POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/28, I distributed one handout, the Maine statutes regarding adoption, and gender-neutrality. I first emphasized one point from the case that we did last week (Land), the fact that the state Supreme Court and the U.S. District Court stand in different shoes regarding the ability to change or clarify the state's conflict of law rules. We then looked at the text of the Full Faith and Credit Clause, and how that clause has been interpreted by the U.S. Supreme Court. We went over Finstuen v. Crutcher and the Maine adoption statute that I handed out. I also discussed a 5th Circuit case, Adar v. Smith, that allowed Louisiana to not issue a new birth certificate in circumstances very similar to those in the Oklahoma case. There is no class on Wednesday (Maine Day). The assignment for Friday 5/2 is to read in the text pp. 128-134 Robey v. Hiners. In addition, the class agreed that our exam #2 (Wednesday 5/7) will be from 9:00-9:50, and not starting at 8:00 as listed on the finals schedule.
POS 384 CIVIL LIBERTIES
In class today, Monday 4/28, we finished up our discussion of the Drake Reply Brief. I also clarified that the paper can take the form of either a side-by-side chart, or just a clash-by-clash narrative. I also reminded the class that our exam #2 will be on Wednesday 5/7 (finals week) but will not be a comprehensive final. The exam will not be two hours, but rather a class period (or up to an hour if needed). There is no class on Wednesday (Maine Day). The assignment for Friday 5/2 is to finish up your Drake papers, due at the beginning of class on Friday.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 4/28, I handed back the exams, and we went over them. I then went over two cases which will be argued tomorrow, Riley v. California and U.S. v. Wurie. Both cases involve the right of police to search the contents of a cell phone incident to an arrest. There is no class on Wednesday (Maine Day). The assignment for Friday 5/2 is to show up for our last class.
Monday, April 28, 2014
Friday, April 25, 2014
April 25, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today Friday 4/25, I distributed one handout, the federal statutes governing jurisdiction in the federal court system. We talked about the Land case being brought in Indiana, and how, under the Erie doctrine, both state and federal courts in Indiana would be using the Indiana conflict of law rules. We discussed the Indiana Statute of Repose, and contrasted that to the usual Statute of Limitations. We then went over the Court of Appeals process in following the rule created in Hubbard v.Greeson. Finally, we discussed this case in terms of good or bad lawyering. On Monday I want to begin with one further aspect of this decision, the question of which court has the power to clarify or change the decision in Hubbard. The assignment for Monday 4/28 is to finish Chapter III of text, Finstuen v. Crutcher (pp. 115-118).
POS 384 CIVIL LIBERTIES
In class today Friday 4/25, I first reminded the class that the revised due date for the Drake assignment is May 2nd. We finished our review of the New Jersey BIO, going over the section in which they argued that there's no split in the circuits, specifically no clash with the 9th Circuit's Peruta decision. We then turned to the Drake Reply Brief. We're going through as we would in making an outline, trying to discern the point of each paragraph and how that point fits into the larger argument. We will pick up with that paragraph by paragraph analysis at ¶8. The assignment for Monday 4/28 is to continue work on your Drake paper, and to review the Reply Brief, trying to get the sense of the argument in each paragraph.
POS 359 THE CURRENT SUPREME COURT TERM
In class today Friday 4/25, the class took the exam. I will hand the exam back on Monday, and then we'll go on to some more current cases in the Court. The assignment for Monday 4/28 is to show up for class.
In class today Friday 4/25, I distributed one handout, the federal statutes governing jurisdiction in the federal court system. We talked about the Land case being brought in Indiana, and how, under the Erie doctrine, both state and federal courts in Indiana would be using the Indiana conflict of law rules. We discussed the Indiana Statute of Repose, and contrasted that to the usual Statute of Limitations. We then went over the Court of Appeals process in following the rule created in Hubbard v.Greeson. Finally, we discussed this case in terms of good or bad lawyering. On Monday I want to begin with one further aspect of this decision, the question of which court has the power to clarify or change the decision in Hubbard. The assignment for Monday 4/28 is to finish Chapter III of text, Finstuen v. Crutcher (pp. 115-118).
POS 384 CIVIL LIBERTIES
In class today Friday 4/25, I first reminded the class that the revised due date for the Drake assignment is May 2nd. We finished our review of the New Jersey BIO, going over the section in which they argued that there's no split in the circuits, specifically no clash with the 9th Circuit's Peruta decision. We then turned to the Drake Reply Brief. We're going through as we would in making an outline, trying to discern the point of each paragraph and how that point fits into the larger argument. We will pick up with that paragraph by paragraph analysis at ¶8. The assignment for Monday 4/28 is to continue work on your Drake paper, and to review the Reply Brief, trying to get the sense of the argument in each paragraph.
POS 359 THE CURRENT SUPREME COURT TERM
In class today Friday 4/25, the class took the exam. I will hand the exam back on Monday, and then we'll go on to some more current cases in the Court. The assignment for Monday 4/28 is to show up for class.
Wednesday, April 23, 2014
April 23, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/23, I first finished the discussion of Collins v. Trius. We then went over Hubbard v. Greeson. We covered all elements of the case brief for that case, and along the way we talked about the relationship of common law to statutes, the challenges faced by Greeson's lawyer in deciding which states' law would be better for Greeson's case, and then where to bring suit in order to get the better law to apply. We also talked about wrongful death statutes, treatment of precedent, and the two-step process created by the Court. The assignment for Friday 4/25 is to read in the text pp. 145-147. The assigned case, Land v. Yamaha, takes the conflict of law rule created in Hubbard, and applies it in the setting of a federal court. We'll talk about federal court jurisdiction, and what law a federal court applies.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/23, we had the treat of having Shenna Bellows, former Executive Director of the ACLU of Maine, address the class. She discussed many topics, including some history of the ACLU, the Patriot Act, NSA metadata collection, anonymous speech, abortion clinic access, campaign finance, and Fourth Amendment cell phone data searches. (She covered more in one class than I do in one semester.) Now that we've glimpsed the forest, we'll return to the trees: the assignment for Friday 4/25 is continue your work on the Drake assignment (due May 2nd) and to review the previously assigned BIO and Reply Brief.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/23, I first clarified a question about Friday's exam: the exam will cover not only the current cases that I listed on Wednesday, but also the precedent relied on by the Court or the parties regarding the proper disposition of the current case. So, for example, the case of Schuette v. BAMN, discussed again today, incorporates the previous Hunter, Seattle, and Romer cases that we discussed in conjunction with Schuette. We spent the class going over the four opinions in yesterday's decision in Schuette, in which no majority emerged. We'll have the exam on Friday, go over the exam and then additional cases on Monday and the Friday of next week (no classes on Wednesday because of Maine Day).
In class today, Wednesday 4/23, I first finished the discussion of Collins v. Trius. We then went over Hubbard v. Greeson. We covered all elements of the case brief for that case, and along the way we talked about the relationship of common law to statutes, the challenges faced by Greeson's lawyer in deciding which states' law would be better for Greeson's case, and then where to bring suit in order to get the better law to apply. We also talked about wrongful death statutes, treatment of precedent, and the two-step process created by the Court. The assignment for Friday 4/25 is to read in the text pp. 145-147. The assigned case, Land v. Yamaha, takes the conflict of law rule created in Hubbard, and applies it in the setting of a federal court. We'll talk about federal court jurisdiction, and what law a federal court applies.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/23, we had the treat of having Shenna Bellows, former Executive Director of the ACLU of Maine, address the class. She discussed many topics, including some history of the ACLU, the Patriot Act, NSA metadata collection, anonymous speech, abortion clinic access, campaign finance, and Fourth Amendment cell phone data searches. (She covered more in one class than I do in one semester.) Now that we've glimpsed the forest, we'll return to the trees: the assignment for Friday 4/25 is continue your work on the Drake assignment (due May 2nd) and to review the previously assigned BIO and Reply Brief.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/23, I first clarified a question about Friday's exam: the exam will cover not only the current cases that I listed on Wednesday, but also the precedent relied on by the Court or the parties regarding the proper disposition of the current case. So, for example, the case of Schuette v. BAMN, discussed again today, incorporates the previous Hunter, Seattle, and Romer cases that we discussed in conjunction with Schuette. We spent the class going over the four opinions in yesterday's decision in Schuette, in which no majority emerged. We'll have the exam on Friday, go over the exam and then additional cases on Monday and the Friday of next week (no classes on Wednesday because of Maine Day).
Monday, April 21, 2014
April 21, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/21, I distributed two handouts, the Jeremiah T. comment key, and five Jeremiah T. hypotheticals, as well as returning the class's Jeremiah T. case briefs. We went over the case brief, and the five hypotheticals. Along the way I also discussed another guardianship case, Guardianship of David C., that addressed questions of whether the reason for the creation of the guardianship (consent or otherwise) matters in terms of burden of proof, and how the two burdens of proof (the statutory one and the constitutional one) coexist. We will pick up with conflict of laws on Wednesday with the finish of Collins v. Trius. The assignment for Wednesday 4/23 is to review Hubbard v. Greeson (previously assigned) and to ask yourself how good a job the lawyer for widow Greeson did in making the litigation choices in the case.
POS 384 CIVIL LIBERTIES
In class today, Monday 4/21, I first made some changes to Assignment #2: first, the due date for the assignment is changed from Monday 4/28 to Friday 5/2; second, the page length for the paper is increased to 6 pages. I distributed one handout, a news report of the militia standoff with the federal Bureau of Land Management, which has apparently ended with the federal government backing down. We talked about the role of citizen's militias in the Heller decision, and whether things would have looked the same in New Jersey. We went back to the New Jersey BIO, discussing the evidence offered to demonstrate a reasonable fit, as well as appeals to history, consensus, and common sense. We began the final section of the BIO, which argues that there really is no clash between the 9th Circuit decision in Peruta and the 3rd Circuit decision here. That's where we'll pick up on Friday. The assignment for Friday 4/25 is to review that final section of the BIO, and the Drake Reply Brief, and to continue work on the assignment. On Wednesday 4/23, Shenna Bellows will talk to our class about Civil Liberties. Please come to class on time.
POS359 THE CURRENT SUPREME COURT TERM
In class today, Monday 4/21, I first went over the cases and materials that will be covered on Friday's exam. I then finished our discussion of the U.A.R.G. v. EPA case, emphasizing the questions that Justice Kennedy posed to both sides in the oral argument. I reached back to the case we started a long time ago, but never finished, Schuette v. BAMN. This case addressed the constitutionality of an amendment to the Michigan constitution that outlawed any affirmative action in the state. We went over three prior Supreme Court cases with similar setups (the majority putting a political goal beyond the reach of a minority). The assignment for Wednesday 4/23 is to show up for class.
In class today, Monday 4/21, I distributed two handouts, the Jeremiah T. comment key, and five Jeremiah T. hypotheticals, as well as returning the class's Jeremiah T. case briefs. We went over the case brief, and the five hypotheticals. Along the way I also discussed another guardianship case, Guardianship of David C., that addressed questions of whether the reason for the creation of the guardianship (consent or otherwise) matters in terms of burden of proof, and how the two burdens of proof (the statutory one and the constitutional one) coexist. We will pick up with conflict of laws on Wednesday with the finish of Collins v. Trius. The assignment for Wednesday 4/23 is to review Hubbard v. Greeson (previously assigned) and to ask yourself how good a job the lawyer for widow Greeson did in making the litigation choices in the case.
POS 384 CIVIL LIBERTIES
In class today, Monday 4/21, I first made some changes to Assignment #2: first, the due date for the assignment is changed from Monday 4/28 to Friday 5/2; second, the page length for the paper is increased to 6 pages. I distributed one handout, a news report of the militia standoff with the federal Bureau of Land Management, which has apparently ended with the federal government backing down. We talked about the role of citizen's militias in the Heller decision, and whether things would have looked the same in New Jersey. We went back to the New Jersey BIO, discussing the evidence offered to demonstrate a reasonable fit, as well as appeals to history, consensus, and common sense. We began the final section of the BIO, which argues that there really is no clash between the 9th Circuit decision in Peruta and the 3rd Circuit decision here. That's where we'll pick up on Friday. The assignment for Friday 4/25 is to review that final section of the BIO, and the Drake Reply Brief, and to continue work on the assignment. On Wednesday 4/23, Shenna Bellows will talk to our class about Civil Liberties. Please come to class on time.
POS359 THE CURRENT SUPREME COURT TERM
In class today, Monday 4/21, I first went over the cases and materials that will be covered on Friday's exam. I then finished our discussion of the U.A.R.G. v. EPA case, emphasizing the questions that Justice Kennedy posed to both sides in the oral argument. I reached back to the case we started a long time ago, but never finished, Schuette v. BAMN. This case addressed the constitutionality of an amendment to the Michigan constitution that outlawed any affirmative action in the state. We went over three prior Supreme Court cases with similar setups (the majority putting a political goal beyond the reach of a minority). The assignment for Wednesday 4/23 is to show up for class.
Friday, April 18, 2014
April 18, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today Friday, 4/18, I distributed one handout, my version of the Jeremiah T. brief. I collected the case briefs, and plan to return them on Monday. We went over them, getting basically through the main issues in the case. We have a few stray issues to clean up, including the holdings themselves, the disposition, the use of the 13 factors, the relationship between best interest and fundamental right to parent, and the "other" constitutional question. We will start with those on Monday, and then go back to Conflict of Laws and finish the Collins v. Trius bus accident case. The assignment for Monday 4/21 is to read through p. 114 of the text, Hubbard v. Greeson.
POS 384 CIVIL LIBERTIES
In class today Friday, 4/18, I distributed two handouts: the Drake Reply Brief, and Assignment #2, reproduced below. We went over the assignment, which is due Monday 4/28 (not Friday 4/25, as previously planned). I also announced that we'll have a guest speaker on Wednesday 4/23, Shenna Bellows, who was until recently the leader of the ACLU of Maine. She arguably knows more about Civil Liberties in Maine than anyone else, and she's a great speaker. We then continued going over the N.J. Brief in Opposition to the cert petition. We talked about the characterization of the "longstanding" presumption (is it an "exception"?); about the actual history of the N.J. laws since 1905; about the definition of "longstanding" and its relationship to founding-era originalism; and the deference due to legislative judgments about the fit between "justifiable need" restrictions and public safety. We'll pick up at that point on Monday. The assignment for Monday 4/21 is to review the rest of the Jerejian BIO, to read the Drake Reply Brief, and to begin work on the assignment.
Assignment #2 Due Monday, April 28th.
For this assignment, I’m asking you for two sections (numbered I and II).
First, I would like you to make a Jerejian v. Drake chart of the Drake cert petition briefs. Using your own words, identify each position in which there’s a clash between the Jerejian Brief In Opposition, and the Drake’s Reply Brief. (Drake’s Reply Brief has a more complete outline structure than Jerejian’s BIO, though, so use that Reply Brief outline structure as your organizing outline.)
You need to go into the details of each position. It’s not sufficient to just include the ultimate conclusary positions: (“Jerejian: the N.J. “justifiable need” standard has a reasonable fit with the state’s interest in public safety. Drake: No it doesn’t.”). You need to include the trench fighting of the sub-parts of each contention. You should be listing such propositions as the characterization of the severity of the N.J. permitting regime; the characterization of the Third Circuit’s assumption of the Second Amendment’s application out side the home; the role of evidence in the determination of fit; etc. Each segment should briefly state the proposition, and its basic justification.
Here’s an (inaccurate) example of what I’m looking for:
Jerejian:
1. There’s no need for N.J. to produce evidence that the justifiable need standard promotes public safety, because common sense itself is sufficient to demonstrate the connection between fewer guns and more safety.
Drake:
1. There is need for N.J. to produce this evidence, because when a constitutional right is being infringed, common sense is insufficient; specific evidence must be submitted. Anything less does not satisfy intermediate scrutiny.
Second, give (and explain) your own opinion about who should win this case (assume for this section that the Supreme Court will grant the cert petition). You have to take Heller as a given. Does the N.J. law infringe on rights explained in Heller, or does that law exist fine within Heller’s rules? The explanation of your conclusion is the point of the assignment.
Your papers will not be graded on which view of the issues you take, but rather on how well you complete the assignment and 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 3 to 5 pages.
You may e-mail me if you have specific questions about the assignment. 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 Monday 4/28, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. 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.
IMPORTANT: If you e-mail your assignment 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.
The work should be entirely your own, with no collaboration or plagiarism. Don’t look at other student’s outlines, and don’t show your outline to anyone. See the syllabus regarding plagiarism and collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
In class today Friday, 4/18, we talked about U.A.R.G. v. EPA. This case raises the question of EPA regulation of greenhouse gases from stationary sources. We first talked about the recent Intergovernmental Panel on Climate Change report, and the problem of climate change. We went over the 2007 Mass. v. EPA case and the 2009 EPA regulation of light trucks for their greenhouse gas emissions. We saw how that triggered EPA regulation of stationary sources as well. We looked at the structure of the Clean Air Act, and how the various titles of the Act interact. We talked about PSD, BACT, NAAQS, and NSPS. We left off by talking about some part of the oral argument in the case. I want to continue on Monday with a look specifically at Kennedy's participation in the oral argument. From there we'll go on the other cases before the Court. The assignment for Monday 4/21 is to show up for class.
In class today Friday, 4/18, I distributed one handout, my version of the Jeremiah T. brief. I collected the case briefs, and plan to return them on Monday. We went over them, getting basically through the main issues in the case. We have a few stray issues to clean up, including the holdings themselves, the disposition, the use of the 13 factors, the relationship between best interest and fundamental right to parent, and the "other" constitutional question. We will start with those on Monday, and then go back to Conflict of Laws and finish the Collins v. Trius bus accident case. The assignment for Monday 4/21 is to read through p. 114 of the text, Hubbard v. Greeson.
POS 384 CIVIL LIBERTIES
In class today Friday, 4/18, I distributed two handouts: the Drake Reply Brief, and Assignment #2, reproduced below. We went over the assignment, which is due Monday 4/28 (not Friday 4/25, as previously planned). I also announced that we'll have a guest speaker on Wednesday 4/23, Shenna Bellows, who was until recently the leader of the ACLU of Maine. She arguably knows more about Civil Liberties in Maine than anyone else, and she's a great speaker. We then continued going over the N.J. Brief in Opposition to the cert petition. We talked about the characterization of the "longstanding" presumption (is it an "exception"?); about the actual history of the N.J. laws since 1905; about the definition of "longstanding" and its relationship to founding-era originalism; and the deference due to legislative judgments about the fit between "justifiable need" restrictions and public safety. We'll pick up at that point on Monday. The assignment for Monday 4/21 is to review the rest of the Jerejian BIO, to read the Drake Reply Brief, and to begin work on the assignment.
Assignment #2 Due Monday, April 28th.
For this assignment, I’m asking you for two sections (numbered I and II).
First, I would like you to make a Jerejian v. Drake chart of the Drake cert petition briefs. Using your own words, identify each position in which there’s a clash between the Jerejian Brief In Opposition, and the Drake’s Reply Brief. (Drake’s Reply Brief has a more complete outline structure than Jerejian’s BIO, though, so use that Reply Brief outline structure as your organizing outline.)
You need to go into the details of each position. It’s not sufficient to just include the ultimate conclusary positions: (“Jerejian: the N.J. “justifiable need” standard has a reasonable fit with the state’s interest in public safety. Drake: No it doesn’t.”). You need to include the trench fighting of the sub-parts of each contention. You should be listing such propositions as the characterization of the severity of the N.J. permitting regime; the characterization of the Third Circuit’s assumption of the Second Amendment’s application out side the home; the role of evidence in the determination of fit; etc. Each segment should briefly state the proposition, and its basic justification.
Here’s an (inaccurate) example of what I’m looking for:
Jerejian:
1. There’s no need for N.J. to produce evidence that the justifiable need standard promotes public safety, because common sense itself is sufficient to demonstrate the connection between fewer guns and more safety.
Drake:
1. There is need for N.J. to produce this evidence, because when a constitutional right is being infringed, common sense is insufficient; specific evidence must be submitted. Anything less does not satisfy intermediate scrutiny.
Second, give (and explain) your own opinion about who should win this case (assume for this section that the Supreme Court will grant the cert petition). You have to take Heller as a given. Does the N.J. law infringe on rights explained in Heller, or does that law exist fine within Heller’s rules? The explanation of your conclusion is the point of the assignment.
Your papers will not be graded on which view of the issues you take, but rather on how well you complete the assignment and 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 3 to 5 pages.
You may e-mail me if you have specific questions about the assignment. 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 Monday 4/28, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. 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.
IMPORTANT: If you e-mail your assignment 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.
The work should be entirely your own, with no collaboration or plagiarism. Don’t look at other student’s outlines, and don’t show your outline to anyone. See the syllabus regarding plagiarism and collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
In class today Friday, 4/18, we talked about U.A.R.G. v. EPA. This case raises the question of EPA regulation of greenhouse gases from stationary sources. We first talked about the recent Intergovernmental Panel on Climate Change report, and the problem of climate change. We went over the 2007 Mass. v. EPA case and the 2009 EPA regulation of light trucks for their greenhouse gas emissions. We saw how that triggered EPA regulation of stationary sources as well. We looked at the structure of the Clean Air Act, and how the various titles of the Act interact. We talked about PSD, BACT, NAAQS, and NSPS. We left off by talking about some part of the oral argument in the case. I want to continue on Monday with a look specifically at Kennedy's participation in the oral argument. From there we'll go on the other cases before the Court. The assignment for Monday 4/21 is to show up for class.
Wednesday, April 16, 2014
April 16, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/16, we first finished up the Strunk case. We went over the levels of courts in Kentucky, and which of those have the theoretical power to order this organ transplant. We constructed the legal issue in the case, with special emphasis on the key facts that led the majority to conclude that the transplant was allowed under the facts of this case. We went over the dissenting opinion, and how the dissenting judges did not seem to disagree that the transplant could be ordered under appropriate circumstances. Then I started our discussion about conflict of law rules. We talked about the general theory of when courts of one state might apply the substantive law of another state. I then began a discussion of the Maine Supreme Court case of Collins v. Trius, the Canadian bus full of shoppers that had an accident in Maine. We went over which states might have power to hear the case, and the differences in substantive law between Maine and Canada in terms of pain and suffering damages. We talked about Maine's adoption of the Restatement of Conflict of Laws, and we will pick up with the factors that Maine adopted in deciding which state has the more significant contacts with a motor vehicle accident. The assignment for Friday 4/18 is to finish up your Jeremiah T.brief, previously assigned. If you have finished work on the case brief, you can read in the text through p. 114, Hubbard.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/16, I distributed one handout, an account of the alleged KKK shooter in Kansas. We talked about the constitutional protections for him, both in terms of free speech, and in terms of gun possession. We then returned to the Drake Brief in Opposition (BIO). We reviewed the District Court's holdings, and then compared them with the Third Circuit Court of Appeals holdings. We looked also at the Third Circuit dissent. We started into the argument of the BIO, concentrating on its quotation of Scalia's Heller limitations section. The assignment for Friday 4/18 is to finish the BIO. Also on Friday, I plan to distribute the next written assignment.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/16, I first confirmed that our test will be Friday 4/25. We finished going over the McCutcheon decision. We discussed qui-pro-quo corruption, as well as other forms of things that money can buy. On Friday, I'll talk about something other than McCutcheon. The assignment for Friday 4/18 is to show up for class.
In class today, Wednesday 4/16, we first finished up the Strunk case. We went over the levels of courts in Kentucky, and which of those have the theoretical power to order this organ transplant. We constructed the legal issue in the case, with special emphasis on the key facts that led the majority to conclude that the transplant was allowed under the facts of this case. We went over the dissenting opinion, and how the dissenting judges did not seem to disagree that the transplant could be ordered under appropriate circumstances. Then I started our discussion about conflict of law rules. We talked about the general theory of when courts of one state might apply the substantive law of another state. I then began a discussion of the Maine Supreme Court case of Collins v. Trius, the Canadian bus full of shoppers that had an accident in Maine. We went over which states might have power to hear the case, and the differences in substantive law between Maine and Canada in terms of pain and suffering damages. We talked about Maine's adoption of the Restatement of Conflict of Laws, and we will pick up with the factors that Maine adopted in deciding which state has the more significant contacts with a motor vehicle accident. The assignment for Friday 4/18 is to finish up your Jeremiah T.brief, previously assigned. If you have finished work on the case brief, you can read in the text through p. 114, Hubbard.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/16, I distributed one handout, an account of the alleged KKK shooter in Kansas. We talked about the constitutional protections for him, both in terms of free speech, and in terms of gun possession. We then returned to the Drake Brief in Opposition (BIO). We reviewed the District Court's holdings, and then compared them with the Third Circuit Court of Appeals holdings. We looked also at the Third Circuit dissent. We started into the argument of the BIO, concentrating on its quotation of Scalia's Heller limitations section. The assignment for Friday 4/18 is to finish the BIO. Also on Friday, I plan to distribute the next written assignment.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/16, I first confirmed that our test will be Friday 4/25. We finished going over the McCutcheon decision. We discussed qui-pro-quo corruption, as well as other forms of things that money can buy. On Friday, I'll talk about something other than McCutcheon. The assignment for Friday 4/18 is to show up for class.
Monday, April 14, 2014
April 14, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/14, we first went over some aspects of the Jeremiah T. case and assignment. We discussed the set-up (beginning) part of the case brief (through prior proceedings), which also laid out the kind of questions that need to be included in the substantive part of the brief (contentions, issues, facts, holding). We also talked about the issues that the Court did not resolve. We then started our discussion of Strunk v. Strunk, getting through the cause of action. We will pick up at that point on Wednesday. The assignment for Wednesday 4/16 is to continue working on your Jeremiah T. brief, and to review Strunk.
POS 384 CIVIL LIBERTIES
In class today, Monday 4/14, I distributed one handout, Maine laws regarding open carry (when carried in a "threatening manner") and concealed handguns, and we then discussed those statutes and contrasted them with New Jersey law. We then went back to the Drake case, going through the District Court's decision. We will pick up with paragraph 6 of the Statement on Wednesday (the Third Circuit opinion). The assignment for Wednesday 4/16 to to review both the remainder of the "Statement" of the case and Part I of the argument.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 4/14, I first returned the Free Exercise papers. I then picked up with the campaign finance story starting with the infusion of soft money after the Buckley v. Valeo decision. We talked about the 2002 BRCA (McCain-Feingold) law. We went over 2003 McConnell v. FEC, 2006 Alito's appointment to the Court, 2007 FEC v. Wisconsin Right to Life, 2008 Davis v. FEC, 2010 Citizen's United v. FEC, 2011 McComish v. Bennett, and 2012 Western Tradition . Montana. We will pick up with the story of the McCutcheon decision on Wednesday. The assignment for Wednesday 4/14 is to show up for class.
In class today, Monday 4/14, we first went over some aspects of the Jeremiah T. case and assignment. We discussed the set-up (beginning) part of the case brief (through prior proceedings), which also laid out the kind of questions that need to be included in the substantive part of the brief (contentions, issues, facts, holding). We also talked about the issues that the Court did not resolve. We then started our discussion of Strunk v. Strunk, getting through the cause of action. We will pick up at that point on Wednesday. The assignment for Wednesday 4/16 is to continue working on your Jeremiah T. brief, and to review Strunk.
POS 384 CIVIL LIBERTIES
In class today, Monday 4/14, I distributed one handout, Maine laws regarding open carry (when carried in a "threatening manner") and concealed handguns, and we then discussed those statutes and contrasted them with New Jersey law. We then went back to the Drake case, going through the District Court's decision. We will pick up with paragraph 6 of the Statement on Wednesday (the Third Circuit opinion). The assignment for Wednesday 4/16 to to review both the remainder of the "Statement" of the case and Part I of the argument.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 4/14, I first returned the Free Exercise papers. I then picked up with the campaign finance story starting with the infusion of soft money after the Buckley v. Valeo decision. We talked about the 2002 BRCA (McCain-Feingold) law. We went over 2003 McConnell v. FEC, 2006 Alito's appointment to the Court, 2007 FEC v. Wisconsin Right to Life, 2008 Davis v. FEC, 2010 Citizen's United v. FEC, 2011 McComish v. Bennett, and 2012 Western Tradition . Montana. We will pick up with the story of the McCutcheon decision on Wednesday. The assignment for Wednesday 4/14 is to show up for class.
Friday, April 11, 2014
April 11, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/11, I distributed two handouts: the second briefing assignment (copied below) and the case you'll be briefing, Guardianship of Jeremiah T. If you weren't in class for the handout of the case, you can also access it by going to the Maine Supreme Court opinion site, going to 2009 opinions, and going to case #74. We then discussed the assignment, and the background of the issues. I also mentioned the difference between a guardian and a guardian ad litem. We then went through the Butler case. We talked about the difference between using a statement in the case in chief versus using that statement for impeachment. We discussed the retroactive application of the 1966 Miranda decision, and then looked at language from the Miranda opinion itself that seemed to dictate a result in this case. We looked at how the majority and dissent differed in their views about whether the dictum from Miranda should be followed. Finally I talked about Harris v. N.Y. the 1971 U.S. Supreme Court decision that settled this issue for the whole country. The assignment for Monday 4/14 is to review Strunk (previously assigned) and to begin work on the Jeremiah T. case brief. At the least, read the case for Monday.
Assignment due Friday April 18, 2014
The assignment (graded) is to do a Case Brief of the case of Guardianship of Jeremiah T., 2009 ME 74, 976 A.2d 955.
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 4/18, 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. Do not show your work to anyone else. Do not look at anyone else’s work.
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, Friday 4/11,we started with the final two paragraphs of the Scalia handout, exploring why the individual right isn't limited to muskets, and the problems of how you fight off the tyranny of the federal government tanks and planes with weapons that aren't dangerous or unusual. We then talked about the two dissents in the case, one of which was basically water under the bridge (is there an individual right) and the other was the opening salvo in the upcoming Second Amendment battles (what's the level of scrutiny). We turned to the Drake Petition in Opposition, and went through New Jersey's set of cards, handgun possession permits, and handgun carry permits. We will pick up at that point on Monday. The additional assignment for Monday 4/14 is to read through Part I of the Argument in the Drake Brief in Opposition, through p. 7.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 4/11, I collected the Free Exercise papers, and we went over your thoughts about how these questions should be resolved. On Monday, 4/14, I plan to return the papers. Then on Monday we will continue our discussion about the McCutcheon decision, picking up with the post-Buckley era of Supreme Court decisions and the legislative response.
In class today, Friday 4/11, I distributed two handouts: the second briefing assignment (copied below) and the case you'll be briefing, Guardianship of Jeremiah T. If you weren't in class for the handout of the case, you can also access it by going to the Maine Supreme Court opinion site, going to 2009 opinions, and going to case #74. We then discussed the assignment, and the background of the issues. I also mentioned the difference between a guardian and a guardian ad litem. We then went through the Butler case. We talked about the difference between using a statement in the case in chief versus using that statement for impeachment. We discussed the retroactive application of the 1966 Miranda decision, and then looked at language from the Miranda opinion itself that seemed to dictate a result in this case. We looked at how the majority and dissent differed in their views about whether the dictum from Miranda should be followed. Finally I talked about Harris v. N.Y. the 1971 U.S. Supreme Court decision that settled this issue for the whole country. The assignment for Monday 4/14 is to review Strunk (previously assigned) and to begin work on the Jeremiah T. case brief. At the least, read the case for Monday.
Assignment due Friday April 18, 2014
The assignment (graded) is to do a Case Brief of the case of Guardianship of Jeremiah T., 2009 ME 74, 976 A.2d 955.
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 4/18, 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. Do not show your work to anyone else. Do not look at anyone else’s work.
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, Friday 4/11,we started with the final two paragraphs of the Scalia handout, exploring why the individual right isn't limited to muskets, and the problems of how you fight off the tyranny of the federal government tanks and planes with weapons that aren't dangerous or unusual. We then talked about the two dissents in the case, one of which was basically water under the bridge (is there an individual right) and the other was the opening salvo in the upcoming Second Amendment battles (what's the level of scrutiny). We turned to the Drake Petition in Opposition, and went through New Jersey's set of cards, handgun possession permits, and handgun carry permits. We will pick up at that point on Monday. The additional assignment for Monday 4/14 is to read through Part I of the Argument in the Drake Brief in Opposition, through p. 7.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 4/11, I collected the Free Exercise papers, and we went over your thoughts about how these questions should be resolved. On Monday, 4/14, I plan to return the papers. Then on Monday we will continue our discussion about the McCutcheon decision, picking up with the post-Buckley era of Supreme Court decisions and the legislative response.
Wednesday, April 9, 2014
April 9, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/9, we began by going over the Gonzales v. Raich dissent. We went back to Part V of the Stevens opinion, in which he sent the substantive due process claim and the medical necessity defense back to the Court of Appeals. We discussed Raich v. Gonzales, the Court of Appeals decision on remand that dealt with those two issues. We also talked about how, given the Court's upholding of Congressional interstate commerce power, there still are openly operating marijuana dispensaries. We the went over the 2012 Supreme Court decision in NFIB v. Sebelius, in which the Supreme Court ruled on whether Congress' power over interstate commerce allowed it to impose the individual mandate to be covered by health insurance. We looked at the different views on the Court about this, and we also discussed it in terms of holdings and dictum. We talked about federal supremacy, and about ex post facto prohibitions. We will begin with the Butler case (p.103) on Friday. The additional assignment for Friday 4/11 is to read in the text pp. 108-112 (Strunk) (skipping over Dempsey, p. 106, as it's too hard to follow).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/9, I distributed three handouts: the questions presented in the Drake cert petition, an op-ed piece about the Drake case, and New Jersey's Brief in Opposition to the Cert Petition. I first mentioned my plan to assign the second paper on 4/18, to be due 4/25 (tentative). We talked about the policies involved in gun control in light of today's school stabbings in Pennsylvania. We discussed the Drake Cert Petition, including the process of granting cert, the New Jersey law at issue, and picking a good plaintiff. We looked at Scalia's statement in Heller about prohibitions on the carrying of concealed weapons, and discussed what that statement might mean. The assignment for Friday 4/11 is to read the handouts regarding questions presented, the op-ed piece, and pp. 1-4 (at least) of the Opposition to the Cert Petition.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/9, I first clarified that, for the six specific prohibitions that are a part of the Free Exercise assignment, all those laws (including the one against kosher and halal butchering) are written as laws of general applicability. They do not name and single out any specific religious practice as being prohibited. I then started talking about the background to the recent McCutcheon v. FEC Supreme Court decision. I went over the 1907 Tillman Act and how some corporations welcomed it. We talked about the first disclosure laws. We went over the 1971 FECA, and then Watergate in 1972, and the 1974 amendments. We finished with the 1976 case of Buckley v. Valeo. That case differentiated contribution limits (constitutional,and subject to intermediate scrutiny) from spending limits (subject to strict scrutiny, and unconstitutional). We will continue on from there on Friday. The assignment for Friday 4/11 is to finish up work on your Free Exercise paper, due at the beginning of class on Friday.
In class today, Wednesday 4/9, we began by going over the Gonzales v. Raich dissent. We went back to Part V of the Stevens opinion, in which he sent the substantive due process claim and the medical necessity defense back to the Court of Appeals. We discussed Raich v. Gonzales, the Court of Appeals decision on remand that dealt with those two issues. We also talked about how, given the Court's upholding of Congressional interstate commerce power, there still are openly operating marijuana dispensaries. We the went over the 2012 Supreme Court decision in NFIB v. Sebelius, in which the Supreme Court ruled on whether Congress' power over interstate commerce allowed it to impose the individual mandate to be covered by health insurance. We looked at the different views on the Court about this, and we also discussed it in terms of holdings and dictum. We talked about federal supremacy, and about ex post facto prohibitions. We will begin with the Butler case (p.103) on Friday. The additional assignment for Friday 4/11 is to read in the text pp. 108-112 (Strunk) (skipping over Dempsey, p. 106, as it's too hard to follow).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/9, I distributed three handouts: the questions presented in the Drake cert petition, an op-ed piece about the Drake case, and New Jersey's Brief in Opposition to the Cert Petition. I first mentioned my plan to assign the second paper on 4/18, to be due 4/25 (tentative). We talked about the policies involved in gun control in light of today's school stabbings in Pennsylvania. We discussed the Drake Cert Petition, including the process of granting cert, the New Jersey law at issue, and picking a good plaintiff. We looked at Scalia's statement in Heller about prohibitions on the carrying of concealed weapons, and discussed what that statement might mean. The assignment for Friday 4/11 is to read the handouts regarding questions presented, the op-ed piece, and pp. 1-4 (at least) of the Opposition to the Cert Petition.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/9, I first clarified that, for the six specific prohibitions that are a part of the Free Exercise assignment, all those laws (including the one against kosher and halal butchering) are written as laws of general applicability. They do not name and single out any specific religious practice as being prohibited. I then started talking about the background to the recent McCutcheon v. FEC Supreme Court decision. I went over the 1907 Tillman Act and how some corporations welcomed it. We talked about the first disclosure laws. We went over the 1971 FECA, and then Watergate in 1972, and the 1974 amendments. We finished with the 1976 case of Buckley v. Valeo. That case differentiated contribution limits (constitutional,and subject to intermediate scrutiny) from spending limits (subject to strict scrutiny, and unconstitutional). We will continue on from there on Friday. The assignment for Friday 4/11 is to finish up work on your Free Exercise paper, due at the beginning of class on Friday.
Monday, April 7, 2014
April 7, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/7, I first went over my plan to distribute case brief assignment #2 this Friday, 4/11, to be due Friday 4/18. We then launched back into Gonzales v. Raich. We talked about the 9th and 10th Amendments, the Wickard, Lopez, and Morrison decisions, the Supreme Court's limited role overseeing Congressional determinations in this area, the Supremacy clause, and the Necessary and Proper Clause. On Wednesday we'll discuss the status of state medical and recreational marijuana laws, and also go over further developments in both the Raich case and the interstate commerce power. The assignment for Wednesday 4/9 is to read in the text through p. 105 (Butler).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/7, I distributed one handout, an expansion of what the textbook gave us of Scalia's limits on the 2nd Amendment individual protections. I first drew Venn diagrams of how Scalia fit the militia language together with individual rights (contrasting citizen's militias with organized militias). We then looked at the limitations that Scalia found in the individual right. We will finish Scalia's opinion, and go into Stevens' and Breyer's dissents, on Wednesday. The assignment for Wednesday 4/9 is to review once more D.C. v. Heller.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 4/7, we first went over a few questions concerning the Free Exercise assignment due this Friday. We then finished up our discussion of Hobby Lobby. We talked about the least restrictive alternative requirement, both where it comes from and whether government could alternatively just pay for the objected-to contraceptives with its own money. Then we talked both about how the case will come out, and how it should come out. The assignment for Wednesday 4/9 is to continue working on the Free Exercise paper, due Friday.
In class today, Monday 4/7, I first went over my plan to distribute case brief assignment #2 this Friday, 4/11, to be due Friday 4/18. We then launched back into Gonzales v. Raich. We talked about the 9th and 10th Amendments, the Wickard, Lopez, and Morrison decisions, the Supreme Court's limited role overseeing Congressional determinations in this area, the Supremacy clause, and the Necessary and Proper Clause. On Wednesday we'll discuss the status of state medical and recreational marijuana laws, and also go over further developments in both the Raich case and the interstate commerce power. The assignment for Wednesday 4/9 is to read in the text through p. 105 (Butler).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/7, I distributed one handout, an expansion of what the textbook gave us of Scalia's limits on the 2nd Amendment individual protections. I first drew Venn diagrams of how Scalia fit the militia language together with individual rights (contrasting citizen's militias with organized militias). We then looked at the limitations that Scalia found in the individual right. We will finish Scalia's opinion, and go into Stevens' and Breyer's dissents, on Wednesday. The assignment for Wednesday 4/9 is to review once more D.C. v. Heller.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 4/7, we first went over a few questions concerning the Free Exercise assignment due this Friday. We then finished up our discussion of Hobby Lobby. We talked about the least restrictive alternative requirement, both where it comes from and whether government could alternatively just pay for the objected-to contraceptives with its own money. Then we talked both about how the case will come out, and how it should come out. The assignment for Wednesday 4/9 is to continue working on the Free Exercise paper, due Friday.
Friday, April 4, 2014
April 4, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/4, we began by going over Wednesday's Supreme Court decision in McCutcheon v. FEC regarding limits on campaign contributions to politicians. We then finished our discussion of the Caperton case regarding campaign contributions to Judges. I went over the views of the dissenting Justices in Caperton. I then discussed a case that involved legal ethics for lawyers, Board of Overseers v. Warren, in which the Maine Supreme Court dealt with a lawyer's ethical obligation to report another lawyer who is a thief. We moved to Chapter 3 of the text, and began our discussion of Gonzales v. Raich by going over the parties, the claims, and the defenses raised in the case, as well as the constitutional limits on Congressional power. We will continue with Gonzales v. Raich on Monday, picking up with the question of how this California born and bred marijuana might be part of interstate commerce. The assignment for Monday 4/7 is to brief the case (for yourselves).
POS 384 CIVIL LIBERTIES
In class today, Friday 4/4, we began with a look at the interplay between legislative advocacy like that of the NRA, and constitutional challenges like D.C. v. Heller. We talked about events like Shay's rebellion that may have influenced the Constitutional grant of federal power over militias. We went over the handout distributed on Wednesday that argued that the reason for the Second Amendment was to ensure that Congress did not use its Constitutional power over the arming of the militias to disarm those militias, since those militias were necessary to the security of a slave state. We then looked at the Miller case, first in terms of why the case was a tax case about sawed-off shotguns, and then its view about what rights and what arms are protected under the Second Amendment. We waded into D.C. v. Heller, following Scalia's flow chart of starting with the middle of the sentence (the operative clause), and looking at how Scalia disagreed with Miller on both the nature of the right protected (individual v. collective) and the kind of arms covered (military v. non-military). We will pick up with Scalia's #3 (p. 393) on Monday. The assignment for Monday 4/4 is to review D.C. v. Heller, focusing on who needs protection against whom.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 4/4, I distribute one handout, Assignment #3, reproduced below and due Friday 4/11. We went over the assignment. I went over a RLUIPA case, Cutter v. Wilkinson, that held that accommodating to religious exercise did not constitute an Establishment of religion. We then returned to Hobby Lobby, going over the government's claims of what constituted a compelling interest, and Hobby Lobby's response to those claim, both in the briefing and the oral argument. We have yet to look at the least restrictive alternative argument, which is something that we'll continue with on Monday. The assignment for Monday 4/7 is to begin work on Assignment #3, below:
Good news! You did so well in your last assignment as the 10th Justice that you’ve been given new, unprecedented powers. You’re the Decider in Matters of Constitutional Interpretation. The only thing that binds you is the Constitution itself: no RFRA, no precedent, no founding fathers; it’s just you and the words and principles of the Constitution.
The particular portion of the Constitution that we’re concerned with here says that “Government shall make no law prohibiting the free exercise of religion” (there’s also a “No Establishment of Religion” clause, but that’s not one you’re called upon to explicate here).
Your assignment is to lay out a coherent method of analyzing free exercise questions. It should be an analysis that makes some realistic sense, in terms of a fostering a society that makes us grateful to be Americans with this particular Constitutional protection.
So, for example, are the words of the Constitution to be taken literally? If so, are you ready to live in a world with child sacrifice. because there’s a religion that wants to practice that. Would you be grateful to be an American (really) with a Constitutional protection of child sacrifice?
Here are six specific examples of governmental requirements to which various religions have objected or might object, and which your analysis will need to deal with:
forbidding the practices of 1) child sacrifice, 2) bigamy, 3) kosher and halal butchering, 4) hallucinogenic drug use, and mandating 5) employer’s health insurance coverage that includes the use of M.D.s (which the religion sees as sinful), and 6) employer’s health insurance coverage for employees that includes contraceptive methods (that the religion sees as murder) Unlike the real Hobby Lobby case, assume that there in our little world no choice to pay a tax in lieu of providing health insurance coverage.
In all cases, government (reflecting the consensus of our society, through the democratic process) has either said that people must do certain things (pay Social security taxes, provide the health insurance coverage) or refrain from doing things (child sacrifice, etc). You need to deal with these six specific examples, but you are encouraged to include more examples if they give a fuller picture of your analysis of the Free Exercise Clause. To the extent that you need clarification of any religious practice or governmental restriction, just state what assumptions you are making about the practice or restriction.
Here are three other questions that you need to include in your analysis:
1) The Constitution says that government can’t “prohibit” free exercise. Does it make a difference if government is “prohibiting” something, versus “mandating” something? Does a “prohibition” need to be an absolute prohibition, or is it enough that there’s a “burden” on religious practice? Does a “burden" need to be “substantial”? Would the religious objector get to declare, without oversight, whether there was a burden, and if it was substantial?
2) Is there to be a general test by which restrictions are judged? It could be some like: Does government need to have a “compelling” interest in the restriction? ...an “important” (if not “compelling”) interest? Is it enough justification if government just has a neutral law of general applicability (i.e., not a rule targeted against a particular religious practice)? Does it make a difference if there are alternatives methods of achieving the governmental interest? Or should there be some other general rule? Or no general rule at all?
3) Does it make a difference if third parties (who have not given their consent) are affected by the religious practice (e.g. the child who is being sacrificed, the employee who’s not getting coverage)?
And here are two questions that you do not need to address (unless you wish to):
1) Does anyone get to look over the shoulder of the religious objector to determine the “sincerity” of the objector’s views? And does anyone do that regarding the degree of “complicity” that the objector is sincerely willing to undertake?
2) Is a for-profit corporation covered by the Constitution’s Free Exercise clause?
You should assume that your analysis makes the loser (religion or government) unhappy, and you should explain specifically why the loser’s view doesn’t carry the day.
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, April 11. 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.
In class today, Friday 4/4, we began by going over Wednesday's Supreme Court decision in McCutcheon v. FEC regarding limits on campaign contributions to politicians. We then finished our discussion of the Caperton case regarding campaign contributions to Judges. I went over the views of the dissenting Justices in Caperton. I then discussed a case that involved legal ethics for lawyers, Board of Overseers v. Warren, in which the Maine Supreme Court dealt with a lawyer's ethical obligation to report another lawyer who is a thief. We moved to Chapter 3 of the text, and began our discussion of Gonzales v. Raich by going over the parties, the claims, and the defenses raised in the case, as well as the constitutional limits on Congressional power. We will continue with Gonzales v. Raich on Monday, picking up with the question of how this California born and bred marijuana might be part of interstate commerce. The assignment for Monday 4/7 is to brief the case (for yourselves).
POS 384 CIVIL LIBERTIES
In class today, Friday 4/4, we began with a look at the interplay between legislative advocacy like that of the NRA, and constitutional challenges like D.C. v. Heller. We talked about events like Shay's rebellion that may have influenced the Constitutional grant of federal power over militias. We went over the handout distributed on Wednesday that argued that the reason for the Second Amendment was to ensure that Congress did not use its Constitutional power over the arming of the militias to disarm those militias, since those militias were necessary to the security of a slave state. We then looked at the Miller case, first in terms of why the case was a tax case about sawed-off shotguns, and then its view about what rights and what arms are protected under the Second Amendment. We waded into D.C. v. Heller, following Scalia's flow chart of starting with the middle of the sentence (the operative clause), and looking at how Scalia disagreed with Miller on both the nature of the right protected (individual v. collective) and the kind of arms covered (military v. non-military). We will pick up with Scalia's #3 (p. 393) on Monday. The assignment for Monday 4/4 is to review D.C. v. Heller, focusing on who needs protection against whom.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 4/4, I distribute one handout, Assignment #3, reproduced below and due Friday 4/11. We went over the assignment. I went over a RLUIPA case, Cutter v. Wilkinson, that held that accommodating to religious exercise did not constitute an Establishment of religion. We then returned to Hobby Lobby, going over the government's claims of what constituted a compelling interest, and Hobby Lobby's response to those claim, both in the briefing and the oral argument. We have yet to look at the least restrictive alternative argument, which is something that we'll continue with on Monday. The assignment for Monday 4/7 is to begin work on Assignment #3, below:
Good news! You did so well in your last assignment as the 10th Justice that you’ve been given new, unprecedented powers. You’re the Decider in Matters of Constitutional Interpretation. The only thing that binds you is the Constitution itself: no RFRA, no precedent, no founding fathers; it’s just you and the words and principles of the Constitution.
The particular portion of the Constitution that we’re concerned with here says that “Government shall make no law prohibiting the free exercise of religion” (there’s also a “No Establishment of Religion” clause, but that’s not one you’re called upon to explicate here).
Your assignment is to lay out a coherent method of analyzing free exercise questions. It should be an analysis that makes some realistic sense, in terms of a fostering a society that makes us grateful to be Americans with this particular Constitutional protection.
So, for example, are the words of the Constitution to be taken literally? If so, are you ready to live in a world with child sacrifice. because there’s a religion that wants to practice that. Would you be grateful to be an American (really) with a Constitutional protection of child sacrifice?
Here are six specific examples of governmental requirements to which various religions have objected or might object, and which your analysis will need to deal with:
forbidding the practices of 1) child sacrifice, 2) bigamy, 3) kosher and halal butchering, 4) hallucinogenic drug use, and mandating 5) employer’s health insurance coverage that includes the use of M.D.s (which the religion sees as sinful), and 6) employer’s health insurance coverage for employees that includes contraceptive methods (that the religion sees as murder) Unlike the real Hobby Lobby case, assume that there in our little world no choice to pay a tax in lieu of providing health insurance coverage.
In all cases, government (reflecting the consensus of our society, through the democratic process) has either said that people must do certain things (pay Social security taxes, provide the health insurance coverage) or refrain from doing things (child sacrifice, etc). You need to deal with these six specific examples, but you are encouraged to include more examples if they give a fuller picture of your analysis of the Free Exercise Clause. To the extent that you need clarification of any religious practice or governmental restriction, just state what assumptions you are making about the practice or restriction.
Here are three other questions that you need to include in your analysis:
1) The Constitution says that government can’t “prohibit” free exercise. Does it make a difference if government is “prohibiting” something, versus “mandating” something? Does a “prohibition” need to be an absolute prohibition, or is it enough that there’s a “burden” on religious practice? Does a “burden" need to be “substantial”? Would the religious objector get to declare, without oversight, whether there was a burden, and if it was substantial?
2) Is there to be a general test by which restrictions are judged? It could be some like: Does government need to have a “compelling” interest in the restriction? ...an “important” (if not “compelling”) interest? Is it enough justification if government just has a neutral law of general applicability (i.e., not a rule targeted against a particular religious practice)? Does it make a difference if there are alternatives methods of achieving the governmental interest? Or should there be some other general rule? Or no general rule at all?
3) Does it make a difference if third parties (who have not given their consent) are affected by the religious practice (e.g. the child who is being sacrificed, the employee who’s not getting coverage)?
And here are two questions that you do not need to address (unless you wish to):
1) Does anyone get to look over the shoulder of the religious objector to determine the “sincerity” of the objector’s views? And does anyone do that regarding the degree of “complicity” that the objector is sincerely willing to undertake?
2) Is a for-profit corporation covered by the Constitution’s Free Exercise clause?
You should assume that your analysis makes the loser (religion or government) unhappy, and you should explain specifically why the loser’s view doesn’t carry the day.
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, April 11. 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.
Wednesday, April 2, 2014
April 2, 2014
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/2, we went over the Caperton case. We began by looking at the reasons for and against judicial elections, and the Maine and federal rules regarding judicial appointments and elections. We looked also at the world of campaign finance. We then went over the precedent examined by the Court, and then the rule announced by the majority and how the new rule applied to the facts of this case. On Friday I want to begin by discussing the dissenting opinion, and the aftermath of the case. The assignment for Friday 4/4 is to read in the text through p. 97 (Gonzales v. Raich).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/2, I distributed one handout, an article about the original purpose of the Second Amendment. I first talked a little about today's decision in the First Amendment campaign finance case, McCutcheon v. FEC. We then went back to Snyder v.Phelps, looking at the definition and application of "public concern", the relationship of public concern with targeting of an individual, and the viewpoint-based nature of the tort of intentional infliction of emotional distress. We then went over Alito's dissent, seeing how he disagreed with the majority at each step of the analysis. We also discussed the nature and purpose of punitive damages and the limits that the constitution puts on punitive damage awards. The assignment for Friday 4/4 is to read the handout, read Article I Section 8 of the Constitution (powers of Congress) and the Second Amendment, and to review D.C. v. Heller, (pp. 387-396) previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/2, I first talked a little about today's decision in the First Amendment campaign finance case, McCutcheon v. FEC, which we will return to in more detail after we finish up with Hobby Lobby. I also announced that I plan to assign the 3rd paper on Friday 4/4, with a due date of Friday 4/11. We then went through the Hobby Lobby oral argument regarding substantial burden. We looked at the two basic arguments by the government (indirect burden, choice to pay tax) the Hobby Lobby response, and the questions from the Court. I also went over some precedent that was discussed: U.S. v. Lee (social security taxes); Bowen v. Roy (social security numbers); and Braunfeld v. Brown (Sunday closing). The assignment for Friday 4/4 is to again review the Hobby Lobby oral argument, this time looking for the argument as it concerns "compelling interest" and "least restrictive alternative".
In class today, Wednesday 4/2, we went over the Caperton case. We began by looking at the reasons for and against judicial elections, and the Maine and federal rules regarding judicial appointments and elections. We looked also at the world of campaign finance. We then went over the precedent examined by the Court, and then the rule announced by the majority and how the new rule applied to the facts of this case. On Friday I want to begin by discussing the dissenting opinion, and the aftermath of the case. The assignment for Friday 4/4 is to read in the text through p. 97 (Gonzales v. Raich).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/2, I distributed one handout, an article about the original purpose of the Second Amendment. I first talked a little about today's decision in the First Amendment campaign finance case, McCutcheon v. FEC. We then went back to Snyder v.Phelps, looking at the definition and application of "public concern", the relationship of public concern with targeting of an individual, and the viewpoint-based nature of the tort of intentional infliction of emotional distress. We then went over Alito's dissent, seeing how he disagreed with the majority at each step of the analysis. We also discussed the nature and purpose of punitive damages and the limits that the constitution puts on punitive damage awards. The assignment for Friday 4/4 is to read the handout, read Article I Section 8 of the Constitution (powers of Congress) and the Second Amendment, and to review D.C. v. Heller, (pp. 387-396) previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 4/2, I first talked a little about today's decision in the First Amendment campaign finance case, McCutcheon v. FEC, which we will return to in more detail after we finish up with Hobby Lobby. I also announced that I plan to assign the 3rd paper on Friday 4/4, with a due date of Friday 4/11. We then went through the Hobby Lobby oral argument regarding substantial burden. We looked at the two basic arguments by the government (indirect burden, choice to pay tax) the Hobby Lobby response, and the questions from the Court. I also went over some precedent that was discussed: U.S. v. Lee (social security taxes); Bowen v. Roy (social security numbers); and Braunfeld v. Brown (Sunday closing). The assignment for Friday 4/4 is to again review the Hobby Lobby oral argument, this time looking for the argument as it concerns "compelling interest" and "least restrictive alternative".
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