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.

April 15, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/15, I collected the Warren case briefs,and we went over the brief. I plan to grade them this weekend and return them on Monday. I also distributed my version of the case brief. We then resumed out discussion of dictum, and the Butler case. I discussed the U.S. Supreme Court decision in Harris v. New York, and we went through the votes of the six Justices who heard both cases (Miranda and Harris) as well as the three Justices who were new to the Court. We saw how none of the six Justices would have agreed with a rule that imposed Miranda exclusion for purposes of the case in chief, but not for purposes of impeachment. We will finish our Butler discussion on Monday. The assignment for Monday 4/18 is to review Butler and to read in the text through p. 110 (Dempsey).


POS 484 CRIMINAL DUE PROCESS
In class today, Friday 4/15, I distributed one handout, a chronicle of the Scottsboro Boys cases, and the place of Powell v. Alabama in that history. We finished up our discussion of Nightingale, going over the Seibert two-step, and the lies my policeman told me. The assignment for Monday 4/18 is to review Powell v. Alabama, and to read today's handout regarding the rest of that case's story.

April 13, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/13, we first went over another aspect of the Warren case brief, the "even though" segment of the issue regarding mitigation of harm. We then finished our discussion of the NFIB case, examining both Roberts' and Ginsburg's view of the Necessary and Proper clause. We proceeded to the text's discussion of the power of various institutions. Regarding federal supremacy (p.99), I talked about the current Supreme Court case of Dollar General v. Mississippi Band of Choctaw Indians, in which the Court is dealing with the jurisdiction of a tribal court that doesn't necessarily have all of the constitutional protections of federal law, even though federal law is "supreme". Regarding conflicts between Congress and the Supreme Court, I talked about Bank Markazi v. Peterson, in which the Court questions whether Congress has the power to direct a particular result in a particular case (here the liability of the Central Bank of Iran for terrorist acts carried out under the authority of the Iranian government). Regarding ex post facto laws (p.100), I talked about Sex Offender Registry statutes. Regarding appellate panels of Justices, I talked about Williams v. Pennsylvania, in which one question for the Supreme Court is whether the participation of one Justice on a state Supreme Court (in a case in which he arguably should have recused himself) results on a taint on the entire membership of the Court. We then began out discussion of State v. Butler. We went over the language of Miranda as quoted by the Butler dissent, which seems to answer the question posed (the use of unMirandized statements for the purposes of impeachment). We will return to Butler on Friday after we go over the Warren case briefs. The assignment for Friday 4/15 is to finish your Warren case briefs (due at the beginning of class) and review Butler.


POS 484 CRIMINAL DUE PROCESS
In class today, Wednesday 4/13, we first finished up our discussion of Bragg. We first went over the finding of no Miranda custody, despite the fact that the police appeared to be clear that Bragg was driving drunk. We then examined the Court's holdings in terms of whether the sobriety tests were "testimonial", and whether the presentation of evidence to Bragg was an "interrogation". We moved on to Nightingale, first going over the facts. We covered the discussion about why Nightingale was not in custody during any of the nine hour test and interrogation in Bangor, and then why the interrogation rule of Shatzer did not apply. We will continue on Friday with the discussion of the Seibert two-step. The assignment for Friday 4/15 is to review Nightingale, and then read in the text pp. 540-545 (Powell).

April 11, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/11, we went over the Warren case brief, which is due on Friday 4/15. We went over the meaning of subjective versus objective perceptions, and also the difference between finding of fact and findings of law. We then continued with NFIB v. Sebelius, first reviewing the textual argument by Roberts, and then looking at the argument based on precedent, including Wickard v. Filburn. We talked about the back and forth regarding whether this market is like any other in which economic activity is being created, or whether the cost-shifting aspect of health care makes this market unique. We will continue on Wednesday with the necessary and proper clause. The assignment for Wednesday 4/13 is to continue working on the Warren case briefs, review NFIB, and read in the textbook through p. 106 (State v. Butler).


POS 484 CRIMINAL DUE PROCESS
In class today, Monday 4/11, I distributed one handout, the Maine Supreme Court opinion in State v. Nightingale, 2012 ME 132. We went over the Prescott and Bragg cases, and discussed why they had different outcomes in terms of "custody". We will finish on Wednesday with the questions in Bragg other than "custody": whether the field sobriety tests were "testimonial", and whether the statements made to Bragg at the police station were an "interrogation". The assignment for Wednesday 4/13 is to review Bragg, and to read today's Nightingale handout.

April 8, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/8, we first went over much of the Warren case brief that's due Friday 4/15. We got to the formulation of the legal question in the first issue, and we'll take another stab at that legal question on Monday. We also talked about who makes these lawyer discipline rules, and what procedure is used in their enforcement. I went over the issue that I omitted from the assignment and the handout, the quashing of the subpoena. We then went back to NFIB v. Sebelius. I talked about the very unusual pairing of a "dissenting" opinion with an opinion with which the dissent agreed, and the concept of dictum and how it applied to the discussion of the commerce power of Congress. We went through Roberts' textual argument about why regulation of something must be different from the creation of that thing. We will continue on Monday with Roberts' view about precedent as it regards creation of commerce. The assignment for Monday 4/11 is to continue working on your Warren case brief, and to review all of the opinions in NFIB v. Sebelius.



POS 484 CRIMINAL DUE PROCESS
In class today, Friday 4/8, we returned to the Ormsby interrogation. We looked at the significance of invocation of rights (to remain silent, and to an attorney) before being in custody, versus after being in custody. We looked at the legal authority for the Court's conclusion that the non-custodial invocation of rights doesn't mean much. We talked about lines of authority between the federal and state courts, the organization of the federal court system, and the citation form for the federal courts. We looked at the ten "custody" factors, and discussed the justification for finding that the factors lead to a conclusion of non-custodial interrogation before the break, versus custodial after the break. We went over the significance of subjective intent versus objective. We finished with a short discussion of the independent (non-Miranda) inquiry into whether the confession was voluntary. The assignment for Monday 4/11 is to review Prescott and Bragg, previously distributed.

April 6, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/6, I distributed two handouts: assignment #2 (reproduced below) and the case you'll be briefing, Board of Overseers v. Warren. We went over the basic outline of the Warren case (the duty of lawyers to report certain misconduct of their fellow lawyers). We also went over the basic outline of the case brief format. We then turned to Chapter III of the text. We talked about common law as that term is used in the text, versus as used in class. We talked about an individual health insurance mandate in state law, as opposed to federal law, and how those two levels of government have fundamentally different limitations on their power. We talked about the history of the Articles of Confederation, the interpretation of the interstate commerce clause, and Wickard v. Filburn. We talked about some of the pre-Obamacare health insurance problems, and Obamacare's solution. We began a case brief of the NFIB case. We will continue on Friday with a more detailed look at the exact questions asked by Roberts, and his answers. The assignment for Friday 4/8 is to review NFIB, and to read and begin thinking how to brief Warren.

POS 282 Assignment due Friday, April 15th, 2016

The assignment (graded) is to do a Case Brief of the case of Board of Overseers of the Bar v. Warren, 2011 ME 124, 34 A.3d 1103 (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, including this: after giving the winner’s facts, give the loser’s facts with a parenthetical phrase that starts “even though...”.

For example: “Under the Maine common law rule that an issue will not be reached if it was raised for the first time on appeal, were the trial court and the opposing party alerted to the existence of an HHCA issue when the defendant did not raise the issue in his answer, or his opposition to the summary judgment, not did he argue that point in his post-summary judgment motion, (even though he did make a glancing reference to the HHCA in that motion)?”.

Note especially that, after the “Issue” is composed, the “Facts” and “Holding” are copied and pasted. Everything that you put into the Fact section should appear exactly in your Issue and Holding sections as well. Your Issue and Holding sections should be identical to each other, except that the issue is a question, and the Holding is the answer to that question. Your briefs will be evaluated on the format, as well as the specific content.

Please make two copies of your brief, one to hand in at the beginning of class, and the other for you to have during class for our discussion.

You may e-mail me if you have specific questions about the brief. The more time that I have to answer your questions, the more likely it is that I can be helpful.

If you cannot be in class on Friday 4/15, 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.




POS 484 CRIMINAL DUE PROCESS
In class today, Wednesday 4/6, we first went back to the Seibert case, and looked again at what Kennedy said that was different from what the plurality opinion had said. We then continued our discussion of Ormsby. We went over the three occasions in which Ormsby asserted (at least for purposes of the opinion) the right to remain silent or have an attorney, but questioning was not stopped. We looked at the test for when an interrogation of a suspect is custodial, and how the Court characterized the beginning part of the interrogation as non-custodial, and the second part as custodial. We talked about how the police basically already knew both that Ormsby was guilty, and that he was willing to talk to them. We will continue on Friday with an examination of the factors that the Maine Supreme Court looks at in order to determine the existence of a custodial interrogation, as well as the questions of voluntariness and waiver. The assignment for Friday 4/8 is to review Ormsby, and to read the previously distributed Maine Supreme Court cases of Prescott and Bragg.

April 4, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/4, we first finished our discussion of the Caperton case. We discussed the relationship between the W. Virginia Code of Judicial Conduct and the federal due process clause; the previous cases on recusal; the overall due process standard for recusal; the particular standard for this circumstance; the application of the newly announced standard to the facts of this case; and why there's nothing to worry about in terms of opening the floodgates of recusal motions. Along the way, we also looked at campaign finance rules that allow buying of those running for office. Then I went over a current U.S. Supreme Court case, Williams v. Pennsylvania, that raises the due process recusal question in the context of a District Attorney who made prosecutorial decisions in a case in which he later sat as a state Supreme Court Justice. The assignment for Wednesday 4/6 is to read in the text through p. 98 (NFIB v. Sebelius).


POS 484 CRIMINAL DUE PROCESS
In class today, Monday 4/4, I distributed three handouts, all Maine Supreme Court cases: Ormsby, Bragg, and Prescott. We first finished our discussion of Miranda, looking at how one crucial holding in terms of the text of the 5th Amendment was that custodial interrogation is inherently coercive, so there is no need for an individual assessment of whether the interrogation was coercive. We looked at the case that followed Miranda, especially Berkemer and Elstad. We discussed Seibert, and looked at how the plurality and Kennedy took somewhat different routes in distinguishing Elstad. We then began, but did not finish looking at the youtube video of the second part of the confession in the Ormsby case. On Wednesday, I'll go over Kennedy's alternative curative step to cure a Seibert violation, and then finish viewing the Ormsby confession. (If you want to view it yourself, just go to youtube and search for "Ormsby Confession".) The assignment for Wednesday 4/6 is to read the State v. Ormsby opinion (the other two handouts will be assigned later this week).

April 1, 2016

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/1, we began by finishing the case brief for Glassford. I then talked about four cases that touched on the issues raised in Glassford. Two Maine cases dealt with use of exculpatory clauses in Maine: Doyle v. Bowdoin College, and Hardy v. Wiscasset Raceway. Two U.S. Supreme Court cases dealt with mandatory arbitration clauses that forbade the use of class actions in those arbitration proceedings: AT&T Mobility v. Concepcion, and American Express v. Italian Colors. We then began our discussion of the Caperton case, going over the set-up of the case, and the election of Justice Benjamin. The assignment for Monday 4/4 is to review Caperton, including doing a case brief of the case (for yourself, not handed in or graded).


POS 484 CRIMINAL DUE PROCESS
In class today, Friday 4/1, we first finished our discussion of the Escobedo case. We went over when the right to counsel attaches (in the view of both the majority and the dissent). We also talked about the various conditions that have to exist before Escobedo applies: the police are interrogating the suspect, the suspect must have had to ask for counsel and been denied, and the police have not informed the suspect of the right to remain silent. We then turned to Miranda. We saw how the Court changed the point in time at which the rights attach, what exactly were those rights, and which party has the obligation to initiate the conversation about those rights. On Monday we will finish up our discussion of Miranda. The assignment for Monday 4/4 is to read and prepare to discuss the remainder of Chapter 11 of the text, through p. 5639 (including Seibert).