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.
Wednesday, October 31, 2012
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.
Subscribe to:
Posts (Atom)