the UM writing center to help with your English.
You are not allowed to collaborate with other students. The work should be entirely your own. The only sources you should be consulting are the briefs and the oral argument, and prior cases. See the syllabus regarding plagiarism.
POS 282--Introduction to American Law
In class today, Thursday 1/27, I distributed one handout, the Maine criminal statutes regarding the right to use force in defense of premises and property. We began the class with a discussion of the Lyman v.Huber brief, going over the way to structure the issues and the facts of that case. We then turned to the Katko case, and finished discussing the authority upon which the court relied, its reasoning, the relevance of giving a warning,and the dissenting opinion. Finally we turned to the handout about Maine law. The first thing we did was go over citation form for Maine statutes. We then began looking over how Maine deals with the use of force in defending home and property. The assignment for Tuesday 2/1 is to complete the Lyman case brief that was assigned on Tuesday. Also, read over and prepare to discuss the Maine statute that I distributed today.
Thursday, January 27, 2011
Tuesday, January 25, 2011
January 25, 2011
POS 359--The Current Supreme Court Term
In class today, Tuesday 1/25, we spent most of the class going over the transcript of the oral argument in Snyder v. Phelps. We discussed what the Justices want out of oral argument, what they are getting at with particular questions, and the role of partisanship in questions of the First Amendment. We will continue with that review of the oral argument on Thursday. The additional reading assignment for Thursday 1/27 is to read the Supreme Court's decision in Huster v. Falwell, 485 US 46 (1988). That decision can be found by searching Google for "485 US 46", which will direct you to a number of sites that report the complete text of the case (don't rely on any summaries of the case-read the entire opinion, including the brief concurring opinion).
POS 282--Introduction to American Law
In class today I distributed two handouts; my version of the Katko v. Briney case brief, and the assignment which is reproduced below. We went over the Katko brief, and discussed the method by which the Iowa Supreme Court reached its decision, in terms of primary authority v. secondary authority, mandatory authority v. persuasive authority, and following, distinguishing, and extending precedent. We will finish up our discussion of Katko on Thursday. The assignment below is due next Tuesday 2/1, but the assignment for Thursday 1/27 is to read this Maine case, and write a draft of your case brief, so that we can discuss any stumbling blocks you may be encountering on Thursday. In class, I added a few additional instructions to the assignment: shorten up the causes of action and prior proceeding to quickly go over those portions of the case that did not enter into the Supreme Court decision, and skip entirely the defendant's counterclaim.
Assignment due Tuesday, February 1, 2011
The assignment is to do a Case Brief of the case of Lyman v. Huber, 2010 ME 139, ___ 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
--select “2010 Opinions”
--select 2010 ME 139, Lyman v. Huber
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 Tuesday 2/1, 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.
In class today, Tuesday 1/25, we spent most of the class going over the transcript of the oral argument in Snyder v. Phelps. We discussed what the Justices want out of oral argument, what they are getting at with particular questions, and the role of partisanship in questions of the First Amendment. We will continue with that review of the oral argument on Thursday. The additional reading assignment for Thursday 1/27 is to read the Supreme Court's decision in Huster v. Falwell, 485 US 46 (1988). That decision can be found by searching Google for "485 US 46", which will direct you to a number of sites that report the complete text of the case (don't rely on any summaries of the case-read the entire opinion, including the brief concurring opinion).
POS 282--Introduction to American Law
In class today I distributed two handouts; my version of the Katko v. Briney case brief, and the assignment which is reproduced below. We went over the Katko brief, and discussed the method by which the Iowa Supreme Court reached its decision, in terms of primary authority v. secondary authority, mandatory authority v. persuasive authority, and following, distinguishing, and extending precedent. We will finish up our discussion of Katko on Thursday. The assignment below is due next Tuesday 2/1, but the assignment for Thursday 1/27 is to read this Maine case, and write a draft of your case brief, so that we can discuss any stumbling blocks you may be encountering on Thursday. In class, I added a few additional instructions to the assignment: shorten up the causes of action and prior proceeding to quickly go over those portions of the case that did not enter into the Supreme Court decision, and skip entirely the defendant's counterclaim.
Assignment due Tuesday, February 1, 2011
The assignment is to do a Case Brief of the case of Lyman v. Huber, 2010 ME 139, ___ 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
--select “2010 Opinions”
--select 2010 ME 139, Lyman v. Huber
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 Tuesday 2/1, 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.
Thursday, January 20, 2011
January 20, 2011
POS 359--The Current Supreme Court Term 2011
In class today, Thursday 1/20, we spent most of the class going over the Snyder Reply Brief. We discussed three categories of controversies: factual questions of what happened (was there a disruption of the funeral); questions of the legal requirements for invoking First Amendment limitations on the states' cause of action(does it matter if the plaintiff is a public figure); and questions of the definition of those requirements (e.g., what does it mean to be a matter of "public concern") and whether or not certain behaviors meet that definition.
The assignment for next Tuesday 1/25 consists of three parts:
First, I want you to read (study) the transcript of the oral argument in Snyder v. Phelps. That written transcript is available from the Supreme Court website, selecting "oral arguments", and, under transcripts,then selecting 09-751, Snyder v. Phelps, (October 4-October 13);
Second, I want you to listen to the audio of that argument. You can listen on the Supreme Court's website, or you can get it at www.c-span.org (which also shows pictures of the speakers as they speak). To get the argument on c-span, the easiest path is to just type "Snyder v. Phelps" into the c-span search bar on the top right.
Third, from the c-span site, I want you to watch the interview with Margie Phelps. It will come up as the second result when you search for Snyder v. Phelps. The interview also has Tim Nieman, lawyer for the VFW, and is part of the Washington Journal series. The interview is just under an hour.
Prepare to discuss what issues the Justices seemed concerned by, and whether you could tell what their outlook might be.
POS 282--Introduction to American Law
In class today, Thursday 1/20, we finished going over the AAC case and brief. We then discussed the Bangor and Augusta ordinances, testing the constitutionality of some of their parade provisions against the First Amendment requirements that we identified in the AAC brief. I went over the concept of mandatory v. persuasive authority. I then discussed the case of Sullivan v. Augusta, a First Circuit decision that decided on the constitutionality of a number of provisions in the Augusta parade ordinance.
The assignment for Tuesday 1/25 is to read and write a case brief (not handed in or graded) of Katko v. Briney, p. 47 of the text. Follow the format of the case brief template and the Sample AAC brief that I've already distributed.
In class today, Thursday 1/20, we spent most of the class going over the Snyder Reply Brief. We discussed three categories of controversies: factual questions of what happened (was there a disruption of the funeral); questions of the legal requirements for invoking First Amendment limitations on the states' cause of action(does it matter if the plaintiff is a public figure); and questions of the definition of those requirements (e.g., what does it mean to be a matter of "public concern") and whether or not certain behaviors meet that definition.
The assignment for next Tuesday 1/25 consists of three parts:
First, I want you to read (study) the transcript of the oral argument in Snyder v. Phelps. That written transcript is available from the Supreme Court website, selecting "oral arguments", and, under transcripts,then selecting 09-751, Snyder v. Phelps, (October 4-October 13);
Second, I want you to listen to the audio of that argument. You can listen on the Supreme Court's website, or you can get it at www.c-span.org (which also shows pictures of the speakers as they speak). To get the argument on c-span, the easiest path is to just type "Snyder v. Phelps" into the c-span search bar on the top right.
Third, from the c-span site, I want you to watch the interview with Margie Phelps. It will come up as the second result when you search for Snyder v. Phelps. The interview also has Tim Nieman, lawyer for the VFW, and is part of the Washington Journal series. The interview is just under an hour.
Prepare to discuss what issues the Justices seemed concerned by, and whether you could tell what their outlook might be.
POS 282--Introduction to American Law
In class today, Thursday 1/20, we finished going over the AAC case and brief. We then discussed the Bangor and Augusta ordinances, testing the constitutionality of some of their parade provisions against the First Amendment requirements that we identified in the AAC brief. I went over the concept of mandatory v. persuasive authority. I then discussed the case of Sullivan v. Augusta, a First Circuit decision that decided on the constitutionality of a number of provisions in the Augusta parade ordinance.
The assignment for Tuesday 1/25 is to read and write a case brief (not handed in or graded) of Katko v. Briney, p. 47 of the text. Follow the format of the case brief template and the Sample AAC brief that I've already distributed.
Tuesday, January 18, 2011
January 18, 2011
POS 359--The Current Supreme Court Term 2011
In class today, Tuesday 1/18, I distributed one handout, the Summary of the Argument from the briefs of the ACLU and of 48 of the states. We continued our discussion of Snyder v. Phelps, and I also gave the story for two of the cases that form the background of our case, Gertz and Hepps. The assignment for Thursday 1/20 is to read Snyder's Reply Brief (available through the Supreme Court website) and to read the summaries that I distributed.
POS 282--Introduction to American Law
In class today, Tuesday 1/18, I distributed two handouts; my own sample brief of the AAC case, and excerpts from the Augusta and Bangor parade ordinances. We continued with the briefing of the AAC case, getting up to the issue of the vagueness of the "organized group" section of the Dearborn ordinance. I went over a Supreme Court case, Coates v. Cincinnati, which dealt with whether an ordinance that outlawed behavior that was "annoying" was too vague to pass constitutional muster. The assignment for Thursday 1/20 is to review my AAC brief, and then to examine the Augusta and Bangor ordinances. Be prepared to discuss whether those ordinances meet the standards for constitutionality set up by the Sixth Circuit in the AAC case.
In class today, Tuesday 1/18, I distributed one handout, the Summary of the Argument from the briefs of the ACLU and of 48 of the states. We continued our discussion of Snyder v. Phelps, and I also gave the story for two of the cases that form the background of our case, Gertz and Hepps. The assignment for Thursday 1/20 is to read Snyder's Reply Brief (available through the Supreme Court website) and to read the summaries that I distributed.
POS 282--Introduction to American Law
In class today, Tuesday 1/18, I distributed two handouts; my own sample brief of the AAC case, and excerpts from the Augusta and Bangor parade ordinances. We continued with the briefing of the AAC case, getting up to the issue of the vagueness of the "organized group" section of the Dearborn ordinance. I went over a Supreme Court case, Coates v. Cincinnati, which dealt with whether an ordinance that outlawed behavior that was "annoying" was too vague to pass constitutional muster. The assignment for Thursday 1/20 is to review my AAC brief, and then to examine the Augusta and Bangor ordinances. Be prepared to discuss whether those ordinances meet the standards for constitutionality set up by the Sixth Circuit in the AAC case.
Thursday, January 13, 2011
January 13, 2011
POS 359--The Current Supreme Court Term
In class today, Thursday 1/13, I started by quickly going over two decisions of the Supreme Court released on Tuesday this week, Mayo v. U.S. (social security taxes on medical residency "stipends") and Ranson v. FIA Card Services (the right in bankruptcy to take a car-ownership deduction if the debtor is not making car loan or lease payments). We spent the remainder of the class going over the Snyder Brief. We discussed the threads throughout the brief of the concepts of public/private figure, matters of public concern, actual facts/hyperbole. We went over the use of precedent, involving following, extending, and distinguishing precedent. The assignment for Tuesday 1/18 is to read Phelps' (Respondents') Brief, (available through the Supreme Court website through the same path as you used for the Snyder Brief).
POS 282--Introduction to American Law
In class today, Thursday 1/13, I distributed one handout, a template for our case briefs. We discussed some concepts from the introductory section of Chapter 1, and we also went over both the Federal Court system and the state of Maine Court system. We also covered citation format in the Federal Court system. We discussed the relationship between the Bill of Rights and the 14th Amendment, and briefly talked about the strange history of that amendment. Finally, we started our discussion of the AAC case, using the brief template to discuss the introductory parts of that decision. We got as far as "Prior Proceedings" in the brief. The assignment for Tuesday 1/18 is to finish the AAC brief, using the template explanations to figure out what goes (and, just as importantly, what does not go) in each segment. We will discuss your case briefs on Tuesday, but this assignment will not be handed in or graded.
In class today, Thursday 1/13, I started by quickly going over two decisions of the Supreme Court released on Tuesday this week, Mayo v. U.S. (social security taxes on medical residency "stipends") and Ranson v. FIA Card Services (the right in bankruptcy to take a car-ownership deduction if the debtor is not making car loan or lease payments). We spent the remainder of the class going over the Snyder Brief. We discussed the threads throughout the brief of the concepts of public/private figure, matters of public concern, actual facts/hyperbole. We went over the use of precedent, involving following, extending, and distinguishing precedent. The assignment for Tuesday 1/18 is to read Phelps' (Respondents') Brief, (available through the Supreme Court website through the same path as you used for the Snyder Brief).
POS 282--Introduction to American Law
In class today, Thursday 1/13, I distributed one handout, a template for our case briefs. We discussed some concepts from the introductory section of Chapter 1, and we also went over both the Federal Court system and the state of Maine Court system. We also covered citation format in the Federal Court system. We discussed the relationship between the Bill of Rights and the 14th Amendment, and briefly talked about the strange history of that amendment. Finally, we started our discussion of the AAC case, using the brief template to discuss the introductory parts of that decision. We got as far as "Prior Proceedings" in the brief. The assignment for Tuesday 1/18 is to finish the AAC brief, using the template explanations to figure out what goes (and, just as importantly, what does not go) in each segment. We will discuss your case briefs on Tuesday, but this assignment will not be handed in or graded.
Tuesday, January 11, 2011
January 11, 2011
POS 359--The Supreme Court Term
In class today, Tuesday 1/11, I distributed 4 handouts: the syllabus; a list of the Supreme Court Justices, with some useful websites; selected parts of the U.S. Constitution; and the assignment for Thursday 1/13 (below). We went over the handouts, and spent most of the class discussing the background of the Snyder v. Phelps case.
The assignment for Thursday 1/13 is to read the Petitioner’s (Snyder’s) brief in the case of Snyder v. Phelps (Docket #09-751).
The brief can be accessed by going to the Supreme Court website
http://www.supremecourt.gov/
On the left hand side. Select “Merits Briefs”, and then “On-line Merits Briefs”.
This will take you to the ABA site.
[or you can just go directly to this site]:
http://www.abanet.org/publiced/preview/briefs/oct2010.shtml#snyder
Scroll down alphabetically to Snyder v. Phelps, and then select “Brief for Petitioner Albert Snyder”
POS 282--Introduction to American Law
In class today, Tuesday 1/11, I distributed one handout, the syllabus, which we went over. We spent most of the class discussing the recent Arizona shooting, and the different levels of constitutional law and statutes involved in the case. The assignment for Thursday 1/13 is to read and prepare to discuss through p. 28 of the text.
In class today, Tuesday 1/11, I distributed 4 handouts: the syllabus; a list of the Supreme Court Justices, with some useful websites; selected parts of the U.S. Constitution; and the assignment for Thursday 1/13 (below). We went over the handouts, and spent most of the class discussing the background of the Snyder v. Phelps case.
The assignment for Thursday 1/13 is to read the Petitioner’s (Snyder’s) brief in the case of Snyder v. Phelps (Docket #09-751).
The brief can be accessed by going to the Supreme Court website
http://www.supremecourt.gov/
On the left hand side. Select “Merits Briefs”, and then “On-line Merits Briefs”.
This will take you to the ABA site.
[or you can just go directly to this site]:
http://www.abanet.org/publiced/preview/briefs/oct2010.shtml#snyder
Scroll down alphabetically to Snyder v. Phelps, and then select “Brief for Petitioner Albert Snyder”
POS 282--Introduction to American Law
In class today, Tuesday 1/11, I distributed one handout, the syllabus, which we went over. We spent most of the class discussing the recent Arizona shooting, and the different levels of constitutional law and statutes involved in the case. The assignment for Thursday 1/13 is to read and prepare to discuss through p. 28 of the text.
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