POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 12/14, I distributed one handout, an excerpt from the Maine Rules of Evidence regarding the spousal privilege in Maine. I began with a Maine case about service of process, Brown v. Thaler. We went over the Clement case about abuse of discovery, and Timmermann about Utah's spousal testimonial privilege. Our final exam will be Wednesday 12/19 from 9:30-10:30. If there's bad weather, I'll try to post on this blog any information that I know. If you are missing any handouts, email me prior to Wednesday.
POS 359 FEDERALISM
In class today, Friday 12/14, we finished Medtronic v. Lohr. I then talked about the follow-up to that case, Riegel v. Medtronic, which found broad preemption for medical devices, at least for devices approved under the premarket approval process. We then discussed Geier and Wyeth. We looked also at Justice Thomas' joining and then outdoing the liberals in the last two of these cases. Remember that Assignment #3 is due by noon on Wednesday 12/19, and that you must get a confirmation from me that I have received and can open your paper. Have a good winter break.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 12/14, I handed back the Jardines papers. We then talked about two upcoming Supreme Court 4th amendment cases, both having to do with the state seizing bodily material without a warrant or consent. One has to do with a compelled blood alcohol test, under the theory of exigent circumstances (that the alcohol will dissipate); the other has to do with compelled DNA samples from a person arrested, but not yet convicted.
If you were not in class today, but want your paper back, email me to let me know that. Have a good winter break.
Friday, December 14, 2012
Wednesday, December 12, 2012
December 12, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 12/12, I distributed one handout, an excerpt from the Maine Rules of Civil Procedure about service of process. We finished going over the Gilmore case and the rules about removal to and remand from the federal court system, and then we went on to Chapter 5 and civil procedure. We covered the Dorsey v. Gregg case, and then I went over what the Maine Rules provide for in terms of service of process. We will continue with Chapter 5 and the previously assigned Clement case on Friday. The additional assignment for Friday 12/14 is to read and prepare to discuss through the case of Utah v. Timmermann, through p. 174 of the text. That's how far the exam on Wednesday 12/19 at 9:30 will cover.
POS 359 FEDERALISM
In class today, Wednesday 12/12, I distributed one handout, an article about the state of Vermont's efforts to regulate the Vermont Yankee nuclear power plant. We then went back into the preemption cases, finishing PG&E, and Cipollone. We started our review of Medtronic, going over the liberal and conservative lineups and the basic preemption claim. We will pick up on Friday at part III of Medtronic. I plan to also discuss Greier and Wyeth on Friday. The assignment for Friday 12/14 is to finish reading those cases, and to be working on your paper for Assignment #3, due 12/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/12, we talked about the two gay marriage cases accepted by the Supreme Court last week. We went over the history of the California Prop. 8 case, the possibilities of either a very broad ruling on the merits, a narrow ruling on the merits, or even a narrow ruling on standing. In Windsor, the DOMA case, we talked about the interplay of federalism questions with gay rights issues, as well as both standing issues and jurisdiction issues (the ability of the federal government to be appealing the Court of Appeals decision, when they basically agreed with the merits of the decision that they appealed). On Friday 12/14, I will hand back the Jardines papers, and we will talk about other current Supreme Court issues of interest.
In class today, Wednesday 12/12, I distributed one handout, an excerpt from the Maine Rules of Civil Procedure about service of process. We finished going over the Gilmore case and the rules about removal to and remand from the federal court system, and then we went on to Chapter 5 and civil procedure. We covered the Dorsey v. Gregg case, and then I went over what the Maine Rules provide for in terms of service of process. We will continue with Chapter 5 and the previously assigned Clement case on Friday. The additional assignment for Friday 12/14 is to read and prepare to discuss through the case of Utah v. Timmermann, through p. 174 of the text. That's how far the exam on Wednesday 12/19 at 9:30 will cover.
POS 359 FEDERALISM
In class today, Wednesday 12/12, I distributed one handout, an article about the state of Vermont's efforts to regulate the Vermont Yankee nuclear power plant. We then went back into the preemption cases, finishing PG&E, and Cipollone. We started our review of Medtronic, going over the liberal and conservative lineups and the basic preemption claim. We will pick up on Friday at part III of Medtronic. I plan to also discuss Greier and Wyeth on Friday. The assignment for Friday 12/14 is to finish reading those cases, and to be working on your paper for Assignment #3, due 12/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/12, we talked about the two gay marriage cases accepted by the Supreme Court last week. We went over the history of the California Prop. 8 case, the possibilities of either a very broad ruling on the merits, a narrow ruling on the merits, or even a narrow ruling on standing. In Windsor, the DOMA case, we talked about the interplay of federalism questions with gay rights issues, as well as both standing issues and jurisdiction issues (the ability of the federal government to be appealing the Court of Appeals decision, when they basically agreed with the merits of the decision that they appealed). On Friday 12/14, I will hand back the Jardines papers, and we will talk about other current Supreme Court issues of interest.
Monday, December 10, 2012
December 10, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 12/10, we started with a review of the requirements of federal court jurisdiction, both federal question jurisdiction and diversity jurisdiction. We then went through Kopp and Gebbia, exploring why a party might want to be in a particular court system (state or federal), and the rules that allow diversity jurisdiction and removal jurisdiction. We also talked about legal strategies, and the choices that lawyers need to consider before they bring a case. We started our discussion of Gilmore, setting up the parties, cause of action, and which court system the plaintiff wanted to be in. We will continue with Gilmore on Wednesday, and also discuss the previously assigned Dorsey v. Gregg on p. 161. The additional assignment for Wednesday 12/12/12 is to read and prepare to discuss through p.166 (the Clement case).
POS 359 FEDERALISM
In class today, Monday 12/10, I distributed two handouts: Assignment#3 (reproduced below) and a roundup in the eight Chapter 7 cases that we have and will study of the votes by liberal and conservative Justices. We went over those two handouts. We finished our discussion of West Lynn Creamery, going over the concurring and dissenting opinions. We began our discussion of Pacific Gas and Electric, getting as far as the general preemption argument by PG&E against the California moratorium. We will pick up with PG&E's three specific preemption arguments on Wedesday. The assignment for Wednesday 12/12/12 is to begin work on Assignment#3 (due 12/19) and to begin reading the three additional preemption cases that make up part of the assignment: Medtronic (p.537), Geier (p.546), and Wyeth (p.554).
Assignment #3
For this assignment, I would like you to write a paper about the meaning of “liberal” and “conservative” values regarding federalism in the modern Supreme Court era (post 1937). In our first two papers the questions were about the powers of the federal government, and we saw that the liberal Justices generally favored a more expansive view of the federal power, while the conservatives on the Court were more ready to impose limits on that power. We also saw the liberals more ready to defer to the judgments and policy choices of Congress, and to reject the imposition of categorical tests that excluded some areas of regulation from Congressional power. As an example, in NFIB, Ginsburg interpreted the Commerce Clause and the Necessary and Proper Clause more broadly than did Roberts, argued that deference was due to Congress’ determination, and rejected the distinction between activity versus inactivity.
In the final portion of this federalism class we’ve looked at how the federal power limits the reach of state power, both by the dormant commerce clause (when Congress has not acted), and by preemption (when Congress or federal agencies have acted). While the dormant commerce clause cases follow somewhat the pattern of conservative Justices disfavoring the idea of broad federal power, that pattern seems somewhat to be reversed in the preemption cases. In those cases, the liberals often (but not always) favor the preservation of states rights and remedies at the expense of federal power, while the conservatives often (but not always) favor preemption by federal legislation, and the rejection of state remedies. The broad subject of the third paper is to discuss whether there really are “liberal” and “conservative” values in terms of federalism, and, if so, whether other considerations outweigh federalism questions at times.
Specifically, I would like you to address these topics:
1) Give at least three examples from our readings from Chapter 7 of the text in which the liberals (or at least some of them) have not wanted to limit state remedies or regulation, while the conservatives have wanted to limit them. By “liberals” for the cases we’ve looked at, I mean all the current Democratic presidential nominees (Ginsburg, Breyer, Kagan, and Sotomayor) as well as these Republican presidential appointees who might not have turned out as expected: Blackmun, Stevens, and Souter. Explain the basic issue in each case you’ve chosen, how it pitted federal versus state power, and specify how the vote reflects the pattern that I’ve asked for.
2) For each of your examples, explain as best you can whether it is the principles of federalism that separate liberal versus conservative viewpoints, or whether there is some other consideration that seems more important to the Justices. You might look, for example, at the line-up of the parties in our cases. (In our commerce clause and necessary and proper cases, the line-up was usually the federal government versus a party that was being regulated by Congress. In the dormant commerce clause cases, the line-up was usually the state government versus the party that was being regulated by that state government. How do the parties line up in the preemption cases, and is there any significance to the lineup?) Is deference to Congress a vital factor? Or is the avoidance of categorical labels? Or does something else entirely explain the line-up?
3) Finally, using three examples (which can be, but need not necessarily be, the same as the three cases you’ve discussed above) give your own view about whether the ideal government would support federal or state power in the three specific examples you’ve chosen. For this section, you can, but don’t have to, include the articles we read about such things as fracking and wind power. Should there be exclusive federal regulation, exclusive state regulation, a combination of both, or no regulation at all. Support your answer with specific arguments.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text or article page numbers).
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
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 by noon on Wednesday December 19th. 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.
The paper will be graded on how well you follow the requirements of the assignment. 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.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/10, I collected the Jardines papers, and we spent the class period going over various views of what the issues were and how those issues should get resolved. I also distributed one handout, the list of questions presented in the two gay marriage cases in which the Supreme Court granted cert on Friday. On Wednesday we will continue our discussion of those gay marriage cases. Remember that I would like to be notified by Friday 12/14 if you are planning on writing the optional third paper.
In class today, Monday 12/10, we started with a review of the requirements of federal court jurisdiction, both federal question jurisdiction and diversity jurisdiction. We then went through Kopp and Gebbia, exploring why a party might want to be in a particular court system (state or federal), and the rules that allow diversity jurisdiction and removal jurisdiction. We also talked about legal strategies, and the choices that lawyers need to consider before they bring a case. We started our discussion of Gilmore, setting up the parties, cause of action, and which court system the plaintiff wanted to be in. We will continue with Gilmore on Wednesday, and also discuss the previously assigned Dorsey v. Gregg on p. 161. The additional assignment for Wednesday 12/12/12 is to read and prepare to discuss through p.166 (the Clement case).
POS 359 FEDERALISM
In class today, Monday 12/10, I distributed two handouts: Assignment#3 (reproduced below) and a roundup in the eight Chapter 7 cases that we have and will study of the votes by liberal and conservative Justices. We went over those two handouts. We finished our discussion of West Lynn Creamery, going over the concurring and dissenting opinions. We began our discussion of Pacific Gas and Electric, getting as far as the general preemption argument by PG&E against the California moratorium. We will pick up with PG&E's three specific preemption arguments on Wedesday. The assignment for Wednesday 12/12/12 is to begin work on Assignment#3 (due 12/19) and to begin reading the three additional preemption cases that make up part of the assignment: Medtronic (p.537), Geier (p.546), and Wyeth (p.554).
Assignment #3
For this assignment, I would like you to write a paper about the meaning of “liberal” and “conservative” values regarding federalism in the modern Supreme Court era (post 1937). In our first two papers the questions were about the powers of the federal government, and we saw that the liberal Justices generally favored a more expansive view of the federal power, while the conservatives on the Court were more ready to impose limits on that power. We also saw the liberals more ready to defer to the judgments and policy choices of Congress, and to reject the imposition of categorical tests that excluded some areas of regulation from Congressional power. As an example, in NFIB, Ginsburg interpreted the Commerce Clause and the Necessary and Proper Clause more broadly than did Roberts, argued that deference was due to Congress’ determination, and rejected the distinction between activity versus inactivity.
In the final portion of this federalism class we’ve looked at how the federal power limits the reach of state power, both by the dormant commerce clause (when Congress has not acted), and by preemption (when Congress or federal agencies have acted). While the dormant commerce clause cases follow somewhat the pattern of conservative Justices disfavoring the idea of broad federal power, that pattern seems somewhat to be reversed in the preemption cases. In those cases, the liberals often (but not always) favor the preservation of states rights and remedies at the expense of federal power, while the conservatives often (but not always) favor preemption by federal legislation, and the rejection of state remedies. The broad subject of the third paper is to discuss whether there really are “liberal” and “conservative” values in terms of federalism, and, if so, whether other considerations outweigh federalism questions at times.
Specifically, I would like you to address these topics:
1) Give at least three examples from our readings from Chapter 7 of the text in which the liberals (or at least some of them) have not wanted to limit state remedies or regulation, while the conservatives have wanted to limit them. By “liberals” for the cases we’ve looked at, I mean all the current Democratic presidential nominees (Ginsburg, Breyer, Kagan, and Sotomayor) as well as these Republican presidential appointees who might not have turned out as expected: Blackmun, Stevens, and Souter. Explain the basic issue in each case you’ve chosen, how it pitted federal versus state power, and specify how the vote reflects the pattern that I’ve asked for.
2) For each of your examples, explain as best you can whether it is the principles of federalism that separate liberal versus conservative viewpoints, or whether there is some other consideration that seems more important to the Justices. You might look, for example, at the line-up of the parties in our cases. (In our commerce clause and necessary and proper cases, the line-up was usually the federal government versus a party that was being regulated by Congress. In the dormant commerce clause cases, the line-up was usually the state government versus the party that was being regulated by that state government. How do the parties line up in the preemption cases, and is there any significance to the lineup?) Is deference to Congress a vital factor? Or is the avoidance of categorical labels? Or does something else entirely explain the line-up?
3) Finally, using three examples (which can be, but need not necessarily be, the same as the three cases you’ve discussed above) give your own view about whether the ideal government would support federal or state power in the three specific examples you’ve chosen. For this section, you can, but don’t have to, include the articles we read about such things as fracking and wind power. Should there be exclusive federal regulation, exclusive state regulation, a combination of both, or no regulation at all. Support your answer with specific arguments.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text or article page numbers).
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
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 by noon on Wednesday December 19th. 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.
The paper will be graded on how well you follow the requirements of the assignment. 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.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/10, I collected the Jardines papers, and we spent the class period going over various views of what the issues were and how those issues should get resolved. I also distributed one handout, the list of questions presented in the two gay marriage cases in which the Supreme Court granted cert on Friday. On Wednesday we will continue our discussion of those gay marriage cases. Remember that I would like to be notified by Friday 12/14 if you are planning on writing the optional third paper.
Friday, December 7, 2012
December 7, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 12/7, we finished our discussion of Robey, and I also talked about the appeal of that decision to the Kentucky Supreme Court. I then went over three Maine cases dealing with personal jurisdiction: Connelly v. Doucette, Commerce Bank v. Dworman, and Tidwell v. Zawacki. We will continue with federal diversity jurisdiction on Monday with Kopp and Gebbia (previously assigned). The assignment for Monday 12/10 is to read in the text pp 143-150 (Gilmore; we've already covered Land, p. 146) and 153-162 (Dorsey); skip Salmon, p. 155. In short, the only two new cases assigned are Gilmore and Dorsey.
POS 359 FEDERALISM
In class today, Friday 12/7, I distributed one handout, a description of the Maine Milk Commission and an excerpt from the Federal Register regarding Maine's status under federal milk price controls. We finished our discussion of solid waste regulation by looking at how Maine attempted to work around the Philadelphia v. N.J. opinion. We then discussed Tyler Pipe (p. 506), spending most of our time going over Justice Scalia'a dissent. We started West Lynn Creamery (p. 509), getting through Justice Stevens' opinion. We will pick up with the concurrence and the dissent next Monday. The assignment for Monday 12/10 is to read and prepare to discuss pp. 523-537.
POS 359 THE CURRENT SUPREME COURT TERM
IN class today, Friday 12/7, I distributed two handouts: an article about the Maine resident who recruited plaintiffs in the race cases of Fisher and Shelby County, and an article by Tom Goldstein about the strategies involved in deciding whether to bring a particular issue to the Court at a particular time (in this case, gay marriage). We then talked about the significance of Baker v. Nelson for the decision regarding the appropriate level of review for gay marriage recognition. The assignment for Monday 12/10 is to finish work on your Jardines papers, which are due at the beginning of Monday's class.
In class today, Friday 12/7, we finished our discussion of Robey, and I also talked about the appeal of that decision to the Kentucky Supreme Court. I then went over three Maine cases dealing with personal jurisdiction: Connelly v. Doucette, Commerce Bank v. Dworman, and Tidwell v. Zawacki. We will continue with federal diversity jurisdiction on Monday with Kopp and Gebbia (previously assigned). The assignment for Monday 12/10 is to read in the text pp 143-150 (Gilmore; we've already covered Land, p. 146) and 153-162 (Dorsey); skip Salmon, p. 155. In short, the only two new cases assigned are Gilmore and Dorsey.
POS 359 FEDERALISM
In class today, Friday 12/7, I distributed one handout, a description of the Maine Milk Commission and an excerpt from the Federal Register regarding Maine's status under federal milk price controls. We finished our discussion of solid waste regulation by looking at how Maine attempted to work around the Philadelphia v. N.J. opinion. We then discussed Tyler Pipe (p. 506), spending most of our time going over Justice Scalia'a dissent. We started West Lynn Creamery (p. 509), getting through Justice Stevens' opinion. We will pick up with the concurrence and the dissent next Monday. The assignment for Monday 12/10 is to read and prepare to discuss pp. 523-537.
POS 359 THE CURRENT SUPREME COURT TERM
IN class today, Friday 12/7, I distributed two handouts: an article about the Maine resident who recruited plaintiffs in the race cases of Fisher and Shelby County, and an article by Tom Goldstein about the strategies involved in deciding whether to bring a particular issue to the Court at a particular time (in this case, gay marriage). We then talked about the significance of Baker v. Nelson for the decision regarding the appropriate level of review for gay marriage recognition. The assignment for Monday 12/10 is to finish work on your Jardines papers, which are due at the beginning of Monday's class.
Wednesday, December 5, 2012
December 5, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 11/5 the class first did evaluations. We then started our discussion of personal jurisdiction. We discussed personal jurisdiction by domicile, by service within the state, and by consent of the defendant. We began our discussion of Robey v. Hinners, getting as far as the second issue in the case. We will finish Robey on Friday. The additional assignment for Friday 12/7 is to read through p. 142 of the text.
POS 359 FEDERALISM
In class today, Wednesday 12/5, I distributed one handout, Maine's statute regarding the importation of out-of-state solid waste. We discussed the explicit restrictions in the constitution on state powers, and then the implicit restrictions. We made our way through Philadelphia v. N.J., the Maine statute, and began talking about the ways that Maine tried to respond to that decision. We will begin on Friday with two questions left over at the end of today's class: were the Philadelphia v. N.J. dissenters environmental heroes, and how else could Maine react to that decision, in addition to restricting the size of landfills. The assignment for Friday 12/7 is to read through p. 512 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/5, I distributed one handout, the optional assignment #3, which is reproduced below. We talked about the legal history of gay rights, including criminalization of gay sex, discrimination against gays, and gay marriage. We went over the levels of judicial scrutiny (rational basis, strict scrutiny, etc.) and how the various institutional power relationship questions (federalism, individual rights, separation of powers) are involved in cases like Windsor. We will pick up on Friday with the question of whether the ways of distinguishing Baker v. Nelson logically dictate a different result from the one in that case. The assignment is to continue working on the Jardines paper, due Monday 12/10.
Assignment #3 (OPTIONAL)
SPECIAL INSTRUCTIONS:
IF YOU CHOOSE TO DO THE OPTIONAL ASSIGNMENT, PLEASE NOTIFY ME OF THAT CHOICE THROUGH E-MAIL BY FRIDAY DECEMBER 14TH. IF YOU DON’T E-MAIL, I’LL ASSUME THAT YOU’RE NOT PLANNING ON DOING THE OPTIONAL PAPER.
For this assignment, I would like you to write a paper about the constitutionality of the Federal Defense of Marriage Act (DOMA), as that issue was interpreted by both the majority and the dissenting opinions in the recent Second Circuit decision in Windsor v. United States. You can access that case by going to
http://www.ca2.uscourts.gov/opinions.htm
and then in the dialogue box labeled
“Docket #, Date, Party Name or find decisions that contain:”
enter
Windsor v. United States.
Here is what I would like you to do:
1) Summarize the positions of both the majority and the dissenting opinions. Be specific in you summary. Include every issue and sub-issue dealt with in those opinions, and how the writer reached their conclusion. Use the organizing outline provided in each opinion.
2) How do or would the majority and the dissent demonstrate that their opposite number has it wrong? Be clear about the clash between the different positions taken. Also go over those issues in which there is not a clash because the two opinions see different questions that need to be answered.
3) Finally, give you own view about whether section 3 of DOMA is constitutional. Include your view about the effect of Baker v. Nelson, the correct standard of review, and then the analysis under that standard. Support your answer with specific arguments. 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 side?
I’m not looking for an introduction to the case -- that is assumed. Just get right to the three sections I’ve requested.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use slip opinion page numbers and line numbers for Windsor, and just names for any other cases).
Here’s a fictitious example to demonstrate the format that I’m looking for:
I believe that the correct standard of review is rational basis review. While the majority opinion settles on intermediate scrutiny (Majority, 34:7), I think that this is not the correct standard of review. Homosexuals may have, in the past, suffered from a great deal of discrimination, but the Supreme Court at that time apparently did not think that homosexuals were a protected minority (Baker v. Nelson). Today, however, there is widespread acceptance of homosexuals and homosexual rights. The fact that a number of states now recognize gay marriage, even through popular vote as in the November 2012 elections, demonstrates that homosexuals are no longer subject to the kind of discrimination that calls for elevated scrutiny.
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 by noon on Wednesday December 19th. 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. Also e-mail me by that date if you have previously indicated that you plan to do the optional paper, but have changed your mind.
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 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.
In class today, Wednesday 11/5 the class first did evaluations. We then started our discussion of personal jurisdiction. We discussed personal jurisdiction by domicile, by service within the state, and by consent of the defendant. We began our discussion of Robey v. Hinners, getting as far as the second issue in the case. We will finish Robey on Friday. The additional assignment for Friday 12/7 is to read through p. 142 of the text.
POS 359 FEDERALISM
In class today, Wednesday 12/5, I distributed one handout, Maine's statute regarding the importation of out-of-state solid waste. We discussed the explicit restrictions in the constitution on state powers, and then the implicit restrictions. We made our way through Philadelphia v. N.J., the Maine statute, and began talking about the ways that Maine tried to respond to that decision. We will begin on Friday with two questions left over at the end of today's class: were the Philadelphia v. N.J. dissenters environmental heroes, and how else could Maine react to that decision, in addition to restricting the size of landfills. The assignment for Friday 12/7 is to read through p. 512 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/5, I distributed one handout, the optional assignment #3, which is reproduced below. We talked about the legal history of gay rights, including criminalization of gay sex, discrimination against gays, and gay marriage. We went over the levels of judicial scrutiny (rational basis, strict scrutiny, etc.) and how the various institutional power relationship questions (federalism, individual rights, separation of powers) are involved in cases like Windsor. We will pick up on Friday with the question of whether the ways of distinguishing Baker v. Nelson logically dictate a different result from the one in that case. The assignment is to continue working on the Jardines paper, due Monday 12/10.
Assignment #3 (OPTIONAL)
SPECIAL INSTRUCTIONS:
IF YOU CHOOSE TO DO THE OPTIONAL ASSIGNMENT, PLEASE NOTIFY ME OF THAT CHOICE THROUGH E-MAIL BY FRIDAY DECEMBER 14TH. IF YOU DON’T E-MAIL, I’LL ASSUME THAT YOU’RE NOT PLANNING ON DOING THE OPTIONAL PAPER.
For this assignment, I would like you to write a paper about the constitutionality of the Federal Defense of Marriage Act (DOMA), as that issue was interpreted by both the majority and the dissenting opinions in the recent Second Circuit decision in Windsor v. United States. You can access that case by going to
http://www.ca2.uscourts.gov/opinions.htm
and then in the dialogue box labeled
“Docket #, Date, Party Name or find decisions that contain:”
enter
Windsor v. United States.
Here is what I would like you to do:
1) Summarize the positions of both the majority and the dissenting opinions. Be specific in you summary. Include every issue and sub-issue dealt with in those opinions, and how the writer reached their conclusion. Use the organizing outline provided in each opinion.
2) How do or would the majority and the dissent demonstrate that their opposite number has it wrong? Be clear about the clash between the different positions taken. Also go over those issues in which there is not a clash because the two opinions see different questions that need to be answered.
3) Finally, give you own view about whether section 3 of DOMA is constitutional. Include your view about the effect of Baker v. Nelson, the correct standard of review, and then the analysis under that standard. Support your answer with specific arguments. 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 side?
I’m not looking for an introduction to the case -- that is assumed. Just get right to the three sections I’ve requested.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use slip opinion page numbers and line numbers for Windsor, and just names for any other cases).
Here’s a fictitious example to demonstrate the format that I’m looking for:
I believe that the correct standard of review is rational basis review. While the majority opinion settles on intermediate scrutiny (Majority, 34:7), I think that this is not the correct standard of review. Homosexuals may have, in the past, suffered from a great deal of discrimination, but the Supreme Court at that time apparently did not think that homosexuals were a protected minority (Baker v. Nelson). Today, however, there is widespread acceptance of homosexuals and homosexual rights. The fact that a number of states now recognize gay marriage, even through popular vote as in the November 2012 elections, demonstrates that homosexuals are no longer subject to the kind of discrimination that calls for elevated scrutiny.
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 by noon on Wednesday December 19th. 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. Also e-mail me by that date if you have previously indicated that you plan to do the optional paper, but have changed your mind.
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 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.
Monday, December 3, 2012
December 3, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 12/3, I handed back the Quirion case briefs, as well as the key to my comments, and we went over that case brief. We then finished the Cheap Escape case and the concept of subject matter jurisdiction. We will start with Robey (p. 130) and personal jurisdiction on Wednesday. The additional assignment for Wednesday 12/5 is to read through p. 140 of the text.
POS 359 FEDERALISM
In class today, Monday 12/3, the class first did evaluations. Then I distributed one handout, an article about the history of the Norridgewock dump, which talks about the history of Maine waste disposal rules after the Philadelphia v. N.J. Supreme Court decision. We finished going over the articles about fracking and wind turbines, touching along the way on the takings clause, not-in-my-backyard issues, local control, unpasteurized milk, bias in "scientific" studies, and, above all, money. On Wednesday 12/5 we will continue with the Philadelphia v. N.J. and Tyler Pipe Supreme Court decisions, previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/3, the class first did evaluations. We then discussed the due date for assignment #2. I decided to change the original due date. The new due date for assignment #2 is Monday 12/10. I also went over the lack of a decision by the Supreme Court on which, if any, gay marriage case they will accept for review. The Court seems to be ignoring the needs of our semester calendar. I will therefore just pick a gay marriage case assignment for the optional third paper, and hope that the Court follows my lead. We then went over four cases discussing the concept that the subjective motivation of the police is not relevant to the reasonableness of their actions: Whren v. U.S., Brigham City v. Stuart, Michigan v, Fisher, and Kentucky v, King. The assignment for Wednesday 12/5 is to continue work on your Jardines paper, now due Monday 12/10.
In class today, Monday 12/3, I handed back the Quirion case briefs, as well as the key to my comments, and we went over that case brief. We then finished the Cheap Escape case and the concept of subject matter jurisdiction. We will start with Robey (p. 130) and personal jurisdiction on Wednesday. The additional assignment for Wednesday 12/5 is to read through p. 140 of the text.
POS 359 FEDERALISM
In class today, Monday 12/3, the class first did evaluations. Then I distributed one handout, an article about the history of the Norridgewock dump, which talks about the history of Maine waste disposal rules after the Philadelphia v. N.J. Supreme Court decision. We finished going over the articles about fracking and wind turbines, touching along the way on the takings clause, not-in-my-backyard issues, local control, unpasteurized milk, bias in "scientific" studies, and, above all, money. On Wednesday 12/5 we will continue with the Philadelphia v. N.J. and Tyler Pipe Supreme Court decisions, previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/3, the class first did evaluations. We then discussed the due date for assignment #2. I decided to change the original due date. The new due date for assignment #2 is Monday 12/10. I also went over the lack of a decision by the Supreme Court on which, if any, gay marriage case they will accept for review. The Court seems to be ignoring the needs of our semester calendar. I will therefore just pick a gay marriage case assignment for the optional third paper, and hope that the Court follows my lead. We then went over four cases discussing the concept that the subjective motivation of the police is not relevant to the reasonableness of their actions: Whren v. U.S., Brigham City v. Stuart, Michigan v, Fisher, and Kentucky v, King. The assignment for Wednesday 12/5 is to continue work on your Jardines paper, now due Monday 12/10.
Friday, November 30, 2012
November 30, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 11/30, I collected the Quirion case briefs, and we went over them. I plan to return them on Monday. We again began the Cheap Escape case, getting through the set-up of the case. We will continue with the issues in that case on Monday. The assignment for Monday 12/3 is to re-read Cheap Escape and Robey (both previously assigned) and prepare a case brief of those cases (not to be handed in) so that we can efficiently discuss them.
POS 359 FEDERALISM
In class today, Friday 11/30 we continued going over the assigned articles. We finished up the Robertson article, and then discussed the Spence article on federal and state regulation of fracking. We will finish up the articles about local control of fracking, and wind turbine health and economic effects on Monday. The addition reading for Monday 12/3 is to read and prepare to discuss pp. 497-509 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/30, I distributed three handouts: Assignment #2 (below), an article about Chief Justice Roberts and changing personnel in the executive branch and on the Court, and an article about the Supreme Court options regarding the various gay marriage cases that they were considering today. We went over the requirements for the assignment. I then went over the case of Florida v. Riley, the helicopter "search" case, and the four different views that it generated. The assignment for Monday 12/3 is to begin work on the Jardines paper.
Assignment #2 Supreme Court
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 Associate Justice is to write a part of the Court’s opinion in the Jardines case. You have been spared the tedium of writing the Introduction to the case; your job is to write only the Discussion.
There are a number of issues and sub-issues generated by the case. The ultimate issue in Jardines is whether the dog sniff here constituted a “search”, so that’s not what I mean by the “issue”. I mean distinct questions that will lead to and be part of the resolution of that ultimate issue.
Here’s an example of what I mean by “issue” and “sub-issue”:
ISSUE:
Is there a reasonable expectation of privacy in contraband in this case?
SUB-ISSUES:
a) Does the expectation differ based on whether there’s been a “seizure” prior to the “search”?
b) Does the expectation differ based on whether the contraband is at the suspect’s home?
c) Does the expectation differ based on whether there’s at least “reasonable suspicion” to conduct a search, as opposed to just a hunch, or even no suspicion?
d) Is the whole concept of “no reasonable expectation of privacy in contraband” is simply circular, (meaning that you can’t be sure that you’re going to find drugs until you’ve searched and found them, and so you can’t justify a search based on your certainty of knowing what you’ll find.
Your assignment is to
1) identify at least two issues, (which can include the example above) together with whatever number of sub-issues have been generated within that issue, and, after clearly stating the issues and sub-issues,
2) discuss how, in your view, those issues and sub-issues should properly be resolved.
Here are some guidelines for that discussion that I want you to observe:
• You will need to discuss the relevant prior cases that are discussed in the Florida Supreme Court opinion, as well as referenced in the oral argument.
• 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 opposite position?
• 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 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:
The next sub-issue that I will discuss is whether the whole concept of “no reasonable expectation of privacy in contraband” is simply circular. This objection was raised by Justice Kennedy (3:23) and Justice Sotomayor (4:18). They are incorrect. A trained narcotics detection dog does indeed only alert to one stimulus: the forbidden drug. The idea behind the 4th Amendment protection is to forbid the government from rummaging through protected spheres (persons, houses, papers, and effects), in an effort to see if the government can come up with something incriminating. The difference is that dog sniffs only reveal that which is illegal. Furthermore, if the whole concept were circular, then Place, Edmund and Caballes would have been wrongly decided.
Regarding citation form, you can cite U.S. Supreme Court opinions just by their name. If you cite the Florida Supreme Court opinion, tell me whether you're citing the majority opinion, the concurring opinion, or the dissenting opinion.
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 class on Friday December 7th. If you cannot be in class on Friday, you should e-mail the paper to me by the beginning of class. 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 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.
In class today, Friday 11/30, I collected the Quirion case briefs, and we went over them. I plan to return them on Monday. We again began the Cheap Escape case, getting through the set-up of the case. We will continue with the issues in that case on Monday. The assignment for Monday 12/3 is to re-read Cheap Escape and Robey (both previously assigned) and prepare a case brief of those cases (not to be handed in) so that we can efficiently discuss them.
POS 359 FEDERALISM
In class today, Friday 11/30 we continued going over the assigned articles. We finished up the Robertson article, and then discussed the Spence article on federal and state regulation of fracking. We will finish up the articles about local control of fracking, and wind turbine health and economic effects on Monday. The addition reading for Monday 12/3 is to read and prepare to discuss pp. 497-509 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/30, I distributed three handouts: Assignment #2 (below), an article about Chief Justice Roberts and changing personnel in the executive branch and on the Court, and an article about the Supreme Court options regarding the various gay marriage cases that they were considering today. We went over the requirements for the assignment. I then went over the case of Florida v. Riley, the helicopter "search" case, and the four different views that it generated. The assignment for Monday 12/3 is to begin work on the Jardines paper.
Assignment #2 Supreme Court
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 Associate Justice is to write a part of the Court’s opinion in the Jardines case. You have been spared the tedium of writing the Introduction to the case; your job is to write only the Discussion.
There are a number of issues and sub-issues generated by the case. The ultimate issue in Jardines is whether the dog sniff here constituted a “search”, so that’s not what I mean by the “issue”. I mean distinct questions that will lead to and be part of the resolution of that ultimate issue.
Here’s an example of what I mean by “issue” and “sub-issue”:
ISSUE:
Is there a reasonable expectation of privacy in contraband in this case?
SUB-ISSUES:
a) Does the expectation differ based on whether there’s been a “seizure” prior to the “search”?
b) Does the expectation differ based on whether the contraband is at the suspect’s home?
c) Does the expectation differ based on whether there’s at least “reasonable suspicion” to conduct a search, as opposed to just a hunch, or even no suspicion?
d) Is the whole concept of “no reasonable expectation of privacy in contraband” is simply circular, (meaning that you can’t be sure that you’re going to find drugs until you’ve searched and found them, and so you can’t justify a search based on your certainty of knowing what you’ll find.
Your assignment is to
1) identify at least two issues, (which can include the example above) together with whatever number of sub-issues have been generated within that issue, and, after clearly stating the issues and sub-issues,
2) discuss how, in your view, those issues and sub-issues should properly be resolved.
Here are some guidelines for that discussion that I want you to observe:
• You will need to discuss the relevant prior cases that are discussed in the Florida Supreme Court opinion, as well as referenced in the oral argument.
• 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 opposite position?
• 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 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:
The next sub-issue that I will discuss is whether the whole concept of “no reasonable expectation of privacy in contraband” is simply circular. This objection was raised by Justice Kennedy (3:23) and Justice Sotomayor (4:18). They are incorrect. A trained narcotics detection dog does indeed only alert to one stimulus: the forbidden drug. The idea behind the 4th Amendment protection is to forbid the government from rummaging through protected spheres (persons, houses, papers, and effects), in an effort to see if the government can come up with something incriminating. The difference is that dog sniffs only reveal that which is illegal. Furthermore, if the whole concept were circular, then Place, Edmund and Caballes would have been wrongly decided.
Regarding citation form, you can cite U.S. Supreme Court opinions just by their name. If you cite the Florida Supreme Court opinion, tell me whether you're citing the majority opinion, the concurring opinion, or the dissenting opinion.
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 class on Friday December 7th. If you cannot be in class on Friday, you should e-mail the paper to me by the beginning of class. 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 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.
Wednesday, November 28, 2012
November 28, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 11/28, we first went over some questions about the Quirion case brief due Friday, mainly having to do with the reminder that some parts of the brief are different when the opinion is that of a trial court, rather than an appellate court. We then finished up our discussion of Full Faith and Credit, comparing and contrasting the decisions in Finstuen and Adar, and figuring out as much as we can in terms of how Maine's statute would deal with issuing new birth certificates to out-of-state adoptions by gay and lesbian couples. We moved on to Chapter 4 and the concept of subject-matter jurisdiction. We looked at two cases, Landmark Realty v. Leasure from the Maine Supreme Court, and Bowles v. Russell from the U.S. Supreme Court, that took contrary positions regarding the definition of what constitutes subject-matter jurisdiction. We began laying out what happened in the Cheap Escape case, and will continue with that case on Friday. The assignment for Friday 11/30 is 1) finish the Quirion case brief, due at the beginning of class, 2) review Cheap Escape, and 3)read and prepare to discuss Robey v. Hinners, through p. 134 of the text.
POS 359 FEDERALISM
In class today, Wednesday 11/28, I distributed three handouts: one more news article about fracking, and two news articles about wind power in Maine. We continued our discussion of the Robertson article, concentrating on concepts such as competition between states, states rights, antagonism toward business collusion, no-man's land in regulation, and corporate campaign contributions. We also watched competition in action by playing the gas station price game. We will continue on Friday with a discussion of fracking, wind power, and federalism, taken from the handouts, which you should read and prepare to discuss.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 11/28, we continued analyzing the oral argument to tease out the distinct issues that were raised. I then took one of those issues, whether there is a trespass in this case, and looked at the decision earlier this year in the case of Jones v. U.S.. In that case, the Court unanimously held that the government's use of a GPS device constituted a search, but the Court was deeply divided about why this was a search. They did not reach the additional question of whether this search required probable cause (as opposed to reasonable suspicion) and, if probable cause is required, whether a warrant is required. I plan to distribute the Jardines assignment on Friday, with the paper due on Friday 12/7. The assignment for Friday 11/30 is to reread the oral argument, and also to take the list of issues that we've generated and to form them into a more coherent list that can be used as issues that a Justice might confront in writing a decision in Jardines.
In class today, Wednesday 11/28, we first went over some questions about the Quirion case brief due Friday, mainly having to do with the reminder that some parts of the brief are different when the opinion is that of a trial court, rather than an appellate court. We then finished up our discussion of Full Faith and Credit, comparing and contrasting the decisions in Finstuen and Adar, and figuring out as much as we can in terms of how Maine's statute would deal with issuing new birth certificates to out-of-state adoptions by gay and lesbian couples. We moved on to Chapter 4 and the concept of subject-matter jurisdiction. We looked at two cases, Landmark Realty v. Leasure from the Maine Supreme Court, and Bowles v. Russell from the U.S. Supreme Court, that took contrary positions regarding the definition of what constitutes subject-matter jurisdiction. We began laying out what happened in the Cheap Escape case, and will continue with that case on Friday. The assignment for Friday 11/30 is 1) finish the Quirion case brief, due at the beginning of class, 2) review Cheap Escape, and 3)read and prepare to discuss Robey v. Hinners, through p. 134 of the text.
POS 359 FEDERALISM
In class today, Wednesday 11/28, I distributed three handouts: one more news article about fracking, and two news articles about wind power in Maine. We continued our discussion of the Robertson article, concentrating on concepts such as competition between states, states rights, antagonism toward business collusion, no-man's land in regulation, and corporate campaign contributions. We also watched competition in action by playing the gas station price game. We will continue on Friday with a discussion of fracking, wind power, and federalism, taken from the handouts, which you should read and prepare to discuss.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 11/28, we continued analyzing the oral argument to tease out the distinct issues that were raised. I then took one of those issues, whether there is a trespass in this case, and looked at the decision earlier this year in the case of Jones v. U.S.. In that case, the Court unanimously held that the government's use of a GPS device constituted a search, but the Court was deeply divided about why this was a search. They did not reach the additional question of whether this search required probable cause (as opposed to reasonable suspicion) and, if probable cause is required, whether a warrant is required. I plan to distribute the Jardines assignment on Friday, with the paper due on Friday 12/7. The assignment for Friday 11/30 is to reread the oral argument, and also to take the list of issues that we've generated and to form them into a more coherent list that can be used as issues that a Justice might confront in writing a decision in Jardines.
Monday, November 26, 2012
November 26, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today. Monday 11/26, I distributed two handouts: an addendum to Assignment #2 (copied below) and the Maine statutes regarding adoption and birth certificates. We went through the Finstuen case and I also talked about a more recent case that dealt with the same subject, Adar v. Smith. We began looking at the Maine adoption statute regarding adoption by unmarried couples. We will pick up with the Maine birth certificate statute on Wednesday. The assignment for Wednesday 11/28 is to work on the assigned case brief (as amended), read and prepare to discuss the Maine statute distributed today, and review the Cheap Escape case (previously assigned).
Assignment #2 Addendum
In the Quirion case brief, in the Issues, Facts, and Holding sections, I want you to include not only the Facts that support the winning side, but also those Facts that tell what the losing side’s Facts were. Do this with a parenthetical that starts the loser’s Facts with the phrase “even though…”
Here’s an example of the format that I’m asking for (as an Issue):
Under the rules for briefing cases in POS 282, [under what law]
does the Fact section have to include the losing side’s Facts [legal question]
when [transition to Facts]
the 11/26 Addendum made that format mandatory [key Facts for winning side]
(even though the original assignment said nothing about that requirement)? [losing side’s Facts]
Remember that the Legal Question is (usually) copied from the Appellant’s Contention, the Facts you’ve put into the Issue are copied and pasted into the Facts segment, and the Holding is copied and pasted from the Issue, simply changing the question into a statement.
POS 359 FEDERALISM
In class today. Monday 11/26, I first handed back the Commerce Clause papers, and we briefly went over them. I also distributed an article concerning the regulation of fracking. We then started our discussion of federalism and the economy, talking about the Robertson article. We went over the ways in which both corporations and individuals are dependent on government to provide a structure that enables there to be economic activity as we know it, as well as to mitigate some results of that economic system. The assignment for Wednesday 11/28 is to review the Robertson article, and also to read the fracking article.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/26, we started going through the oral argument and systematically identifying the issues raised in that argument. We identified a dozen issues up through p. 16 of the argument. The assignment for Wednesday 11/26 is to continue going through the remainder of the oral argument and identifying the issues raised by the Justices and the advocates.
In class today. Monday 11/26, I distributed two handouts: an addendum to Assignment #2 (copied below) and the Maine statutes regarding adoption and birth certificates. We went through the Finstuen case and I also talked about a more recent case that dealt with the same subject, Adar v. Smith. We began looking at the Maine adoption statute regarding adoption by unmarried couples. We will pick up with the Maine birth certificate statute on Wednesday. The assignment for Wednesday 11/28 is to work on the assigned case brief (as amended), read and prepare to discuss the Maine statute distributed today, and review the Cheap Escape case (previously assigned).
Assignment #2 Addendum
In the Quirion case brief, in the Issues, Facts, and Holding sections, I want you to include not only the Facts that support the winning side, but also those Facts that tell what the losing side’s Facts were. Do this with a parenthetical that starts the loser’s Facts with the phrase “even though…”
Here’s an example of the format that I’m asking for (as an Issue):
Under the rules for briefing cases in POS 282, [under what law]
does the Fact section have to include the losing side’s Facts [legal question]
when [transition to Facts]
the 11/26 Addendum made that format mandatory [key Facts for winning side]
(even though the original assignment said nothing about that requirement)? [losing side’s Facts]
Remember that the Legal Question is (usually) copied from the Appellant’s Contention, the Facts you’ve put into the Issue are copied and pasted into the Facts segment, and the Holding is copied and pasted from the Issue, simply changing the question into a statement.
POS 359 FEDERALISM
In class today. Monday 11/26, I first handed back the Commerce Clause papers, and we briefly went over them. I also distributed an article concerning the regulation of fracking. We then started our discussion of federalism and the economy, talking about the Robertson article. We went over the ways in which both corporations and individuals are dependent on government to provide a structure that enables there to be economic activity as we know it, as well as to mitigate some results of that economic system. The assignment for Wednesday 11/28 is to review the Robertson article, and also to read the fracking article.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/26, we started going through the oral argument and systematically identifying the issues raised in that argument. We identified a dozen issues up through p. 16 of the argument. The assignment for Wednesday 11/26 is to continue going through the remainder of the oral argument and identifying the issues raised by the Justices and the advocates.
Monday, November 19, 2012
November 19. 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 11/19, I handed back the exams, and we went over them. I also distributed Assignment #2, copied below, which will be due Friday 11/30. We then started our discussion of Full Faith and Credit, and the Finstuen case. We discussed the issue of "standing" and then I said to ignore that issue, and concentrate on the one couple that did have standing, and figure out what the Court said about Full Faith and Credit for their situation. We also discussed the uses of a birth certificate. We will continue with Finstuen on Monday 11/26. The additional reading for Monday is to read pp. 122- 128 of the text. Have a good Thanksgiving.
Assignment due Friday, November 30, 2012
The assignment (graded) is to do a Case Brief of the case of Quirion v. Veilleux, 2012 Me. Super. LEXIS 17. The case can be found on the website of the Fogler Library.
To access the case, go to Fogler Library site, and select the LexisNexis database (if you are off-campus, you will need your MaineCard bar code number).
Under “Easy Search”/ “Look up a Legal Case”/ “By Citation” enter
2012 Me. Super. LEXIS 17 in the dialog box.
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 specific 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 Friday 11/30, 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. If you have questions, ask me.
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 FEDERALISM
In class today, Monday 11/19, I collected the Commerce Clause papers, and we discussed the positions that various class members took on the power of Congress to mandate the purchase of health insurance. We also talked about other nations' systems regarding health care and health insurance. We then turned to the Sikorski interview, and discussed what policies makes sense in terms of a federal Europe. I distributed an article on federalism and economic growth, and the assignment for Monday 11/26 is to read and be prepared to discuss that article. (If you missed class, contact me if you want me to email the article to you). Have a good Thanksgiving break.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/19, I began with a discussion of a 6th Circuit decision last week that struck down Michigan's constitutional ban on affirmative action that was enacted in the wake of Grutter. We then reviewed the ways in which the Florida Jardines concurring Justices differed from the majority, and went on to the views of the dissenting Justices. We started to discuss the ways in which the disagreements in the Florida Court were reflected in the U.S. Supreme Court oral argument. We will continue with that oral argument on Monday 11/26. The assignment is to re-read that oral argument, actively looking for how issues raised in the Florida opinion are reflected in the questions asked. Have a good Thanksgiving break.
In class today, Monday 11/19, I handed back the exams, and we went over them. I also distributed Assignment #2, copied below, which will be due Friday 11/30. We then started our discussion of Full Faith and Credit, and the Finstuen case. We discussed the issue of "standing" and then I said to ignore that issue, and concentrate on the one couple that did have standing, and figure out what the Court said about Full Faith and Credit for their situation. We also discussed the uses of a birth certificate. We will continue with Finstuen on Monday 11/26. The additional reading for Monday is to read pp. 122- 128 of the text. Have a good Thanksgiving.
Assignment due Friday, November 30, 2012
The assignment (graded) is to do a Case Brief of the case of Quirion v. Veilleux, 2012 Me. Super. LEXIS 17. The case can be found on the website of the Fogler Library.
To access the case, go to Fogler Library site, and select the LexisNexis database (if you are off-campus, you will need your MaineCard bar code number).
Under “Easy Search”/ “Look up a Legal Case”/ “By Citation” enter
2012 Me. Super. LEXIS 17 in the dialog box.
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 specific 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 Friday 11/30, 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. If you have questions, ask me.
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 FEDERALISM
In class today, Monday 11/19, I collected the Commerce Clause papers, and we discussed the positions that various class members took on the power of Congress to mandate the purchase of health insurance. We also talked about other nations' systems regarding health care and health insurance. We then turned to the Sikorski interview, and discussed what policies makes sense in terms of a federal Europe. I distributed an article on federalism and economic growth, and the assignment for Monday 11/26 is to read and be prepared to discuss that article. (If you missed class, contact me if you want me to email the article to you). Have a good Thanksgiving break.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/19, I began with a discussion of a 6th Circuit decision last week that struck down Michigan's constitutional ban on affirmative action that was enacted in the wake of Grutter. We then reviewed the ways in which the Florida Jardines concurring Justices differed from the majority, and went on to the views of the dissenting Justices. We started to discuss the ways in which the disagreements in the Florida Court were reflected in the U.S. Supreme Court oral argument. We will continue with that oral argument on Monday 11/26. The assignment is to re-read that oral argument, actively looking for how issues raised in the Florida opinion are reflected in the questions asked. Have a good Thanksgiving break.
Friday, November 16, 2012
November 16, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 11/16, the class took Exam #2. I will return that exam on Monday, and we will go over it then. Also on Monday I plan to distribute the second case brief assignment, which I plan to make due Friday 11/30. The reading assignment for Monday 11/19 is to read and prepare to discuss from p. 115 to the end of Chapter 3, full faith and credit.
POS 359 FEDERALISM
In class today Friday 11/16, we began by going through Roberts' footnotes, seeing how he used those footnotes to attack specific portions of Ginsburg's opinion, and we speculated about how Ginsburg might respond to Roberts. We then listened to the first ten minutes of a BBC interview with Poland's Foreign Minister Sikorski, listening particularly to how the issues faced by the EU and the Eurozone today have similarities to the issues faced by the United States under the Articles of Confederation. Since we did not finish listening to that interview (I kept interrupting, I'm afraid) part of the assignment for Monday 11/19 is to listen to the remainder of that interview. It is available at
http://www.bbc.co.uk/programmes/p0106bgw
or else just google: bbc radio hardtalk sikorski
The rest of the assignment is to finish up paper #2 due at the beginning of the class on Monday 11/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/16, we continued our exploration of the Florida Supreme Court Opinion in Jardines. We finished the majority decision, and then talked about how the three Justice concurrence differed from the majority decision. We will finish up the concurrence on Monday, as well as the dissent. The additional assignment for Monday 11/19 is to read the oral argument transcript from the U.S. Supreme Court, which can be accessed from the Supreme Court site,and selecting Florida v. Jardines, 10/31/12.
In class today, Friday 11/16, the class took Exam #2. I will return that exam on Monday, and we will go over it then. Also on Monday I plan to distribute the second case brief assignment, which I plan to make due Friday 11/30. The reading assignment for Monday 11/19 is to read and prepare to discuss from p. 115 to the end of Chapter 3, full faith and credit.
POS 359 FEDERALISM
In class today Friday 11/16, we began by going through Roberts' footnotes, seeing how he used those footnotes to attack specific portions of Ginsburg's opinion, and we speculated about how Ginsburg might respond to Roberts. We then listened to the first ten minutes of a BBC interview with Poland's Foreign Minister Sikorski, listening particularly to how the issues faced by the EU and the Eurozone today have similarities to the issues faced by the United States under the Articles of Confederation. Since we did not finish listening to that interview (I kept interrupting, I'm afraid) part of the assignment for Monday 11/19 is to listen to the remainder of that interview. It is available at
http://www.bbc.co.uk/programmes/p0106bgw
or else just google: bbc radio hardtalk sikorski
The rest of the assignment is to finish up paper #2 due at the beginning of the class on Monday 11/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/16, we continued our exploration of the Florida Supreme Court Opinion in Jardines. We finished the majority decision, and then talked about how the three Justice concurrence differed from the majority decision. We will finish up the concurrence on Monday, as well as the dissent. The additional assignment for Monday 11/19 is to read the oral argument transcript from the U.S. Supreme Court, which can be accessed from the Supreme Court site,and selecting Florida v. Jardines, 10/31/12.
Wednesday, November 14, 2012
November 14, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 11/14, we started with the Hubbard case regarding state court choice of law rules. We looked at how the Indiana Supreme Court changed its 99 year-old rule, and put a new choice of law rule into effect. We then discussed the Land case, and saw how that same Indiana choice of law rule got applied in the federal court system. We went over the difference between a statute of limitations and a statute of repose. We talked about good lawyering and bad lawyering in terms of choice of where to sue. Along the way, we looked at federal court jurisdiction, discussing both federal question jurisdiction and diversity jurisdiction, as well as the Erie doctrine. On Friday 11/16 we'll have open-note, open-book exam #2.
POS 359 FEDERALISM
In class today, Wednesday 11/14, we continued going through Ginsburg's dissent in the Commerce Clause portion of her opinion. We finished that opinion. On Friday, we will finish our NFIB discussion with a look back at Roberts' footnotes in which he responds to Ginsburg. The assignment for Friday 11/16 is to continue working on your previously assigned paper, which is due Monday 11/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 11/14, we continued with our discussion of the Florida Supreme Court opinion in Jardines. We started with the Kyllo case, and we discussed various ways in which you might try to distinguish Kyllo (to demonstrate that the sniff at this home-- unlike the thermal detector of the home in Kyllo-- was not a search). We then went through the majority's analysis of why this dog sniff was a "search". We will continue on Friday with the majority's discussion of whether probable cause is needed in order to conduct this search (as opposed to the lower standard of reasonable suspicion). The assignment for Friday 11/16 is to review the remainder of the Jardines opinions, including the concurrence and the dissent.
In class today, Wednesday 11/14, we started with the Hubbard case regarding state court choice of law rules. We looked at how the Indiana Supreme Court changed its 99 year-old rule, and put a new choice of law rule into effect. We then discussed the Land case, and saw how that same Indiana choice of law rule got applied in the federal court system. We went over the difference between a statute of limitations and a statute of repose. We talked about good lawyering and bad lawyering in terms of choice of where to sue. Along the way, we looked at federal court jurisdiction, discussing both federal question jurisdiction and diversity jurisdiction, as well as the Erie doctrine. On Friday 11/16 we'll have open-note, open-book exam #2.
POS 359 FEDERALISM
In class today, Wednesday 11/14, we continued going through Ginsburg's dissent in the Commerce Clause portion of her opinion. We finished that opinion. On Friday, we will finish our NFIB discussion with a look back at Roberts' footnotes in which he responds to Ginsburg. The assignment for Friday 11/16 is to continue working on your previously assigned paper, which is due Monday 11/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 11/14, we continued with our discussion of the Florida Supreme Court opinion in Jardines. We started with the Kyllo case, and we discussed various ways in which you might try to distinguish Kyllo (to demonstrate that the sniff at this home-- unlike the thermal detector of the home in Kyllo-- was not a search). We then went through the majority's analysis of why this dog sniff was a "search". We will continue on Friday with the majority's discussion of whether probable cause is needed in order to conduct this search (as opposed to the lower standard of reasonable suspicion). The assignment for Friday 11/16 is to review the remainder of the Jardines opinions, including the concurrence and the dissent.
Monday, November 12, 2012
November 12, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 11/12, we began by going over O'Connor's dissent in Raich. I then discussed that same case on remand to the Ninth Circuit, Raich v. Gonzales, in which the Court ruled on the substantive due process claim left unanswered in the Supreme Court opinion. We went on to the Butler case, and the concept of dictum. I also discussed the later case of Harris v. N.Y., in which the Supreme Court ruled on the issue discussed in Butler. I also discussed the question of retroactive v. prospective application of court decisions, using the recent U.S. Supreme Court oral argument in Chaidez v. U.S. as an example of how the Supreme Court decides whether a new decision applies only to new cases, versus applying to older cases that were already concluded before that new decision. We will continue with the previously assigned Hubbard case on Wednesday. The additional assignment for Wednesday 11/14 is to read and prepare to discuss Land v. Yamaha, p. 146 of the text. Remember that we will have test #2 on Friday 11/16.
POS 359 FEDERALISM
In class today, Monday 11/12, I distributed one handout, Assignment #2, which is copied below. We also then talked about life after the Commerce Clause. The class chose to spend the rest of the semester studying a variety of federalism issues (rather than burrowing deeply into one additional federalism issue). We then started our study of Ginsburg's NFIB opinion. I briefly went over (the unassigned) Part I of her opinion, and then we began outlining Part II of her opinion. We got up to p. 21 of that opinion, which is where we'll pick up on Wednesday. The additional preparation for Wednesday 11/14 is to finish an outline of Ginsburg's opinion, and then to go back to Roberts' opinion and look at the footnotes in which he addresses Ginsburg's views.
Assignment #2
For this assignment, I would like you to write a paper about the interpretation of the Commerce clause made in NFIB using three of the U.S. Supreme Court decisions we have studied: Wickard, Lopez (and Morrison, as applicable), and Raich.
Specifically, I would like you to address these topics:
1) Both Roberts and Ginsburg say in NFIB says that he or she is being faithful to the existing Commerce clause precedents of Wickard, Lopez, and Raich. Summarize the positions of Roberts and Ginsburg in NFIB, specifically discussing how those prior cases support (or at least don’t hurt) their respective positions.
2) How do or would Roberts and Ginsburg demonstrate that their opposite number has it wrong? Include Roberts’ footnotes 3-6, and Ginsburg’s footnotes 5,6,7, and 9.
3) Finally, give you own view about whether the Commerce clause either does or does not support the asserted Congressional power to create the individual mandate. Support your answer with specific arguments.
I’m not looking for an introduction to the cases, or summaries of them—all of that is assumed. Just get right to the analysis.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text page numbers for Wickard, Lopez, and Raich, and slip opinion page numbers for NFIB).
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Monday, November 19. 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. If you do not have the paper done on time, be in touch with me right away.
The work should be entirely your own; no collaboration with other students is allowed. See also the syllabus regarding plagiarism or collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/12, I first clarified a few questions about the optional third assignment. The Jardines (our dog sniff case) paper is mandatory. If you choose to do the optional third paper, all three grades will be counted. We then continued our discussion of the Florida Supreme Court decision. We went through the U.S. Supreme Court precedents used by the Jardines Court, and got up to the discussion of how those precedents should be applied to the facts of the Jardines case. The assignment for Wednesday 11/14 is to read and be prepared to discuss the remainder of the Florida decision, including the concurring opinion and the dissent.
In class today, Monday 11/12, we began by going over O'Connor's dissent in Raich. I then discussed that same case on remand to the Ninth Circuit, Raich v. Gonzales, in which the Court ruled on the substantive due process claim left unanswered in the Supreme Court opinion. We went on to the Butler case, and the concept of dictum. I also discussed the later case of Harris v. N.Y., in which the Supreme Court ruled on the issue discussed in Butler. I also discussed the question of retroactive v. prospective application of court decisions, using the recent U.S. Supreme Court oral argument in Chaidez v. U.S. as an example of how the Supreme Court decides whether a new decision applies only to new cases, versus applying to older cases that were already concluded before that new decision. We will continue with the previously assigned Hubbard case on Wednesday. The additional assignment for Wednesday 11/14 is to read and prepare to discuss Land v. Yamaha, p. 146 of the text. Remember that we will have test #2 on Friday 11/16.
POS 359 FEDERALISM
In class today, Monday 11/12, I distributed one handout, Assignment #2, which is copied below. We also then talked about life after the Commerce Clause. The class chose to spend the rest of the semester studying a variety of federalism issues (rather than burrowing deeply into one additional federalism issue). We then started our study of Ginsburg's NFIB opinion. I briefly went over (the unassigned) Part I of her opinion, and then we began outlining Part II of her opinion. We got up to p. 21 of that opinion, which is where we'll pick up on Wednesday. The additional preparation for Wednesday 11/14 is to finish an outline of Ginsburg's opinion, and then to go back to Roberts' opinion and look at the footnotes in which he addresses Ginsburg's views.
Assignment #2
For this assignment, I would like you to write a paper about the interpretation of the Commerce clause made in NFIB using three of the U.S. Supreme Court decisions we have studied: Wickard, Lopez (and Morrison, as applicable), and Raich.
Specifically, I would like you to address these topics:
1) Both Roberts and Ginsburg say in NFIB says that he or she is being faithful to the existing Commerce clause precedents of Wickard, Lopez, and Raich. Summarize the positions of Roberts and Ginsburg in NFIB, specifically discussing how those prior cases support (or at least don’t hurt) their respective positions.
2) How do or would Roberts and Ginsburg demonstrate that their opposite number has it wrong? Include Roberts’ footnotes 3-6, and Ginsburg’s footnotes 5,6,7, and 9.
3) Finally, give you own view about whether the Commerce clause either does or does not support the asserted Congressional power to create the individual mandate. Support your answer with specific arguments.
I’m not looking for an introduction to the cases, or summaries of them—all of that is assumed. Just get right to the analysis.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text page numbers for Wickard, Lopez, and Raich, and slip opinion page numbers for NFIB).
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Monday, November 19. 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. If you do not have the paper done on time, be in touch with me right away.
The work should be entirely your own; no collaboration with other students is allowed. See also the syllabus regarding plagiarism or collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/12, I first clarified a few questions about the optional third assignment. The Jardines (our dog sniff case) paper is mandatory. If you choose to do the optional third paper, all three grades will be counted. We then continued our discussion of the Florida Supreme Court decision. We went through the U.S. Supreme Court precedents used by the Jardines Court, and got up to the discussion of how those precedents should be applied to the facts of the Jardines case. The assignment for Wednesday 11/14 is to read and be prepared to discuss the remainder of the Florida decision, including the concurring opinion and the dissent.
Friday, November 9, 2012
November 9, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 11/9, we continued our study of the Raich case. We basically got through the majority opinion. On Monday 11/12 we will finish up with Justice O'Connor's dissent, and with the subsequent history of the case. We'll then move on to the Butler case, previously assigned. The additional reading for Monday 11/12 is to read pp. 112 - 114 of the text, the Hubbard case. Remember that Exam #2 will be on Friday 11/16.
POS 359 FEDERALISM
In class today, Friday 11/9, I went over the planned schedule for Paper #2. I plan to distribute the assignment on Monday 11/12, and it will be due on Monday 11/19. We then started our discussion of the Roberts' NFIB Commerce Clause opinion. We looked at how it fit into the test developed in Lopez and Morrison (with the emphasis this time on the word "activity" of the test "economic activity"); how Roberts constructed his argument that "creation" and "regulation" must be two separate powers under the constitution; the argument that, if Congress has this power, then there is no limit to Congressional power; and how these arguments have a long pedigree in the Commerce Clause cases. We also talked about how the argument that no government has the power to make us eat our vegetables really derives from substantive due process, rather than the Commerce clause. We also looked at the new refined test of Congressional power, whether the person is currently engaged in economic activity. The assignment for Monday 11/12 is to read and prepare to discuss Ginsburg's Commerce clause argument, pp. 12-31 of the Ginsburg slip opinion.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/9, I distributed one handout, an article describing how Americans' expectation of privacy has sunk so low that one third of us are willing to undergo a cavity search in order to board an airplane. We then traced the history of the interpretation of the 4th Amendment, seeing how it has evolved from concentrating on the presence or absence of a physical intrusion into a protected space, to the concept of a reasonable expectation of privacy, and how even that test did not seem to be the focus of the Florida Supreme Court in the Jardines case. We looked at the distinction drawn by the Florida Court between private detached houses versus apartments. We then began looking at the three previous U.S. Supreme Court cases involving dog sniffs that the Florida Court distinguished. We also talked about the different levels of police suspicion, from probable cause to reasonable suspicion to a hunch to a dragnet. We will continue on Monday with the discussion of the majority decision in the Florida Supreme Court, both as to whether there was a "search" at all, and, if there was, whether that search needed to be supported by probable cause.
In class today, Friday 11/9, we continued our study of the Raich case. We basically got through the majority opinion. On Monday 11/12 we will finish up with Justice O'Connor's dissent, and with the subsequent history of the case. We'll then move on to the Butler case, previously assigned. The additional reading for Monday 11/12 is to read pp. 112 - 114 of the text, the Hubbard case. Remember that Exam #2 will be on Friday 11/16.
POS 359 FEDERALISM
In class today, Friday 11/9, I went over the planned schedule for Paper #2. I plan to distribute the assignment on Monday 11/12, and it will be due on Monday 11/19. We then started our discussion of the Roberts' NFIB Commerce Clause opinion. We looked at how it fit into the test developed in Lopez and Morrison (with the emphasis this time on the word "activity" of the test "economic activity"); how Roberts constructed his argument that "creation" and "regulation" must be two separate powers under the constitution; the argument that, if Congress has this power, then there is no limit to Congressional power; and how these arguments have a long pedigree in the Commerce Clause cases. We also talked about how the argument that no government has the power to make us eat our vegetables really derives from substantive due process, rather than the Commerce clause. We also looked at the new refined test of Congressional power, whether the person is currently engaged in economic activity. The assignment for Monday 11/12 is to read and prepare to discuss Ginsburg's Commerce clause argument, pp. 12-31 of the Ginsburg slip opinion.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/9, I distributed one handout, an article describing how Americans' expectation of privacy has sunk so low that one third of us are willing to undergo a cavity search in order to board an airplane. We then traced the history of the interpretation of the 4th Amendment, seeing how it has evolved from concentrating on the presence or absence of a physical intrusion into a protected space, to the concept of a reasonable expectation of privacy, and how even that test did not seem to be the focus of the Florida Supreme Court in the Jardines case. We looked at the distinction drawn by the Florida Court between private detached houses versus apartments. We then began looking at the three previous U.S. Supreme Court cases involving dog sniffs that the Florida Court distinguished. We also talked about the different levels of police suspicion, from probable cause to reasonable suspicion to a hunch to a dragnet. We will continue on Monday with the discussion of the majority decision in the Florida Supreme Court, both as to whether there was a "search" at all, and, if there was, whether that search needed to be supported by probable cause.
Wednesday, November 7, 2012
November 7, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 11/7, I first discussed some election results of particular note to our class, specifically the Florida vote on retention of their Supreme Court Justices, and the votes in Colorado and Washington that legalized the recreational use of marijuana. We then began our discussion of Raich, but only got up to the "issue" in the case. The assignment for Friday 11/9 is to brief the issue(s) in Raich, and also to read and prepare to discuss through p. 105 of the text. I also announced the plan to have our Exam #2 on Friday 11/16.
POS 359 FEDERALISM
In class today, Wednesday 11/7, I distributed one handout, a news article about the passage by Colorado and Washington of state laws permitting the recreational use of marijuana. We talked then about the Attorney General's enforcement of the federal law that was upheld in Raich. We then finished our discussion of Raich. On Friday 11/9 we will discuss the Roberts' Commerce Clause opinion in NFIB (pp. 15-30 of the slip opinion), previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 11/7, I distributed one handout, a news article about the passage by Colorado and Washington of state laws permitting the recreational use of marijuana. We talked about whether a case regarding the power of the state to do this would likely reach the Supreme Court, as suggested by a commentator. We voted on the next case to study, and the class chose Florida v. Jardines, a case raising the issue of whether a police dog sniff on a porch is a 4th Amendment search. The assignment for Friday 119 is to read the Florida Supreme Court decision that is on appeal. The case can be found by going to the Fogler Lexis site, and entering the citation to the case, 73 So.3d 34.
In class today, Wednesday 11/7, I first discussed some election results of particular note to our class, specifically the Florida vote on retention of their Supreme Court Justices, and the votes in Colorado and Washington that legalized the recreational use of marijuana. We then began our discussion of Raich, but only got up to the "issue" in the case. The assignment for Friday 11/9 is to brief the issue(s) in Raich, and also to read and prepare to discuss through p. 105 of the text. I also announced the plan to have our Exam #2 on Friday 11/16.
POS 359 FEDERALISM
In class today, Wednesday 11/7, I distributed one handout, a news article about the passage by Colorado and Washington of state laws permitting the recreational use of marijuana. We talked then about the Attorney General's enforcement of the federal law that was upheld in Raich. We then finished our discussion of Raich. On Friday 11/9 we will discuss the Roberts' Commerce Clause opinion in NFIB (pp. 15-30 of the slip opinion), previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 11/7, I distributed one handout, a news article about the passage by Colorado and Washington of state laws permitting the recreational use of marijuana. We talked about whether a case regarding the power of the state to do this would likely reach the Supreme Court, as suggested by a commentator. We voted on the next case to study, and the class chose Florida v. Jardines, a case raising the issue of whether a police dog sniff on a porch is a 4th Amendment search. The assignment for Friday 119 is to read the Florida Supreme Court decision that is on appeal. The case can be found by going to the Fogler Lexis site, and entering the citation to the case, 73 So.3d 34.
Monday, November 5, 2012
November 5, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 11/5, I distributed one handout, an article concerning the upcoming Florida Supreme Court retention vote, and how a non-partisan election got turned into a highly partisan contest. We discussed the Caperton case, and the rules developed by the U.S. Supreme Court to determine when there is a substantial risk of actual judicial bias. We will continue with the previously-assigned case of Gonzales v. Raich on Wednesday. Be prepared to discuss all of the segments that we would put into a case brief of the case, as well as how the concurring and dissenting opinions differ from the majority.
POS 359 FEDERALISM
In class today, Monday 11/5, we first finished our discussion of Morrison, reviewing the ways in which the Souter and Breyer dissenting opinions disagreed with the majority. We then began our discussion of Gonzalez v. Raich. We looked at how two Justices could switch sides from the outcome that they approved in Lopez. We looked at how Justice Thomas would consider a very broad challenge to federal authority. And we discussed the four characteristics by which Raich sought to carve out an exception to federal power over the drug traffic generally. We will continue with Raich on Wednesday. The additional assignment for Wednesday 11/7 is to read Justices Roberts' commerce clause discussion in NFIB v. Sebelius. That discussion is found in Part III (A) of his opinion, pp. 15-30 of his slip opinion.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/5, I handed back the Fisher papers, and we briefly went over them. I discussed today's Supreme Court decision about attorney fees in free speech cases. I then went over the cases that are currently being heard by the Court. On Wednesday, 11/7 we will vote on which case the class would like to tackle for our next case. The assignment is simply to think about which case you prefer.
In class today, Monday 11/5, I distributed one handout, an article concerning the upcoming Florida Supreme Court retention vote, and how a non-partisan election got turned into a highly partisan contest. We discussed the Caperton case, and the rules developed by the U.S. Supreme Court to determine when there is a substantial risk of actual judicial bias. We will continue with the previously-assigned case of Gonzales v. Raich on Wednesday. Be prepared to discuss all of the segments that we would put into a case brief of the case, as well as how the concurring and dissenting opinions differ from the majority.
POS 359 FEDERALISM
In class today, Monday 11/5, we first finished our discussion of Morrison, reviewing the ways in which the Souter and Breyer dissenting opinions disagreed with the majority. We then began our discussion of Gonzalez v. Raich. We looked at how two Justices could switch sides from the outcome that they approved in Lopez. We looked at how Justice Thomas would consider a very broad challenge to federal authority. And we discussed the four characteristics by which Raich sought to carve out an exception to federal power over the drug traffic generally. We will continue with Raich on Wednesday. The additional assignment for Wednesday 11/7 is to read Justices Roberts' commerce clause discussion in NFIB v. Sebelius. That discussion is found in Part III (A) of his opinion, pp. 15-30 of his slip opinion.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/5, I handed back the Fisher papers, and we briefly went over them. I discussed today's Supreme Court decision about attorney fees in free speech cases. I then went over the cases that are currently being heard by the Court. On Wednesday, 11/7 we will vote on which case the class would like to tackle for our next case. The assignment is simply to think about which case you prefer.
Friday, November 2, 2012
November 2, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 11/2, we finished our discussion of the Reardon case. We then also looked at two Maine cases that discussed both the language used in releases, and whether those releases violate Maine's public policy. The two cases were Doyle v. Bowdoin College, and Lloyd v. Sugarloaf. We will finish up Chapter 2 with the previously assigned Caperton case on Monday. The additional assignment for Monday 11/5 is to read and prepare to discuss through p. 97 of the text.
POS 359 FEDERALISM
In class today, Friday 11/2, we finished our discussion of Lopez, and then went on to Morrison. We will pick up with Souter's dissent in Morrison on Monday. The additional assignment for Monday 11/5 is to read Gonzalez v. Raich, through p. 351 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/2, I collected the Fisher papers. I plan to grade them this weekend, and return them on Monday. We then discussed those papers, what you thought Kennedy was likely to do, and also what your personal thoughts are about how the case should be decided. There is no homework for the class this weekend.
In class today, Friday 11/2, we finished our discussion of the Reardon case. We then also looked at two Maine cases that discussed both the language used in releases, and whether those releases violate Maine's public policy. The two cases were Doyle v. Bowdoin College, and Lloyd v. Sugarloaf. We will finish up Chapter 2 with the previously assigned Caperton case on Monday. The additional assignment for Monday 11/5 is to read and prepare to discuss through p. 97 of the text.
POS 359 FEDERALISM
In class today, Friday 11/2, we finished our discussion of Lopez, and then went on to Morrison. We will pick up with Souter's dissent in Morrison on Monday. The additional assignment for Monday 11/5 is to read Gonzalez v. Raich, through p. 351 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/2, I collected the Fisher papers. I plan to grade them this weekend, and return them on Monday. We then discussed those papers, what you thought Kennedy was likely to do, and also what your personal thoughts are about how the case should be decided. There is no homework for the class this weekend.
Wednesday, October 31, 2012
October 31, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 10/31, we first finished our discussion of the Holland case, and then looked at the previously distributed Maine statutes regarding both common-law crimes in Maine and mandated reporting of child abuse and neglect. We then turned to business ethics. We discussed the recent rise in junk bond borrowing by companies in order to pay dividends to their private equity owners. We started our discussion of the Reardon case, looking at the business practice of obtaining releases of liability. We will continue with the issue and holding of the Reardon case on Friday. The assignment for Friday 11/2 is to review the previously assigned reading to the end of Chapter 2 of the text.
POS 359 FEDERALISM
In class today, Wednesday 10/31, we finished our discussion of McClung, focusing on the deference given to Congress by the Court. We then started our look at Lopez, going through Rehnquist's majority opinion. We will discuss the concurring and dissenting opinions on Friday. The additional assignment for Friday 11/2 is to read and prepare to discuss through p. 337 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 10/31, we finished going over Roberts' opinion in Parents Involved. We then went through most of Kennedy's concurring opinion in that case. The assignment for Friday is to finish your Fisher paper (Kennedy opinion) which is due at the start of Friday's class.
In class today, Wednesday 10/31, we first finished our discussion of the Holland case, and then looked at the previously distributed Maine statutes regarding both common-law crimes in Maine and mandated reporting of child abuse and neglect. We then turned to business ethics. We discussed the recent rise in junk bond borrowing by companies in order to pay dividends to their private equity owners. We started our discussion of the Reardon case, looking at the business practice of obtaining releases of liability. We will continue with the issue and holding of the Reardon case on Friday. The assignment for Friday 11/2 is to review the previously assigned reading to the end of Chapter 2 of the text.
POS 359 FEDERALISM
In class today, Wednesday 10/31, we finished our discussion of McClung, focusing on the deference given to Congress by the Court. We then started our look at Lopez, going through Rehnquist's majority opinion. We will discuss the concurring and dissenting opinions on Friday. The additional assignment for Friday 11/2 is to read and prepare to discuss through p. 337 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 10/31, we finished going over Roberts' opinion in Parents Involved. We then went through most of Kennedy's concurring opinion in that case. The assignment for Friday is to finish your Fisher paper (Kennedy opinion) which is due at the start of Friday's class.
Monday, October 29, 2012
October 29, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 10/29, I distributed two handouts; the Maine statute regarding hindering apprehension, and the Maine statutes regarding common law crimes, and regarding the mandated reporting of certain crimes. We discussed the moral issues involved in the Mobbley case, as well as Court's decision, and began our discussion of the Holland case. We will continue Wednesday with the question of what decision the Florida Supreme Court reached in Holland. The additional assignment for Wednesday 10/31 is to read and prepare to discuss through the end of Chapter 2 of the text.
POS 359 FEDERALISM
In class today, Monday 10/29, we went through the Heart of Atlanta case, looking at such issues as the correct constitutional standard in interstate commerce (versus the statutory standard used by Congress), the ways of distinguishing prior unfavorable Court precedent, and the degree to which the Court deferred to Congressional determinations of facts, even without explicit factual findings. We began our discussion of the McClung companion case, and we'll pick up on Wednesday with a look at that deference question. The additional assignment for Wednesday 10/31 is to read through p. 328 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/29, we started with a look at Kennedy's final contribution to the Fisher oral argument, in which he pushed Solicitor General Verrilli to admit that sometimes race does make a difference. I then outlined the Roberts opinion in Parents Involved, paying particular attention to those portions that Kennedy joined in, and those in which he did not join. We will continue with Part III (B), in which Kennedy did not join, on Wednesday. The assignment for Wednesday 10/31 is to continue work on the previously assigned paper, due Friday 11/2.
In class today, Monday 10/29, I distributed two handouts; the Maine statute regarding hindering apprehension, and the Maine statutes regarding common law crimes, and regarding the mandated reporting of certain crimes. We discussed the moral issues involved in the Mobbley case, as well as Court's decision, and began our discussion of the Holland case. We will continue Wednesday with the question of what decision the Florida Supreme Court reached in Holland. The additional assignment for Wednesday 10/31 is to read and prepare to discuss through the end of Chapter 2 of the text.
POS 359 FEDERALISM
In class today, Monday 10/29, we went through the Heart of Atlanta case, looking at such issues as the correct constitutional standard in interstate commerce (versus the statutory standard used by Congress), the ways of distinguishing prior unfavorable Court precedent, and the degree to which the Court deferred to Congressional determinations of facts, even without explicit factual findings. We began our discussion of the McClung companion case, and we'll pick up on Wednesday with a look at that deference question. The additional assignment for Wednesday 10/31 is to read through p. 328 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/29, we started with a look at Kennedy's final contribution to the Fisher oral argument, in which he pushed Solicitor General Verrilli to admit that sometimes race does make a difference. I then outlined the Roberts opinion in Parents Involved, paying particular attention to those portions that Kennedy joined in, and those in which he did not join. We will continue with Part III (B), in which Kennedy did not join, on Wednesday. The assignment for Wednesday 10/31 is to continue work on the previously assigned paper, due Friday 11/2.
Friday, October 26, 2012
October 26, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 10/26, we began by going through the Gregg opinion, and looked at the questions examined by the plurality opinion, as well as the two dissents. We talked about the structure of our political system, in which some (moral) judgments are made by the people directly, most are made by their elected representatives, and courts (being removed from that popular democracy) usually defer to the judgment of those popular sources of law. But in the case of constitutional limits, courts act as the policeman over majority judgments, and impose the higher will expressed by the Bill of Rights. After finishing our discussion of Gregg, I also went over a number of later Supreme Court decisions that imposed limits on the imposition of the death penalty: Coker v. Georgia (non-homicide); Atkins v. Va. (mental retardation); and Roper v. Simmons (minors). We also looked at the life-sentencing rules for minors established by Graham v. Florida (non-homicides) and Miller v. Alabama (mandatory life sentences). We will continue with the previously assigned case of State v. Mobbley on Monday. The assignment for Monday 10/29 is to read and prepare to discuss through p. 75 of the text.
POS 359 FEDERALISM
In class today, Friday 10/26, we finished our discussion of Darby, and then went over Wickard v. Filburn. We looked at how the direct v. indirect distinction was abandoned, and also how local production not intended for interstate commerce was included within the scope of federal power. We then began our discussion of Heart of Atlanta Motel, by going over the history of the 1883 Civil Rights Cases, and how the Supreme Court gutted the effect of the 14th Amendment. We will continue with the Commerce Clause analysis of the 1964 Civil Rights cases on Monday. The assignment for Monday 10/29 is to read and prepare to discuss through p. 316 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/26, we continued with our exploration of Kennedy's participation in the Fisher oral argument. We will finish with Kennedy's parting shot on Monday, and then I'll go over the unassigned portions of Parents Involved to clarify what Kennedy was agreeing with and disagreeing with in the other opinions. The assignment for Monday 10/29 is to work on the previously assigned Fisher paper, due Friday 11/2.
Important Note:
The Supreme Court has released a revised version of the oral argument transcript, with revised pagination and line numbers. When, in your paper, you cite to specific portions of the oral argument transcript, begin your initial discussion by telling me where on the page of your transcript the page number is located (that's how the Court marks a revised version of the transcript; e.g., the page numbers are in the upper right of the page, or in the bottom middle).
In class today, Friday 10/26, we began by going through the Gregg opinion, and looked at the questions examined by the plurality opinion, as well as the two dissents. We talked about the structure of our political system, in which some (moral) judgments are made by the people directly, most are made by their elected representatives, and courts (being removed from that popular democracy) usually defer to the judgment of those popular sources of law. But in the case of constitutional limits, courts act as the policeman over majority judgments, and impose the higher will expressed by the Bill of Rights. After finishing our discussion of Gregg, I also went over a number of later Supreme Court decisions that imposed limits on the imposition of the death penalty: Coker v. Georgia (non-homicide); Atkins v. Va. (mental retardation); and Roper v. Simmons (minors). We also looked at the life-sentencing rules for minors established by Graham v. Florida (non-homicides) and Miller v. Alabama (mandatory life sentences). We will continue with the previously assigned case of State v. Mobbley on Monday. The assignment for Monday 10/29 is to read and prepare to discuss through p. 75 of the text.
POS 359 FEDERALISM
In class today, Friday 10/26, we finished our discussion of Darby, and then went over Wickard v. Filburn. We looked at how the direct v. indirect distinction was abandoned, and also how local production not intended for interstate commerce was included within the scope of federal power. We then began our discussion of Heart of Atlanta Motel, by going over the history of the 1883 Civil Rights Cases, and how the Supreme Court gutted the effect of the 14th Amendment. We will continue with the Commerce Clause analysis of the 1964 Civil Rights cases on Monday. The assignment for Monday 10/29 is to read and prepare to discuss through p. 316 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/26, we continued with our exploration of Kennedy's participation in the Fisher oral argument. We will finish with Kennedy's parting shot on Monday, and then I'll go over the unassigned portions of Parents Involved to clarify what Kennedy was agreeing with and disagreeing with in the other opinions. The assignment for Monday 10/29 is to work on the previously assigned Fisher paper, due Friday 11/2.
Important Note:
The Supreme Court has released a revised version of the oral argument transcript, with revised pagination and line numbers. When, in your paper, you cite to specific portions of the oral argument transcript, begin your initial discussion by telling me where on the page of your transcript the page number is located (that's how the Court marks a revised version of the transcript; e.g., the page numbers are in the upper right of the page, or in the bottom middle).
Wednesday, October 24, 2012
October 24, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today,Wednesday 10/24, we continued our discussion of Lawrence v. Texas. We went through the level of review used by Justice Kennedy, and saw how, even though the questions he addressed looked like those used to decided if the asserted right was a fundamental one, his conclusion in the end did not use the language of strict scrutiny. We also looked at the level of scrutiny in the current Defense of Marriage Act cases, how the equal protection argument differs from the due process argument, the role of morality on law-making, the relationship of this case to gay marriage cases, and the question of what consent means in the context of closed religious societies. We then began our discussion of Gregg v. Georgia, looking at the language of the 8th Amendment, and also the idea behind the 8th Amendment, as well as looking at different methods of execution. We will continue with Gregg v. Georgia on Friday. The additional assignment for Friday 10/26 is to read and prepare to discuss through p. 62 of the text.
POS 359 FEDERALISM
In class today, Wednesday 10/24, I distributed one handout, an article from the New Yorker magazine discussing the parallels between the ACA and the 1937 NLRB v. Jones & Laughlin Steel case. We went over that 1937 case, and those parallels. We then began our discussion of Darby by going over the question of shipment of goods in interstate commerce, and the overruling of Hammer v. Degenhart. We will continue on Friday with the other part of the case, the part of the law that forbade manufacture, as opposed to shipment. The additional assignment for Friday 10/26 is to read and prepare to discuss through p. 312 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 10/24, I distributed one handout, Assignment #1, which is reproduced below. We discussed that assignment (due Friday 11/2) and then finished talking about the standing requirement in Fisher. Then we moved to Kennedy's part in the Fisher oral argument. We looked at his questions about the contrast between a modest versus dominant part that race plays in the holistic review, and also looked at opportunities that he gave Fisher's lawyer to clarify Fisher's position in the case. We will continue with our review of Kennedy's role in oral argument, as well as other aspects of that oral argument, on Friday. The additional assignment for Friday October 26 is to read and prepare to discuss Kennedy's concurrence in the case of Parents Involved, 551 US 751,782 (p. 782 is where Kennedy's concurrence starts).
Change to Syllabus
The Syllabus anticipated that there would be three homework assignments (papers) each 28% of the final grade. It also said that the grading plan was subject to change. As discussed in class, I have decided to make the third paper optional. Thus, if you choose to write only two papers, each paper will be worth 42% of the final grade. If you choose to write the third paper, the original grading will remain in effect. In either case, 16% of the final grade will remain dependent on your participation and attendance.
Assignment #1
For this assignment, I would like you put yourself in the shoes of Justice Kennedy in the case of Fisher v. University of Texas. Write an Opinion in the case as if you were Justice Kennedy. Do not worry about how the other Justices will vote in Fisher; just explain your view (i.e. Kennedy’s view) of how the case should be decided.
What do we have to work with in terms of Kennedy’s views on the subject? We’ve got Rehnquist’s dissent in Grutter, in which Kennedy joined, as well as Kennedy’s separate dissent in Grutter. We also know the he did not join Scalia’s dissent and Thomas’ dissent in that case. We also have his concurrence in part and concurrence in the judgment in Parents Involved in Community Schools, 551 US 701 (2007). Finally, we have his participation in the Fisher oral argument. These are the materials that you should work with in crafting Kennedy’s opinion in Fisher.
Your Opinion should consider Kennedy’s views expressed in Grutter, but should also take note of the fact of Grutter’s status as binding precedent (i.e., that the Grutter majority found that the Michigan Law School program was narrowly tailored, and therefore satisfied strict scrutiny). Since Kennedy disagreed with the outcome in Grutter, you have the option of voting to overrule Grutter, to follow it, or to distinguish it.
Your Opinion should deal with specific issues raised by the briefs in this case, and by the opinions that Kennedy wrote or joined onto in those previous cases. As an aid in organizing your Opinion, I’m including some specific questions that I want your Kennedy Opinion to deal with.
Here are the specific questions I would like you to address (in addition to the more general question of how to deal with Grutter):
1) What is the significance of the relatively modest number of additional minority students admitted under the holistic review?
2) What is the relationship between the need for an individualized consideration of applicants and the goal of achieving a critical mass of minority students?
3) Has the University of Texas demonstrated that the holistic review is necessary to achieve the kind of diversity it wants to achieve?
4) Has the University demonstrated that it is using a numerical census of minorities appropriately in deciding on a group’s status as underrepresented, while at the same time not setting a numerical goal for critical mass?
5) What is the significance of the University’s rationale of using holistic review to increase diversity within minority groups?
This list is not exhaustive. There are other issues that you may wish to discuss, but you should deal with at least these five.
In your Kennedy Opinion, I’m not looking for an introduction to the case, or a summary of it- all of that is assumed. In other words assume that someone else wrote the Introduction to the Opinion, and your task is to just write the Discussion portion of the Opinion. Just launch right into the questions.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation.
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Friday, November 2. 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. If you do not have the paper done on time, be in touch with me right away.
In terms of citation form, for Grutter and Parents Involved, cite to the page number from the U.S. Reports. You can get these from the Supreme Court web site: select Opinions / More / Bound Volumes. Select Volume 551 for Parents Involved. Kennedy’s Opinion starts on p. 782. For Grutter, (volume 539) Rehnquist’s Opinion starts at p. 378, and Kennedy’s starts at p. 387. Use page numbers from the three Briefs we read, and cite the Oral Argument by page and line number (e.g., 17:6).
The work should be entirely your own, with no collaboration or plagiarism. See the syllabus regarding plagiarism and collaboration.
In class today,Wednesday 10/24, we continued our discussion of Lawrence v. Texas. We went through the level of review used by Justice Kennedy, and saw how, even though the questions he addressed looked like those used to decided if the asserted right was a fundamental one, his conclusion in the end did not use the language of strict scrutiny. We also looked at the level of scrutiny in the current Defense of Marriage Act cases, how the equal protection argument differs from the due process argument, the role of morality on law-making, the relationship of this case to gay marriage cases, and the question of what consent means in the context of closed religious societies. We then began our discussion of Gregg v. Georgia, looking at the language of the 8th Amendment, and also the idea behind the 8th Amendment, as well as looking at different methods of execution. We will continue with Gregg v. Georgia on Friday. The additional assignment for Friday 10/26 is to read and prepare to discuss through p. 62 of the text.
POS 359 FEDERALISM
In class today, Wednesday 10/24, I distributed one handout, an article from the New Yorker magazine discussing the parallels between the ACA and the 1937 NLRB v. Jones & Laughlin Steel case. We went over that 1937 case, and those parallels. We then began our discussion of Darby by going over the question of shipment of goods in interstate commerce, and the overruling of Hammer v. Degenhart. We will continue on Friday with the other part of the case, the part of the law that forbade manufacture, as opposed to shipment. The additional assignment for Friday 10/26 is to read and prepare to discuss through p. 312 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 10/24, I distributed one handout, Assignment #1, which is reproduced below. We discussed that assignment (due Friday 11/2) and then finished talking about the standing requirement in Fisher. Then we moved to Kennedy's part in the Fisher oral argument. We looked at his questions about the contrast between a modest versus dominant part that race plays in the holistic review, and also looked at opportunities that he gave Fisher's lawyer to clarify Fisher's position in the case. We will continue with our review of Kennedy's role in oral argument, as well as other aspects of that oral argument, on Friday. The additional assignment for Friday October 26 is to read and prepare to discuss Kennedy's concurrence in the case of Parents Involved, 551 US 751,782 (p. 782 is where Kennedy's concurrence starts).
Change to Syllabus
The Syllabus anticipated that there would be three homework assignments (papers) each 28% of the final grade. It also said that the grading plan was subject to change. As discussed in class, I have decided to make the third paper optional. Thus, if you choose to write only two papers, each paper will be worth 42% of the final grade. If you choose to write the third paper, the original grading will remain in effect. In either case, 16% of the final grade will remain dependent on your participation and attendance.
Assignment #1
For this assignment, I would like you put yourself in the shoes of Justice Kennedy in the case of Fisher v. University of Texas. Write an Opinion in the case as if you were Justice Kennedy. Do not worry about how the other Justices will vote in Fisher; just explain your view (i.e. Kennedy’s view) of how the case should be decided.
What do we have to work with in terms of Kennedy’s views on the subject? We’ve got Rehnquist’s dissent in Grutter, in which Kennedy joined, as well as Kennedy’s separate dissent in Grutter. We also know the he did not join Scalia’s dissent and Thomas’ dissent in that case. We also have his concurrence in part and concurrence in the judgment in Parents Involved in Community Schools, 551 US 701 (2007). Finally, we have his participation in the Fisher oral argument. These are the materials that you should work with in crafting Kennedy’s opinion in Fisher.
Your Opinion should consider Kennedy’s views expressed in Grutter, but should also take note of the fact of Grutter’s status as binding precedent (i.e., that the Grutter majority found that the Michigan Law School program was narrowly tailored, and therefore satisfied strict scrutiny). Since Kennedy disagreed with the outcome in Grutter, you have the option of voting to overrule Grutter, to follow it, or to distinguish it.
Your Opinion should deal with specific issues raised by the briefs in this case, and by the opinions that Kennedy wrote or joined onto in those previous cases. As an aid in organizing your Opinion, I’m including some specific questions that I want your Kennedy Opinion to deal with.
Here are the specific questions I would like you to address (in addition to the more general question of how to deal with Grutter):
1) What is the significance of the relatively modest number of additional minority students admitted under the holistic review?
2) What is the relationship between the need for an individualized consideration of applicants and the goal of achieving a critical mass of minority students?
3) Has the University of Texas demonstrated that the holistic review is necessary to achieve the kind of diversity it wants to achieve?
4) Has the University demonstrated that it is using a numerical census of minorities appropriately in deciding on a group’s status as underrepresented, while at the same time not setting a numerical goal for critical mass?
5) What is the significance of the University’s rationale of using holistic review to increase diversity within minority groups?
This list is not exhaustive. There are other issues that you may wish to discuss, but you should deal with at least these five.
In your Kennedy Opinion, I’m not looking for an introduction to the case, or a summary of it- all of that is assumed. In other words assume that someone else wrote the Introduction to the Opinion, and your task is to just write the Discussion portion of the Opinion. Just launch right into the questions.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation.
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Friday, November 2. 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. If you do not have the paper done on time, be in touch with me right away.
In terms of citation form, for Grutter and Parents Involved, cite to the page number from the U.S. Reports. You can get these from the Supreme Court web site: select Opinions / More / Bound Volumes. Select Volume 551 for Parents Involved. Kennedy’s Opinion starts on p. 782. For Grutter, (volume 539) Rehnquist’s Opinion starts at p. 378, and Kennedy’s starts at p. 387. Use page numbers from the three Briefs we read, and cite the Oral Argument by page and line number (e.g., 17:6).
The work should be entirely your own, with no collaboration or plagiarism. See the syllabus regarding plagiarism and collaboration.
Monday, October 22, 2012
October 22, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 10/22, I handed back the exams, and we went over them. Then we began our discussion of Lawrence v. Texas, talking about both the concept of morality in legislation, and the process by which a court decides the nature of the protected liberty interest involved (to decide whether strict scrutiny applies or not). We will continue with our discussion of Lawrence on Wednesday. The additional assignment for Wednesday 10/24 is to read pp. 50-56 of the text.
POS 359 FEDERALISM
In class today, Monday 10/22, I distributed one handout, the current federal statute regulating the interstate traffic in lottery tickets. We talked about the dormant commerce clause prohibiting the state governments from regulating that interstate commerce, and we looked at how Congress expressly provided for states to regulate this, if they chose to. We then discussed Hammer v. Dagenhart, and discussed the lack of deference by the Court to Congress, as well as the inquiry into the "actual purpose" of Congress. We also looked at how the Dagenhart Court distinguished the Lottery Case. We will continue with the New Deal decisions on Wednesday. The assignment for Wednesday 10/22 is to review the previously assigned pp. 295-306.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/22, we first voted on what the subject of the Fisher assignment would be. The class voted to stand in the shoes of Justice Kennedy. I plan to distribute that assignment on Wednesday 10/24, and have it due Friday 11/2. I also announced that I have decided to make a change to the syllabus, by having the third paper be optional. That will all be spelled out in the assignment. Then we turned our attention back to the Fisher briefing. We looked at two additional clashes, one having to do with a compelling interest in diversity within racial groups, and the other with the relationship between underrepresentation and critical mass. We then started our discussion of the oral argument. We talked about the requirement of standing, both how it historically developed, and the policy interests in having a barrier to access to courts. We will continue with the oral argument on Wednesday, so the assignment is to review that transcript again (and again...).
In class today, Monday 10/22, I handed back the exams, and we went over them. Then we began our discussion of Lawrence v. Texas, talking about both the concept of morality in legislation, and the process by which a court decides the nature of the protected liberty interest involved (to decide whether strict scrutiny applies or not). We will continue with our discussion of Lawrence on Wednesday. The additional assignment for Wednesday 10/24 is to read pp. 50-56 of the text.
POS 359 FEDERALISM
In class today, Monday 10/22, I distributed one handout, the current federal statute regulating the interstate traffic in lottery tickets. We talked about the dormant commerce clause prohibiting the state governments from regulating that interstate commerce, and we looked at how Congress expressly provided for states to regulate this, if they chose to. We then discussed Hammer v. Dagenhart, and discussed the lack of deference by the Court to Congress, as well as the inquiry into the "actual purpose" of Congress. We also looked at how the Dagenhart Court distinguished the Lottery Case. We will continue with the New Deal decisions on Wednesday. The assignment for Wednesday 10/22 is to review the previously assigned pp. 295-306.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/22, we first voted on what the subject of the Fisher assignment would be. The class voted to stand in the shoes of Justice Kennedy. I plan to distribute that assignment on Wednesday 10/24, and have it due Friday 11/2. I also announced that I have decided to make a change to the syllabus, by having the third paper be optional. That will all be spelled out in the assignment. Then we turned our attention back to the Fisher briefing. We looked at two additional clashes, one having to do with a compelling interest in diversity within racial groups, and the other with the relationship between underrepresentation and critical mass. We then started our discussion of the oral argument. We talked about the requirement of standing, both how it historically developed, and the policy interests in having a barrier to access to courts. We will continue with the oral argument on Wednesday, so the assignment is to review that transcript again (and again...).
Friday, October 19, 2012
October 19, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 10/19, the class took Exam #1. I will return that test, and we will go over it, on Monday. The additional assignment for Monday 10/22 is to read pp. 65-70 of the text.
POS 359 FEDERALISM
In class today, Friday 10/19, we continued with our study of the Commerce Clause cases. We finished Knight, and the discussed Champion. We will continue with Hammer on Monday. The additional assignment for Monday 10/22 is to read and prepare to discuss pp. 295-306 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/19, with continued with our discussion of the Fisher Respondent's Brief, and also discussed the Reply Brief. We talked about the insistence by Fisher that there be numerical goals for the University to set as end points, while the University said that such goals would themselves be unconstitutional. Meanwhile, the University said that it could use racial proportionality based on the state's population to decide whether there was an "under representation" problem (the start line) while Fisher said that use of such racial proportionality was itself unconstitutional. We also looked at how Fisher argued that the "infinitesimal" change created by the UT program demonstrated that it was not "necessary", while UT argued that the "modest" difference made by the racial factor was a demonstration of its constitutionality. We will continue with a discussion of how the two sides dealt with diversity within minorities on Monday. The additional reading for Monday 10/22 is to read the transcript of the oral argument in Fisher. To access the transcript, go to the Supreme Court site, select oral arguments / argument transcripts, and scroll down to 11-345, Fisher, 10/10/12. I also encourage you to listen to the oral argument audio.
In class today, Friday 10/19, the class took Exam #1. I will return that test, and we will go over it, on Monday. The additional assignment for Monday 10/22 is to read pp. 65-70 of the text.
POS 359 FEDERALISM
In class today, Friday 10/19, we continued with our study of the Commerce Clause cases. We finished Knight, and the discussed Champion. We will continue with Hammer on Monday. The additional assignment for Monday 10/22 is to read and prepare to discuss pp. 295-306 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/19, with continued with our discussion of the Fisher Respondent's Brief, and also discussed the Reply Brief. We talked about the insistence by Fisher that there be numerical goals for the University to set as end points, while the University said that such goals would themselves be unconstitutional. Meanwhile, the University said that it could use racial proportionality based on the state's population to decide whether there was an "under representation" problem (the start line) while Fisher said that use of such racial proportionality was itself unconstitutional. We also looked at how Fisher argued that the "infinitesimal" change created by the UT program demonstrated that it was not "necessary", while UT argued that the "modest" difference made by the racial factor was a demonstration of its constitutionality. We will continue with a discussion of how the two sides dealt with diversity within minorities on Monday. The additional reading for Monday 10/22 is to read the transcript of the oral argument in Fisher. To access the transcript, go to the Supreme Court site, select oral arguments / argument transcripts, and scroll down to 11-345, Fisher, 10/10/12. I also encourage you to listen to the oral argument audio.
Wednesday, October 17, 2012
October 17, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today. Wednesday 10/17, we finished discussing the last two cases in Chapter 1 of the text, Smith and Suggs. For the Smith discussion, I also went over two Supreme Court cases, Wisconsin v. Constantineau and Paul v. Davis, and how those case were followed and distinguished, respectively. On Friday 10/19, we'll have Exam #1, open book and open note (but only your own).
POS 359 FEDERALISM
In class today, Wednesday 10/17, I distributed one handout, about one case that the U.S. Supreme Court accepted this week (the rights of states to create requirements additional to federal requirements regarding proof of citizenship when registering to vote) and one case that the Supreme Court did not accept (the right of Ohio to cut back on early voting). We discussed these cases in terms of the line between federal power and state power. We then returned to the Commerce Clause, finishing up our discussion of Gibbons v. Ogden and proceeding to U.S. v. Knight, where we got up to the Harlan dissenting opinion. We will pick up there on Friday. The additional reading for Friday 10/19 is to read through p. 295 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, wednesday 10/17, we finished going over the Petitioner's Brief, and then went through the summary of the Respondent's brief. We will discuss a few points of the Respondent's Brief in more detail on Friday. The assignment for Friday 10/19 is to read the Petitioner's Reply Brief.
In class today. Wednesday 10/17, we finished discussing the last two cases in Chapter 1 of the text, Smith and Suggs. For the Smith discussion, I also went over two Supreme Court cases, Wisconsin v. Constantineau and Paul v. Davis, and how those case were followed and distinguished, respectively. On Friday 10/19, we'll have Exam #1, open book and open note (but only your own).
POS 359 FEDERALISM
In class today, Wednesday 10/17, I distributed one handout, about one case that the U.S. Supreme Court accepted this week (the rights of states to create requirements additional to federal requirements regarding proof of citizenship when registering to vote) and one case that the Supreme Court did not accept (the right of Ohio to cut back on early voting). We discussed these cases in terms of the line between federal power and state power. We then returned to the Commerce Clause, finishing up our discussion of Gibbons v. Ogden and proceeding to U.S. v. Knight, where we got up to the Harlan dissenting opinion. We will pick up there on Friday. The additional reading for Friday 10/19 is to read through p. 295 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, wednesday 10/17, we finished going over the Petitioner's Brief, and then went through the summary of the Respondent's brief. We will discuss a few points of the Respondent's Brief in more detail on Friday. The assignment for Friday 10/19 is to read the Petitioner's Reply Brief.
Monday, October 15, 2012
October 15, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 10/15, I distributed two handouts, my version of the Bragg case brief, and the Key to my Comments on your Bragg briefs. I returned your Bragg case briefs, and we went over some of the more frequent comments. I then gave the class a sample test, in preparation for the Friday open-book, open-note test. The assignment for Wednesday 10/17 is to read and prepare to discuss the remaining two cases in Chapter 1 of the text, Smith (p. 34) and Suggs (p. 42).
POS 359 FEDERALISM
In class today, Monday 10/15, I handed back the Necessary and Proper papers, and we briefly talked about them. We then started our next major section, the Commerce Clause, by discussing Gibbons v. Ogden. We went over the idea of strict construction, and then the definitions of "commerce", "among" and "regulate". In that last section, we did not get to the concept of the "dormant" commerce clause power, which is where we pick up on Wednesday. The additional assignment for Wednesday 10/17 is to read pp. 279-291 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/15, we started out discussion of Petitioner's Brief in Fisher. Specifically we looked at how Fisher tried to distinguish Grutter in terms of "compelling interest"and also in the creation of a "necessary" hurdle. We will continue with the discussion about narrow tailoring on Wednesday. The additional assignment for Wednesday 10/17 is to read and prepare to discuss the Respondents's Brief in Fisher, available through the supremecourt.gov website.
In class today, Monday 10/15, I distributed two handouts, my version of the Bragg case brief, and the Key to my Comments on your Bragg briefs. I returned your Bragg case briefs, and we went over some of the more frequent comments. I then gave the class a sample test, in preparation for the Friday open-book, open-note test. The assignment for Wednesday 10/17 is to read and prepare to discuss the remaining two cases in Chapter 1 of the text, Smith (p. 34) and Suggs (p. 42).
POS 359 FEDERALISM
In class today, Monday 10/15, I handed back the Necessary and Proper papers, and we briefly talked about them. We then started our next major section, the Commerce Clause, by discussing Gibbons v. Ogden. We went over the idea of strict construction, and then the definitions of "commerce", "among" and "regulate". In that last section, we did not get to the concept of the "dormant" commerce clause power, which is where we pick up on Wednesday. The additional assignment for Wednesday 10/17 is to read pp. 279-291 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/15, we started out discussion of Petitioner's Brief in Fisher. Specifically we looked at how Fisher tried to distinguish Grutter in terms of "compelling interest"and also in the creation of a "necessary" hurdle. We will continue with the discussion about narrow tailoring on Wednesday. The additional assignment for Wednesday 10/17 is to read and prepare to discuss the Respondents's Brief in Fisher, available through the supremecourt.gov website.
Friday, October 12, 2012
October 12, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 10/12, I collected the Bragg case briefs, and we spent the class period going over them. On Monday 10/15 I will return them. On Monday I will also give the class a sample test. I plan to give the first exam (open book and open note) on Friday 10/19. On Monday we will also discuss the Smith case (text p. 34) that was previously assigned. The additional reading (pp. 41-44), which we will probably not get to until Wednesday, is Suggs v. Norris, but reading that case this weekend might prevent you from having an idle weekend.
POS 359 FEDERALISM
In class today, Friday 10/12, I collected the Necessary and Proper papers, and I plan to return them on Monday. We spent the class going over the clashes that were at the heart of that assignment, and I also explained the Roberts' use and Ginsburg refutation of the Printz v. U.S. (gun control) case. The assignment for Monday 10/15 is to read Gibbons v. Ogden in the text, pp. 85-94.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/12, we finished discussing Thomas's dissent in Grutter. I first gave some more background into Thomas' use of the Frederick Douglass quotation at the start of the opinion, and then we went section by section,labeling the argument made in each part of the opinion, and then the points in support of those arguments. The assignment for Monday 10/15 is to review the previously assigned Petitioner's Brief in Fisher, looking especially for those points that either derive from the Grutter dissents, or are different from them.
In class today, Friday 10/12, I collected the Bragg case briefs, and we spent the class period going over them. On Monday 10/15 I will return them. On Monday I will also give the class a sample test. I plan to give the first exam (open book and open note) on Friday 10/19. On Monday we will also discuss the Smith case (text p. 34) that was previously assigned. The additional reading (pp. 41-44), which we will probably not get to until Wednesday, is Suggs v. Norris, but reading that case this weekend might prevent you from having an idle weekend.
POS 359 FEDERALISM
In class today, Friday 10/12, I collected the Necessary and Proper papers, and I plan to return them on Monday. We spent the class going over the clashes that were at the heart of that assignment, and I also explained the Roberts' use and Ginsburg refutation of the Printz v. U.S. (gun control) case. The assignment for Monday 10/15 is to read Gibbons v. Ogden in the text, pp. 85-94.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/12, we finished discussing Thomas's dissent in Grutter. I first gave some more background into Thomas' use of the Frederick Douglass quotation at the start of the opinion, and then we went section by section,labeling the argument made in each part of the opinion, and then the points in support of those arguments. The assignment for Monday 10/15 is to review the previously assigned Petitioner's Brief in Fisher, looking especially for those points that either derive from the Grutter dissents, or are different from them.
Wednesday, October 10, 2012
October 10, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today Wednesday 10/10, I first went over a few points regarding the Bragg brief. I discussed the question of when a suspect has freedom to leave, and also how to incorporate, in the case brief, the loser's facts into an "even though..." phrase. We then turned to the previous handout of the Maine statute regarding use of force to defend your premises, your home, or your stuff. We went over proper citation form for a statute, and then looked in some detail over what Maine allows for those situations. The assignment for Friday 10/12 is to finish the Bragg case brief which is due Friday, and also review the previously assigned Smith case (violent sexual predator).
POS 359 FEDERALISM
In class today, Wednesday 10/10, we continued with our discussion of Ginsburg's NFIB opinion. We went over Scalia's taxonomy of Necessary and Proper powers in Raich, and saw how Ginsburg fit one category of Scalia's structure into her NFIB argument. This enabled her to justify the individual mandate even if that mandate does not regulate economic activity. We will continue with her criticism of the Roberts NFIB opinion on Friday. The assignment for Friday 10/12 is to finish work on Assignment #1.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 10/10, we first listened to a clip from c-span in which Adam Liptak, NY Times Supreme Court reporter, discussed the significance of today oral argument in Fisher. Of particular interest was his discussion of how the decision might reach private, as well as public universities, and how the decision might be either broadly or narrowly applicable. We then turned to Thomas' Grutter dissent, discussing the Introduction and Part I of the opinion. We will continue with the Thomas dissent, and then go on to the Fisher Petitioner's Brief, on Friday. The assignment for Friday 10/12 is to review the remainder of the Thomas Grutter dissent, and the Fisher Petitioner's Brief.
In class today Wednesday 10/10, I first went over a few points regarding the Bragg brief. I discussed the question of when a suspect has freedom to leave, and also how to incorporate, in the case brief, the loser's facts into an "even though..." phrase. We then turned to the previous handout of the Maine statute regarding use of force to defend your premises, your home, or your stuff. We went over proper citation form for a statute, and then looked in some detail over what Maine allows for those situations. The assignment for Friday 10/12 is to finish the Bragg case brief which is due Friday, and also review the previously assigned Smith case (violent sexual predator).
POS 359 FEDERALISM
In class today, Wednesday 10/10, we continued with our discussion of Ginsburg's NFIB opinion. We went over Scalia's taxonomy of Necessary and Proper powers in Raich, and saw how Ginsburg fit one category of Scalia's structure into her NFIB argument. This enabled her to justify the individual mandate even if that mandate does not regulate economic activity. We will continue with her criticism of the Roberts NFIB opinion on Friday. The assignment for Friday 10/12 is to finish work on Assignment #1.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 10/10, we first listened to a clip from c-span in which Adam Liptak, NY Times Supreme Court reporter, discussed the significance of today oral argument in Fisher. Of particular interest was his discussion of how the decision might reach private, as well as public universities, and how the decision might be either broadly or narrowly applicable. We then turned to Thomas' Grutter dissent, discussing the Introduction and Part I of the opinion. We will continue with the Thomas dissent, and then go on to the Fisher Petitioner's Brief, on Friday. The assignment for Friday 10/12 is to review the remainder of the Thomas Grutter dissent, and the Fisher Petitioner's Brief.
Friday, October 5, 2012
October 5, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 10/5, we first went over some aspects of the Bragg (assigned case brief) case that might be confusing. We went over the concept of a Terry stop, from the 4th amendment case that allows the police to briefly detain and question a person without having "probable cause". We discussed the different standards of review by appellate courts involved in factual issues ("clear error") versus legal issues ("de novo"). We went over why U.S. constitutional issues dealt with by the First Circuit Court of Appeals (our circuit) are not mandatory authority over the Maine Supreme Court faced with those same constitutional issues. And finally, I reminded the class that in my case brief format, there is no segment that relates the story of a case, or the background facts; the "key facts" segment of the case brief only includes those specific circumstances that are relied on by the court to decide the operative legal question.
We then finished the Katko case brief. We looked at why the cited U.S. Supreme Court case was not treated as mandatory authority. We went over the failure of Briney's lawyer to properly object to the punitive damages jury instruction, and how the Iowa Supreme Court dealt with that. We then went over the two objections by the dissenting Justice. We went over four levels of mental state regarding the injurious conduct (intent, knowledge, recklessness and negligence) and then examined the difference between the intent that the dissenting Justice thought should be required under Iowa common law versus the intent that was included in the jury instructions. Finally we looked at the dissenting Justice's view of punitive damages.
The assignment for Wednesday 10/10 is to continue working on the Bragg case brief, and, in addition, read and prepare to discuss pp. 32-36 of the text.
POS 359 FEDERALISM
In class today, Friday 10/5, only one student in the class showed up. Looks like the early vacation bug hit hard. When we are all in class again on Wednesday, we will continue with the previously assigned Ginsburg dissent, as well as the two previously assigned adjuncts to her dissent, the Scalia concurrence in Gonzalez v. Raich, and the NFIB Joint Dissent discussion of the Necessary and Proper Clause. The assignment is to continue work on Assignment #1.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/5, we continued with the Grutter dissenting opinions. looking at both the Kennedy and Scalia dissents. We will finish up with the Thomas dissent when we convene again on Wednesday. Rearding the Thomas dissent, I asked the class to go through it and give a one sentence label to each of the seven numbered parts of the opinion. The additional reading for Wednesday 10/10 is to read the Petitioner's Brief in Fisher v. University of Texas. To access the brief, go to the supremecourt.gov site, select Merits Briefs/ Online Merits briefs (which takes you to the ABA site). select October 2012, and then scroll down to Week 2, Fisher v. University of Texas. Select Petitioner's Brief, although we'll be reading all 3 of the merits briefs, so you may as well print them all now.
In class today, Friday 10/5, we first went over some aspects of the Bragg (assigned case brief) case that might be confusing. We went over the concept of a Terry stop, from the 4th amendment case that allows the police to briefly detain and question a person without having "probable cause". We discussed the different standards of review by appellate courts involved in factual issues ("clear error") versus legal issues ("de novo"). We went over why U.S. constitutional issues dealt with by the First Circuit Court of Appeals (our circuit) are not mandatory authority over the Maine Supreme Court faced with those same constitutional issues. And finally, I reminded the class that in my case brief format, there is no segment that relates the story of a case, or the background facts; the "key facts" segment of the case brief only includes those specific circumstances that are relied on by the court to decide the operative legal question.
We then finished the Katko case brief. We looked at why the cited U.S. Supreme Court case was not treated as mandatory authority. We went over the failure of Briney's lawyer to properly object to the punitive damages jury instruction, and how the Iowa Supreme Court dealt with that. We then went over the two objections by the dissenting Justice. We went over four levels of mental state regarding the injurious conduct (intent, knowledge, recklessness and negligence) and then examined the difference between the intent that the dissenting Justice thought should be required under Iowa common law versus the intent that was included in the jury instructions. Finally we looked at the dissenting Justice's view of punitive damages.
The assignment for Wednesday 10/10 is to continue working on the Bragg case brief, and, in addition, read and prepare to discuss pp. 32-36 of the text.
POS 359 FEDERALISM
In class today, Friday 10/5, only one student in the class showed up. Looks like the early vacation bug hit hard. When we are all in class again on Wednesday, we will continue with the previously assigned Ginsburg dissent, as well as the two previously assigned adjuncts to her dissent, the Scalia concurrence in Gonzalez v. Raich, and the NFIB Joint Dissent discussion of the Necessary and Proper Clause. The assignment is to continue work on Assignment #1.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 10/5, we continued with the Grutter dissenting opinions. looking at both the Kennedy and Scalia dissents. We will finish up with the Thomas dissent when we convene again on Wednesday. Rearding the Thomas dissent, I asked the class to go through it and give a one sentence label to each of the seven numbered parts of the opinion. The additional reading for Wednesday 10/10 is to read the Petitioner's Brief in Fisher v. University of Texas. To access the brief, go to the supremecourt.gov site, select Merits Briefs/ Online Merits briefs (which takes you to the ABA site). select October 2012, and then scroll down to Week 2, Fisher v. University of Texas. Select Petitioner's Brief, although we'll be reading all 3 of the merits briefs, so you may as well print them all now.
Wednesday, October 3, 2012
October 3, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 10/3, I distributed one handout, Assignment #1, which is due October 13th, and which is copied below. We went over that assignment, including the source of the requirement for Miranda warnings, and the various issues that come up ,in terms of when those Miranda rights attach, and what police behavior is allowable. We also covered Maine Supreme Court citation format. We then turned our attention back to Katko. We looked at the role of jury instructions, and then at secondary authority versus primary authority, with the subdivision of primary authority into mandatory versus persuasive authority. We also included a new category into our concept of following versus distinguishing authority, the concept of extending authority. We will finish Katko on Friday. The assignment is to begin work on the Bragg case brief.
Assignment due Friday, October 12, 2012
The assignment (graded) is to do a Case Brief of the case of State v. Bragg, 2012 ME 102, 48 A3d. 769. 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 “This year’s opinions”
--select 2012 ME 102, State of Maine v. Tammy Bragg, (8/2/12)
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 specific 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 FEDERALISM
In class today, Wednesday 10/3, I distributed one handout, Assignment #1 which is copied below. The assignment is due Friday 10/12. We continued our analysis of the NFIB opinion, finishing the Roberts opinion, and beginning with the Ginsburg opinion. We got as far as her use of Scalia's concurrence in Raich to show how the Necessary and Proper clause can enlarge the powers of Congress beyond what is allowable directly under the Commerce Clause power. In addition to starting work on the paper, the additional reading for Friday 10/5 is to read pp. 5-10 of the Joint dissenting opinion in NFIB, and to read pp. 343-346 in the text.
ASSIGNMENT #1
For this assignment, I would like you to write a paper about the interpretation of the Necessary and Proper clause made in the three U.S. Supreme Court decisions we have studied; McCulloch, Comstock, and NFIB.
Specifically, I would like you to address these topics:
1) Every Justice in Comstock and NFIB says that he or she is being faithful to McCulloch, while it’s those other Justices on the other side who have gone astray. Summarize the positions of Justices Breyer and Thomas in Comstock, and Roberts and Ginsburg in NFIB, regarding how McCulloch (“properly” understood) supports their position.
2) For each pair of those Justices, write how they would refute the opposite Justice (Breyer to Thomas, Thomas to Breyer, etc.); how do or would they demonstrate that their opposite number has it wrong? Include Justice Ginsburg’s response in footnote 11 to the NFIB Joint dissent, as well as her response to Justice Scalia’s concurrence in Raich.
3) Finally, give you own view in both Comstock and NFIB about whether the Necessary and Proper clause either does support the asserted Congressional power, or does not. Support your answer with specific arguments.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text page numbers for McCulloch and Comstock, and slip opinion page numbers for NFIB).
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Friday, October 12. 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. If you do not have the paper done on time, be in touch with me right away.
The work should be entirely your own. See the syllabus regarding plagiarism or collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
IN class today, Wednesday 10/3, we continued our discussion of Grutter by going over the Rehnquist dissent in the case, the only one in which all four dissenters joined. We will continue on Friday with the remainder of the Grutter dissenting opinions. The assignment is to review those previously assigned opinions.
In class today, Wednesday 10/3, I distributed one handout, Assignment #1, which is due October 13th, and which is copied below. We went over that assignment, including the source of the requirement for Miranda warnings, and the various issues that come up ,in terms of when those Miranda rights attach, and what police behavior is allowable. We also covered Maine Supreme Court citation format. We then turned our attention back to Katko. We looked at the role of jury instructions, and then at secondary authority versus primary authority, with the subdivision of primary authority into mandatory versus persuasive authority. We also included a new category into our concept of following versus distinguishing authority, the concept of extending authority. We will finish Katko on Friday. The assignment is to begin work on the Bragg case brief.
Assignment due Friday, October 12, 2012
The assignment (graded) is to do a Case Brief of the case of State v. Bragg, 2012 ME 102, 48 A3d. 769. 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 “This year’s opinions”
--select 2012 ME 102, State of Maine v. Tammy Bragg, (8/2/12)
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 specific 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 FEDERALISM
In class today, Wednesday 10/3, I distributed one handout, Assignment #1 which is copied below. The assignment is due Friday 10/12. We continued our analysis of the NFIB opinion, finishing the Roberts opinion, and beginning with the Ginsburg opinion. We got as far as her use of Scalia's concurrence in Raich to show how the Necessary and Proper clause can enlarge the powers of Congress beyond what is allowable directly under the Commerce Clause power. In addition to starting work on the paper, the additional reading for Friday 10/5 is to read pp. 5-10 of the Joint dissenting opinion in NFIB, and to read pp. 343-346 in the text.
ASSIGNMENT #1
For this assignment, I would like you to write a paper about the interpretation of the Necessary and Proper clause made in the three U.S. Supreme Court decisions we have studied; McCulloch, Comstock, and NFIB.
Specifically, I would like you to address these topics:
1) Every Justice in Comstock and NFIB says that he or she is being faithful to McCulloch, while it’s those other Justices on the other side who have gone astray. Summarize the positions of Justices Breyer and Thomas in Comstock, and Roberts and Ginsburg in NFIB, regarding how McCulloch (“properly” understood) supports their position.
2) For each pair of those Justices, write how they would refute the opposite Justice (Breyer to Thomas, Thomas to Breyer, etc.); how do or would they demonstrate that their opposite number has it wrong? Include Justice Ginsburg’s response in footnote 11 to the NFIB Joint dissent, as well as her response to Justice Scalia’s concurrence in Raich.
3) Finally, give you own view in both Comstock and NFIB about whether the Necessary and Proper clause either does support the asserted Congressional power, or does not. Support your answer with specific arguments.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text page numbers for McCulloch and Comstock, and slip opinion page numbers for NFIB).
Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Friday, October 12. 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. If you do not have the paper done on time, be in touch with me right away.
The work should be entirely your own. See the syllabus regarding plagiarism or collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
IN class today, Wednesday 10/3, we continued our discussion of Grutter by going over the Rehnquist dissent in the case, the only one in which all four dissenters joined. We will continue on Friday with the remainder of the Grutter dissenting opinions. The assignment is to review those previously assigned opinions.
Monday, October 1, 2012
October 1, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 10/1, I distributed two handouts: my version of the Katko brief, and the Maine statute regarding use of force in defense of premises. We finished our discussion of Glucksberg, going over the concepts of following, distinguishing, or overruling precedent. We also went over Justice Souter's concurrence. We then started going over the Katko brief, getting as far as the first issue that the court dealt with, and along the way discussing citation form for state courts in the West publishing regional reporters. The assignment for Wednesday 10/3 is to read over the two handouts, asking yourself what the outcome in Maine would have been of a criminal trial of the Brineys.
POS 359 FEDERALISM
In class today, Monday 10/1, we finished going over the Comstock opinions from the text. Then we started on the Roberts Necessary and Proper discussion in the Obamacare decision. I gave some background in terms of the individual mandate, guaranteed issue, and community rating. We left off with the government's argument of how the mandate, if it's not authorized by the commerce clause, could still be authorized by the Necessary and Proper clause. We will finish up the Roberts opinion on Wednesday. The additional reading for Wednesday 10/3 is to read Justice Ginsburg's dissent on the Necessary and Proper issue, which can be found at pp. 31-36 of her opinion. Please bring both excerpts (Roberts and Ginsburg) with you to class.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/1, we first celebrated the first day of the new Supreme Court term by going over some of the proceedings in the Court today. We then got back to work on Grutter, concluding our discussion of the O'Connor and Ginsburg opinions. We will continue with the remainder of the Grutter opinions on Wednesday. Review those opinions, and prepare to discuss them.
In class today, Monday 10/1, I distributed two handouts: my version of the Katko brief, and the Maine statute regarding use of force in defense of premises. We finished our discussion of Glucksberg, going over the concepts of following, distinguishing, or overruling precedent. We also went over Justice Souter's concurrence. We then started going over the Katko brief, getting as far as the first issue that the court dealt with, and along the way discussing citation form for state courts in the West publishing regional reporters. The assignment for Wednesday 10/3 is to read over the two handouts, asking yourself what the outcome in Maine would have been of a criminal trial of the Brineys.
POS 359 FEDERALISM
In class today, Monday 10/1, we finished going over the Comstock opinions from the text. Then we started on the Roberts Necessary and Proper discussion in the Obamacare decision. I gave some background in terms of the individual mandate, guaranteed issue, and community rating. We left off with the government's argument of how the mandate, if it's not authorized by the commerce clause, could still be authorized by the Necessary and Proper clause. We will finish up the Roberts opinion on Wednesday. The additional reading for Wednesday 10/3 is to read Justice Ginsburg's dissent on the Necessary and Proper issue, which can be found at pp. 31-36 of her opinion. Please bring both excerpts (Roberts and Ginsburg) with you to class.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 10/1, we first celebrated the first day of the new Supreme Court term by going over some of the proceedings in the Court today. We then got back to work on Grutter, concluding our discussion of the O'Connor and Ginsburg opinions. We will continue with the remainder of the Grutter opinions on Wednesday. Review those opinions, and prepare to discuss them.
Friday, September 28, 2012
September 28, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 9/28, I distributed one handout, my version of the Glucksberg case brief. We went through the Cruzan and Casey cases, and discussed how the Court found different rights involved in those cases. We also discussed from Cruzan the concept of varying burdens of persuasion, from preponderance, to clear and convincing, to beyond reasonable doubt. Finally we saw how the Court identified "legitimate" interests for the State of Washington in outlawing assisted suicide. We will pick up on Monday with a brief discussion of how Justice Souter's opinion differs from that of the majority. The additional assignment for Monday 10/1 is to read pp. 36-41 of the text, and to write out (for yourselves, not handed in) a case brief of the Katko case.
POS 359 FEDERALISM
In class today, Friday 9/28, we continued with our discussion of the Comstock case. We finished going over the majority's five reasons, and then got through the Kennedy and Alito concurrences. We began going through the Thomas dissent, with which we will continue on Monday. The additional assignment for Monday 10/1 is to read Chief Justice Roberts' discussion of the Necessary and Proper Clause in the Obamacare decision. To find the discussion, go to supremecourt.gov, select Opinions/ Latest Slip Opinions,select R-75, 6/28/12, NFIB v. Sebelius, and read section 2 regarding the Necessary and Proper Clause, pp. 27-30 of the Roberts opinion pagination.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 9/28, we continued our discussion of the Grutter case. We outlined the O'Connor majority decision, seeing how she held that student body diversity was a compelling interest, and that the school's program was narrowly tailored to achieve that interest. The assignment for Monday 10/1 is to read the remainder of the Grutter opinions.
In class today, Friday 9/28, I distributed one handout, my version of the Glucksberg case brief. We went through the Cruzan and Casey cases, and discussed how the Court found different rights involved in those cases. We also discussed from Cruzan the concept of varying burdens of persuasion, from preponderance, to clear and convincing, to beyond reasonable doubt. Finally we saw how the Court identified "legitimate" interests for the State of Washington in outlawing assisted suicide. We will pick up on Monday with a brief discussion of how Justice Souter's opinion differs from that of the majority. The additional assignment for Monday 10/1 is to read pp. 36-41 of the text, and to write out (for yourselves, not handed in) a case brief of the Katko case.
POS 359 FEDERALISM
In class today, Friday 9/28, we continued with our discussion of the Comstock case. We finished going over the majority's five reasons, and then got through the Kennedy and Alito concurrences. We began going through the Thomas dissent, with which we will continue on Monday. The additional assignment for Monday 10/1 is to read Chief Justice Roberts' discussion of the Necessary and Proper Clause in the Obamacare decision. To find the discussion, go to supremecourt.gov, select Opinions/ Latest Slip Opinions,select R-75, 6/28/12, NFIB v. Sebelius, and read section 2 regarding the Necessary and Proper Clause, pp. 27-30 of the Roberts opinion pagination.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 9/28, we continued our discussion of the Grutter case. We outlined the O'Connor majority decision, seeing how she held that student body diversity was a compelling interest, and that the school's program was narrowly tailored to achieve that interest. The assignment for Monday 10/1 is to read the remainder of the Grutter opinions.
Monday, September 24, 2012
September 24, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday, 9/24, we continued going over the Glucksberg case brief. We got as far as the first issue that the Court dealt with, the question of whether the right to assist a suicide was a fundamental right. We will continue with the next issue, the use of precedent, when I am next in class, which will be on Friday 9/28. On Wednesday 9/26 (another religious holiday for me), the class will watch the next part of the PBS Supreme Court series, this one about the recognition of individual liberties.
POS 359 FEDERALISM
In class today, Monday, 9/24, we started going over the Comstock decision. I began with the background of the case of Kansas v, Hendricks, in which the Court conservatives fought back a challenge to the state assertion of power to lock up sexual predators under the ex post facto prohibition. We got as far in Comstock as the fourth of Justice Breyer's justification for the use of the Necessary and Proper clause, that there is no great threat in this case to state sovereignty. We will continue with the rest of the Breyer opinion, the concurrences, and the dissent, when I am next in class, which will be on Friday 9/28. On Wednesday 9/26 (another religious holiday for me), the class will watch the next part of the Founding Brothers series, this one starting with the Adams presidency and continuing on from there with the story of Federalists versus Jeffersonians, with many interesting twists.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 9/24, I began class by going over the 1978 Bakke case, and then the two 2003 University of Michigan cases that were decided by 5-4 votes, Gratz and Grutter. We went through the lineup of Justices in all three cases, and also talked about how strict scrutiny was used in the analysis. We will continue with Grutter when I am next in class, which will be on Friday 9/28. On Wednesday 9/26 (another religious holiday for me), the class will watch the next part of the PBS Supreme Court series, this one about the creation of substantive due process and the protection of economic interests. The additional reading for Friday 9/28 is to read the dissents of Justice Scalia and Justice Kennedy in Grutter (or, go ahead and read all of the opinions).
In class today, Monday, 9/24, we continued going over the Glucksberg case brief. We got as far as the first issue that the Court dealt with, the question of whether the right to assist a suicide was a fundamental right. We will continue with the next issue, the use of precedent, when I am next in class, which will be on Friday 9/28. On Wednesday 9/26 (another religious holiday for me), the class will watch the next part of the PBS Supreme Court series, this one about the recognition of individual liberties.
POS 359 FEDERALISM
In class today, Monday, 9/24, we started going over the Comstock decision. I began with the background of the case of Kansas v, Hendricks, in which the Court conservatives fought back a challenge to the state assertion of power to lock up sexual predators under the ex post facto prohibition. We got as far in Comstock as the fourth of Justice Breyer's justification for the use of the Necessary and Proper clause, that there is no great threat in this case to state sovereignty. We will continue with the rest of the Breyer opinion, the concurrences, and the dissent, when I am next in class, which will be on Friday 9/28. On Wednesday 9/26 (another religious holiday for me), the class will watch the next part of the Founding Brothers series, this one starting with the Adams presidency and continuing on from there with the story of Federalists versus Jeffersonians, with many interesting twists.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 9/24, I began class by going over the 1978 Bakke case, and then the two 2003 University of Michigan cases that were decided by 5-4 votes, Gratz and Grutter. We went through the lineup of Justices in all three cases, and also talked about how strict scrutiny was used in the analysis. We will continue with Grutter when I am next in class, which will be on Friday 9/28. On Wednesday 9/26 (another religious holiday for me), the class will watch the next part of the PBS Supreme Court series, this one about the creation of substantive due process and the protection of economic interests. The additional reading for Friday 9/28 is to read the dissents of Justice Scalia and Justice Kennedy in Grutter (or, go ahead and read all of the opinions).
Friday, September 21, 2012
September 21, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 9/21, I distributed one handout, an opinion piece about assisted suicide. We finished with the Brown v. EMA Supreme Court opinions, going over Justice Alito's concurring opinion, and then the Justice Thomas and the Justice Breyer dissents. Then we got a brief start on the Glucksberg case brief, getting only as far as the first segments of the "Parties" category. We will continue with the Glucksberg case brief on Monday. The assignment for Monday 9/24 is to continue working on the Glucksberg case brief.
POS 359 FEDERALISM
In class today, Friday 9/21, we finished our discussion of MCCullough v. Maryland. We went through the various arguments made by Maryland both about the scope of the Necessary and Proper Clause, and the taxing power of the state. The assignment for Monday 9/24 is to read and prepare to discuss the United States v. Comstock (pp. 485-496 of the text). In your reading, be prepared to go paragraph by paragraph to put into English the argument that's being made, and the answer that's being given by the various Justices.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 9/21, I distributed two handouts: one was an article by Linda Greenhouse discussing how Constitution Day may be unconstitutional under the June Affordable Care Act decision, and the other was the Official Ballot for the case that the class will tackle. After some explanation of the different cases in the Court's October Term, the class chose the case of Fisher v. University of Texas for "our" case. The assignment for Monday September 24th is to read the case that supplies the grounds on which Fisher will be argued, Grutter v. Bollinger, 539 US 306 (2003). You can Google the case for a number of sites on which the decision is reported. One that I find particularly useful is the Cornell University site (Legal Information Institute) as it separates out the various opinions. Read for Monday at least Justice O'Connor's majority opinion, although we will get eventually get to all of the opinions.
In class today, Friday 9/21, I distributed one handout, an opinion piece about assisted suicide. We finished with the Brown v. EMA Supreme Court opinions, going over Justice Alito's concurring opinion, and then the Justice Thomas and the Justice Breyer dissents. Then we got a brief start on the Glucksberg case brief, getting only as far as the first segments of the "Parties" category. We will continue with the Glucksberg case brief on Monday. The assignment for Monday 9/24 is to continue working on the Glucksberg case brief.
POS 359 FEDERALISM
In class today, Friday 9/21, we finished our discussion of MCCullough v. Maryland. We went through the various arguments made by Maryland both about the scope of the Necessary and Proper Clause, and the taxing power of the state. The assignment for Monday 9/24 is to read and prepare to discuss the United States v. Comstock (pp. 485-496 of the text). In your reading, be prepared to go paragraph by paragraph to put into English the argument that's being made, and the answer that's being given by the various Justices.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 9/21, I distributed two handouts: one was an article by Linda Greenhouse discussing how Constitution Day may be unconstitutional under the June Affordable Care Act decision, and the other was the Official Ballot for the case that the class will tackle. After some explanation of the different cases in the Court's October Term, the class chose the case of Fisher v. University of Texas for "our" case. The assignment for Monday September 24th is to read the case that supplies the grounds on which Fisher will be argued, Grutter v. Bollinger, 539 US 306 (2003). You can Google the case for a number of sites on which the decision is reported. One that I find particularly useful is the Cornell University site (Legal Information Institute) as it separates out the various opinions. Read for Monday at least Justice O'Connor's majority opinion, although we will get eventually get to all of the opinions.
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