December 8, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 12/8, I collected the Brown and Hawkins case briefs, and distributed my own version of those briefs. I also distributed Maine statutes regarding wrongful death and the Maine Tort Claims Act. We went over the Brown and Hawkins briefs. I plan to return them when we meet for Exam #2. We then went over the remainder of Chapter 5 (Civil Procedure), including the Fontenot case.
Exam #2 will be Thursday 12/15 from 9:30 - 10:45. It will be in the same format as Exam #1, and will only include the material covered since the first exam. If you are missing any handouts, be sure to email me your request by 8:00 pm on Wednesday night, 12/14. See you next Thursday.

December 7, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 12/7, we first finished our discussion of separation of powers in foreign affairs by going over the Hamdi case, and then the textbook discussion of the three cases that followed Hamdi. We then turned to the separation of powers in domestic affairs. After looking at the early cases (Wayman and Hampton) that looked for the principle dividing legitimate delegation of Congress' law-making powers from unconstitutional delegation, we went through the Mistretta, Chadha, and Bowsher cases.
The paper on Muslim registration is due at the beginning of the exam at 9:30 on Friday 12/16. The exam is in the same format as Exam #1, and will only cover the material covered since that first exam. It will be from 9:30 - 10:45. If you are missing any handouts, make sure to email me by the night before (8:00 pm on the night of Thursday 12/15) to request them. See you Friday 12/16.

December 6, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 12/6, I distributed one handout, excerpts from the Maine Rules of Civil Procedure (regarding the Hawkins case brief and the Idnani case) and the Maine Rules of Evidence (regarding the Timmermann case). We first went over the issues in Hawkins, and I clarified what I thought the Court was doing: by ruling on the Rule 55(c) motion to set aside the default judgment, they were introducing the concept of good cause (Hawkins' behavior) into what otherwise would have been a straight question of the sufficiency of service of process (the deputy's behavior). We also talked about dictum in the Hawkins case. After that, we went over the Idnani case and discovery sanctions. We looked at the Maine Rule of Civil Procedure regarding discovery sanctions. We then went over the Timmermann case on spousal privilege. We also looked at the Maine Rule of Evidence regarding spousal privilege, and I talked about waiver of the privilege in the Maine case of State v. Lipham. The assignment for Thursday 12/8 is to finish work on the Brown v. Thaler and Bank v. Hawkins case briefs, due at the beginning of class Thursday. In addition read through the end of Chapter 5 of the text, including the Fontenot case.

December 1, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 12/1, we first discussed Assignment #2, due next Thursday 12/8. We discussed what was decided in both cases, and how the two decisions square with each other (or don't). We then went over Johnson v. Cintas and Salmon v. Atkinson in the textbook. Regarding the theory of quantum meruit from the Salmon case, I also went over the Maine case of Paffhausen v. Balano, which differentiated quantum meruit from unjust enrichment, and went over the different theories of recovery for each theory. The assignment for Tuesday 12/6 is to continue working on the two case briefs, and to read in the text pp.164-175 (including Idani and Timmermann).

November 30, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 11/30, I distributed two handouts: Assignment #2 (reproduced below) and two newspaper articles about the subject of the assignment, a proposal to have all Muslims in the country register with the federal government. I went over the assignment. We then started in on the cases for today. We discussed the Prize cases, Milligan, Quirin, Korematsu, Youngstown, Dames & Moore, and Zivotofsky. We will begin next week, with Hamdi and the cases that follow it, previously assigned. The assignment for Wednesday 12/7, is to begin working on your Assignment, and to read in addition pp. 270-289 of the text.

Assignment due at the beginning of the Exam on Friday, December 16, 2016

Congratulations! President-elect Trump has summoned you to Trump Tower, and offered you the position of Constitutional Analyst. This newly-created position analyzes Trump’s ideas to determine if they’re in accord with the Supreme Court’s idea of what’s constitutional.

Your first assignment is to do an analysis of the constitutionality of a possible plan by Trump to have all Muslims in America, citizen and non-citizen, immigrant and native-born alike, register with the federal government. (See the news articles on the subject also distributed today.)

But the plan is not popular with Congress, which has gotten a lot of negative feedback from the voters. It’s possible that Congress will pass a law forbidding such a registry (which law Congress could uphold over the President’s veto).

Trump believes that the President has the power to implement the plan, regardless of Congressional objections, because the President has full authority in this area of immigration and war-making powers. Trump says that we are engaged in The War on Terror, a war authorized by Congress, and that he has the right to use his wartime powers to fight terrorism, and this registry is an important tool in that fight.

Analyze whether Trump would be correct about the constitutional powers of the Executive. Include in your analysis both a situation in which Congress explicitly approves and authorizes the registry, and the situation in which Congress explicitly rejects the registry. Examine the arguments both for and against the constitutionality of the registry.

Use the following authority from the textbook: pp. 263-267; 289-340; and Arizona v. U.S. pp. 407-414. Use no other cases, and do no outside research. This assignment is totally based on what’s in the textbook.

To cite authority, use the textbook page numbers: e.g. “As the Court majority stated in Arizona v. U.S., ‘aliens are required to register with the Federal Government’. (Arizona at p. 409).”

The assignment will be graded on both the structure and the content of your analysis. 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.

Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion. I would expect the paper to be in the neighborhood of three pages long.

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.

The assignment is due at the beginning of the exam on Friday 12/16. If you cannot be in class on that day, you should still e-mail me your assignment by the beginning of the exam 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. See the Syllabus for the class rules regarding late papers.

The work should be entirely your own, with no collaboration or plagiarism. Do not show your paper to anyone. Do not look at anyone else’s paper. See the syllabus regarding plagiarism and collaboration.


IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.

November 29, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/29, I distributed four handouts: Assignment #2 (reproduced below); TD Banknorth v. Hawkins, 2010 ME 104, 5 A.3d 1042; Brown v. Thaler, 2005 ME 75, 880 A.2d 1113; and an excerpt from the Maine Rules of Civil Procedure. We went over the assignment. We then finished up Chapter 4 of the text by going over subject matter jurisdiction of the federal courts in diversity cases. We covered St. James Apartments in terms of diversity of citizenship, and Frump in terms of the amount in controversy. The assignment for Thursday 12/1 is to read the cases to brief, Hawkins and Brown, and to read in the text pp. 154-164 (including Salmon, p. 156 and Johnson p. 162).

Assignment due at the beginning of class on Thursday, December 8, 2016

The assignment is to do two case briefs: the first is of the case of Brown v. Thaler, 2005 ME 75, 880 A.2d 1113 and the second is of TD Banknorth v. Hawkins, 2010 ME 104, 5 A.3d 1042. The cases were distributed to class today.

For the Hawkins case, only do the Facts, Issues, and Holdings through Section II (A) of the opinion, “Service of Process”. Do not do the Facts, Issues, and Holdings for Section II (B) “Amendment of Complaint” (¶ 18-25). Do include Section II (B) for the remainder of the brief (everything but Facts, Issues and Holdings).

These are both cases in which the brief is more useful if you utilize an “even though...” portion of the Issues, and Holdings (and include any facts used there in your Facts section). This means that you include the loser’s facts (opposite to what the Court holds) to show what the losing side was arguing. For example: “Under the rules of our class, may a student make cell phone calls during the class when such calls are disruptive, even though there was no specific prohibition on such calls in the syllabus.” The “Facts” would include “ such calls are disruptive even though there was no specific prohibition on such calls in the syllabus”.

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 questions about the brief. The more time that I have to answer our questions, the more likely it is that I can be helpful.

If you cannot be in class on Thursday 12/8, 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.

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.

Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me.

November 22, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/22, I distributed one handout, the Maine long-arm (personal jurisdiction) statute. We began by reviewing subject-matter jurisdiction enough to contrast it with personal jurisdiction. We talked about four avenues for assertion of personal jurisdiction over a defendant: domicile of the defendant, service of process within the state, minimal contacts, and consent. We discussed special appearances to contest jurisdiction. We went through the Swoboda case and put it into a case brief format. I then discussed two recent U.S. Supreme Court cases regarding personal jurisdiction: McIntyre v. Nicastro and Walden v. Fiore. We looked at the Maine long-arm statute, and questioned whether one of its provisions is consistent with constitutional requirements. On next Tuesday I plan to distribute assignment #2, another case brief, which will be due the last day of class, Thursday 12/8. The assignment for Tuesday 11/29 is to finish Chapter 4 of the text, which includes reviewing the previously assigned St. James v. Coinmach, and adds Frump v. Claire's Boutiques. Have a good and a safe Thanksgiving.

November 17, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/17, I distributed two handouts: an excerpt from the Supreme Court case of Obergefell v. Hodges, and an excerpt of Maine jurisdictional statutes. Regarding Full Faith and Credit, we discussed Obergefell, and I also went over two recent Supreme Court cases, California v. Hyatt and V.L. v. E.L. We then went over the concept of subject-matter jurisdiction and the textbook case of Cheap Escape. I talked about two other subject matter jurisdiction cases, the Maine Supreme Court case of Landmark Realty v. Leasure and the U.S. Supreme Court case of Bowles v. Russell. The assignment for Tuesday 11/22 is to read the handouts, review Swoboda v. Hero Decks (previously assigned) and to read in addition through p. 140 ((St. James v. Coinmach).

November 16, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 11/16, I distributed two handouts: an article about the switching of views on executive authority with the switching of the party of the president, and an article about a recent D.C. Circuit case about the power of removal of the head of the Consumer Financial Protection Bureau (CFPB). We then went through the cases assigned for today: Morrison v.Olson and NLRB v. Noel Canning (on the Presidential appointment power); Myers and Humphrey's Executor (on the power to remove); U.S. v. Nixon (on presidential privilege); Mississippi v. Johnson, Fitzgerald, and Jones (on presidential immunity from suit). We have no meeting next week (Thanksgiving break). When we reconvene on Wednesday 11/30, I plan to distribute Assignment #2. We'll begin our discussion of executive power with today's handout about the CFPB case. The additional reading for Wednesday 11/30 is to read in the text pp. 263 - 267 and 289 - 340.

November 15, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/15, I first went over some scheduling plans. I plan to assign Case Brief #2 on Tuesday 11/29, to be due on the last day of class, Thursday 12/8. We began our discussion of the Land case by reviewing the concept of federal subject matter jurisdiction, including both federal question jurisdiction and diversity jurisdiction. We went over the Erie Doctrine. I talked about the definitions of Statutes of Repose v. Statutes of Limitation. With all that done, we then went over the Land case, and the question of whether it evidenced good or bad lawyering on the part of the Plaintiffs' attorney. I then went over a Maine case, Collins v. Trius, which applied Maine's conflict of law rules to a question of limitations on damages. We then turned to Full Faith and Credit and the Finstuen case. The assignment for Thursday 11/17 is to review Cheap Escape v. Haddox (previously assigned) and to read in addition Swoboda v. Hero Decks (through p. 136 of the text).

November 10, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/10, we first reviewed a few aspects of the Butler case, and the concept of dictum. We went over the three types of dictum that we've seen, and we also talked about the second issue in Butler, voluntariness. We also went over the relationship between state courts and U.S. Courts of Appeal in terms of mandatory authority. We then discussed Dempsey and the retroactive / prospective distinction. We talked about the models available to the Montana Supreme Court, and the choice they made. We covered Strunk v. Strunk and the absence of precedent, and the role of the guardian and the guardian-ad-litem. Then we went over Hubbard v. Greeson and the choice of law (or conflict of law) issue. We discussed good lawyering in Hubbard, even though things didn't turn out as Greeson's lawyer may have planned. The assignment for Tuesday 11/15 is to read in the text pp. 144-146 (the Erie Doctrine and Land v. Yamaha), and the pp. 115-129 (the end of Chapter 3 (Finstuen) and start of Chapter 4 (Cheap Escape v. Haddox)).

November 9, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 11/9, I distributed one handout, selected federal and state statutes (and state regulations) about presidential elections. We began our discussion of the executive branch with the election case of Bush v. Gore. We then looked at the federal safe harbor statute involved in that case, as well as Maine law and regulations regarding the standards for determining what's to be done if the voter doesn't follow all the rules for marking the ballot. We examined the text of the constitution regarding presidential powers, and went over the Neagle case regarding the existence of implied presidential powers. We discussed Congressional limitations on presidential power (Youngstown Steel) and the obligation to enforce the law (Train v. NYC). Finally we covered Clinton v. NYC and the line-item veto. The assignment for Wednesday 9/16 is to read in the text, and prepare to discuss pp. 212-256.

November 8. 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/8, we first completed our discussion of NFIB v. Sebelius. We went through Roberts' opinion issue by issue, going over each of the government's contentions, and why and how Roberts rejected them. We also covered the opinions by Ginsburg and the Joint Dissent. We then discussed some of the non-case material in the text, including the standard of review for the fit between the legislative means and the legislative end, preemption of state laws, the ex post facto prohibition and sex-offender registries, the role of common law, and the interaction of panels of appellate judges, We then discussed the Butler case and the concept of dictum. I went over the 1971 U.S. Supreme Court case of Harris v. N.Y., which also (like the Butler court) treated some of the Miranda opinion as dictum that could be ignored. The assignment for Thursday 11/10 is to read in the text through p. 115 (review Dempsey (previously assigned), and read Strunk and Hubbard v. Greeson.

November 3, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/3, I began by recounting the further adventures of Caperton v. Massey after the U.S. Supreme Court decision. I went over how West Virginia tossed the case out based on the forum selection clause in the contract, and how the Virginia trial court then tossed the case out based on res judicata, a ruling that was then overturned by the Virginia Supreme Court. I then went over the 2016 U.S. Supreme Court opinion in Williams v. Pennsylvania, in which the Supreme Court ruled on whether the due process clause requires recusal of a justice who had earlier participated in a case as the district attorney. We went over the holding in Williams, the alignment of the Justices, and the two dissenting opinions. I then discussed a Maine Supreme Court case, Board of Overseers of the Bar v. Warren, which discussed the application of the Maine Bar Rule that requires a lawyer to report when another lawyer is dishonest. We discussed the difference between an objective versus a subjective standard of evaluation. We moved on to Chapter 3 of the text. We began our discussion of NFIB v. Sebelius by going over the text of the constitution, the difference between interstate versus intrastate commerce, and the necessary and proper clause. We talked about dictum, and the other (non-commerce clause) issues in the case. We generally discussed the concept of forcing people into commerce, versus regulating existing commerce. We will continue NFIB,and the specific issues addressed, next Tuesday. The assignment for Tuesday 11/8 is to review NFIB, and to read in the text through p. 110 (Butler and Dempsey).

November 2, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 11/2, I handed back last week's exams. We then resumed our trip through the commerce clause cases. We started with a brief review of where we had left off, Knight and Hammer v. Degenhart. I talked about some of the textbook cases that I had not assigned: Schechter Poultry (p. 443); Jones & Laughlin (p. 453); and Darby (p. 459). We then went over the assigned cases of Wickard; Heart of Atlanta: Lopez; Morrison; Raich; and NFIB. Along the way we talked about changing personnel on the Court, changing expectations of what kind of experience was needed for the Court, dictum and overruling prior cases, and the Venn diagram of Scalia's concurrence in Raich. The assignment for Wednesday 11/9 is to read in the text pp. 183-212.

November 1, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/1, we began by looking at Maine's law for mandated reporting of child abuse and neglect, and the lack of penalties for failure to comply with those reporting requirements. I then reviewed the BrickKicker holding about enforcing the arbitration clause in the contract, even without the contract's unconscionable parts. I went over four U.S. Supreme Court case about the situation when the Federal Arbitration Act comes into conflict with state law regarding unconscionable contract provisions: AT&T Mobility v. Concepcion, American Express v. Italian Colors, DirecTV v. Imburgia, and Kindred Nursing v. Clark. We then went over the Caperton case in the text. I plan on Thursday to start by talking about two cases that I didn't get to today, the recent U.S. Supreme Court judge recusal case of Williams v. Pa., and the Maine Supreme Court lawyer ethics case of Board of Overseers v. Warren. The assignment for Thursday 11/3 is to read in the text through p. 98 (the various opinions in the Obamacare ACA case).

October 27, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/27, we began by going through the Maine statute on Hindering Apprehension, and we discussed what would be the best part of that law under which to bring charges against a Maine Ms. Mobbley. We went through Holland v. Florida, in which the Florida Supreme Court had to decide whether to exercise its power to create a Florida common law crime of misprision of a felony. I discussed the federal statute that creates such a federal crime, and we also looked at the Massachusetts duty to report statute in our text. I went through the four mental states involved in most crimes (knowledge was the mental state in the federal statute) and we also went over the two bases of federal court jurisdiction (federal question and diversity). We looked at the Maine statute that precludes the creation of common law crimes in Maine. I forgot, though, to turn the page over to discuss mandated reporting of child abuse and neglect under Maine statute, so we'll start with that next Tuesday. We went through the Glassford case, looking at the cause of action, the precedent used by the Vermont court, the issues presented, and their resolution. I plan to follow up on Tuesday with some recent U.S. Supreme Court cases about the use of mandatory arbitration clauses. The assignment for Tuesday November 1 is to read in the text through the end of Chapter 2 (Caperton).

October 26, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Tuesday 10/26, I first handed back the Raich outlines. The class then took exam #1 for the first half of class. For the second half of class I went over the exam. I will grade and hand back the exams next week. The assignment for Wednesday 11/2 is to review the commerce case previously assigned that we have not yet gone over (p. 463-466 Wickard, and 473-492 (Lopez, Morrison, Raich) and to read in addition p. 467-473 (Heart of Atlanta) and 492-501 (NFIB - commerce power).

October 25, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/25, I distributed one handout, the Maine statutes regarding hindering apprehension, common law crimes, and mandated reporting. We went over Gregg v. Georgia, including the three handouts from last week. We discussed the plurality opinion, as well as the two dissents. We then went over State v. Mobbley, and discussed statutory interpretation. We also looked at the concept of dictum, meaning the statements made by a court that go beyond that which is required to decide a case. We looked at both the Mobbley majority and the dissent. Finally we looked at the Maine statute regarding hindering apprehension. We were deciding what specific paragraph of that law might be involved if we took the Mobbley situation and placed it in Maine. That's where we'll pick up on Thursday. The assignment for Thursday 10/27 is to figure out what specific section of the Maine statute would apply to the Mobbley scenario. Then review Holland (previously assigned) and look at the Maine statutes distributed today about common law crimes in Maine, and mandated reporting. The additional assignment for Thursday is to read in the text and prepare to discuss through p. 77 (Glassford v. BrickKicker).

October 20, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/20, I distributed three handouts: an article about the manipulation of the vote in Furman v. Georgia, one about Justice Breyer's challenge to the death penalty, and then a list of Supreme Court cases concerning the death penalty. I handed back the exams from Tuesday, and we went over them. We finished our discussion of Suggs v. Norris. We will pick up next Tuesday with Gregg v. Georgia, previously assigned. The assignment for Tuesday 10/25 is to read today's handouts, review Gregg v. Georgia, and to read in addition in the text, pp. 59-67.

October 19, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 10/19, I collected the Raich outlines, and I distributed my version of the outline. I plan to hand back the graded outlines next week. We went over the outline. I also discussed the remand of the case in Raich v. Gonzales, (2007) in which the 9th Circuit Court of Appeals rejected Raich's substantive due process claim.
The class then took a practice test in preparation for next week's exam. The exam will be open book and open note. The best way to study for the exam is to review this blog, making sure that you're understanding the cases and concepts that are mentioned in the blog. Also check this blog to make sure that you've got all of the handouts. If you're missing any handouts, email me by 8:00 pm on Tuesday 10/25 to request them. The plan for the exam is to have it for the first 75 minutes of class (until 3:15). If there are no absences from class, we can go over the exam immediately after the break. If there are any absences, we'll go over the exam when I hand back the exams on 11/2.
We then continued through the assigned textbook cases on the commerce clause. I reviewed Gibbons v. Ogden, and then we went through Knight (p. 423), Stafford (p. 429), Champion (p. 432) and Hammer (p.435). The exam will cover material up through Hammer, and not the further textbook cases that were previously assigned but not gone through in class (pp. 463-466 and 473-492).
The assignment for Wednesday 10/26 is to prepare for the exam, and also to review the textbook materials that were previously assigned but not yet gone over in class (above).

October 18, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/18, the class took Exam #1. I plan to return the graded exams on Thursday, and go over them. The assignment for Thursday 10/20 is to review Suggs v. Norris (previosly assigned) and to read in addition pp. 52-58 of the text (Gregg v. Georgia).

October 13, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/13, I distributed one handout, the comment key to explain my notations on your Jones case briefs. I returned those case briefs. We did an in-class sample test in preparation for next Tuesday's test. We finished going over the Maine Use of Force statute, and we discussed Suggs v. Norris, as far as the issue of whether public policy forbids the enforcement of a contract in which the parties are engaged in a sexual relationship. On Tuesday 11/18 we'll have Exam #1. open-book and open-note. If you're using a laptop or other device, remember that you can't connect to the internet or do any other function that is not available to those who have a hard copy of the text. If you are missing any handouts, you must notify me by 8:00 p.m. on Monday 10/17 if you want me to bring you the missing handout.

October 6, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/6, I collected the Jones case briefs, and also distributed my own version of the brief. We went through the Jones case brief, including the dissent. Along the way, we went over the concept of summary judgment. We then turned to the Maine statute about Use of Force in Defense of Premises. We went through the definitions, and the use of non-deadly force. We'll return to deadly force next Thursday, We also went over proper Maine statutory citation form.
We also discussed the upcoming schedule. There is no class on Tuesday 10/11 (Fall break). On Thursday 10/13 I plan to hand back the Jones case briefs. Also on that day, I plan to give a few practice questions for our upcoming exam, which I plan for Tuesday 10/18. The best way to prepare for the exam is to review the blog posts, which cover all the handouts and concepts in addition to the cases that we've covered.
The assignment for Thursday 10/13 is to review the Maine statute (again) and to read in the text through the end of Chapter 1 (including Suggs v. Norris).

October 5, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 10/5, I distributed 3 handouts: Assignment #1 (reproduced below); the case you'll be outlining (the majority opinion in Gonzales v. Raich); and my version of the Medicaid outline in NFIB v. Sebelius. If you weren't in class today, I left a copy of the three handouts in my mailbox in the Political Science department office (across the hall from our classroom).
We began class by going over some scheduling. Next week, 10/12, I won't be in class, but the class will meet and watch two episodes of a PBS series on the Supreme Court. On 10/19, the outline is due, and we'll go over those outlines, as well as going over some practice questions for our exam #1, which will be given at the beginning of class on 10/26.
We then returned to the question of coercion and the NFIB v. Selelius case. We put the case in outline format, and covered all three opinions in the text. We then moved onto the Commerce Clause, and went through Gibbons v. Ogden.
The assignment for next week and the week beyond is to do assignment #1, review the materials previously assigned that were not reached today (text. pp. 422-439) and to read in addition in the text pp. 463-466 and 473-492.

Assignment due Wednesday, October 19, 2016

The assignment is to do an outline of Stevens’ majority opinion in Gonzales v. Raich (also distributed to the class today).

Follow the format from the Sample Outlines that I’ve distributed. Note that the basic format is a complete sentence for the Title (for the Roman numerals); and then Question and Answer for the other elements. For Stevens’ opinion, the only structure he provides is Roman numerals I-V. So add sub-elements to the outline as necessary in order to cover the points raised by him (e.g. I (A) (1) (a)).

How do you know when to add sub-elements? Ask yourself what questions the Justices are asking, and how they are answering them. For example, Stevens’ paragraphs 2-5 address one basic question --- the background to the controversy. His paragraphs 6-9 address a different question --- what were the prior proceedings.
Do not outline the introductory section of the Opinions (¶1, before Roman Numeral I).

The assignment will be graded on both the structure and the content of your outline. The outline 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.

Please make two copies of your outline, 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 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 Wednesday 10/19, 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.

The work should be entirely your own, with no collaboration or plagiarism. Do not show your paper to anyone. Do not look at anyone else’s paper. See the syllabus regarding plagiarism and collaboration.


IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.

October 4, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/4, I distributed one handout, my version of the Katko case brief. I first talked a little bit about the Jones case brief. I stressed that the "fact" segment should explain why an argument (the legal question) is a winner or a loser. I also clarified that the "facts" should be a complete sentence in their own right, so that the issue (including the "facts") needs to read that way as well. And I reminded the class about the need to copy and paste after the issue is formulated. We then went through the Katko case brief, including the views of the dissent. We looked at the authority cited by the Iowa Supreme Court, including adding the category of extending precedent to our previous categories of following, distinguishing, or overruling precedent. We also expanded our chart of authority by dividing authority into primary authority (both mandatory and persuasive) versus secondary authority (non-law). We talked about jury instructions, directed verdicts, and judgments notwithstanding a verdict. We also talked about the mental states of defendants, including intent, knowledge, recklessness, and negligence. We will discuss the Maine statute about use of force on Thursday, after we go through the Jones case brief. The assignment for Thursday 10/6 is to finish your Jones case brief, due at the beginning of class, and in addition, to review the Maine statute on use of force.

September 29, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/29, we spent pretty much the entire class going over the Jones case brief that is due next Thursday. We explored all of the arguments made (by the Commissioner, the Solicitor General, the dissent, and even by Jones) and the responses given (issues and holdings). We also talked about the dissenting opinion, and how they challenged specific holdings of the majority. Finally, I spent a little time talking about the cause of action in Katko, and the nature of a common law cause of action. The assignment for Tuesday 10/4 is to work on your Jones case brief, and review Katko and the Maine statute on use of force.

September 28, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 9/28, we began by going through the Crosby opinion, and putting it into an outline format. We discussed the basis of Scalia's concurrence. I also talked about Obama's order of two weeks ago to terminate sanctions, and how the presidential ability to stop sanctions was a big part of the Court's decision. We then went through Arizona v. U.S., going through the different forms of preemption found by the Court majority, as well as the provision that was not preempted. We discussed the three dissenting opinions. We then left preemption and started the new federalism topic of coercion. We started with Steward Machine, and the did South Dakota v. Dole. We began our discussion of NFIB. I discussed the overall plan of Obamacare to push all groups into the insured circle, and talked about how the Congressional power to impose the individual mandate was located not in the commerce power, but rather under the taxing power of Congress. We began our discussion of the Medicaid expansion. We got up to the part of Roberts' opinion that looked at South Dakota v. Dole (p.565), which is where we'll pick up next week. The assignment for Wednesday 10/5 is to review NFIB, outlining (for yourself) the remainder of Roberts' opinion, as well as the Medicaid expansion parts of the Ginsburg and Scalia opinions. Also, read in the text pp. 415-439.

September 27, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/27, I distributed 3 handouts: assignment #1 (reproduced below): the case you'll be briefing, Jones v. Flowers, 547 US 220 (2006): and the Maine statute regarding use of force in defense of premises (to go with the Katko case). I began by going over the requirements of the assignment. We then finished going over the Speelman hypotheticals that I had distributed last week. We looked at whether there were defenses to the letter that the BHA had sent, and also how the case might have come out if the BHA had needed to do some research in order to figure out in which jail Speelman was being kept. We began the Katko case, going over the brief segments down to the cause of action. When we resume our discussion of Katko, we'll begin with the concept of common law. The assignment for Thursday 9/29 is to begin the Jones case brief assignment. I'll take your questions about the briefing of Jones, so be sure to get started on that process. Also, review the Katko case and its briefing, and study the Maine statute handed out today, asking yourself whether the Brineys could have been convicted in a Maine criminal case for the spring gun.


Assignment due Thursday, October 6, 2016

The assignment (graded) is to do a Case Brief of the case of Jones v. Flowers 547 U.S. 220 (2006) (also distributed to the class today).

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. Do not include the “even though…” segment. Brief only the majority opinion. For the dissenting opinion, summarize in plain English (not using the Brief Format) all those points on which the dissent disagrees with the majority.

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 Thursday 10/6, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.

Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me.

IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.

September 22, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/22, I distributed two handouts: my version of the Speelman case brief, and some hypothetical variations of Speelman. I gave the class my planned schedule for the upcoming graded case brief: I plan to assign the brief on Tuesday 9/27, with the assignment due Thursday 10/6. We talked about the relationship between the 5th Amendment due process clause, and the 14th Amendment clause. We then launched into the Speelman case brief. I went over federal statutory citation form, and state court opinion citation form. I discussed injunctive relief, preliminary injunctions, and temporary restraining orders. I also went over the concept of mandatory authority, as contrasted with persuasive authority. We then discussed the hypotheticals down to the end of question one. We will start next Tuesday with how the hearing on the merits might go: whether Speelman had violated the rules, what the notice said, and whether she should in fact lose her voucher. The assignment for Tuesday 9/27 is to read in the text through p. 43 and prepare (for yourself) a case brief of Katko v. Briney.

September 21, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 9/21, I distributed two handouts, my versions of the New York and the Prinz opinion (majority, concurrence, and dissent). After reviewing National League of Cities and Garcia, we went through the outline of New York v. US. Along the way, we went over the concepts of following, distinguishing, and overruling precedent. We then outlined the Prinz case. We went through Missouri v. Holland, and along the way went through the organization of the federal court system. We began the facts of Crosby v. NFTC, which is where we'll pick up next week. The assignment for Wednesday 9/28 is to review Crosby and Arizona (through p. 414), previously assigned, and then to read in the text pp. 553-568.

September 20, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/20, I distributed one handout, my version of the Lawrence v. Texas case brief. We began by going over the Obergefell handout, looking at both the majority and the dissent in terms of their treatment of Glucksberg. We discussed the options of following, distinguishing, or overruling precedent. Kennedy and Roberts disagreed about how the Obergefell Court was treating the Glucksberg precedent. Kennedy and Roberts also disagreed about the proper role of the courts in this dispute, compared to the role of the state legislatures. We then moved on to Lawrence v. Texas. We went through a case brief of the case. We looked at both the due process and equal protection arguments, and why Kennedy chose one rather than the other. We also looked at the flow chart that Kennedy seemed to be following, and then how he pulled an unexpected word out of his hat at the end of the case. The assignment for Thursday 9/22 is to read in the text pp. 34-38, and to write out (for yourselves, not handed in) a case brief of Speelman.

September 15, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/15, I distributed two handouts, my version of the Glucksberg case brief, and the Maine statutes regarding aiding suicide. We went through the Glucksberg case brief. Along the way, we laid out the organization of the federal court system, the difference between a panel opinion of a court of appeals decision versus an en banc opinion, and the citation form that lets you know what level of court opinion you are reading. We went over the Maine statute, and also citation form for Maine statutes. We will begin on Tuesday 9/20 with Obergefell (distributed on Tuesday). The additional reading for Tuesday 9/20 is to read in the text pp. 67-72 (Lawrence v. Texas).

September 14, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 9/14, I distributed one handout, my version of the outline of McCulloch v. Maryland. We began class by going over the features and deficiencies of the Articles of Confederation. We then went through the constitution, looking at its organization (what subject is addressed by each of the Articles and Sections), as well as some of the substantive provisions. We discussed the difference between the retention by the states of the general "police power", versus the limit on the federal government to those powers laid out in Article I, Section 8. We moved on to the textbook case of McCulloch. We went through the arguments made by Maryland, and the responses by Marshall, putting the case into the outline format. We went through National League of Cities and Garcia v. San Antonio, and looked at the different results in those case as both a product of different interpretations of the 10th Amendment, as well as a change in votes. We discussed the set-up of NY v. US. The assignment for Wednesday 9/21 is to review the previously assigned material through p. 387; write out (though not to hand in) an outline of NY v. US (both majority and dissenting opinions); and read in the text pp. 399-414.

September 13, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/13, I distributed two handouts: an article by Brittany Maynard about her right to assistance in suicide, and an excerpt from the same-sex marriage case of Obergefell v. Hodges about the identification of fundamental rights. We began class by reviewing the holding of the Miller case at least as far as we understood it. We reviewed the concurrence by Breyer and the dissents by Roberts, Thomas, and Alito. We went over the difference between a concurrence in the judgment, versus a concurrence in the opinion. We talked about three institutional conflicts that the Court deals with: the rights of individual versus the power of government; the power of federal versus state government; and the separation of powers between executive, legislative, and judicial authority. I then talked about the 2016 case of Montgomery v. Louisiana, which dealt with the question of the retroactive application of the rule in Miller to prisoners who were already serving automatic LWOP sentences. We saw how the Montgomery majority interpreted the holding in Miller to be that the imposition of LWOP was categorically barred, regardless of procedure, as long as the juvenile was not found to be permanently incorrigible. We then turned our attention to substantive due process. We looked at the language and history of the due process clause. We went through the Glucksberg case brief as far as the prior proceedings, which is where we'll pick up on Thursday. We also talked about how the designation of a right as "fundamental", or not, would result in either high hurdle or low hurdle oversight by the Court of the legislation that's being challenged. The assignment for Thursday 9/15 is to review Glucksberg and your case brief of it, and to read today's 2 handouts.

September 8, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/8, I distributed two handouts: a sheet on the Justices of the Supreme Court, and my version of the Miller case brief. We started today by talking about the difference between common law (where the judges themselves make up the rules) versus interpretation of enacted law (where the judges interpret the words of others, such as the words of the 8th Amendment). That brought us to the Miller case. We went through the case brief of Miller, focusing especially on the key facts of the case (upon what circumstances and factors did Kagan rely to find that this sentence violated the Eighth Amendment). Along the way, I went over 4 previous decisions of the Court regarding punishment of juveniles: Thompson v. Oklahoma; Stanford v. Kentucky; Roper v. Simmons; and Graham v. Florida. We looked at the lineup of Justices in Roper, Graham, and Miller, and, using the handout of Justices, talked about what effect the Presidential election may have on the outcome of cases like Miller. On Tuesday we will go over the other opinions in the Miller case (concurring and dissenting) and I will also talk about the 2016 case of Montgomery v. Louisiana. The assignment for Tuesday 9/13 is to review the rest of Miller, and today's handouts, and to read in the text through p. 34. Write out (for yourself, not handed in) a case brief of Glucksberg.

September 7, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 9/7, I distributed two handouts: a list of the Supreme Court Justices with a few useful Supreme Court websites; and my version of an outline of Ginsburg's opinion in Evenwel. We used the structure of the "questions" handout from last week to continue our discussion of voting and the constitution. We went over the Hasen article about the future of voting in the Court after Scalia. We discussed the Crawford voter id. case, and the recent successful challenges to voter id. laws. We talked about the Voting Rights Act, and the Supreme Court's removal of the VRA's key provision. We then turned to apportionment and redistricting. We used Ginsburg's opinion in Evenwel to go over the prior Supreme Court redistricting cases, and what they had to say about the separate question of the base measure for apportionment. I talked about the 1966 case of Burns v. Richardson, and how it dealt with Hawaii's base apportionment measure of actually registered voters versus citizens of voting age. We talked about the different "population" measures that might be used in apportionment: total population, legal residents, citizens, citizens of voting age, or registered voters. We went through Ginsburg's opinion and saw its structure and outline. We then went through the Thomas and Alito concurring opinions. Along the way we talked about Supreme Court citation format; facial versus as-applied legal challenges; the difference between a concurrence in the opinion versus a concurrence in the judgment; originalism; accepting as decided precedent with which a Justice disagrees, versus not accepting precedent; and appeals as of right versus petitions for a writ of certiorari. The assignment for next week, 9/14 is to read the Constitution (especially the part through the Bill of Rights; in the text pp.3-10; 343-355;and 367-387.

September 6, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/6, we first reviewed the parts of the Mahmoud opinion that we had covered last week (the propriety of giving any instruction at all on eyewitness identification, whether the evidence generated an instruction of suggestive identification, and whether the instruction given about stress was good enough. We reviewed the idea that the law involved in the case was common law, in that it was a rule made by judges in the absence of enacted law. We finished up Mahmoud with the issue of whether the instruction given about accuracy and the witness's level of confidence was also good enough. We went through the format of the case brief, and we also added the loser's facts ("...even though...") to the last two issues of the brief.
We then turned to the textbook. I talked about the concept of natural law, and we looked together at Martin Luther King Jr.'s Letter from the Birmingham jail. We talked about uplifting versus degrading human personality, and how those concepts might be involved in a controversy such as the right to abortion.
The assignment for Thursday 9/8 is to read in the textbook through p. 23 (the Miller case). Write out for yourself the Issue or Issues that you think that the Court majority was deciding, in the format of the brief template and sample Mahmoud case brief that I had handed out last week (not handed in or graded, but do write it out for yourself and our class discussion).

September 1, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/1, I distributed two handouts: the template for case briefs, and my version of the Mahmoud case brief. We began by going over briefly the proper citation format, the parties involved, the Plaintiff's objective and cause of action, and the trial court defense. We then went into a fair amount of detail about the prior proceeding, because we need in this case to understand what instructions were proposed and which were actually given in the trial court in order to understand the issues in the Maine Supreme Court. We then started with the Supreme Court's discussion of the issues. We began with whether jury instructions on eyewitness identification would be allowed at all, in light of the fact that this exact issue had been decided by the Maine Supreme Court in 1989. We then went over the question of whether there was enough evidence of an improperly suggestive identification, and left off with the question of whether the proposed instruction on "stress" was sufficiently covered by the instruction on "circumstances". We'll finish next week with the issue of the correlation between witness confidence and reliability. Along the way, we also discussed the difference between questions of fact versus questions of law, and why the Supreme Court in this case viewed the facts in the light most favorable to the state. We discussed good lawyering and why the defense attorney proposed jury instructions, but didn't object to the introduction of the eyewitness identifications in the first place.
The assignment for Tuesday 9/6 is to review the Mahmoud opinion, as well as today's handouts, and to read in addition pp 1-15 of the textbook.

August 31, 2016

POS 383 CONSTITUTIONAL LAW
In class today, Wednesday 8/31 I distributed 6 handouts: the syllabus; the Evenwel opinion; federal constitutional and statutory election provisions; Maine constitutional and statutory election provisions; some questions regarding election rules; and an article by Richard Hasen about voting rights. After reviewing the Syllabus, we talked about how this class concentrates on federalism and separation of powers issues, as opposed to constitutional issues of individual rights. We then started going through the question regarding elections that I posed in the handout. We looked at where the U.S. Constitution requires votes by the people for the House and Senate, but not for the Electoral College. We saw how the Constitution leaves to the states the question of who gets to vote, and we looked at Maine's answer to that question. We looked at voter ID requirements, and again what Maine requires. We started the task of figuring out where the concept of one-person, one vote comes from, and what it means. The assignment for Wednesday 9/7 is to read all of the handouts, including especially the Evenwel Supreme Court opinion.


SYLLABUS
Sol Goldman e-mail: Solomon.Goldman@umit.maine.edu
Blog: www.goldmanmaine.blogspot.com

Office Hours: I will be in 241B N. Stevens from 3:00-3:30 on Tuesdays and Thursdays, and 1:00-2:00 on Wednesdays.

Description: This course examines the evolving nature of the U.S. Constitution through consideration of major Supreme Court decisions in areas such as federalism, legislative power, executive authority and judicial autonomy.

Textbooks:
Institutional Powers and Constraints, 9th edition, Epstein and Walker, Sage Publications, 2017.

Student Learning Outcomes:
Upon completion of the course, students will be able to
1. Interpret the structure of our Constitution through a close reading of its text.
2. Identify and critically analyze constitutional rules regarding federalism, legislative power, executive authority and judicial autonomy.
3. Identify and critically analyze implementation arguments in favor of certain judicial outcomes and philosophies (e.g. ease of implementation of a rule; consistency v. flexibility; broad v. narrow scope of decisions).
4. Identify and critically analyze approaches to constitutional analysis (e.g. textualism, originalism, evolving standards).
5. Understand the process by which precedent is followed, extended, limited or overruled.
6. Classify changing constitutional tests (e.g. strict scrutiny; rational basis) and changing applications of those tests.


Grading:
1. Two homework assignments, each 21.25% of the final grade
2. Two tests, each 21.25% of the final grade
3. Class participation and attendance 15% of the final grade
[Grading plan is subject to change]

Policies:
1. Homework should be typed. Homework that is not typed may be rejected, at the discretion of the instructor. There are no extra credit assignments.

2. Homework that is not passed in by the time it is due may receive a zero, at the discretion of the instructor. If homework is accepted late, then it may have a grade or more deducted. In any case, no more than one homework assignment per semester will be accepted late. Even if you are absent from class, you should still, if at all possible, get the homework that is due for that class meeting to me on time. If you must be absent from class, you may e-mail your homework to me. At the discretion of the instructor, alternative homework assignments may be given in lieu of the original assignment.

IMPORTANT NOTE:
I will confirm any work that is submitted to me by e-mail. If you do not get a confirmation from me, the work has not been considered submitted.

3. I expect everyone to take the exams when they are given. If an emergency arises, it is your responsibility to be in touch with me as soon as possible. The decision on whether you will be allowed to make up a missed exam is at the discretion of the instructor. If you are allowed to make up an exam, you must have completed the make-up exam before the beginning of the class period in which the exam is handed back (generally, the next class).
Make-up examinations, if allowed, will be scheduled at the instructor’s discretion.

4. Academic dishonesty will not be tolerated. Students who cheat will be subject to a range of penalties, from grade deductions to failure of the assignment to failure of the course, at the discretion of the instructor. Academic dishonesty includes, but is not limited to, the following: copying from another student’s papers, exams or homework assignments; reading from another student’s notes or written materials during an exam; allowing work to be copied by another student; collaboration on homework assignments; plagiarism. Do not discuss your work with other students; do not show your work to other students or look at their work. In addition to any academic action taken by an instructor, these violations are also subject to action under the University of Maine Student Conduct Code. The maximum possible sanction under the student conduct code is dismissal from the University.

Special Accommodations: If you have a disability for which you may be requesting an accommodation, please contact Disabilities Services, 121 East Annex, 581-2319, as early as possible in the term.


Attendance Policy-
I expect that you will attend all classes. Attendance will be taken at the beginning of each class and monitored throughout the semester. Students who regularly attend classes are more likely to succeed in the class overall.

If you have a good reason for being absent from class, so that I should consider the absence to be an excused absence, it is your responsibility to e-mail me before or immediately following the missed class, to explain why you believe that the absence should be excused. The decision to excuse the absence will be at the discretion of the instructor. Each absence requires a separate communication with me. I keep track of excused absences only by the e-mail record, so e-mail is the only acceptable method of letting me know about absences that should be excused.

Students will be responsible for the material covered in each class, including lecture notes. Therefore, I encourage you to get to know your classmates and to make sure that you have a complete set of lecture notes.

If you are absent from class, it is your responsibility to get the assignment for the following class. You can get it from the blog, from a fellow student, or you can e-mail me, but I expect you to come to the following class prepared. At the end of each class session the assignment for the following class will be announced. That assignment will also be posted on the blog.

If you are absent from class, it is your responsibility to get any handouts that were distributed to the class.

Homework Assignments and Exams:
This syllabus does not contain a schedule of specific class-by-class homework assignments and exam schedules, because I have found that I invariably stray from such a schedule. Instead, I will announce in class the actual dates, and also post that information on the blog. If you miss class, always check the blog for information on what we covered in class, and what the assignment is for the future classes.



NO CELL PHONE USE AND NO COMPUTER USE FOR OTHER THAN APPROVED CLASSROOM ACTIVITIES IS ALLOWED IN CLASS.

Sexual Discrimination Reporting
The University of Maine is committed to making campus a safe place for students. Because of this commitment, if you tell a teacher about an experience of sexual assault, sexual harassment, stalking, relationship abuse (dating violence and domestic violence), sexual misconduct or any form of gender discrimination involving members of the campus, your teacher is required to report this information to the campus Office of Sexual Assault & Violence Prevention or the Office of Equal Opportunity.

If you want to talk in confidence to someone about an experience of sexual discrimination, please contact these resources:

For confidential resources on campus: Counseling Center: 207-581-1392 or Cutler Health Center: at 207-581-4000.
For confidential resources off campus: Rape Response Services: 1-800-310-0000 or Spruce Run: 1-800-863-9909.

Other resources: The resources listed below can offer support but may have to report the incident to others who can help:

For support services on campus: Office of Sexual Assault & Violence Prevention: 207-581-1406, Office of Community Standards: 207-581-1409, University of Maine Police: 207-581-4040 or 911. Or see the OSAVP website for a complete list of services at http://www.umaine.edu/osavp/


In the event of an extended disruption of normal classroom activities, the format for this course may be modified to enable its completion within its programmed time frame. In that event, you will be provided an addendum to the syllabus that will supersede this version.

August 30, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 8/30, I distributed three handouts: the Syllabus (reproduced below), the case we'll start with (State v. Mahmoud), and some questions to ask yourself as you read Mahmoud. We talked about the organization of the Maine Court system; the parties in the case (Plaintiff/Defendant; Appellant/Appellee); the order of the parties in the caption of the case; the prior proceedings; the cause of action; jury trials; and jury instructions. The assignment for Thursday September 1 is to read and re-read the Mahmoud opinion, being guided in your reading by the questions that were handed out.

Syllabus
Sol Goldman e-mail: Solomon.Goldman@umit.maine.edu
Blog: www.goldmanmaine.blogspot.com

Office Hours: I will be in 241B N. Stevens from 3:00-3:30 on Tuesdays and Thursdays, and 1:00-2:00 on Wednesdays.

Description: This course is designed to educate students in the American legal system, focusing on its evolution and function as a dynamic social instrument.

Textbook: Introduction to Law and the Legal System, 11th edition, Schubert, Wadsworth Cengage Learning, 2015.

Student Learning Outcomes:
Upon completion of the course, students will be able to:
1. Identify our various court systems, both federal and state
2. Understand the role of appellate and trial courts (e.g. findings of fact v. findings of law)
3. Identify various levels of review by appellate courts (e.g. de novo, clear error)
4. Identify stages of litigation (e.g. summary judgment, trial) and their implications for appellate review
5. Identify and critically analyze the use of precedent (e.g. mandatory v. persuasive; distinguish v. follow)
6. Identify the interplay between legislative and judicial lawmaking (e.g. common law, legislative intent)
7. Produce a case brief that succinctly leads to a statement of a court opinion’s holding
8. Critically analyze judicial decisions
9. Identify and critically analyze a sampling of substantive and procedural legal rules.

Grading:
1. Two homework assignments, each 21.25% of the final grade
2. Two tests, each 21.25% of the final grade
3. Class participation and attendance 15% of the final grade
[Grading plan is subject to change]

Policies:
1. Homework should be typed. Homework that is not typed may be rejected, at the discretion of the instructor. There are no extra credit assignments.

2. Homework that is not passed in by the time it is due may receive a zero, at the discretion of the instructor. If homework is accepted late, then it may have a grade or more deducted. In any case, no more than one homework assignment per semester will be accepted late. Even if you are absent from class, you should still, if at all possible, get the homework that is due for that class meeting to me on time. If you must be absent from class, you may e-mail your homework to me. At the discretion of the instructor, alternative homework assignments may be given in lieu of the original assignment.

IMPORTANT NOTE:
I will confirm any work that is submitted to me by e-mail. If you do not get a confirmation from me, the work has not been considered submitted.

3. I expect everyone to take the exams when they are given. If an emergency arises, it is your responsibility to be in touch with me as soon as possible. The decision on whether you will be allowed to make up a missed exam is at the discretion of the instructor. If you are allowed to make up an exam, you must have completed the make-up exam before the beginning of the class period in which the exam is handed back (generally, the next class).
Make-up examinations, if allowed, will be scheduled at the instructor’s discretion.

4. Academic dishonesty will not be tolerated. Students who cheat will be subject to a range of penalties, from grade deductions to failure of the assignment to failure of the course, at the discretion of the instructor. Academic dishonesty includes, but is not limited to, the following: copying from another student’s papers, exams or homework assignments; reading from another student’s notes or written materials during an exam; allowing work to be copied by another student; collaboration on homework assignments; plagiarism. Do not discuss your work with other students; do not show your work to other students or look at their work. In addition to any academic action taken by an instructor, these violations are also subject to action under the University of Maine Student Conduct Code. The maximum possible sanction under the student conduct code is dismissal from the University.

Special Accommodations: If you have a disability for which you may be requesting an accommodation, please contact Disabilities Services, 121 East Annex, 581-2319, as early as possible in the term.


Attendance Policy-
I expect that you will attend all classes. Attendance will be taken at the beginning of each class and monitored throughout the semester. Students who regularly attend classes are more likely to succeed in the class overall.

If you have a good reason for being absent from class, so that I should consider the absence to be an excused absence, it is your responsibility to e-mail me before or immediately following the missed class, to explain why you believe that the absence should be excused. The decision to excuse the absence will be at the discretion of the instructor. Each absence requires a separate communication with me. I keep track of excused absences only by the e-mail record, so e-mail is the only acceptable method of letting me know about absences that should be excused.

Students will be responsible for the material covered in each class, including lecture notes. Therefore, I encourage you to get to know your classmates and to make sure that you have a complete set of lecture notes.

If you are absent from class, it is your responsibility to get the assignment for the following class. You can get it from the blog, from a fellow student, or you can e-mail me, but I expect you to come to the following class prepared. At the end of each class session the assignment for the following class will be announced. That assignment will also be posted on the blog.

If you are absent from class, it is your responsibility to get any handouts that were distributed to the class.

Homework Assignments and Exams:
This syllabus does not contain a schedule of specific class-by-class homework assignments and exam schedules, because I have found that I invariably stray from such a schedule. Instead, I will announce in class the actual dates, and also post that information on the blog. If you miss class, always check the blog for information on what we covered in class, and what the assignment is for the future classes.



NO CELL PHONE USE AND NO COMPUTER USE FOR OTHER THAN APPROVED CLASSROOM ACTIVITIES IS ALLOWED IN CLASS.

Sexual Discrimination Reporting
The University of Maine is committed to making campus a safe place for students. Because of this commitment, if you tell a teacher about an experience of sexual assault, sexual harassment, stalking, relationship abuse (dating violence and domestic violence), sexual misconduct or any form of gender discrimination involving members of the campus, your teacher is required to report this information to the campus Office of Sexual Assault & Violence Prevention or the Office of Equal Opportunity.

If you want to talk in confidence to someone about an experience of sexual discrimination, please contact these resources:

For confidential resources on campus: Counseling Center: 207-581-1392 or Cutler Health Center: at 207-581-4000.
For confidential resources off campus: Rape Response Services: 1-800-310-0000 or Spruce Run: 1-800-863-9909.

Other resources: The resources listed below can offer support but may have to report the incident to others who can help:

For support services on campus: Office of Sexual Assault & Violence Prevention: 207-581-1406, Office of Community Standards: 207-581-1409, University of Maine Police: 207-581-4040 or 911. Or see the OSAVP website for a complete list of services at http://www.umaine.edu/osavp/


In the event of an extended disruption of normal classroom activities, the format for this course may be modified to enable its completion within its programmed time frame. In that event, you will be provided an addendum to the syllabus that will supersede this version.

May 6, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today Friday 5/6, I reviewed the schedule for Exam #2 (Monday 5/9, 10:30-11:45). If you are missing any handouts, email me with what you need by 9pm on Sunday. The exam is not comprehensive over the entire semester, but rather will only cover the material we have covered since the first test. We first went over the handout from last class, the federal venue statute, and contrasted the federal venue with state court personal jurisdiction (which, unlike federal venue, is grounded in constitutional constraints). We then went over Salmon v. Atkinson. We explored the reason for contingent fee agreements, and the Arkansas Supreme Court's examination of how other states have handled the situation raised by a firing of a law firm that's working on a contingent fee. I then went over the Maine Supreme Court case of Paffhausen v. Balano (not the the first time this semester) which differentiated the theory of quantum meruit from that of unjust enrichment. See you Monday.


POS 484 CRIMINAL DUE PROCESS
In class today Friday 5/6, I reviewed the schedule for Exam #2 (Wednesday 5/11, 10:30-11:45). If you are missing any handouts, email me with what you need by 9pm on Tuesday. The exam is not comprehensive over the entire semester, but rather will only cover the material we have covered since the first test. We finished our discussion of Ohio v. Clark and the Confrontation Clause by going over Thomas' view of the correct question to ask for whether a declaration is testimonial. We then dipped our toes into the murky waters of the Double Jeopardy clause. We started with the question of what constitutes the "same offense". I talked about the Maine Supreme Court case of Ayotte v. State, involving multiple prosecutions for theft. We watched a clip from the movie "Double Jeopardy", in which the issue is whether a person can be prosecuted for shooting a victim when that person has already been convicted of killing the same victim. I talked about Ashe v. Swenson, in which the Supreme Court forbade successive prosecutions for the same basic event after an acquittal for one of the victims. We then talked about the concept of dual sovereigns, and I discussed the current Supreme Court case of Puerto Rico v. Sanchez-Valle, which raises the question of whether Puerto Rico is the same sovereign as the federal government. Finally, I then talked about two cases regarding whether there can be a retrial after trial court error. In
Evans v. Michigan, the Supreme Court found that the defendant may not be retried after an acquittal, even though the instructions to the jury were wrong on the law. In Lockhart v. Arkansas, the Supreme Court allowed a resentencing after the original enhanced sentence was thrown out because of the erroneous submission of a prior offense that had in fact been pardoned by the state Governor. The difference seemed based on the distinction between errors of substance (no retrial allowed) versus procedural errors (retrial allowed).
See you Wednesday.

May 2. 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 5/2, I distributed one handout, the federal venue statute. We first discussed schedules, as there is no class on Wednesday (Maine Day). I also said that our Exam #2 will be Monday 5/9 10:30 - 11:45 (not 2 hours, as is on the finals schedule). We discussed the idea behind federal court diversity jurisdiction, and the reasons that a party might want to be or not be in federal court, as opposed to state court. We went over St. James Apartments, and the citizenship of an LLC. I then talked about a March U.S. Supreme Court case, Americold Realty Trust v. Conagra, which decided the correct way to figure the citizenship of a Real Estate Investment Trust (REIT). We also discussed Frump v. Claire's Boutiques, which dealt with the question of how to figure the amount in controversy. The assignment for Friday 5/6 is to read today's handout on federal court venue, and to read in the text through p. 159 (Salmon v. Atkinson).


POS 484 CRIMINAL DUE PROCESS
In class today, Monday 5/2, we first discussed schedules, as there is no class on Wednesday (Maine Day). I also said that our Exam #2 will be Wednesday 5/11 10:30 - 11:45 (not 2 hours, as is on the finals schedule). I handed back the Assignment #2 papers, as well as a page of my Notes about the assignment and what I was looking for. We then discussed the confrontation clause. We started with the text of the clause, and talked about the three protections of the Clause. I then talked about the hearsay rule, and how it also dealt with the situation of not being able to confront the person who made the statement. I went over the dramatic change in Confrontation Clause jurisprudence in the Crawford case, which said that the Confrontation Clause is not tied to the hearsay rule and its exceptions. I read an excerpt from Scalia's dissent in Michigan v. Bryant, in which he accused the Court majority of reverting to a pre-Crawford tying of the Confrontation Clause to the hearsay exceptions. We then waded into the three opinions in Ohio v. Clark, which, despite the unanimity of the decision, had three very different views. We went over the concept of "testimony", and how some out-of-court statements are testimonial, while others are not. We looked at the emergency role of the police versus the prosecution-preparation role of the police. We examined the three opinions in terms of whether teachers could be considered to be in the same shoes as the police. I will begin on Friday with Thomas' view of the correct question to ask to determine if something is testimonial, which is different from the question asked by the other Justices. The assignment for Friday 5/6 is to review Ohio v. Clark, and to read in the text pp. 596 - 598 (double jeopardy).

April 29, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/29, I distributed one handout, the Maine long-arm statute. I talked about four methods of obtaining personal jurisdiction over a defendant: service of process within the state, domicile, consent, and contacts with the forum state. We went through the Swoboda case. I then talked about Walden v. Fiore, a U.S. Supreme Court case, and Commerce Bank v. Dworman, a Maine Supreme Court case. The assignment for Monday, May 2 is to review St. James v. Coinmatch (previously assigned) and to read in addition the remainder of Chapter IV of the text (including Frump v. Clair's Boutiques).


POS 484 CRIMINAL DUE PROCESS
In class today, Friday 4/29, I collected the Assignment #2 papers, and we went over them. I hope to grade them this weekend, and return them on Monday. I distributed one handout, the recent confrontation clause case of Ohio v. Clark. We went over the Richmond Newspapers case, including all three opinions in the text. The assignment for Monday May 2 is to read in the text pp. 569 - 571, and to read today's handout. If you weren't in class, you can find the case here:
http://www.supremecourt.gov/opinions/14pdf/13-1352_ed9l.pdf .

April 27, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/27, we first went over the two statutory handouts from last class, Maine adoption law, and Maine criminal and civil jurisdiction laws. We discussed Cheap Escape v. Haddox, and saw how good lawyering for the guarantor Tessman not only got rid of the default judgment, but also probably got rid of the case altogether. We saw how the Cheap Escape court used methods of interpretation that we had seen in previous cases. We discussed how in Maine, questions like this are dealt with as venue issues, not subject matter jurisdiction ones, and how the two concepts have very different consequences. I introduced the concept of personal jurisdiction, and we will pick up on Friday with the previously assigned Swoboda case. The additional assignment for Friday 4/29 is to read in the text through p. 140 (St. James v. Coinmatch).


POS 484 CRIMINAL DUE PROCESS
In class today, Wednesday 4/27, I first discussed a Supreme Court case from next term, Rodriguez v. Colorado, which raises the question of whether juror bias that comes out during the jury deliberations can be considered as evidence that the jury was not "impartial" as required by the 6th Amendment. We then looked at the Maine and ABA Rules of Professional Conduct about whether a lawyer can try his case in the press. We went over Sheppard v. Maxwell, in which the Supreme Court clarified some of the outer limits of press freedom and juror exposure in the context of a highly publicized murder trial. The assignment for Friday 4/29 is to finish Assignment #2 (due at the beginning of class) and also to read in the text through p. 569 (Richmond Newspapers v. Virginia).

April 25, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/25, I distributed two handouts: an excerpt from Maine's adoption statute, and an excerpt from Maine's subject matter jurisdiction statutes. We reviewed the Full Faith and Credit holding in Obergefell v. Hodges, and the I talked about a recent Supreme Court Full Faith and Credit case, V.L. v. E.L. That case turned on the definition of subject matter jurisdiction regarding the interpretation of the Georgia adoption statute. I then talked about another Supreme Court case, Bowles v. Russell, in which the Court gave a very broad, expansive definition of subject matter jurisdiction in the context of missed deadlines. That case turned out very badly for the prisoner who missed the deadline to appeal by a few days. I contrasted that case with the Maine Supreme Court case of Landmark Realty v. Leasure, in which our Court gave a very restrictive definition of subject matter jurisdiction, which turned out well for the creditor who missed the deadline for obtaining a writ of execution (by 13 years), and very badly for the debtor who missed the date for the objection to issuance of that writ by a few months. On Wednesday we will go over the previously-assigned case of Cheap Escape v. Haddox, as well as today's handouts. The additional assignment for Wednesday 4/27 is to read in the text through p. 135 (Swoboda v. Parody).


POS 484 CRIMINAL DUE PROCESS
In class today, Monday 4/25, I distributed one handout, the rules for lawyers regarding generating publicity for your cases. We finished our discussion of Batson, going over the majority, concurring, and dissenting opinions. I then talked about a current Supreme Court case, Foster v. Chatman, in which the defendant was able to get the prosecutor's jury selection notes, which seemed on their face to indicate that the proffered neutral explanations were actually just a pretext. On Wednesday I will begin with one other jury selection case, Rodriguez v. Colorado. The assignment for Wednesday 4/27 is to continue working on your Assignment #2 (due at the beginning of class on Friday), to read today's handout, and to review Sheppard v. Maxwell (previously assigned).

April 22, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/22, I distributed one handout, an excerpt from last year's Supreme Court opinion in the same-sex marriage case of Obergefell v. Hodges. We began class by reviewing a key difference between being in federal court in diversity cases, versus being in state court. I then went over two Maine choice of law cases, Collins v. Trius (torts) and Schroeder v. Rynel (contracts). We then went over the concept of Full Faith and Credit, and its different application to out-of-state statutes versus out-of-state judicial proceedings. We went over Finstuen v. Crutcher, and then went over today's handout from Obergefell. Finally, I discussed the recent (4/19/2016) Supreme Court case of Franchise Tax Board of California v. Hyatt. I will begin Monday's class with a discussion of the recent Supreme Court case of V.L. v. E.L., which discusses both Full Faith and Credit and subject matter jurisdiction, which is the subject of our next assignment. The assignment for Monday 4/25 is to read today's handout, and to read in the text through p. 129 (Cheap Escape v. Haddox).


POS 484 CRIMINAL DUE PROCESS
In class today, Friday 4/22, I began by going over the proposal for a public defender program in Maine, which was turned down by the Maine Legislature as being a "public defender" program in name only. We talked about effective assistance of counsel, and I went over two Supreme Court cases from 2012, Missouri v. Frye and Lafler v. Cooper, which both discussed the ineffective assistance of counsel in the context of plea bargains. We talked about bail, and speedy trials, and I went over a current Supreme Court case, Betterman v. Montana, that raises the question of speedy trial in terms of a 14 month delay between conviction and sentencing. We then moved to rules of jury trials, and we began our discussion of Batson v. Kentucky. We talked about the requirements needed to force the prosecutor to offer a neutral explanation for why jury pools members were peremptorily challenged. We will pick up at that point on Monday, including going over Marshall's concurrence, as well as two current cases involving race and jurors. The assignment for Monday 4/25 is to continue to work on Assignment #2 (due at the beginning of class on Friday 4/29, and to read in the text through p. 566 (Sheppard v. Maxwell).

April 20, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/20, we began by going over Hubbard v. Greeson. We talked about what Indiana's choice of law rule had been for the previous 99 years, and what happened to that rule. We then turned to Land v. Yamaha, and saw how the Indiana choice of law rule got applied. I talked about federal trial court jurisdiction, including diversity jurisdiction, and the Erie Doctrine. We discussed removal from state courts to the federal courts. We went over statutes of repose versus statutes of limitation, and how Indiana's statute of repose had a devastating effect on the claim by the Lands. We discussed both Greeson and Land in terms of whether the decision to bring suit in Indiana in both cases appears to have been good lawyering or bad. On Friday, I plan to go over a few Maine cases about our conflict of laws rule. The assignment for Friday 4/22 is to read in the text through the end of Chapter III (through p. 122), including Finstuen v. Crutcher (p. 117).


POS 484 CRIMINAL DUE PROCESS
In class today, Wednesday 4/20, I distributed Assignment #2, which is reproduced below. We went over the requirements of the assignment. Then we went back to the text, and reviewed exactly what the holding was in Powell v. Alabama. We went on to discuss Gideon v. Wainwright, going over both Black's opinion and Harlan's concurrence. We then discussed the post-Gideon cases regarding the appointment of counsel in cases less than felonies. The assignment for Friday 4/22 is to read in the text through p. 561, including Batson v. Kentucky.

Assignment due the beginning of class Friday, April 29, 2016

The assignment consists of a total of five questions. For each one:
a) answer the question that is posed, with a brief analysis (in other words, every question carries with it the implied ending “and why”); if a solution is not clear, and it could be argued either way, explain the pros and cons of both ways;
b) briefly tell what authority you’re relying on for your answer, with paragraph numbers if possible, and with a brief explanation of what that authority provides.

The overall goal is that you want to get a confession out of the suspect Andy, and, most importantly, you want that confession be admissible in the Maine courts.
When the question asks you to make a specific assumption, that assumption does not apply to previous facts, nor does it necessarily reflect the proper analysis for the prior facts (i.e., just because you’re told to assume that Andy was in custody (after Question 1), doesn’t mean that that’s the answer to Question 1). Not all of the facts given to you will necessarily be crucial to your answer.

Assume that officers Fife and Pyle are courteous, low-key, and non-threatening throughout, unless the specific facts indicate otherwise.

You’ve got a limited set of authority to work with: Ormsby, Prescott, Bragg, and Nightingale, as well as all the relevant background cases from the textbook. No additional cases are required or allowed.

A car has been spotted off the road about 9:00 pm at night, with clearly more than $1000 of damage to the car. No one is in the car, but by running a license plate check, the two law enforcement officers, Fife and Pyle, find that the registered owner is a college student (Andy) whose address is about a quarter mile from the scene.
They go to Andy’s house, and knock on the door until he comes to the door. Andy appears disheveled and disoriented. Once Andy sees who’s at the door, he tries to slam the door shut, but Officer Fife inserts his foot to prevent that, and tells Andy that they really need his cooperation. Andy asks whether he’s free to leave, and Officer Fife says “It’s your house, Andy”. Andy, confused, continues to stand in the doorway with the officers.
In response to their questions, Andy confirms that he is the owner of the car and that he was the operator of the car that night. In the course of that questioning, the officers smell alcohol on his breath. Also, he slurs his speech, and his eyes are red, and his explanation for the car being off the road (he hit an icy patch) makes little sense, since the temperature has been in the 60s.
The officers confer privately and decide that they are going to arrest Andy, but they don’t tell Andy that yet.

1) Has Andy been in custody for Miranda purposes (hereinafter, just “custody”) at any point so far that night?

Assume that Andy is in custody right after the officers decide to arrest him (and the officers realize this).
Officer Fife now wants to tell Andy that he’s under arrest, then Mirandize Andy, and then get him to admit that he’s been drinking. Since Andy hasn’t shown any eagerness to talk, both officers realize that the Miranda warnings at that point might cause Andy to quit talking.
On the other hand, Andy seems to answer the questions that are put to him. Officer Pyle wants to simply question Andy about whether he’s been drinking (without an arrest or Miranda) the same as he would have done if Andy had been in the car when they found it. If Andy admits to the drinking, Officer Pyle will then tell Andy that he’s under arrest, Mirandize him, and ask him to repeat what he’s already admitted (and there’s a good chance that Andy will do what he’s asked to do at that point).

2) Which officer has the better plan?

Because of their outstanding work in the traffic division, Officers Fife and Pyle are promoted months later to the homicide squad. Their first case involves a report that a car has been found in the Penobscot River, and there’s a body inside the car. As it turns out, the car is Andy’s car, and the body turns out to be Andy’s roommate Opie. The medical examiner concludes that Opie’s death is the result of foul play, and Officers Fife and Pyle immediately have a hunch that Andy is the perpetrator. DNA from the scene matches Andy’s but that doesn’t help much, since the car belongs to him.
They call Andy and tell him that they need him to come down to police headquarters to identify the car (which has been brought to headquarters after it was recovered from the river). That’s a small part of the reason for having him come in, though, since the overriding reason is to squeeze a confession out of Andy.
As soon as Andy comes down to the station, and he identifies the car, the Officers tell him that Opie’s body was found inside. Andy says that Opie often borrows the car, and has seemed kind of depressed lately. Officer Fife wants to tell Andy that they’ve got some additional questions for him, but that he’s free to leave if he wishes. Fife thinks (with good reason) that Andy won’t feel the need to leave at that point, because he doesn’t know that he’s already the focus of an investigation. Fife also wants to Mirandize Andy right from the start. Fife thinks (again with good reason) that there’s little danger of Andy clamming up at this point, again because Andy has no idea that he’s already the focus of an investigation. If Andy asks about why he’s being Mirandized, Fife will just tell Andy that Miranda warning are routine when there’s a dead person involved.
Officer Pyle agrees with the part about telling Andy that he’s free to leave (before they give Andy any reason to leave), but he doesn’t want to Mirandize Andy before they have to.

3) Assuming that Andy is not in custody at this point, which officer has the better plan?

Assume that Fife and Pyle do tell Andy that he’s free to leave, and do Mirandize him, and that he’s still not in custody during the following interrogation:

Fife and Pyle start by telling Andy that they realize that Opie was a bad person. They get Andy talking about all the bad things that Opie did (dealing drugs, not cleaning the bathroom shower, etc.). Once Andy’s comfortable, they tell him that they know what Andy knows, and that soon he’ll know that they know what he knows. Andy just looks confused, just as most reasonable people would be on hearing that.
Fife and Pyle then tell Andy that Opie’s dead was a homicide, and they start to make up lots of lies that tend to incriminate Andy in Opie’s murder. They tell Andy that people have seen the two roommates arguing (the two had argued, but Andy hadn’t thought that anyone had seen them). Fife and Pyle tell Andy that Opie had called his parents and told them that he was afraid of Andy (a total fabrication, but somewhat believable to Andy). They told Andy that confessing would be good for his soul, and that he would feel better if he told them everything.
Andy gets very distressed at this point, and tells the officers that he wants to talk to an attorney. They told him that sure, he could do that, but why don’t they all just take a break for a while. They tell Andy again that he’s free to leave, but they offer to get Andy his favorite pizza. Andy likes the sound of that, and he sticks around, and then he feels much better after the pizza.

4) Is there any problem with continued interrogation after Andy has asked for an attorney?

The questioning has gone on for five hours already, and the officers feel that Andy’s resistance is breaking. Pyle plays the bad cop. Jabbing Andy with his finger, and with an intimidating tone, he repeats that confessing would be good for Andy’s soul, and that Andy would finally feel better if he told them everything. He says that things will go better in court for Andy if he tells the truth now.
Andy breaks down and confesses that he killed Opie after a fight about Opie eating Andy’s leftover pizza from the refrigerator.
Assume that Andy has not been in custody at any time prior to the confession.


5) Is Andy’s confession voluntary?

When you’re done, you should have 5 sections (clearly marked 1-5). Don’t repeat the questions - just give the answers. I anticipate that your paper will be roughly 2 or 3 pages long.

Here’s a sample answer to #1, which illustrates the format and citation form (but try not to emulate the degree of confusion exhibited below):

1) Andy was not in custody. The test for whether Andy was in custody is whether a reasonable person would feel free to terminate the investigation and leave. Nightingale, ¶15. Even though Prescott was in custody at her house, since her parents made her speak with the officers (Prescott, ¶12), Andy was not in custody at his, because his parents were too drunk to come to the door. The scene of the questioning was the suspect’s home, just the same as in both Prescott and Nightingale, and, since there was no custody in either of those cases, there should also be no custody in this case. Also, Andy was told that he was free to leave, and, as in Prescott (¶16), this is the most important factor in deciding custody. Unlike Prescott, Andy was the focus of the investigation, and like Prescott, he was intimidated into continuing to speak with the officer. In fact, Andy’s custody is clearer than Prescott’s, because there were two officers questioning him, while Prescott only had one. Since Andy suffered only a “brief, limited intrusion” (Prescott ¶13) into his liberty, this was really like a Terry stop, and so Andy was not in custody.

The assignment will be graded on both the structure and the content of your paper. The paper will also be graded on how well you write English, and how clearly you organize your thoughts (don’t be like my sample answer). I like short clear sentences better than long complicated ones. I like correct grammar.

Please make two copies of your paper, 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 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 Friday 4/29, 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 paper. 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.

The work should be entirely your own, with no collaboration or plagiarism. Do not show your paper to anyone. Do not look at anyone else’s paper. See the syllabus regarding plagiarism and collaboration.


IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.

April 18, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/18, I handed back the Warren case briefs, as well as the Comment Key. We then finished our discussion of Butler. We reviewed the fact that the way Miranda and Harris came out (statements excluded for the case in chief, but admissible for impeachment) made sense to none of the Justices who sat for both cases. I talked about the different varieties of dictum (facts not presented; even though...; even if...). We also discussed the policies behind the view that unMirandized statements should or should not be admissible for purposes of impeachment. We then went through the Dempsey case, and the question of retroactive v. prospective application of a new court decision. We reviewed the four U.S. Supreme Court cases (two civil and two criminal) regarding individual assessment v. automatic retroactive application. We talked about why Montana was free to decide this issue for itself (even though it had been decided by the U.S. Supreme Court), and what its decision was. I then talked to the class about Strunk v. Strunk (p. 110 - not a case that I had assigned) in which the Court was faced with the question of what to do when there was no precedent on which to rely. I then gave a brief introduction to the concept of conflict of law rules. The assignment for Wednesday 4/20 is to read pp. 113 - 116 (Hubbard v. Greeson) and also pp. 144 - 146 (Land v. Yamaha).


POS 484 CRIMINAL DUE PROCESS
In class today, Monday 4/18, we went through the Powell case. We started with the textbook's description of the point at which the right to counsel attaches, and the exact issue with which the Court was presented in Powell. We looked at Alabama law regarding the appointment of counsel in capital cases. We examined what the court found to be the constitutional problems even though the defendants were represented at trial. We then looked at the dissent, which disagreed about the factual conclusions drawn by the Court, and the role of the federal courts and federal constitution into an area previously governed by the states. We then looked at the cases leading up to Gideon v. Wainwright. The assignment for Wednesday 4/20 is to read and prepare to discuss through p. 551 of the text. Also on Wednesday, I plan to distribute Assignment #2, which will be due 4/29.