POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 12/14, I distributed one handout, an excerpt from the Maine Rules of Evidence regarding the spousal privilege in Maine. I began with a Maine case about service of process, Brown v. Thaler. We went over the Clement case about abuse of discovery, and Timmermann about Utah's spousal testimonial privilege. Our final exam will be Wednesday 12/19 from 9:30-10:30. If there's bad weather, I'll try to post on this blog any information that I know. If you are missing any handouts, email me prior to Wednesday.
POS 359 FEDERALISM
In class today, Friday 12/14, we finished Medtronic v. Lohr. I then talked about the follow-up to that case, Riegel v. Medtronic, which found broad preemption for medical devices, at least for devices approved under the premarket approval process. We then discussed Geier and Wyeth. We looked also at Justice Thomas' joining and then outdoing the liberals in the last two of these cases. Remember that Assignment #3 is due by noon on Wednesday 12/19, and that you must get a confirmation from me that I have received and can open your paper. Have a good winter break.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 12/14, I handed back the Jardines papers. We then talked about two upcoming Supreme Court 4th amendment cases, both having to do with the state seizing bodily material without a warrant or consent. One has to do with a compelled blood alcohol test, under the theory of exigent circumstances (that the alcohol will dissipate); the other has to do with compelled DNA samples from a person arrested, but not yet convicted.
If you were not in class today, but want your paper back, email me to let me know that. Have a good winter break.
Friday, December 14, 2012
Wednesday, December 12, 2012
December 12, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 12/12, I distributed one handout, an excerpt from the Maine Rules of Civil Procedure about service of process. We finished going over the Gilmore case and the rules about removal to and remand from the federal court system, and then we went on to Chapter 5 and civil procedure. We covered the Dorsey v. Gregg case, and then I went over what the Maine Rules provide for in terms of service of process. We will continue with Chapter 5 and the previously assigned Clement case on Friday. The additional assignment for Friday 12/14 is to read and prepare to discuss through the case of Utah v. Timmermann, through p. 174 of the text. That's how far the exam on Wednesday 12/19 at 9:30 will cover.
POS 359 FEDERALISM
In class today, Wednesday 12/12, I distributed one handout, an article about the state of Vermont's efforts to regulate the Vermont Yankee nuclear power plant. We then went back into the preemption cases, finishing PG&E, and Cipollone. We started our review of Medtronic, going over the liberal and conservative lineups and the basic preemption claim. We will pick up on Friday at part III of Medtronic. I plan to also discuss Greier and Wyeth on Friday. The assignment for Friday 12/14 is to finish reading those cases, and to be working on your paper for Assignment #3, due 12/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/12, we talked about the two gay marriage cases accepted by the Supreme Court last week. We went over the history of the California Prop. 8 case, the possibilities of either a very broad ruling on the merits, a narrow ruling on the merits, or even a narrow ruling on standing. In Windsor, the DOMA case, we talked about the interplay of federalism questions with gay rights issues, as well as both standing issues and jurisdiction issues (the ability of the federal government to be appealing the Court of Appeals decision, when they basically agreed with the merits of the decision that they appealed). On Friday 12/14, I will hand back the Jardines papers, and we will talk about other current Supreme Court issues of interest.
In class today, Wednesday 12/12, I distributed one handout, an excerpt from the Maine Rules of Civil Procedure about service of process. We finished going over the Gilmore case and the rules about removal to and remand from the federal court system, and then we went on to Chapter 5 and civil procedure. We covered the Dorsey v. Gregg case, and then I went over what the Maine Rules provide for in terms of service of process. We will continue with Chapter 5 and the previously assigned Clement case on Friday. The additional assignment for Friday 12/14 is to read and prepare to discuss through the case of Utah v. Timmermann, through p. 174 of the text. That's how far the exam on Wednesday 12/19 at 9:30 will cover.
POS 359 FEDERALISM
In class today, Wednesday 12/12, I distributed one handout, an article about the state of Vermont's efforts to regulate the Vermont Yankee nuclear power plant. We then went back into the preemption cases, finishing PG&E, and Cipollone. We started our review of Medtronic, going over the liberal and conservative lineups and the basic preemption claim. We will pick up on Friday at part III of Medtronic. I plan to also discuss Greier and Wyeth on Friday. The assignment for Friday 12/14 is to finish reading those cases, and to be working on your paper for Assignment #3, due 12/19.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/12, we talked about the two gay marriage cases accepted by the Supreme Court last week. We went over the history of the California Prop. 8 case, the possibilities of either a very broad ruling on the merits, a narrow ruling on the merits, or even a narrow ruling on standing. In Windsor, the DOMA case, we talked about the interplay of federalism questions with gay rights issues, as well as both standing issues and jurisdiction issues (the ability of the federal government to be appealing the Court of Appeals decision, when they basically agreed with the merits of the decision that they appealed). On Friday 12/14, I will hand back the Jardines papers, and we will talk about other current Supreme Court issues of interest.
Monday, December 10, 2012
December 10, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 12/10, we started with a review of the requirements of federal court jurisdiction, both federal question jurisdiction and diversity jurisdiction. We then went through Kopp and Gebbia, exploring why a party might want to be in a particular court system (state or federal), and the rules that allow diversity jurisdiction and removal jurisdiction. We also talked about legal strategies, and the choices that lawyers need to consider before they bring a case. We started our discussion of Gilmore, setting up the parties, cause of action, and which court system the plaintiff wanted to be in. We will continue with Gilmore on Wednesday, and also discuss the previously assigned Dorsey v. Gregg on p. 161. The additional assignment for Wednesday 12/12/12 is to read and prepare to discuss through p.166 (the Clement case).
POS 359 FEDERALISM
In class today, Monday 12/10, I distributed two handouts: Assignment#3 (reproduced below) and a roundup in the eight Chapter 7 cases that we have and will study of the votes by liberal and conservative Justices. We went over those two handouts. We finished our discussion of West Lynn Creamery, going over the concurring and dissenting opinions. We began our discussion of Pacific Gas and Electric, getting as far as the general preemption argument by PG&E against the California moratorium. We will pick up with PG&E's three specific preemption arguments on Wedesday. The assignment for Wednesday 12/12/12 is to begin work on Assignment#3 (due 12/19) and to begin reading the three additional preemption cases that make up part of the assignment: Medtronic (p.537), Geier (p.546), and Wyeth (p.554).
Assignment #3
For this assignment, I would like you to write a paper about the meaning of “liberal” and “conservative” values regarding federalism in the modern Supreme Court era (post 1937). In our first two papers the questions were about the powers of the federal government, and we saw that the liberal Justices generally favored a more expansive view of the federal power, while the conservatives on the Court were more ready to impose limits on that power. We also saw the liberals more ready to defer to the judgments and policy choices of Congress, and to reject the imposition of categorical tests that excluded some areas of regulation from Congressional power. As an example, in NFIB, Ginsburg interpreted the Commerce Clause and the Necessary and Proper Clause more broadly than did Roberts, argued that deference was due to Congress’ determination, and rejected the distinction between activity versus inactivity.
In the final portion of this federalism class we’ve looked at how the federal power limits the reach of state power, both by the dormant commerce clause (when Congress has not acted), and by preemption (when Congress or federal agencies have acted). While the dormant commerce clause cases follow somewhat the pattern of conservative Justices disfavoring the idea of broad federal power, that pattern seems somewhat to be reversed in the preemption cases. In those cases, the liberals often (but not always) favor the preservation of states rights and remedies at the expense of federal power, while the conservatives often (but not always) favor preemption by federal legislation, and the rejection of state remedies. The broad subject of the third paper is to discuss whether there really are “liberal” and “conservative” values in terms of federalism, and, if so, whether other considerations outweigh federalism questions at times.
Specifically, I would like you to address these topics:
1) Give at least three examples from our readings from Chapter 7 of the text in which the liberals (or at least some of them) have not wanted to limit state remedies or regulation, while the conservatives have wanted to limit them. By “liberals” for the cases we’ve looked at, I mean all the current Democratic presidential nominees (Ginsburg, Breyer, Kagan, and Sotomayor) as well as these Republican presidential appointees who might not have turned out as expected: Blackmun, Stevens, and Souter. Explain the basic issue in each case you’ve chosen, how it pitted federal versus state power, and specify how the vote reflects the pattern that I’ve asked for.
2) For each of your examples, explain as best you can whether it is the principles of federalism that separate liberal versus conservative viewpoints, or whether there is some other consideration that seems more important to the Justices. You might look, for example, at the line-up of the parties in our cases. (In our commerce clause and necessary and proper cases, the line-up was usually the federal government versus a party that was being regulated by Congress. In the dormant commerce clause cases, the line-up was usually the state government versus the party that was being regulated by that state government. How do the parties line up in the preemption cases, and is there any significance to the lineup?) Is deference to Congress a vital factor? Or is the avoidance of categorical labels? Or does something else entirely explain the line-up?
3) Finally, using three examples (which can be, but need not necessarily be, the same as the three cases you’ve discussed above) give your own view about whether the ideal government would support federal or state power in the three specific examples you’ve chosen. For this section, you can, but don’t have to, include the articles we read about such things as fracking and wind power. Should there be exclusive federal regulation, exclusive state regulation, a combination of both, or no regulation at all. Support your answer with specific arguments.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text or article page numbers).
Your papers will not be graded on which view of the issues you take, but rather on how well you support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due by noon on Wednesday December 19th. You should e-mail the paper to me by that time. I will acknowledge receipt of papers--if you don’t get an acknowledgment, that means that I didn’t get the paper.
The paper will be graded on how well you follow the requirements of the assignment. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.
The work should be entirely your own, with no collaboration, and no plagiarism.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/10, I collected the Jardines papers, and we spent the class period going over various views of what the issues were and how those issues should get resolved. I also distributed one handout, the list of questions presented in the two gay marriage cases in which the Supreme Court granted cert on Friday. On Wednesday we will continue our discussion of those gay marriage cases. Remember that I would like to be notified by Friday 12/14 if you are planning on writing the optional third paper.
In class today, Monday 12/10, we started with a review of the requirements of federal court jurisdiction, both federal question jurisdiction and diversity jurisdiction. We then went through Kopp and Gebbia, exploring why a party might want to be in a particular court system (state or federal), and the rules that allow diversity jurisdiction and removal jurisdiction. We also talked about legal strategies, and the choices that lawyers need to consider before they bring a case. We started our discussion of Gilmore, setting up the parties, cause of action, and which court system the plaintiff wanted to be in. We will continue with Gilmore on Wednesday, and also discuss the previously assigned Dorsey v. Gregg on p. 161. The additional assignment for Wednesday 12/12/12 is to read and prepare to discuss through p.166 (the Clement case).
POS 359 FEDERALISM
In class today, Monday 12/10, I distributed two handouts: Assignment#3 (reproduced below) and a roundup in the eight Chapter 7 cases that we have and will study of the votes by liberal and conservative Justices. We went over those two handouts. We finished our discussion of West Lynn Creamery, going over the concurring and dissenting opinions. We began our discussion of Pacific Gas and Electric, getting as far as the general preemption argument by PG&E against the California moratorium. We will pick up with PG&E's three specific preemption arguments on Wedesday. The assignment for Wednesday 12/12/12 is to begin work on Assignment#3 (due 12/19) and to begin reading the three additional preemption cases that make up part of the assignment: Medtronic (p.537), Geier (p.546), and Wyeth (p.554).
Assignment #3
For this assignment, I would like you to write a paper about the meaning of “liberal” and “conservative” values regarding federalism in the modern Supreme Court era (post 1937). In our first two papers the questions were about the powers of the federal government, and we saw that the liberal Justices generally favored a more expansive view of the federal power, while the conservatives on the Court were more ready to impose limits on that power. We also saw the liberals more ready to defer to the judgments and policy choices of Congress, and to reject the imposition of categorical tests that excluded some areas of regulation from Congressional power. As an example, in NFIB, Ginsburg interpreted the Commerce Clause and the Necessary and Proper Clause more broadly than did Roberts, argued that deference was due to Congress’ determination, and rejected the distinction between activity versus inactivity.
In the final portion of this federalism class we’ve looked at how the federal power limits the reach of state power, both by the dormant commerce clause (when Congress has not acted), and by preemption (when Congress or federal agencies have acted). While the dormant commerce clause cases follow somewhat the pattern of conservative Justices disfavoring the idea of broad federal power, that pattern seems somewhat to be reversed in the preemption cases. In those cases, the liberals often (but not always) favor the preservation of states rights and remedies at the expense of federal power, while the conservatives often (but not always) favor preemption by federal legislation, and the rejection of state remedies. The broad subject of the third paper is to discuss whether there really are “liberal” and “conservative” values in terms of federalism, and, if so, whether other considerations outweigh federalism questions at times.
Specifically, I would like you to address these topics:
1) Give at least three examples from our readings from Chapter 7 of the text in which the liberals (or at least some of them) have not wanted to limit state remedies or regulation, while the conservatives have wanted to limit them. By “liberals” for the cases we’ve looked at, I mean all the current Democratic presidential nominees (Ginsburg, Breyer, Kagan, and Sotomayor) as well as these Republican presidential appointees who might not have turned out as expected: Blackmun, Stevens, and Souter. Explain the basic issue in each case you’ve chosen, how it pitted federal versus state power, and specify how the vote reflects the pattern that I’ve asked for.
2) For each of your examples, explain as best you can whether it is the principles of federalism that separate liberal versus conservative viewpoints, or whether there is some other consideration that seems more important to the Justices. You might look, for example, at the line-up of the parties in our cases. (In our commerce clause and necessary and proper cases, the line-up was usually the federal government versus a party that was being regulated by Congress. In the dormant commerce clause cases, the line-up was usually the state government versus the party that was being regulated by that state government. How do the parties line up in the preemption cases, and is there any significance to the lineup?) Is deference to Congress a vital factor? Or is the avoidance of categorical labels? Or does something else entirely explain the line-up?
3) Finally, using three examples (which can be, but need not necessarily be, the same as the three cases you’ve discussed above) give your own view about whether the ideal government would support federal or state power in the three specific examples you’ve chosen. For this section, you can, but don’t have to, include the articles we read about such things as fracking and wind power. Should there be exclusive federal regulation, exclusive state regulation, a combination of both, or no regulation at all. Support your answer with specific arguments.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text or article page numbers).
Your papers will not be graded on which view of the issues you take, but rather on how well you support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due by noon on Wednesday December 19th. You should e-mail the paper to me by that time. I will acknowledge receipt of papers--if you don’t get an acknowledgment, that means that I didn’t get the paper.
The paper will be graded on how well you follow the requirements of the assignment. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.
The work should be entirely your own, with no collaboration, and no plagiarism.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/10, I collected the Jardines papers, and we spent the class period going over various views of what the issues were and how those issues should get resolved. I also distributed one handout, the list of questions presented in the two gay marriage cases in which the Supreme Court granted cert on Friday. On Wednesday we will continue our discussion of those gay marriage cases. Remember that I would like to be notified by Friday 12/14 if you are planning on writing the optional third paper.
Friday, December 7, 2012
December 7, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 12/7, we finished our discussion of Robey, and I also talked about the appeal of that decision to the Kentucky Supreme Court. I then went over three Maine cases dealing with personal jurisdiction: Connelly v. Doucette, Commerce Bank v. Dworman, and Tidwell v. Zawacki. We will continue with federal diversity jurisdiction on Monday with Kopp and Gebbia (previously assigned). The assignment for Monday 12/10 is to read in the text pp 143-150 (Gilmore; we've already covered Land, p. 146) and 153-162 (Dorsey); skip Salmon, p. 155. In short, the only two new cases assigned are Gilmore and Dorsey.
POS 359 FEDERALISM
In class today, Friday 12/7, I distributed one handout, a description of the Maine Milk Commission and an excerpt from the Federal Register regarding Maine's status under federal milk price controls. We finished our discussion of solid waste regulation by looking at how Maine attempted to work around the Philadelphia v. N.J. opinion. We then discussed Tyler Pipe (p. 506), spending most of our time going over Justice Scalia'a dissent. We started West Lynn Creamery (p. 509), getting through Justice Stevens' opinion. We will pick up with the concurrence and the dissent next Monday. The assignment for Monday 12/10 is to read and prepare to discuss pp. 523-537.
POS 359 THE CURRENT SUPREME COURT TERM
IN class today, Friday 12/7, I distributed two handouts: an article about the Maine resident who recruited plaintiffs in the race cases of Fisher and Shelby County, and an article by Tom Goldstein about the strategies involved in deciding whether to bring a particular issue to the Court at a particular time (in this case, gay marriage). We then talked about the significance of Baker v. Nelson for the decision regarding the appropriate level of review for gay marriage recognition. The assignment for Monday 12/10 is to finish work on your Jardines papers, which are due at the beginning of Monday's class.
In class today, Friday 12/7, we finished our discussion of Robey, and I also talked about the appeal of that decision to the Kentucky Supreme Court. I then went over three Maine cases dealing with personal jurisdiction: Connelly v. Doucette, Commerce Bank v. Dworman, and Tidwell v. Zawacki. We will continue with federal diversity jurisdiction on Monday with Kopp and Gebbia (previously assigned). The assignment for Monday 12/10 is to read in the text pp 143-150 (Gilmore; we've already covered Land, p. 146) and 153-162 (Dorsey); skip Salmon, p. 155. In short, the only two new cases assigned are Gilmore and Dorsey.
POS 359 FEDERALISM
In class today, Friday 12/7, I distributed one handout, a description of the Maine Milk Commission and an excerpt from the Federal Register regarding Maine's status under federal milk price controls. We finished our discussion of solid waste regulation by looking at how Maine attempted to work around the Philadelphia v. N.J. opinion. We then discussed Tyler Pipe (p. 506), spending most of our time going over Justice Scalia'a dissent. We started West Lynn Creamery (p. 509), getting through Justice Stevens' opinion. We will pick up with the concurrence and the dissent next Monday. The assignment for Monday 12/10 is to read and prepare to discuss pp. 523-537.
POS 359 THE CURRENT SUPREME COURT TERM
IN class today, Friday 12/7, I distributed two handouts: an article about the Maine resident who recruited plaintiffs in the race cases of Fisher and Shelby County, and an article by Tom Goldstein about the strategies involved in deciding whether to bring a particular issue to the Court at a particular time (in this case, gay marriage). We then talked about the significance of Baker v. Nelson for the decision regarding the appropriate level of review for gay marriage recognition. The assignment for Monday 12/10 is to finish work on your Jardines papers, which are due at the beginning of Monday's class.
Wednesday, December 5, 2012
December 5, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 11/5 the class first did evaluations. We then started our discussion of personal jurisdiction. We discussed personal jurisdiction by domicile, by service within the state, and by consent of the defendant. We began our discussion of Robey v. Hinners, getting as far as the second issue in the case. We will finish Robey on Friday. The additional assignment for Friday 12/7 is to read through p. 142 of the text.
POS 359 FEDERALISM
In class today, Wednesday 12/5, I distributed one handout, Maine's statute regarding the importation of out-of-state solid waste. We discussed the explicit restrictions in the constitution on state powers, and then the implicit restrictions. We made our way through Philadelphia v. N.J., the Maine statute, and began talking about the ways that Maine tried to respond to that decision. We will begin on Friday with two questions left over at the end of today's class: were the Philadelphia v. N.J. dissenters environmental heroes, and how else could Maine react to that decision, in addition to restricting the size of landfills. The assignment for Friday 12/7 is to read through p. 512 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/5, I distributed one handout, the optional assignment #3, which is reproduced below. We talked about the legal history of gay rights, including criminalization of gay sex, discrimination against gays, and gay marriage. We went over the levels of judicial scrutiny (rational basis, strict scrutiny, etc.) and how the various institutional power relationship questions (federalism, individual rights, separation of powers) are involved in cases like Windsor. We will pick up on Friday with the question of whether the ways of distinguishing Baker v. Nelson logically dictate a different result from the one in that case. The assignment is to continue working on the Jardines paper, due Monday 12/10.
Assignment #3 (OPTIONAL)
SPECIAL INSTRUCTIONS:
IF YOU CHOOSE TO DO THE OPTIONAL ASSIGNMENT, PLEASE NOTIFY ME OF THAT CHOICE THROUGH E-MAIL BY FRIDAY DECEMBER 14TH. IF YOU DON’T E-MAIL, I’LL ASSUME THAT YOU’RE NOT PLANNING ON DOING THE OPTIONAL PAPER.
For this assignment, I would like you to write a paper about the constitutionality of the Federal Defense of Marriage Act (DOMA), as that issue was interpreted by both the majority and the dissenting opinions in the recent Second Circuit decision in Windsor v. United States. You can access that case by going to
http://www.ca2.uscourts.gov/opinions.htm
and then in the dialogue box labeled
“Docket #, Date, Party Name or find decisions that contain:”
enter
Windsor v. United States.
Here is what I would like you to do:
1) Summarize the positions of both the majority and the dissenting opinions. Be specific in you summary. Include every issue and sub-issue dealt with in those opinions, and how the writer reached their conclusion. Use the organizing outline provided in each opinion.
2) How do or would the majority and the dissent demonstrate that their opposite number has it wrong? Be clear about the clash between the different positions taken. Also go over those issues in which there is not a clash because the two opinions see different questions that need to be answered.
3) Finally, give you own view about whether section 3 of DOMA is constitutional. Include your view about the effect of Baker v. Nelson, the correct standard of review, and then the analysis under that standard. Support your answer with specific arguments. You should deal specifically with the issues raised by the side that is opposed to your view of the case. What’s wrong with the positions taken by the other side?
I’m not looking for an introduction to the case -- that is assumed. Just get right to the three sections I’ve requested.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use slip opinion page numbers and line numbers for Windsor, and just names for any other cases).
Here’s a fictitious example to demonstrate the format that I’m looking for:
I believe that the correct standard of review is rational basis review. While the majority opinion settles on intermediate scrutiny (Majority, 34:7), I think that this is not the correct standard of review. Homosexuals may have, in the past, suffered from a great deal of discrimination, but the Supreme Court at that time apparently did not think that homosexuals were a protected minority (Baker v. Nelson). Today, however, there is widespread acceptance of homosexuals and homosexual rights. The fact that a number of states now recognize gay marriage, even through popular vote as in the November 2012 elections, demonstrates that homosexuals are no longer subject to the kind of discrimination that calls for elevated scrutiny.
The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due by noon on Wednesday December 19th. You should e-mail the paper to me by that time. I will acknowledge receipt of papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. Also e-mail me by that date if you have previously indicated that you plan to do the optional paper, but have changed your mind.
The paper will not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you identify issues, evaluate them, and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.
The work should be entirely your own, with no collaboration, and no plagiarism.
In class today, Wednesday 11/5 the class first did evaluations. We then started our discussion of personal jurisdiction. We discussed personal jurisdiction by domicile, by service within the state, and by consent of the defendant. We began our discussion of Robey v. Hinners, getting as far as the second issue in the case. We will finish Robey on Friday. The additional assignment for Friday 12/7 is to read through p. 142 of the text.
POS 359 FEDERALISM
In class today, Wednesday 12/5, I distributed one handout, Maine's statute regarding the importation of out-of-state solid waste. We discussed the explicit restrictions in the constitution on state powers, and then the implicit restrictions. We made our way through Philadelphia v. N.J., the Maine statute, and began talking about the ways that Maine tried to respond to that decision. We will begin on Friday with two questions left over at the end of today's class: were the Philadelphia v. N.J. dissenters environmental heroes, and how else could Maine react to that decision, in addition to restricting the size of landfills. The assignment for Friday 12/7 is to read through p. 512 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 12/5, I distributed one handout, the optional assignment #3, which is reproduced below. We talked about the legal history of gay rights, including criminalization of gay sex, discrimination against gays, and gay marriage. We went over the levels of judicial scrutiny (rational basis, strict scrutiny, etc.) and how the various institutional power relationship questions (federalism, individual rights, separation of powers) are involved in cases like Windsor. We will pick up on Friday with the question of whether the ways of distinguishing Baker v. Nelson logically dictate a different result from the one in that case. The assignment is to continue working on the Jardines paper, due Monday 12/10.
Assignment #3 (OPTIONAL)
SPECIAL INSTRUCTIONS:
IF YOU CHOOSE TO DO THE OPTIONAL ASSIGNMENT, PLEASE NOTIFY ME OF THAT CHOICE THROUGH E-MAIL BY FRIDAY DECEMBER 14TH. IF YOU DON’T E-MAIL, I’LL ASSUME THAT YOU’RE NOT PLANNING ON DOING THE OPTIONAL PAPER.
For this assignment, I would like you to write a paper about the constitutionality of the Federal Defense of Marriage Act (DOMA), as that issue was interpreted by both the majority and the dissenting opinions in the recent Second Circuit decision in Windsor v. United States. You can access that case by going to
http://www.ca2.uscourts.gov/opinions.htm
and then in the dialogue box labeled
“Docket #, Date, Party Name or find decisions that contain:”
enter
Windsor v. United States.
Here is what I would like you to do:
1) Summarize the positions of both the majority and the dissenting opinions. Be specific in you summary. Include every issue and sub-issue dealt with in those opinions, and how the writer reached their conclusion. Use the organizing outline provided in each opinion.
2) How do or would the majority and the dissent demonstrate that their opposite number has it wrong? Be clear about the clash between the different positions taken. Also go over those issues in which there is not a clash because the two opinions see different questions that need to be answered.
3) Finally, give you own view about whether section 3 of DOMA is constitutional. Include your view about the effect of Baker v. Nelson, the correct standard of review, and then the analysis under that standard. Support your answer with specific arguments. You should deal specifically with the issues raised by the side that is opposed to your view of the case. What’s wrong with the positions taken by the other side?
I’m not looking for an introduction to the case -- that is assumed. Just get right to the three sections I’ve requested.
The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use slip opinion page numbers and line numbers for Windsor, and just names for any other cases).
Here’s a fictitious example to demonstrate the format that I’m looking for:
I believe that the correct standard of review is rational basis review. While the majority opinion settles on intermediate scrutiny (Majority, 34:7), I think that this is not the correct standard of review. Homosexuals may have, in the past, suffered from a great deal of discrimination, but the Supreme Court at that time apparently did not think that homosexuals were a protected minority (Baker v. Nelson). Today, however, there is widespread acceptance of homosexuals and homosexual rights. The fact that a number of states now recognize gay marriage, even through popular vote as in the November 2012 elections, demonstrates that homosexuals are no longer subject to the kind of discrimination that calls for elevated scrutiny.
The paper should be a minimum of 3 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due by noon on Wednesday December 19th. You should e-mail the paper to me by that time. I will acknowledge receipt of papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. Also e-mail me by that date if you have previously indicated that you plan to do the optional paper, but have changed your mind.
The paper will not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you identify issues, evaluate them, and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.
The work should be entirely your own, with no collaboration, and no plagiarism.
Monday, December 3, 2012
December 3, 2012
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 12/3, I handed back the Quirion case briefs, as well as the key to my comments, and we went over that case brief. We then finished the Cheap Escape case and the concept of subject matter jurisdiction. We will start with Robey (p. 130) and personal jurisdiction on Wednesday. The additional assignment for Wednesday 12/5 is to read through p. 140 of the text.
POS 359 FEDERALISM
In class today, Monday 12/3, the class first did evaluations. Then I distributed one handout, an article about the history of the Norridgewock dump, which talks about the history of Maine waste disposal rules after the Philadelphia v. N.J. Supreme Court decision. We finished going over the articles about fracking and wind turbines, touching along the way on the takings clause, not-in-my-backyard issues, local control, unpasteurized milk, bias in "scientific" studies, and, above all, money. On Wednesday 12/5 we will continue with the Philadelphia v. N.J. and Tyler Pipe Supreme Court decisions, previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/3, the class first did evaluations. We then discussed the due date for assignment #2. I decided to change the original due date. The new due date for assignment #2 is Monday 12/10. I also went over the lack of a decision by the Supreme Court on which, if any, gay marriage case they will accept for review. The Court seems to be ignoring the needs of our semester calendar. I will therefore just pick a gay marriage case assignment for the optional third paper, and hope that the Court follows my lead. We then went over four cases discussing the concept that the subjective motivation of the police is not relevant to the reasonableness of their actions: Whren v. U.S., Brigham City v. Stuart, Michigan v, Fisher, and Kentucky v, King. The assignment for Wednesday 12/5 is to continue work on your Jardines paper, now due Monday 12/10.
In class today, Monday 12/3, I handed back the Quirion case briefs, as well as the key to my comments, and we went over that case brief. We then finished the Cheap Escape case and the concept of subject matter jurisdiction. We will start with Robey (p. 130) and personal jurisdiction on Wednesday. The additional assignment for Wednesday 12/5 is to read through p. 140 of the text.
POS 359 FEDERALISM
In class today, Monday 12/3, the class first did evaluations. Then I distributed one handout, an article about the history of the Norridgewock dump, which talks about the history of Maine waste disposal rules after the Philadelphia v. N.J. Supreme Court decision. We finished going over the articles about fracking and wind turbines, touching along the way on the takings clause, not-in-my-backyard issues, local control, unpasteurized milk, bias in "scientific" studies, and, above all, money. On Wednesday 12/5 we will continue with the Philadelphia v. N.J. and Tyler Pipe Supreme Court decisions, previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/3, the class first did evaluations. We then discussed the due date for assignment #2. I decided to change the original due date. The new due date for assignment #2 is Monday 12/10. I also went over the lack of a decision by the Supreme Court on which, if any, gay marriage case they will accept for review. The Court seems to be ignoring the needs of our semester calendar. I will therefore just pick a gay marriage case assignment for the optional third paper, and hope that the Court follows my lead. We then went over four cases discussing the concept that the subjective motivation of the police is not relevant to the reasonableness of their actions: Whren v. U.S., Brigham City v. Stuart, Michigan v, Fisher, and Kentucky v, King. The assignment for Wednesday 12/5 is to continue work on your Jardines paper, now due Monday 12/10.
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