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.
Friday, November 30, 2012
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.
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