POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 2/28, the class took exam #1. I will return the exam and we will review it, when we next meet on 3/17. The additional reading assignment for Monday 3/17 is to read in the text through p. 56 (Gregg v.Georgia).
Have a good and safe Spring Break.
POS 384 CIVIL LIBERTIES
In class today, Friday 2/28, the class took exam #1. I will return the exam and we will review it, when we next meet on 3/17. The additional reading assignment for Monday 3/17 is to read in the text through p. 258 (R.A.V. v. St. Paul).
Have a good and safe Spring Break.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 2/28, I first distributed assignment #2 (below) and we went over it. We then talked about this week's 6-3 decision in the Fernandez case, which raised the question of third-part (roommate) consent to a search even though defendant has refused consent. The assignment for Monday 3/17 is to begin work on your Lozano paper.
Have a good and safe Spring Break.
Assignment #2
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 Justice is to write a part of the Court’s opinion in the Lozano v. Alvarez case. You’ve been assigned the “Analysis” section of Part I of Petitioner’s Brief: “Under the Text of the Convention, the Common Law Doctrine of Equitable Tolling Should Be Available to a Left-Behind Parent with Respect to the One-Year Period Under Article 12 in the United States”. In the Petitioner’s Brief, this section has three subparts, and you need to address all three.
Your opinion is not a prediction of the votes; don’t worry about the other Justices, just concentrate on reaching and justifying the decision that you think makes the most sense. Where you cite to the oral argument, you’re looking to the response of the lawyers rather than any viewpoint expressed by the other Justices.
Since this will be your first Supreme Court opinion, here are some guidelines for writing that I want you to observe:
• You should deal specifically with the issues raised by the party that is opposed to your view of the case. What’s wrong with the argument raised by the losers, both in their brief and in the oral argument?
• You should have at least one specific reference to each party’s position from the briefing regarding each of the three sections of the argument (one for Lozano, and one for Alvarez, for each of the three sections, for a total of six), with specific reference to the page number of the argument.
• You should have at least three specific references total to the oral argument. Your citations to the oral argument transcript should give page and line numbers. At the beginning of your paper, state where the page numbers are located in your version of the oral argument transcript.
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:
This Court rejects Alvarez’s position that 12(1) is not a statute of limitations (Res. p. 47). As Lozano pointed out, a Statute of Limitations need not totally foreclose a cause of action (Reply Brief, p. 25). At oral argument Alvarez conceded that proposition (17:6). We think that our prior decisions do establish that a Statute of Limitations need not totally foreclose a cause of action, because, in both situations, the exercise of right is limited by a specific time limit, regardless of whether the entire cause of action is foreclosed.
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 the class on Friday, March 21. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.
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 evaluate the issues, 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.
As I write this assignment, the Supreme Court has not yet decided this case; naturally, I hope they don’t decide it before March 21, because that would really complicate the process of evaluating your analysis. But, if they do decide the case before March 21, we will discuss any needed modification in class, plus I will post a modification to the assignment on the blog, as well as e-mail you through the MaineStreet portal. Be sure to check the blog (even if you don’t miss any classes) to see if the Court has weighed in prematurely.
Friday, February 28, 2014
Wednesday, February 26, 2014
February 26, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 2/26, we first finished going over the Maine statute regarding use of force. We looked at both the rules for getting property back, and the rules about defense of premises. We then went through Suggs v. Norris, covering both the public policy issue and the evidentiary questions. On Friday 2/28, we'll have our first exam, open book and open note. If you are missing any handouts, be sure to email me with what you need by Thursday evening. If for any reason you cannot be in class on Friday, be sure to email me asap, so that we can figure out how to have you make up the test prior to the resumption of classes after Spring Break.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/26 I distributed one handout, my version of the Hill outline. We went over that case, both the majority decision and the dissents. We looked at the concept of content-neutrality, made up of viewpoint neutrality, subject-matter neutrality, and the additional category of neutrality that Scalia was concerned with. On Friday 2/28, we'll have our first exam, open book and open note. If you are missing any handouts, be sure to email me with what you need by Thursday evening. If for any reason you cannot be in class on Friday, be sure to email me asap, so that we can figure out how to have you make up the test prior to the resumption of classes after Spring Break.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/26, I first went over some scheduling matters. I plan to give the class Assignment #2 on Friday, which will be due at the end of the week that we return from Spring Break (March 21st). After that assignment, I plan to start us on the Hobby Lobby case, regarding religious freedom, contraception, and Obamacare. We then went through the Justices and made predictions about how each Justice would vote in Lozano v. Alvarez. We came out 7-2 in favor of Alvarez (Thomas and Alito dissenting). It would be very cool if that turned out to be correct. There is no homework assignment for Friday, other than to start reading about the Hobby Lobby case if you are inclined to get an early start.
In class today, Wednesday 2/26, we first finished going over the Maine statute regarding use of force. We looked at both the rules for getting property back, and the rules about defense of premises. We then went through Suggs v. Norris, covering both the public policy issue and the evidentiary questions. On Friday 2/28, we'll have our first exam, open book and open note. If you are missing any handouts, be sure to email me with what you need by Thursday evening. If for any reason you cannot be in class on Friday, be sure to email me asap, so that we can figure out how to have you make up the test prior to the resumption of classes after Spring Break.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/26 I distributed one handout, my version of the Hill outline. We went over that case, both the majority decision and the dissents. We looked at the concept of content-neutrality, made up of viewpoint neutrality, subject-matter neutrality, and the additional category of neutrality that Scalia was concerned with. On Friday 2/28, we'll have our first exam, open book and open note. If you are missing any handouts, be sure to email me with what you need by Thursday evening. If for any reason you cannot be in class on Friday, be sure to email me asap, so that we can figure out how to have you make up the test prior to the resumption of classes after Spring Break.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/26, I first went over some scheduling matters. I plan to give the class Assignment #2 on Friday, which will be due at the end of the week that we return from Spring Break (March 21st). After that assignment, I plan to start us on the Hobby Lobby case, regarding religious freedom, contraception, and Obamacare. We then went through the Justices and made predictions about how each Justice would vote in Lozano v. Alvarez. We came out 7-2 in favor of Alvarez (Thomas and Alito dissenting). It would be very cool if that turned out to be correct. There is no homework assignment for Friday, other than to start reading about the Hobby Lobby case if you are inclined to get an early start.
Monday, February 24, 2014
February 24, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 2/24, we first finished our discussion of Katko. We went over the use of secondary authority in the case. We then discussed whether a warning to Katko would have led to a different result. We discussed the concept of intent, and looked at the difference between the majority and dissent regarding intent to do what. We discussed the difference between what is intended, versus what actually results. I went over the four levels of mental states (at least under Maine law), intent, knowledge, recklessness and negligence. We also looked at the issue of punitive damages, and what bad lawyering looks like. We then started looking at the Maine defense of premises statute, looking at the definition of dwelling place as it relates to abandoned farmhouses, and the definition of deadly force, especially as it relates to the use of a gun. We'll put together the definitions and the rules under the Maine criminal statute on Wednesday. The assignment for Wednesday 2/26 is to review Suggs v. Norris, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/24, I distributed one handout, my version of the Cohen outline. We went through that case and outline, following Harlan's opinion regarding what was and what was not the issue, and how the issue gets resolved. We will finish on Wednesday with a look at Harlan's final paragraph, and a look at the dissent. The assignment for Wednesday 2/26 is to read Hill v. Colorado (through p. 253). I want you to write out an outline of both the majority opinion in Hill, and of Scalia's dissent (not graded or handed in).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/24, we began going through the Lozano oral argument. We concentrated on those areas in which each lawyer seemed to be arguing against their natural position: Regan was arguing that return (even applying equitable tolling) was not automatic, but could take the best interests of the kid into account. Moskowitz argued in turn that, even if the kid was settled, non-return was not automatic, and concealment could play a part in determining return. We went through the construction of Article 12(2) regarding what would happen in case there was settlement under 12(2). The assignment for Wednesday 2/26 is to continue studying the oral argument, looking this time for specific indications that might allow us to predict how individual Justices may vote in the case.
In class today, Monday 2/24, we first finished our discussion of Katko. We went over the use of secondary authority in the case. We then discussed whether a warning to Katko would have led to a different result. We discussed the concept of intent, and looked at the difference between the majority and dissent regarding intent to do what. We discussed the difference between what is intended, versus what actually results. I went over the four levels of mental states (at least under Maine law), intent, knowledge, recklessness and negligence. We also looked at the issue of punitive damages, and what bad lawyering looks like. We then started looking at the Maine defense of premises statute, looking at the definition of dwelling place as it relates to abandoned farmhouses, and the definition of deadly force, especially as it relates to the use of a gun. We'll put together the definitions and the rules under the Maine criminal statute on Wednesday. The assignment for Wednesday 2/26 is to review Suggs v. Norris, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/24, I distributed one handout, my version of the Cohen outline. We went through that case and outline, following Harlan's opinion regarding what was and what was not the issue, and how the issue gets resolved. We will finish on Wednesday with a look at Harlan's final paragraph, and a look at the dissent. The assignment for Wednesday 2/26 is to read Hill v. Colorado (through p. 253). I want you to write out an outline of both the majority opinion in Hill, and of Scalia's dissent (not graded or handed in).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/24, we began going through the Lozano oral argument. We concentrated on those areas in which each lawyer seemed to be arguing against their natural position: Regan was arguing that return (even applying equitable tolling) was not automatic, but could take the best interests of the kid into account. Moskowitz argued in turn that, even if the kid was settled, non-return was not automatic, and concealment could play a part in determining return. We went through the construction of Article 12(2) regarding what would happen in case there was settlement under 12(2). The assignment for Wednesday 2/26 is to continue studying the oral argument, looking this time for specific indications that might allow us to predict how individual Justices may vote in the case.
Friday, February 21, 2014
February 21, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 2/21, I first gave the class a sample test in preparation for next Friday's exam, going over the kinds of questions to expect and what to look for in terms of right and wrong answers. We went over citation form for statutes. We then went over the kinds of authority looked to in Katko, (primary and secondary; mandatory and persuasive) and reviewed the concepts of following, distinguishing, and extending precedent. We will continue on Monday with a brief look at the secondary authority looked to by the Katko court, and the view of the dissenting Justice. We'll also go through the Maine criminal statute that I distributed on Wednesday. The additional assignment for Monday 2/24 is to read through the end of Chapter 1 (Suggs v.Norris).
POS 384 CIVIL LIBERTIES
In class today, Friday 2/21, I first gave the class a sample test in preparation for next Friday's exam, going over the kinds of questions to expect and what to look for in terms of right and wrong answers. We then finished our discussion of Chaplinsky, looking at what is and what isn't still part of unprotected speech today. On Monday we will begin our discussion of Cohen. The assignment for Monday 2/24 is to review Cohen, and to refine your outline of the case.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 2/21, I distributed one handout, an article by Linda Greenhouse about the the insights of Robert Dahl, a man who helped shape both the contours of what Political Science is, and how we should view the Supreme Court's role in our political structure. We the dove back into the Lozano briefs. We went into the Reply Brief and saw how dad replied to mom's arguments in terms of best interests of the child, and the role of Article 34. We turned to some aspects of the briefing that we had not yet covered, including the deference due to the State Department, and the views of other countries. The assignment for Monday 2/24 is to read and listen to the oral argument in this case, with which we will start on Monday.
In class today, Friday 2/21, I first gave the class a sample test in preparation for next Friday's exam, going over the kinds of questions to expect and what to look for in terms of right and wrong answers. We went over citation form for statutes. We then went over the kinds of authority looked to in Katko, (primary and secondary; mandatory and persuasive) and reviewed the concepts of following, distinguishing, and extending precedent. We will continue on Monday with a brief look at the secondary authority looked to by the Katko court, and the view of the dissenting Justice. We'll also go through the Maine criminal statute that I distributed on Wednesday. The additional assignment for Monday 2/24 is to read through the end of Chapter 1 (Suggs v.Norris).
POS 384 CIVIL LIBERTIES
In class today, Friday 2/21, I first gave the class a sample test in preparation for next Friday's exam, going over the kinds of questions to expect and what to look for in terms of right and wrong answers. We then finished our discussion of Chaplinsky, looking at what is and what isn't still part of unprotected speech today. On Monday we will begin our discussion of Cohen. The assignment for Monday 2/24 is to review Cohen, and to refine your outline of the case.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 2/21, I distributed one handout, an article by Linda Greenhouse about the the insights of Robert Dahl, a man who helped shape both the contours of what Political Science is, and how we should view the Supreme Court's role in our political structure. We the dove back into the Lozano briefs. We went into the Reply Brief and saw how dad replied to mom's arguments in terms of best interests of the child, and the role of Article 34. We turned to some aspects of the briefing that we had not yet covered, including the deference due to the State Department, and the views of other countries. The assignment for Monday 2/24 is to read and listen to the oral argument in this case, with which we will start on Monday.
Wednesday, February 19, 2014
February 19, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 2/19, I distributed two handouts: my version of the Katko case brief, and the Maine criminal statute about the use of force to defend your home and your property. We went over the Katko case getting up to the use of the prior Iowa Supreme Court case regarding use of a spring gun in a vineyard. We will pick up with the remainder of the use of authority in Katko, and the punitive damages issue, on Friday. The assignment for Friday 2/21 is read over the Maine statute distributed today, and figure out what our criminal law allows in terms of use of force in a situation similar to Katko.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/19, we finished going over Texas v. Johnson, both the majority opinion and the dissent. I went over the four responses that the Court might have to the government's desire to suppress speech (you can't do it; you can only do it if you jump the high hurdles; you can do it if you jump the low hurdles; you can do want you want). We briefly went on to Chaplinsky, and will pick up on Friday with the concept of categories of unprotected speech. The assignment for Friday 2/21 is to review Chaplinsky and Cohen (previously assigned) and to create for yourselves an outline of Cohen, following the format of the Johnson outline that I handed out on Monday.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/19, we compared the arguments of the dad's and mom's briefs. We first looked at how each of them tried to set the scene for the case, and then began our tour through the legal issues. We got through the argument about whether the Article 12 provision can be characterized as a Statute of Limitations, which arguably would open the door to equitable tolling. The assignment for Friday 2/21 is read Petitioner's Reply Brief.
In class today, Wednesday 2/19, I distributed two handouts: my version of the Katko case brief, and the Maine criminal statute about the use of force to defend your home and your property. We went over the Katko case getting up to the use of the prior Iowa Supreme Court case regarding use of a spring gun in a vineyard. We will pick up with the remainder of the use of authority in Katko, and the punitive damages issue, on Friday. The assignment for Friday 2/21 is read over the Maine statute distributed today, and figure out what our criminal law allows in terms of use of force in a situation similar to Katko.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/19, we finished going over Texas v. Johnson, both the majority opinion and the dissent. I went over the four responses that the Court might have to the government's desire to suppress speech (you can't do it; you can only do it if you jump the high hurdles; you can do it if you jump the low hurdles; you can do want you want). We briefly went on to Chaplinsky, and will pick up on Friday with the concept of categories of unprotected speech. The assignment for Friday 2/21 is to review Chaplinsky and Cohen (previously assigned) and to create for yourselves an outline of Cohen, following the format of the Johnson outline that I handed out on Monday.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/19, we compared the arguments of the dad's and mom's briefs. We first looked at how each of them tried to set the scene for the case, and then began our tour through the legal issues. We got through the argument about whether the Article 12 provision can be characterized as a Statute of Limitations, which arguably would open the door to equitable tolling. The assignment for Friday 2/21 is read Petitioner's Reply Brief.
Monday, February 17, 2014
February 17, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 2/17, I distributed two handouts: my version of the Johndro case brief, and the comment key to my grading of the Johndro case briefs. I returned those case briefs, and we went over them. I also announced that my intention is that our first test will be on Friday 2/28. The assignment for Wednesday 2/19 is to brief for yourselves Katko v. Briney, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/17, I distributed one handout, my version of the Johnson outline. We went through Brennan's opinion, getting up to the state's interest in protecting the flag as a symbol, which is where we'll pick up on Wednesday. I also announced that my intention is that our first test will be on Friday 2/28. The additional assignment for Wednesday is to read through p. 244, Cohen v. California.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/17, I returned the McCullen papers, and we briefly talked about how the case should be decided. I distributed one handout, excerpts from the Hague Convention that governs the Lozano case. We talked about child custody jurisdiction, and the particular problems associated with bringing a case in the U.S. We will continue to discuss the Petitioner's brief and arguments on Wednesday. The assignment for Wednesday is to read and prepare to discuss the Respondent's Brief in Lozano.
In class today, Monday 2/17, I distributed two handouts: my version of the Johndro case brief, and the comment key to my grading of the Johndro case briefs. I returned those case briefs, and we went over them. I also announced that my intention is that our first test will be on Friday 2/28. The assignment for Wednesday 2/19 is to brief for yourselves Katko v. Briney, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/17, I distributed one handout, my version of the Johnson outline. We went through Brennan's opinion, getting up to the state's interest in protecting the flag as a symbol, which is where we'll pick up on Wednesday. I also announced that my intention is that our first test will be on Friday 2/28. The additional assignment for Wednesday is to read through p. 244, Cohen v. California.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/17, I returned the McCullen papers, and we briefly talked about how the case should be decided. I distributed one handout, excerpts from the Hague Convention that governs the Lozano case. We talked about child custody jurisdiction, and the particular problems associated with bringing a case in the U.S. We will continue to discuss the Petitioner's brief and arguments on Wednesday. The assignment for Wednesday is to read and prepare to discuss the Respondent's Brief in Lozano.
Friday, February 14, 2014
February 14, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
With classes cancelled today, you should email your Johndro case briefs to me on FirstClass by 9:00, and be sure that you get my confirmation (I have already had a number of attachments that I could not open). On Monday, I will return the case briefs and we will go over them. The additional assignment for Monday 2/17 is to read and brief (for yourselves only - not handed in or graded) p.36-41 (Katko v. Briney).
POS 384 CIVIL LIBERTIES
With classes cancelled today, we will put off our review of Texas v. Johnson and Chaplinsky v. New Hampshire until Monday. The additional assignment I would like you to do for Monday 2/17 is to go through both the Brennan majority opinion and the Rehnquist dissent in Johnson, and to outline the opinion. In the edited textbook version the opinion is (to paraphrase Elbert Hubbard) one damn paragraph after the other. Going pretty much paragraph by paragraph, figure out what the Roman Numerals of the structure are (like Introduction, First Issue, Second Issue, etc.) and then the subparts of each section. Each part of the outline should have have a label and a brief statement of the point made in that section. This outline is not to be handed in or graded.
POS 359 THE CURRENT SUPREME COURT TERM
With classes cancelled today, I will hand back the McCullen papers on Monday. The assignment for Monday 2/17 remains to read and prepare to discuss the Petitioner's Brief in Lozano (the child abduction case).
With classes cancelled today, you should email your Johndro case briefs to me on FirstClass by 9:00, and be sure that you get my confirmation (I have already had a number of attachments that I could not open). On Monday, I will return the case briefs and we will go over them. The additional assignment for Monday 2/17 is to read and brief (for yourselves only - not handed in or graded) p.36-41 (Katko v. Briney).
POS 384 CIVIL LIBERTIES
With classes cancelled today, we will put off our review of Texas v. Johnson and Chaplinsky v. New Hampshire until Monday. The additional assignment I would like you to do for Monday 2/17 is to go through both the Brennan majority opinion and the Rehnquist dissent in Johnson, and to outline the opinion. In the edited textbook version the opinion is (to paraphrase Elbert Hubbard) one damn paragraph after the other. Going pretty much paragraph by paragraph, figure out what the Roman Numerals of the structure are (like Introduction, First Issue, Second Issue, etc.) and then the subparts of each section. Each part of the outline should have have a label and a brief statement of the point made in that section. This outline is not to be handed in or graded.
POS 359 THE CURRENT SUPREME COURT TERM
With classes cancelled today, I will hand back the McCullen papers on Monday. The assignment for Monday 2/17 remains to read and prepare to discuss the Petitioner's Brief in Lozano (the child abduction case).
Wednesday, February 12, 2014
February 12, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 2/14, we first discussed the possibility of bad driving conditions and/or school cancellation on Friday, which is the due date for the Johndro case brief. Here's the plan: if class is cancelled or you are unable to make it to class, you should email your case brief to me by class time (9:00). If you do so, I will confirm the receipt of the paper. We then went over the Smith case. We talked about the incompleteness of the textbook citation depriving us of the information we need to figure out which court is writing this decision. The editing of the case also deprived us of the context we need to understand the elements of a protected liberty interest; I went over the 1976 Supreme Court case of Paul v. Davis to provide that context. We went over the concepts of following, distinguishing, or overruling precedent regarding Paul v. Davis and Wisconsin v. Constantineau in the text. We then turned to the two issues that the Court dealt with regarding due process: whether Smith had a protected liberty interest, and whether he received the process that was due. We talked particularly about the exact elements of due process that the Idaho Court found to be missing from what was provided to Smith. The assignment for Friday 2/14 is to finish the Johndro case brief, due at the beginning of class on Friday.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/14, I first went over the current flow chart of free speech analysis, and applied it to the abortion protest case that Jim Tierney had talked to the class about. We then went through the O'Brien draft-card burning case. We looked at the issues that the Court dealt with, as well as the preliminary issue that it assumed without deciding. We also went through the standard applied (the hurdle) to what the government must show, as well as how that standard was applied (very loosely). The assignment for Friday 2/14 is to read through p. 240 (flag-burning and fighting words). Remember also to check this blog for updates on Friday's weather conditions as they affect class.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/14, we spent the class period going over the nine candidates for the next Supreme Court case for us to study. The class voted, and the winner is...Lozano v Alvarez (the child abduction case) It had 17 points, compared to 13 each for the anonymous drunk driver tip and for the constitutional bar to affirmative action. So the assignment for Friday 2/14 is to read the Petitioner's brief in Lozano v. Alvarez. You can access the brief by going to supremecourt.gov, select "merits briefs", / on-line merit briefs" and at the ABA site scroll down to Lozano, No. 12-820. Remember also to check this blog for updates on Friday's weather conditions as they affect class.
In class today, Wednesday 2/14, we first discussed the possibility of bad driving conditions and/or school cancellation on Friday, which is the due date for the Johndro case brief. Here's the plan: if class is cancelled or you are unable to make it to class, you should email your case brief to me by class time (9:00). If you do so, I will confirm the receipt of the paper. We then went over the Smith case. We talked about the incompleteness of the textbook citation depriving us of the information we need to figure out which court is writing this decision. The editing of the case also deprived us of the context we need to understand the elements of a protected liberty interest; I went over the 1976 Supreme Court case of Paul v. Davis to provide that context. We went over the concepts of following, distinguishing, or overruling precedent regarding Paul v. Davis and Wisconsin v. Constantineau in the text. We then turned to the two issues that the Court dealt with regarding due process: whether Smith had a protected liberty interest, and whether he received the process that was due. We talked particularly about the exact elements of due process that the Idaho Court found to be missing from what was provided to Smith. The assignment for Friday 2/14 is to finish the Johndro case brief, due at the beginning of class on Friday.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/14, I first went over the current flow chart of free speech analysis, and applied it to the abortion protest case that Jim Tierney had talked to the class about. We then went through the O'Brien draft-card burning case. We looked at the issues that the Court dealt with, as well as the preliminary issue that it assumed without deciding. We also went through the standard applied (the hurdle) to what the government must show, as well as how that standard was applied (very loosely). The assignment for Friday 2/14 is to read through p. 240 (flag-burning and fighting words). Remember also to check this blog for updates on Friday's weather conditions as they affect class.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/14, we spent the class period going over the nine candidates for the next Supreme Court case for us to study. The class voted, and the winner is...Lozano v Alvarez (the child abduction case) It had 17 points, compared to 13 each for the anonymous drunk driver tip and for the constitutional bar to affirmative action. So the assignment for Friday 2/14 is to read the Petitioner's brief in Lozano v. Alvarez. You can access the brief by going to supremecourt.gov, select "merits briefs", / on-line merit briefs" and at the ABA site scroll down to Lozano, No. 12-820. Remember also to check this blog for updates on Friday's weather conditions as they affect class.
Monday, February 10, 2014
February 10, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 2/10, we went over the Johndro case and how to brief it. We discussed the issues related to probable cause, and then the issues related to the exclusionary rule. I emphasized that the brief should produce a product that is useful for future cases: not just a conclusion of whether there was or was not probable cause in this case, but guidelines of those things that are or are not needed in order to establish probable cause in future cases. The assignment for Wednesday 2/12 is to continue working on the Johndro brief, due Friday, and to review the Smith case, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/10, we finished our discussion of Brandenburg. We looked at the treatment given by Brandenburg to precedent (Whitney and Dennis) and then went over the rule that was made in Brandenburg regarding advocacy, incitement, imminence, and likelihood. We went on to the free speech guarantees in other countries, and talked about both the role of enforcement of the lofty principles, and the status of hate speech.We will pick up with the flow chart of 1st Amendment analysis on Wednesday. The assignment for Wednesday 2/12 is to read through p. 233 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/10, I distributed one handout, a brief description of nine upcoming Supreme Court cases. I collected the papers, and we discussed aspects of both the two issues (viewpoint neutrality and necessity) and your predictions for the vote in the case. I will probably not hand the papers back until Friday. The assignment for Wednesday 2/12 is to read over the description of the upcoming cases, and to think about which case you'd like to tackle next.
In class today, Monday 2/10, we went over the Johndro case and how to brief it. We discussed the issues related to probable cause, and then the issues related to the exclusionary rule. I emphasized that the brief should produce a product that is useful for future cases: not just a conclusion of whether there was or was not probable cause in this case, but guidelines of those things that are or are not needed in order to establish probable cause in future cases. The assignment for Wednesday 2/12 is to continue working on the Johndro brief, due Friday, and to review the Smith case, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/10, we finished our discussion of Brandenburg. We looked at the treatment given by Brandenburg to precedent (Whitney and Dennis) and then went over the rule that was made in Brandenburg regarding advocacy, incitement, imminence, and likelihood. We went on to the free speech guarantees in other countries, and talked about both the role of enforcement of the lofty principles, and the status of hate speech.We will pick up with the flow chart of 1st Amendment analysis on Wednesday. The assignment for Wednesday 2/12 is to read through p. 233 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/10, I distributed one handout, a brief description of nine upcoming Supreme Court cases. I collected the papers, and we discussed aspects of both the two issues (viewpoint neutrality and necessity) and your predictions for the vote in the case. I will probably not hand the papers back until Friday. The assignment for Wednesday 2/12 is to read over the description of the upcoming cases, and to think about which case you'd like to tackle next.
Friday, February 7, 2014
February 7, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 2/7, I distributed one handout, my version of the Perdomo case brief. We went over the remainder of that case, and noted especially the different nature of the "facts" for the 2nd issue than we had seen for the 1st issue. We then turned our attention to the assigned case, Johndro. I went over the proper citation for the case. We also discussed the 4th Amendment. On Monday we will discuss a few other aspects of Johndro that I think could use some explanation, and also discuss any questions that you might have about the briefing of the case. The additional assignment for Monday 2/10 is work on your Johndro brief, and to read and prepare to discuss through p. 36 of the text (Smith v. Idaho).
POS 384 CIVIL LIBERTIES
In class today, Friday 2/7, I first talked about a recent Maine Bar Overseers opinion. That lawyer ethics opinion asked the state and federal authorities to look into the apparent violation by U.S. Cellular of federal law by providing to private litigants the contents of cell phone texts that the litigants had subpoenaed. We then plunged back into the Dennis case, going over Vinson's view of the clear and present danger test. We also looked at his treatment of the Learned Hand test. We then went over the concurrences and dissents in the case, including the concurrence by Jackson that the text did not give. I gave my view of the accuracy of the text's comments on the Dennis opinions. We began our discussion of the Brandenburg opinion, comparing the arguments of the parties to the precedents that we've studied. We will pick up on Monday with the text and test of Brandenburg. The assignment for Monday 2/10 is to read through p.229 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 2/7, we went over some issues covered by the questioning in the beginning part of the McCullen oral argument. We looked at attack question, and at questions promoting a more robust defense. Along the way, we also discussed, in the context of proving "intent", the concepts of actus reus, mens rea, and strict liability. The assignment for Monday 2/10 is to finish work on the McCullen paper, due at the beginning of Monday's class.
In class today, Friday 2/7, I distributed one handout, my version of the Perdomo case brief. We went over the remainder of that case, and noted especially the different nature of the "facts" for the 2nd issue than we had seen for the 1st issue. We then turned our attention to the assigned case, Johndro. I went over the proper citation for the case. We also discussed the 4th Amendment. On Monday we will discuss a few other aspects of Johndro that I think could use some explanation, and also discuss any questions that you might have about the briefing of the case. The additional assignment for Monday 2/10 is work on your Johndro brief, and to read and prepare to discuss through p. 36 of the text (Smith v. Idaho).
POS 384 CIVIL LIBERTIES
In class today, Friday 2/7, I first talked about a recent Maine Bar Overseers opinion. That lawyer ethics opinion asked the state and federal authorities to look into the apparent violation by U.S. Cellular of federal law by providing to private litigants the contents of cell phone texts that the litigants had subpoenaed. We then plunged back into the Dennis case, going over Vinson's view of the clear and present danger test. We also looked at his treatment of the Learned Hand test. We then went over the concurrences and dissents in the case, including the concurrence by Jackson that the text did not give. I gave my view of the accuracy of the text's comments on the Dennis opinions. We began our discussion of the Brandenburg opinion, comparing the arguments of the parties to the precedents that we've studied. We will pick up on Monday with the text and test of Brandenburg. The assignment for Monday 2/10 is to read through p.229 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 2/7, we went over some issues covered by the questioning in the beginning part of the McCullen oral argument. We looked at attack question, and at questions promoting a more robust defense. Along the way, we also discussed, in the context of proving "intent", the concepts of actus reus, mens rea, and strict liability. The assignment for Monday 2/10 is to finish work on the McCullen paper, due at the beginning of Monday's class.
Wednesday, February 5, 2014
February 5 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 2/5, I distributed two handouts: Assignment #1 (copied below), due Friday 2/14, and the case to brief, State v. Johndro. If you were not in class, you can get the case by going to the Msine Supreme Court Opinion site (http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml); from "Previous Years' Opinions" select 2013; from December 2013 select State of Maine v. Johndro, 2013 ME 106 (December 5, 2013).
In class today, we first discussed Justice Souter's concurrence in Glucksberg, looking at it both as an individual rights question and then as deference to the legislature question. We then began our discussion of Perdomo. We went over the case brief up through the first issue that the Court dealt with, the question of objective v. subjective beliefs. Along the way we discussed the mechanism of jury instructions, the meaning of objective v. subjective standards, and the concept of mandatory v. persuasive authority. We will pick up on Friday with the remaining issue in Perdomo, and then I'll discuss the rules that are being applied in the assignment case, Johndro. The assignment for Friday 2/7 is to review Perdomo and your brief of it, and then to read Johndro.
Assignment due Friday February 14, 2014
The assignment (graded) is to do a Case Brief of the case of State v, Johndro, 2013 ME 106, _____ A.3d____.
Brief all of the issues that you determine that the Court ruled on. Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I’ve distributed. Note especially that, after the “Issue” is composed, the “Facts” 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 2/14, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/5, I first went over some aspects of the Whitney case (p. 210) that the text did not highlight. I discussed the remoteness of the prohibited act from the harm (the bad act here was not overthrowing the government, or advocating that result, but being a member of a group that advocated it). We talked about the beginnings of a constitutional test that differentiated the power of government to abridge speech based on what the content or viewpoint of the speech was. We talked about different levels of justification produced by the legislature to justify its restrictions on speech, and the level to which the Court should defer to the judgment of the legislature. And finally we talked about the effect on the remoteness or immediacy of the bad result as a determining factor in whether the restriction on speech was constitutional. We then turned to the discussion of the preferred freedoms doctrine (p. 212) and the famous footnote from the Carolene Products case. We then discussed Vinson's opinion in Dennis. We will pick up with the Learned Hand test of the majority, and then the concurring and dissenting opinions in Dennis on Friday. The assignment for Friday 2/7 is to read through p. 225 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/5, we began by going over the state and federal funeral picketing statutes, and discussing how they might apply to the situation of "counseling". That discussion was sparked by one case that was mentioned in oral argument, Snyder v. Phelps. I then went through other cases from the oral argument: Boos v. Barry; Jews for Jesus; Madsen; Schenck; Heffernon; and Frisby, and we talked about their similarities and differences from McCullen. The assignment for Friday 2/7 is to continue work on your McCullen assignment, due Monday 2/10.
In class today, Wednesday 2/5, I distributed two handouts: Assignment #1 (copied below), due Friday 2/14, and the case to brief, State v. Johndro. If you were not in class, you can get the case by going to the Msine Supreme Court Opinion site (http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml); from "Previous Years' Opinions" select 2013; from December 2013 select State of Maine v. Johndro, 2013 ME 106 (December 5, 2013).
In class today, we first discussed Justice Souter's concurrence in Glucksberg, looking at it both as an individual rights question and then as deference to the legislature question. We then began our discussion of Perdomo. We went over the case brief up through the first issue that the Court dealt with, the question of objective v. subjective beliefs. Along the way we discussed the mechanism of jury instructions, the meaning of objective v. subjective standards, and the concept of mandatory v. persuasive authority. We will pick up on Friday with the remaining issue in Perdomo, and then I'll discuss the rules that are being applied in the assignment case, Johndro. The assignment for Friday 2/7 is to review Perdomo and your brief of it, and then to read Johndro.
Assignment due Friday February 14, 2014
The assignment (graded) is to do a Case Brief of the case of State v, Johndro, 2013 ME 106, _____ A.3d____.
Brief all of the issues that you determine that the Court ruled on. Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I’ve distributed. Note especially that, after the “Issue” is composed, the “Facts” 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 2/14, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/5, I first went over some aspects of the Whitney case (p. 210) that the text did not highlight. I discussed the remoteness of the prohibited act from the harm (the bad act here was not overthrowing the government, or advocating that result, but being a member of a group that advocated it). We talked about the beginnings of a constitutional test that differentiated the power of government to abridge speech based on what the content or viewpoint of the speech was. We talked about different levels of justification produced by the legislature to justify its restrictions on speech, and the level to which the Court should defer to the judgment of the legislature. And finally we talked about the effect on the remoteness or immediacy of the bad result as a determining factor in whether the restriction on speech was constitutional. We then turned to the discussion of the preferred freedoms doctrine (p. 212) and the famous footnote from the Carolene Products case. We then discussed Vinson's opinion in Dennis. We will pick up with the Learned Hand test of the majority, and then the concurring and dissenting opinions in Dennis on Friday. The assignment for Friday 2/7 is to read through p. 225 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/5, we began by going over the state and federal funeral picketing statutes, and discussing how they might apply to the situation of "counseling". That discussion was sparked by one case that was mentioned in oral argument, Snyder v. Phelps. I then went through other cases from the oral argument: Boos v. Barry; Jews for Jesus; Madsen; Schenck; Heffernon; and Frisby, and we talked about their similarities and differences from McCullen. The assignment for Friday 2/7 is to continue work on your McCullen assignment, due Monday 2/10.
Monday, February 3, 2014
February 3, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 2/3, I distributed one handout, my version of the Gluckberg case brief. We went over that case brief, covering the appeal to precedent, and the list of legitimate governmental interests. Along the way, we also went over the levels of burdens of persuasion (preponderance, clear and convincing, and beyond a reasonable doubt). We will begin Wednesday with a brief discussion of what Justice Souter's view of the case was. The assignment for Wednesday 2/5 is read and prepare a practice brief for yourself of U.S. v. Perdomo-Espana, p. 265 of the text.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/3, we covered the Gitlow case. We discussed the incorporation by the 14th Amendment of the Free Speech guarantee, both by the majority and by Holmes, and went over the language of Prudential Insurance v. Cheek. We also discussed the role of "clear and present danger" as seen by both the majority and dissent, and the level of deference by the Court to the judgment of the legislature. I will begin on Wednesday with a discussion of Whitney, which was referenced but not featured in the text. The assignment for Wednesday 2/5 is to read through p. 222 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/3, I distributed two handouts, Assignment #1, which is reproduced below, and the Maine and federal statutes concerning picketing at funerals. We went over the assignment, and then finished going over the replies made by the state in its briefing. I did modify the assignment in class by asking, for the oral argument, that you identify where your page numbers are located on the page(top right or bottom center). We began talking about the case that were discussed at oral argument, starting with Snyder v. Phelps. We looked at the Maine statute regarding funeral protests, and will pick up on Wednesday with the federal statute. The assignment for Wednesday 2/5 is to begin work on Assignment #1, and to review the oral argument.
This assignment has two parts:
I.
For the first part of this assignment, I would like you to trace how the argument of the parties as developed in their legal briefs in McCullen v. Coakley was reflected in the oral argument that was held in the case, and what kind of reception that argument received. I had previously assigned the two briefs of the parties: Petitioner’s Brief (Pet.) and Respondent’s Brief (Res.).
I want you to discuss two specific points on which the two parties disagreed in their briefing, and which were the subjects of extensive questioning during the oral argument. The two subjects are:
A) is the 35 foot zone viewpoint neutral?
B) is the 35 foot zone narrowly tailored, in reference to the specific question of whether existing laws make the no-entry zone unnecessary?
For each of the two points:
1) identify and explain the position of each side’s argument in the briefing, giving specific page references to that brief;
2) identify where that issue was presented in questioning by two of the Justices during the oral argument, giving specific page and line references to where that specific portion of argument is found and summarize what point each of those two Justices involved in the questioning were trying to make, and how the lawyer responded to those questions by the Justices;
3) discuss what the questions by those Justices seem to indicate about that Justices’ view regarding which side has the better argument in that particular clash between the parties. (Use different Justices for each of the two points, for a total of four Justices)
Here’s one (very abbreviated, fictitious sample) point to demonstrate the format that I’m looking for:
FOLLOW THIS NUMBERING AND CITATION FORMAT.
A. Viewpoint Neutrality
1. Petitioner argued that the Massachusetts statute was not viewpoint neutral because the statute states implied that only pro-choice advocates can be in the zone. (Pet. 25). Respondent replied that there was no violation of viewpoint neutrality, because the statute forbade “unwelcome” comments, and made no judgment about which comments would be “unwelcome”. (Res. 18)
2. Justice Thomas asked Rienzi whether the analysis would be any different if the statute allowed consensual conversations, rather than forbidding unwelcome ones (14:6). Thomas was making the point that the outcome would be the same in either case, and would therefore be consistent with Hill. Rienzi replied that there would be a difference, because the police need evidence of a violation before they can move in, and the different phrasing would lead to different presumptions on the part of the police about the point at which they can perceive a violation (16:17).
Justice Roberts asked Miller...Roberts’ point was that ...
3. By the question asked by Thomas, it appears that he thinks Hill controls this case, and that the statute is permissible. His question indicates that, to him, the difference between this case and Hill is merely one of a change of phrase.
By the question asked by Roberts...
II.
For the second part of the assignment, I want you to predict from the oral argument how the case will come out. To the extent possible go through the seven Justices who asked questions, and venture an educated guess how they will vote, based on their questions. Thomas and Roberts asked no questions (the usual for Thomas; very unusual for Roberts) so leave them out. For the seven others, try to characterize their questions as hostile or friendly to some determinative issue, and base your prediction on that. Here’s a sample:
Justice Thomas asked Miller if she really believed that the speech allowed to employees, but denied to others, was merely “incidental” to their job. (17:9). His skepticism of that defense suggests that he will find that the statute is not narrowly tailored, and therefore not a valid time, place, and manner restriction.
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, but I am looking for enough explanation to demonstrate that you have grasped the thrust of the argument, and the point of the questioning and response. It will be due at the beginning of the class on Monday February 10. The paper needs no introduction (“I found McCullen v. Coakley to be an interesting and important case…”). Just launch right into the assignment.
If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.
You papers will be graded on how well you respond to the questions asked, and how well you support your position by reference to the briefs and the oral argument. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I encourage you to use the UM writing center to help with your English.
You are not allowed to collaborate with other students. The work should be entirely your own. The only sources you should be consulting are the briefs and the oral argument, and prior cases. If you have questions, ask me. See the syllabus regarding plagiarism.
In class today, Monday 2/3, I distributed one handout, my version of the Gluckberg case brief. We went over that case brief, covering the appeal to precedent, and the list of legitimate governmental interests. Along the way, we also went over the levels of burdens of persuasion (preponderance, clear and convincing, and beyond a reasonable doubt). We will begin Wednesday with a brief discussion of what Justice Souter's view of the case was. The assignment for Wednesday 2/5 is read and prepare a practice brief for yourself of U.S. v. Perdomo-Espana, p. 265 of the text.
POS 384 CIVIL LIBERTIES
In class today, Monday 2/3, we covered the Gitlow case. We discussed the incorporation by the 14th Amendment of the Free Speech guarantee, both by the majority and by Holmes, and went over the language of Prudential Insurance v. Cheek. We also discussed the role of "clear and present danger" as seen by both the majority and dissent, and the level of deference by the Court to the judgment of the legislature. I will begin on Wednesday with a discussion of Whitney, which was referenced but not featured in the text. The assignment for Wednesday 2/5 is to read through p. 222 of the text.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/3, I distributed two handouts, Assignment #1, which is reproduced below, and the Maine and federal statutes concerning picketing at funerals. We went over the assignment, and then finished going over the replies made by the state in its briefing. I did modify the assignment in class by asking, for the oral argument, that you identify where your page numbers are located on the page(top right or bottom center). We began talking about the case that were discussed at oral argument, starting with Snyder v. Phelps. We looked at the Maine statute regarding funeral protests, and will pick up on Wednesday with the federal statute. The assignment for Wednesday 2/5 is to begin work on Assignment #1, and to review the oral argument.
This assignment has two parts:
I.
For the first part of this assignment, I would like you to trace how the argument of the parties as developed in their legal briefs in McCullen v. Coakley was reflected in the oral argument that was held in the case, and what kind of reception that argument received. I had previously assigned the two briefs of the parties: Petitioner’s Brief (Pet.) and Respondent’s Brief (Res.).
I want you to discuss two specific points on which the two parties disagreed in their briefing, and which were the subjects of extensive questioning during the oral argument. The two subjects are:
A) is the 35 foot zone viewpoint neutral?
B) is the 35 foot zone narrowly tailored, in reference to the specific question of whether existing laws make the no-entry zone unnecessary?
For each of the two points:
1) identify and explain the position of each side’s argument in the briefing, giving specific page references to that brief;
2) identify where that issue was presented in questioning by two of the Justices during the oral argument, giving specific page and line references to where that specific portion of argument is found and summarize what point each of those two Justices involved in the questioning were trying to make, and how the lawyer responded to those questions by the Justices;
3) discuss what the questions by those Justices seem to indicate about that Justices’ view regarding which side has the better argument in that particular clash between the parties. (Use different Justices for each of the two points, for a total of four Justices)
Here’s one (very abbreviated, fictitious sample) point to demonstrate the format that I’m looking for:
FOLLOW THIS NUMBERING AND CITATION FORMAT.
A. Viewpoint Neutrality
1. Petitioner argued that the Massachusetts statute was not viewpoint neutral because the statute states implied that only pro-choice advocates can be in the zone. (Pet. 25). Respondent replied that there was no violation of viewpoint neutrality, because the statute forbade “unwelcome” comments, and made no judgment about which comments would be “unwelcome”. (Res. 18)
2. Justice Thomas asked Rienzi whether the analysis would be any different if the statute allowed consensual conversations, rather than forbidding unwelcome ones (14:6). Thomas was making the point that the outcome would be the same in either case, and would therefore be consistent with Hill. Rienzi replied that there would be a difference, because the police need evidence of a violation before they can move in, and the different phrasing would lead to different presumptions on the part of the police about the point at which they can perceive a violation (16:17).
Justice Roberts asked Miller...Roberts’ point was that ...
3. By the question asked by Thomas, it appears that he thinks Hill controls this case, and that the statute is permissible. His question indicates that, to him, the difference between this case and Hill is merely one of a change of phrase.
By the question asked by Roberts...
II.
For the second part of the assignment, I want you to predict from the oral argument how the case will come out. To the extent possible go through the seven Justices who asked questions, and venture an educated guess how they will vote, based on their questions. Thomas and Roberts asked no questions (the usual for Thomas; very unusual for Roberts) so leave them out. For the seven others, try to characterize their questions as hostile or friendly to some determinative issue, and base your prediction on that. Here’s a sample:
Justice Thomas asked Miller if she really believed that the speech allowed to employees, but denied to others, was merely “incidental” to their job. (17:9). His skepticism of that defense suggests that he will find that the statute is not narrowly tailored, and therefore not a valid time, place, and manner restriction.
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, but I am looking for enough explanation to demonstrate that you have grasped the thrust of the argument, and the point of the questioning and response. It will be due at the beginning of the class on Monday February 10. The paper needs no introduction (“I found McCullen v. Coakley to be an interesting and important case…”). Just launch right into the assignment.
If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.
You papers will be graded on how well you respond to the questions asked, and how well you support your position by reference to the briefs and the oral argument. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I encourage you to use the UM writing center to help with your English.
You are not allowed to collaborate with other students. The work should be entirely your own. The only sources you should be consulting are the briefs and the oral argument, and prior cases. If you have questions, ask me. See the syllabus regarding plagiarism.
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