POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/28, I collected the Gaeth case briefs, and hope to return them on Monday. I distributed 2 handouts: my version of the Gaeth case brief, and the U.S. Supreme Court case of V.L. v. E.L. We first went over Gaeth, including the three possible versions of the service by publication issue, and the facts that go to each of the different versions. I discussed the changes to the MRCivP that followed Gaeth, both in the text of the rule, and in the advisory committee notes. We then returned to subject matter jurisdiction, I reviewed the Maine case that I discussed last time, Landmark Realty v.Leasure. I talked about a U.S. Supreme Court case, Bowles v. Russell, that gave a very different interpretation of what is meant by subject matter jurisdiction. I gave an introduction to today's handout of V.L. v. E.L., which goes over the rules of Full Faith and Credit and subject matter jurisdiction in the context of a same-sex adoption case.
The assignment for Monday May 1 is to review Swoboda v. Hero Decks (previously assigned) and to read today's handout of V.L. v. E.L.
POS 384 CIVIL LIBERTIES
In class today, Friday 4/28, I distributed one handout, the Summaries of the Arguments in the Supreme Court briefing in Trinity Lutheran Church v. Comer. We finished our discussion of Boerne v. Flores. We went over the question of Congressional power under Section 5 of the 14th Amendment, and how the Court majority found that RFRA was not enforcement by appropriate legislation. We also looked at the concurring and the dissenting opinions in the case. We talked also about RFRA under federal statutes (e.g. Hobby Lobby) and RLUIPA (using a different source of Congressional power). We began to discuss the situation in Locke v. Davey, in which the state of Washington argued that it was free not to aid religion with the use of its college scholarships, even though it would be permitted to do so under the Establishment clause if it wanted to do so.
The assignment for Monday May 1 is to review the majority opinion in Locke (previously assigned), to read the Locke dissent, and to read today's handout.
Friday, April 28, 2017
Wednesday, April 26, 2017
April 26, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/26, I distributed one handout, Maine statutes dealing with subject matter jurisdiction and with venue. After going over some questions regarding the Gaeth v. Deacon case brief, we went over the concept of subject matter jurisdiction. We went over Cheap Escape v. Haddox, in which a default judgment was vacated because of lack of subject matter jurisdiction. I also talked about a Maine case, Landmark Realty v. Leasure, in which the Maine Supreme Court limited the circumstances that fall within subject matter jurisdiction. Time limits and filing of required papers are not, in Maine, subject matter questions. We talked about the consequence of a lack of subject matter jurisdiction, which include that the issue can be brought up at any time, by any party, or by the court itself, and can't be waived. On Friday, after going over the Gaeth case briefs, we will go over the Maine statutory handout from today, and I'll talk about Bowles v. Russell a U.S. Supreme Court case about the meaning of "subject matter jurisdiction" within the federal court system.
The assignment for Friday 4/28 is to finish your Gaeth v. Deacon case briefs, due at the beginning of Friday's class, to study the Maine jurisdictional statute from today, and to read in the text through p. 136 (including Swoboda v. Hero Decks).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/26, I distributed one handout, the 2004 Supreme Court case of Locke v. Davey. We finished up our discussion of Scalia's opinion in Smith, reviewing the impact of the case and Scalia's view of the role of the Bill of Rights in the protection of minorities. We talked about the political response to Smith, and the enactment of RFRA. We began our discussion of Boerne v. Flores, which is really more a case about Congressional powers in a federalist system than a religious exercise case. We will continue on Friday with why the Court found that RFRA was neither congruent nor proportional to the problem posed by religious intolerance. We'll also cover the other opinions in Boerne.
The assignment for Friday 4/28 is to review Boerne, and to read at least the majority opinion in Locke v. Davey.
In class today, Wednesday 4/26, I distributed one handout, Maine statutes dealing with subject matter jurisdiction and with venue. After going over some questions regarding the Gaeth v. Deacon case brief, we went over the concept of subject matter jurisdiction. We went over Cheap Escape v. Haddox, in which a default judgment was vacated because of lack of subject matter jurisdiction. I also talked about a Maine case, Landmark Realty v. Leasure, in which the Maine Supreme Court limited the circumstances that fall within subject matter jurisdiction. Time limits and filing of required papers are not, in Maine, subject matter questions. We talked about the consequence of a lack of subject matter jurisdiction, which include that the issue can be brought up at any time, by any party, or by the court itself, and can't be waived. On Friday, after going over the Gaeth case briefs, we will go over the Maine statutory handout from today, and I'll talk about Bowles v. Russell a U.S. Supreme Court case about the meaning of "subject matter jurisdiction" within the federal court system.
The assignment for Friday 4/28 is to finish your Gaeth v. Deacon case briefs, due at the beginning of Friday's class, to study the Maine jurisdictional statute from today, and to read in the text through p. 136 (including Swoboda v. Hero Decks).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/26, I distributed one handout, the 2004 Supreme Court case of Locke v. Davey. We finished up our discussion of Scalia's opinion in Smith, reviewing the impact of the case and Scalia's view of the role of the Bill of Rights in the protection of minorities. We talked about the political response to Smith, and the enactment of RFRA. We began our discussion of Boerne v. Flores, which is really more a case about Congressional powers in a federalist system than a religious exercise case. We will continue on Friday with why the Court found that RFRA was neither congruent nor proportional to the problem posed by religious intolerance. We'll also cover the other opinions in Boerne.
The assignment for Friday 4/28 is to review Boerne, and to read at least the majority opinion in Locke v. Davey.
Monday, April 24, 2017
April 24, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/24, I first clarified what I was looking for in Issue #2 in Gaeth. I went over how there were three strands of the due process issue: 1) whether the problem was publication only in a Lincoln County newspaper (as opposed to a Kennebec County paper); whether the problem was publication only in a Maine newspaper (as opposed to a Massachusetts newspaper: and 3) whether the problem was if service by publication was justified at all, as opposed to making further efforts to locate and serve Deacon personally in Massachusetts. I explained that, in terms of the case brief, you could choose any strand or combination of strands that you feel best reflects the Court's holding. The requirement is just that your choice must be pretty consistent with the opinion (e.g. the Court couldn't be saying that #3 alone is the holding, because they would never have talked about where notice was published if they had decided that service by publication was not proper in the first place. But whatever you decide that the holding is, you must make sure that your legal question (which needs to be as specific as possible) and winner's facts and loser's facts all match up together (i.e., no talking about Deacon as a Massachusetts resident if you think that the holding is only about which Maine county should publish the newspaper notice).
We then finished Chapter III of the text by going over Finstuen v. Crutcher. We followed that by discussing the excerpt from Obergefell that I had distributed last week. Finally I talked about the concepts of personal jurisdiction and subject matter jurisdiction.
The assignment for Wednesday 4/26, is to continue work on your Gaeth v. Deacon case brief (due this Friday 4/28) and to read in the text through p. 129 (Cheap Escape v. Haddox).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/24, I handed back the WWH outlines, as well as my version of the outline and my comment key to the comments that I wrote on your papers. We talked about the evaluation of pretextual reasons offered by a legislature, both in the abortion context and in the context of voter id laws. We then continued with our free exercise cases. We finished Yoder and Douglas' dissent. We talked about three cases in which the government prevailed despite high hurdles, Bob Jones, Lee, and Goldman. We then talked about the Smith case. We saw how the Court distinguished, rather than overruling, the prior cases that had subjected governmental restrictions to strict scrutiny. We will pick up on Wednesday with Scalia's view of the protection of minority rights in Smith.
The assignment for Wednesday 4/26, is to review Smith, and to read in the text through p. 131 (including Boerne v. Flores).
In class today, Monday 4/24, I first clarified what I was looking for in Issue #2 in Gaeth. I went over how there were three strands of the due process issue: 1) whether the problem was publication only in a Lincoln County newspaper (as opposed to a Kennebec County paper); whether the problem was publication only in a Maine newspaper (as opposed to a Massachusetts newspaper: and 3) whether the problem was if service by publication was justified at all, as opposed to making further efforts to locate and serve Deacon personally in Massachusetts. I explained that, in terms of the case brief, you could choose any strand or combination of strands that you feel best reflects the Court's holding. The requirement is just that your choice must be pretty consistent with the opinion (e.g. the Court couldn't be saying that #3 alone is the holding, because they would never have talked about where notice was published if they had decided that service by publication was not proper in the first place. But whatever you decide that the holding is, you must make sure that your legal question (which needs to be as specific as possible) and winner's facts and loser's facts all match up together (i.e., no talking about Deacon as a Massachusetts resident if you think that the holding is only about which Maine county should publish the newspaper notice).
We then finished Chapter III of the text by going over Finstuen v. Crutcher. We followed that by discussing the excerpt from Obergefell that I had distributed last week. Finally I talked about the concepts of personal jurisdiction and subject matter jurisdiction.
The assignment for Wednesday 4/26, is to continue work on your Gaeth v. Deacon case brief (due this Friday 4/28) and to read in the text through p. 129 (Cheap Escape v. Haddox).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/24, I handed back the WWH outlines, as well as my version of the outline and my comment key to the comments that I wrote on your papers. We talked about the evaluation of pretextual reasons offered by a legislature, both in the abortion context and in the context of voter id laws. We then continued with our free exercise cases. We finished Yoder and Douglas' dissent. We talked about three cases in which the government prevailed despite high hurdles, Bob Jones, Lee, and Goldman. We then talked about the Smith case. We saw how the Court distinguished, rather than overruling, the prior cases that had subjected governmental restrictions to strict scrutiny. We will pick up on Wednesday with Scalia's view of the protection of minority rights in Smith.
The assignment for Wednesday 4/26, is to review Smith, and to read in the text through p. 131 (including Boerne v. Flores).
Friday, April 21, 2017
April 21, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/21, I distributed one handout, an excerpt from Obergefell v. Hodges that discussed full faith and credit regarding recognition of out-of-state same sex marriages. We spent pretty much the entire class period today going over aspects of the Gaeth v. Deacon case brief due next Friday. We went over the first issue of whether Lincoln county was the proper venue for the case under the Maine venue statute. I also talked about whether that part of the opinion might really just be dictum, since the case is ultimately resolved under the constitutional issue about service by publication. We talked at length about three aspects of that service of process issue: publication in Lincoln county, publication in Maine anywhere, and publication at all.
The assignment for Monday 4/24 is to continue work on your Gaeth case briefs (remembering the rule that there is no communication allowed with anyone but me regarding the brief, including what was discussed in class today). Also review Finstuen v. Crutcher (previously assigned) as well as today's handout.
POS 384 CIVIL LIBERTIES
In class today, Friday 4/21, I collected the WWH outlines. We spent the class going over those outlines, and I plan to return them on Monday.
The assignment for Monday 4/24 is to review through Smith, previously assigned.
In class today, Friday 4/21, I distributed one handout, an excerpt from Obergefell v. Hodges that discussed full faith and credit regarding recognition of out-of-state same sex marriages. We spent pretty much the entire class period today going over aspects of the Gaeth v. Deacon case brief due next Friday. We went over the first issue of whether Lincoln county was the proper venue for the case under the Maine venue statute. I also talked about whether that part of the opinion might really just be dictum, since the case is ultimately resolved under the constitutional issue about service by publication. We talked at length about three aspects of that service of process issue: publication in Lincoln county, publication in Maine anywhere, and publication at all.
The assignment for Monday 4/24 is to continue work on your Gaeth case briefs (remembering the rule that there is no communication allowed with anyone but me regarding the brief, including what was discussed in class today). Also review Finstuen v. Crutcher (previously assigned) as well as today's handout.
POS 384 CIVIL LIBERTIES
In class today, Friday 4/21, I collected the WWH outlines. We spent the class going over those outlines, and I plan to return them on Monday.
The assignment for Monday 4/24 is to review through Smith, previously assigned.
Wednesday, April 19, 2017
April 19, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/19, I first mentioned that I plan to spend some time on Friday going over any questions that the class might have about the case you're briefing, Gaeth v. Deacon, and so it would be helpful if you have read the case and started the process of briefing it. I went over a Maine case, Collins v. Trius, in which the Maine Supreme Court adopted the Restatement of Conflict of Laws in a case about a Canadian bus that has an accident on a Maine road. Back in the text, we reviewed how the Indiana court in Hubbard adopted a two-step process for its choice of law rule that wasn't exactly the same as the Restatement. We talked about federal subject matter jurisdiction, both federal question jurisdiction and diversity jurisdiction. We talked about the Erie doctrine, and how the federal court in diversity cases acts as a state court would in the state in which the federal court sits. And we talked about the two concepts of statutes of limitations versus statutes of repose. With all that preparation under our collective belt, we then went over Land v. Yamaha, and saw how bringing the case in Indiana had very bad consequences for the plaintiffs.
The assignment for Friday 4/21 is to continue work on your Gaeth case brief (due 4/28) and to read in the text Finstuen v. Crutcher (through the end of Chapter III).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/19, we reviewed where Sherbert left a government that burdens religion (trying to jump over the high hurdles, is where), and also compared the Wisconsin law in Yoder with the Oregon law in Pierce v. Society of Sisters (p. 99). We went through Burger's opinion in Yoder, and saw how Wisconsin's compelling interest in having kids receive a basic level of education still wasn't enough to save the Wisconsin law. We talked about White's concurrence that emphasized that other religious practices of keeping kids from getting an education would not be protected (even though the Amish were protected in this case). We will pick up with Douglas' opinion when we return to Yoder.
The assignment for Friday 4/21 is to finish work on your WWH outline, due at the beginning of class on Friday 4/21, and also to review the textbook readings previously assigned, through Employment Div. v. Smith.
In class today, Wednesday 4/19, I first mentioned that I plan to spend some time on Friday going over any questions that the class might have about the case you're briefing, Gaeth v. Deacon, and so it would be helpful if you have read the case and started the process of briefing it. I went over a Maine case, Collins v. Trius, in which the Maine Supreme Court adopted the Restatement of Conflict of Laws in a case about a Canadian bus that has an accident on a Maine road. Back in the text, we reviewed how the Indiana court in Hubbard adopted a two-step process for its choice of law rule that wasn't exactly the same as the Restatement. We talked about federal subject matter jurisdiction, both federal question jurisdiction and diversity jurisdiction. We talked about the Erie doctrine, and how the federal court in diversity cases acts as a state court would in the state in which the federal court sits. And we talked about the two concepts of statutes of limitations versus statutes of repose. With all that preparation under our collective belt, we then went over Land v. Yamaha, and saw how bringing the case in Indiana had very bad consequences for the plaintiffs.
The assignment for Friday 4/21 is to continue work on your Gaeth case brief (due 4/28) and to read in the text Finstuen v. Crutcher (through the end of Chapter III).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/19, we reviewed where Sherbert left a government that burdens religion (trying to jump over the high hurdles, is where), and also compared the Wisconsin law in Yoder with the Oregon law in Pierce v. Society of Sisters (p. 99). We went through Burger's opinion in Yoder, and saw how Wisconsin's compelling interest in having kids receive a basic level of education still wasn't enough to save the Wisconsin law. We talked about White's concurrence that emphasized that other religious practices of keeping kids from getting an education would not be protected (even though the Amish were protected in this case). We will pick up with Douglas' opinion when we return to Yoder.
The assignment for Friday 4/21 is to finish work on your WWH outline, due at the beginning of class on Friday 4/21, and also to review the textbook readings previously assigned, through Employment Div. v. Smith.
Monday, April 17, 2017
April 17, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/17, we first finished our discussion of Strunk v. Strunk. We went over the question of what person or court had the power to make the decision for the ward Jerry, that donation of his kidney was in his own best interest. We also talked about the specific circumstance here that meant that the donation actually was in Jerry's best interest. Finally, we went over the dissent's view that this donation was a step down a slippery slope. We then turned to Hubbard v. Greeson. We went over the concepts of choice of law (or conflict of law) common law rules, the forum state, substantive law, the Restatement, and significant contacts. We saw how the Indiana Supreme Court changed the 99 year-old Indiana choice of law rule, much to the detriment of the plaintiff.
The assignment for Wednesday 4/19 is to continue work on your Gaeth v. Deacon case brief (due 4/28) and to read in the text pp. 144-146 (the Erie doctrine and Land v. Yamaha).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/17, we first reviewed the Braunfeld plurality opinion, and how it started the process of using a stricter scrutiny test than just the "valid secular purpose" test. We then went through Sherbert v. Verner, and saw the Court employ a full strict scrutiny test of compelling interest and least restrictive alternative. The concurring and dissenting opinions weighed in on the nature of the "burden" if it is not financial, and the proper treatment of Braunfeld (to follow, distinguish, or overrule it).
The assignment for Wednesday 4/19 is to review Yoder (previously assigned) and to read in addition Employment Division v. Smith (through p. 124). Also, continue working on your WWH outlines, due this Friday.
In class today, Monday 4/17, we first finished our discussion of Strunk v. Strunk. We went over the question of what person or court had the power to make the decision for the ward Jerry, that donation of his kidney was in his own best interest. We also talked about the specific circumstance here that meant that the donation actually was in Jerry's best interest. Finally, we went over the dissent's view that this donation was a step down a slippery slope. We then turned to Hubbard v. Greeson. We went over the concepts of choice of law (or conflict of law) common law rules, the forum state, substantive law, the Restatement, and significant contacts. We saw how the Indiana Supreme Court changed the 99 year-old Indiana choice of law rule, much to the detriment of the plaintiff.
The assignment for Wednesday 4/19 is to continue work on your Gaeth v. Deacon case brief (due 4/28) and to read in the text pp. 144-146 (the Erie doctrine and Land v. Yamaha).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/17, we first reviewed the Braunfeld plurality opinion, and how it started the process of using a stricter scrutiny test than just the "valid secular purpose" test. We then went through Sherbert v. Verner, and saw the Court employ a full strict scrutiny test of compelling interest and least restrictive alternative. The concurring and dissenting opinions weighed in on the nature of the "burden" if it is not financial, and the proper treatment of Braunfeld (to follow, distinguish, or overrule it).
The assignment for Wednesday 4/19 is to review Yoder (previously assigned) and to read in addition Employment Division v. Smith (through p. 124). Also, continue working on your WWH outlines, due this Friday.
Friday, April 14, 2017
April 14, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/14, I distributed two handouts, Assignment #2, due Friday 4/28 (which is reproduced below), and the case you'll be briefing, Gaeth v. Deacon. (If you weren't in class, you can also access the case by going to Google Scholar, checking the bullet for "case law", and entering 2009 ME 9). We talked about the subject of the case, which is constructive service of "process" (the 2 pieces of paper that start a court case, the summons and the complaint). I also assigned the class to read the textbook material about this subject, which is on pp. 159-162. We then finished up our discussion of the Butler (dictum) case by talking about "voluntariness" as a separate issue from Miranda. Finally for Butler, we talked about why the Miranda rules even theoretically might apply to Butler's case, since the interrogation during which Butler made his statement preceded the Miranda decision. I talked about Johnson v. New Jersey, in which the Supreme Court decided to which cases in the legal pipeline Miranda would apply. We then moved on to the Dempsey case. In the federal court system we compared the "old" flexible rule (that sometimes allowed prospective only application) to the "new" bright line rule (that automatically applied the new rule to all cases still in the pipeline). We discussed why the Montana Supreme Court has the authority to set its own rule (even in the face of contrary U.S. Supreme Court opinions), and how they chose a compromise between the federal flexible versus bright-line approaches. Finally we went over the set-up of the Strunk v. Strunk case, and left off with the question of whether any person or court has the authority to say that it is in Jerry's interest to give up one of his kidneys.
The assignment for Monday 4/17 is to read in the text pp. 159-162; to begin work on the Gaeth case brief; review Strunk; and to read in addition pp. 113-116 (Hubbard v. Greason).
Assignment due Friday, April 28, 2017
The assignment (graded) is to do a Case Brief of the case of Gaeth v. Deacon,
2009 ME 9, 964 A.2d 621 (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 phrase that starts “even though...”.
For example: Under the 4th Amendment’s requirement of “probable cause”, was there a fair probability that drug-related evidence would be found at the suspect’s residence when there were multiple informants who substantiated the suspect’s drug activity, and that the suspect lived at the particular property, and the officer used her knowledge and experience to assert that evidence of drug activity would likely be found in a drug-trafficker’s home even though there was no information that the suspect had used his home in connection with his business?
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 4/28, 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. Do not plagiarize any other work. Do not even consult any other work. The whole point of the assignment is to have you learn how to get the most of the your own reading of the case.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 384 CIVIL LIBERTIES
In class today, Friday 4/14, we looked at how the law of free exercise developed after the Reynolds (polygamy) case. We talked about Pierce (compulsory public school; Cantwell (license to solicit); Gobitis (compulsory flag salute); Prince (child religious pamphleteering); and Braunfeld (Sunday closing laws). We saw in Braunfeld how the Warren plurality opinion added additional hurdles to the flow chart, even if they didn't result there in any change to the outcome of the case for Mr. Braunfeld.
The assignment for Monday 4/17 is to review Sherbert v. Verner (previously assigned) and to read in addition Wisconsin v. Yoder (through p.115). In addition, continue working on your WWH outline, due 4/21.
In class today, Friday 4/14, I distributed two handouts, Assignment #2, due Friday 4/28 (which is reproduced below), and the case you'll be briefing, Gaeth v. Deacon. (If you weren't in class, you can also access the case by going to Google Scholar, checking the bullet for "case law", and entering 2009 ME 9). We talked about the subject of the case, which is constructive service of "process" (the 2 pieces of paper that start a court case, the summons and the complaint). I also assigned the class to read the textbook material about this subject, which is on pp. 159-162. We then finished up our discussion of the Butler (dictum) case by talking about "voluntariness" as a separate issue from Miranda. Finally for Butler, we talked about why the Miranda rules even theoretically might apply to Butler's case, since the interrogation during which Butler made his statement preceded the Miranda decision. I talked about Johnson v. New Jersey, in which the Supreme Court decided to which cases in the legal pipeline Miranda would apply. We then moved on to the Dempsey case. In the federal court system we compared the "old" flexible rule (that sometimes allowed prospective only application) to the "new" bright line rule (that automatically applied the new rule to all cases still in the pipeline). We discussed why the Montana Supreme Court has the authority to set its own rule (even in the face of contrary U.S. Supreme Court opinions), and how they chose a compromise between the federal flexible versus bright-line approaches. Finally we went over the set-up of the Strunk v. Strunk case, and left off with the question of whether any person or court has the authority to say that it is in Jerry's interest to give up one of his kidneys.
The assignment for Monday 4/17 is to read in the text pp. 159-162; to begin work on the Gaeth case brief; review Strunk; and to read in addition pp. 113-116 (Hubbard v. Greason).
Assignment due Friday, April 28, 2017
The assignment (graded) is to do a Case Brief of the case of Gaeth v. Deacon,
2009 ME 9, 964 A.2d 621 (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 phrase that starts “even though...”.
For example: Under the 4th Amendment’s requirement of “probable cause”, was there a fair probability that drug-related evidence would be found at the suspect’s residence when there were multiple informants who substantiated the suspect’s drug activity, and that the suspect lived at the particular property, and the officer used her knowledge and experience to assert that evidence of drug activity would likely be found in a drug-trafficker’s home even though there was no information that the suspect had used his home in connection with his business?
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 4/28, 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. Do not plagiarize any other work. Do not even consult any other work. The whole point of the assignment is to have you learn how to get the most of the your own reading of the case.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 384 CIVIL LIBERTIES
In class today, Friday 4/14, we looked at how the law of free exercise developed after the Reynolds (polygamy) case. We talked about Pierce (compulsory public school; Cantwell (license to solicit); Gobitis (compulsory flag salute); Prince (child religious pamphleteering); and Braunfeld (Sunday closing laws). We saw in Braunfeld how the Warren plurality opinion added additional hurdles to the flow chart, even if they didn't result there in any change to the outcome of the case for Mr. Braunfeld.
The assignment for Monday 4/17 is to review Sherbert v. Verner (previously assigned) and to read in addition Wisconsin v. Yoder (through p.115). In addition, continue working on your WWH outline, due 4/21.
Wednesday, April 12, 2017
April 12, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/12, we continued going through the Chapter 3 question of how to tell what the law really is. We talked about the due process challenge to the individual mandate in the Massachusetts health care law that preceded the ACA, and the difference between the enumerated powers of Congress versus the police power of state legislatures. We talked then about the limits on those state powers, and I discussed the preemption case of Rowe v. N.H. Transport Assoc. We discussed ex post fact laws and sex offender registries, and the "punishment" aspect of the current U.S. Supreme Court case of Packingham v. N.C. We then discussed the Butler case and dictum. I went over the 1971 U.S. Supreme Court case of Harris v. N.Y., in which the Court basically agreed with the Butler court. I went through the votes in the Harris case, and we talked about how a change in the personnel of the Court can change the meaning of the constitution. We talked about three different kinds of dictum that we've seen: beyond the facts presented, even if, and more than one way to get to a result.
The assignment for Friday 4/14 is to read in the text through p. 113 (Dempsey and Strunk). Also on Friday, I plan to distribute our second graded case brief assignment.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/12, we finished going over the dissenting opinions in Casey. We looked at the cases in the remainder of Chapter 10 that we're not covering, and we talked about the religion case coming in the Supreme Court next week, Trinity Lutheran Church v. Comer. We started going through the textbook discussion of religion, starting with the definition of "religion". We then talked about free exercise in relation to the Mormon challenge to the federal anti-polygamy statute, which is where we'll pick up on Friday.
The assignment for Friday 4/14 is to review through Cantwell (previously assigned) and to read in addition through p. 110 (Sherbert v. Verner).
In class today, Wednesday 4/12, we continued going through the Chapter 3 question of how to tell what the law really is. We talked about the due process challenge to the individual mandate in the Massachusetts health care law that preceded the ACA, and the difference between the enumerated powers of Congress versus the police power of state legislatures. We talked then about the limits on those state powers, and I discussed the preemption case of Rowe v. N.H. Transport Assoc. We discussed ex post fact laws and sex offender registries, and the "punishment" aspect of the current U.S. Supreme Court case of Packingham v. N.C. We then discussed the Butler case and dictum. I went over the 1971 U.S. Supreme Court case of Harris v. N.Y., in which the Court basically agreed with the Butler court. I went through the votes in the Harris case, and we talked about how a change in the personnel of the Court can change the meaning of the constitution. We talked about three different kinds of dictum that we've seen: beyond the facts presented, even if, and more than one way to get to a result.
The assignment for Friday 4/14 is to read in the text through p. 113 (Dempsey and Strunk). Also on Friday, I plan to distribute our second graded case brief assignment.
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/12, we finished going over the dissenting opinions in Casey. We looked at the cases in the remainder of Chapter 10 that we're not covering, and we talked about the religion case coming in the Supreme Court next week, Trinity Lutheran Church v. Comer. We started going through the textbook discussion of religion, starting with the definition of "religion". We then talked about free exercise in relation to the Mormon challenge to the federal anti-polygamy statute, which is where we'll pick up on Friday.
The assignment for Friday 4/14 is to review through Cantwell (previously assigned) and to read in addition through p. 110 (Sherbert v. Verner).
Monday, April 10, 2017
April 10, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/10, we first reviewed the argument in NFIB v. Sebelius that we discussed last week, the language of the constitution regarding creation v. regulation of activity. We then looked at Roberts' opinion in terms of precedent, and the various arguments made by the government. We talked about the necessary and proper clause, and I went over the case of Gonzales v. Raich. We reviewed the opinions by Ginsburg and Scalia.
The assignment for Wednesday 4/12 is read in the text through p. 107, including, but not limited to, State v. Butler.
POS 384 CIVIL LIBERTIES
In class today, Monday 4/10, we continued our journey through Casey. We finished going through the joint opinion, as well as the Blackmun and Stevens opinions. We began the Rehnquist opinion, and will finish it and Scalia's opinion on Wednesday.
The assignment for Wednesday 4/12 is to review the remainder of Casey, finish the textbook reading on abortion (through p. 427) and then begin our next unit (religious freedom) by reading pp. 95-103 of the text. Also, continue work on your WWH outline.
In class today, Monday 4/10, we first reviewed the argument in NFIB v. Sebelius that we discussed last week, the language of the constitution regarding creation v. regulation of activity. We then looked at Roberts' opinion in terms of precedent, and the various arguments made by the government. We talked about the necessary and proper clause, and I went over the case of Gonzales v. Raich. We reviewed the opinions by Ginsburg and Scalia.
The assignment for Wednesday 4/12 is read in the text through p. 107, including, but not limited to, State v. Butler.
POS 384 CIVIL LIBERTIES
In class today, Monday 4/10, we continued our journey through Casey. We finished going through the joint opinion, as well as the Blackmun and Stevens opinions. We began the Rehnquist opinion, and will finish it and Scalia's opinion on Wednesday.
The assignment for Wednesday 4/12 is to review the remainder of Casey, finish the textbook reading on abortion (through p. 427) and then begin our next unit (religious freedom) by reading pp. 95-103 of the text. Also, continue work on your WWH outline.
Friday, April 7, 2017
April 7, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 4/7, I finished our discussion of ethics with the current Supreme Court case of Epic Systems v. Lewis. That case asks whether an employer may force an agreement onto its employees in which the employees forgo the right to exercise their federal rights to engage in collective action, through the imposition of a mandatory individual arbitration agreement. We then talked about the history of the Supreme Court's interpretation of the commerce clause. We talked about how mining, unionization, and child labor were all held to be commerce within a state, and therefore not within the interstate commerce power. We talked then about how the Supreme Court in 1937 changed its interpretation, and we went over Wickard v. Filburn. We began the discussion of NFIB v. Sebelius with the first argument by Roberts, that the "creation" of commerce can't be within the power of "regulation" of commerce, because that would leave some other words of the constitution as being mere surplusage. That's the point at which we'll pick up next week.
The assignment for Monday 4/10 is to review all the opinions in NFIB v. Sebelius, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Friday 4/7, I distributed two handouts: assignment #2 (reproduced below) and the case you'll be outlining, Whole Woman's Health v. Hellersted. We went over the assignment, and reviewed the format for outlines. We then went back into the Casey case. We got through Part III of case, and so we'll pick up on Monday with Part IV (p. 420).
The assignment for Monday 4/10 is to begin work on your Whole Woman's Health outline, and to review the remainder of Casey.
Assignment #2 due Friday April 21, 2017
The assignment is to do an outline of Justice Breyer’s majority opinion in Whole Woman’s Health v. Hellerstedt (also distributed to the class today). I have added paragraph numbers for ease of discussion—they are not part of the opinion.
Follow the format from the Sample Outlines that I’ve distributed. Read over my Comment Key for Reed to remind you of the frequent problems regarding outline format. Note that the basic format is Title (for the Roman numerals and any other elements that have sub-elements below them); and then Question and Answer for the other elements. Do not outline the introductory section of the Opinion (before Roman Numeral I). Starting with I(B), use the same elements that Breyer already has used:
I
(A) OMITTED
(B) [¶1-3]
(C) [¶4-6]
II OMITTED
III [¶7-11]
IV [¶12-22]
V [¶23-38]
If I’ve omitted parts (e.g. “II”), you just omit it as well.
Add sub-elements to the outline as necessary in order to cover the points raised by Breyer. For example, under I(B), you might add sub-elements such as
I
(B) The parties and the Prior Proceedings
[1] Who are the Petitioners and what were they seeking? They are abortion providers who sought injunctions against both the admitting-privileges and surgical center (ASC) provisions, as violating Casey.
[2] What did the District Court find?
[a] It found that if the ASC provision went fully into effect, the remaining abortion facilities could not reasonably be thought to be able to meet for abortion services.
[b] As for the admitting privileges requirement, it found that ...
As you add sub-elements, follow these rules:
•For the element that’s going to be sub-divided, you can give a title or a question, e.g.
I(B)The parties and the prior proceedings
or
I(B)Who were the parties and what were the prior proceedings?
•Put the added sub-element number or letter in brackets (“[ ]”).
Don’t try to label the Roman Numerals until you’ve outlined the other parts; only then can you see what the entire roman numeral section is about.
For Thomas’ dissenting opinion do not outline the opinion, but rather give a few paragraphs summarizing the main points of his opinion.
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 Friday 4/21, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any deduction from your grade. 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. Don’t look at other student’s outlines, and don’t show your outline to anyone. See the syllabus regarding plagiarism and collaboration.
If you can’t talk to each other about question, to whom can you talk? Me. E-mail me with the specific questions that you have
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
In class today, Friday 4/7, I finished our discussion of ethics with the current Supreme Court case of Epic Systems v. Lewis. That case asks whether an employer may force an agreement onto its employees in which the employees forgo the right to exercise their federal rights to engage in collective action, through the imposition of a mandatory individual arbitration agreement. We then talked about the history of the Supreme Court's interpretation of the commerce clause. We talked about how mining, unionization, and child labor were all held to be commerce within a state, and therefore not within the interstate commerce power. We talked then about how the Supreme Court in 1937 changed its interpretation, and we went over Wickard v. Filburn. We began the discussion of NFIB v. Sebelius with the first argument by Roberts, that the "creation" of commerce can't be within the power of "regulation" of commerce, because that would leave some other words of the constitution as being mere surplusage. That's the point at which we'll pick up next week.
The assignment for Monday 4/10 is to review all the opinions in NFIB v. Sebelius, previously assigned.
POS 384 CIVIL LIBERTIES
In class today, Friday 4/7, I distributed two handouts: assignment #2 (reproduced below) and the case you'll be outlining, Whole Woman's Health v. Hellersted. We went over the assignment, and reviewed the format for outlines. We then went back into the Casey case. We got through Part III of case, and so we'll pick up on Monday with Part IV (p. 420).
The assignment for Monday 4/10 is to begin work on your Whole Woman's Health outline, and to review the remainder of Casey.
Assignment #2 due Friday April 21, 2017
The assignment is to do an outline of Justice Breyer’s majority opinion in Whole Woman’s Health v. Hellerstedt (also distributed to the class today). I have added paragraph numbers for ease of discussion—they are not part of the opinion.
Follow the format from the Sample Outlines that I’ve distributed. Read over my Comment Key for Reed to remind you of the frequent problems regarding outline format. Note that the basic format is Title (for the Roman numerals and any other elements that have sub-elements below them); and then Question and Answer for the other elements. Do not outline the introductory section of the Opinion (before Roman Numeral I). Starting with I(B), use the same elements that Breyer already has used:
I
(A) OMITTED
(B) [¶1-3]
(C) [¶4-6]
II OMITTED
III [¶7-11]
IV [¶12-22]
V [¶23-38]
If I’ve omitted parts (e.g. “II”), you just omit it as well.
Add sub-elements to the outline as necessary in order to cover the points raised by Breyer. For example, under I(B), you might add sub-elements such as
I
(B) The parties and the Prior Proceedings
[1] Who are the Petitioners and what were they seeking? They are abortion providers who sought injunctions against both the admitting-privileges and surgical center (ASC) provisions, as violating Casey.
[2] What did the District Court find?
[a] It found that if the ASC provision went fully into effect, the remaining abortion facilities could not reasonably be thought to be able to meet for abortion services.
[b] As for the admitting privileges requirement, it found that ...
As you add sub-elements, follow these rules:
•For the element that’s going to be sub-divided, you can give a title or a question, e.g.
I(B)The parties and the prior proceedings
or
I(B)Who were the parties and what were the prior proceedings?
•Put the added sub-element number or letter in brackets (“[ ]”).
Don’t try to label the Roman Numerals until you’ve outlined the other parts; only then can you see what the entire roman numeral section is about.
For Thomas’ dissenting opinion do not outline the opinion, but rather give a few paragraphs summarizing the main points of his opinion.
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 Friday 4/21, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any deduction from your grade. 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. Don’t look at other student’s outlines, and don’t show your outline to anyone. See the syllabus regarding plagiarism and collaboration.
If you can’t talk to each other about question, to whom can you talk? Me. E-mail me with the specific questions that you have
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
Wednesday, April 5, 2017
April 5, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 4/5, we went through the Glassford v. BrickKicker case. We talked about arbitration clauses, substantive and procedural unconscionability, and severability clauses. I plan to begin on Friday with a current arbitration case in front of the U.S. Supreme Court.
The assignment for Friday 4/7 is read in the textbook through p. 98 (NFIB v. Sebelius).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/5, we first finished up the dissenting opinions in Roe v. Wade. We briefly went over the Akron case, and then began our discussion of Casey. We got through Part III (A) of the joint opinion, and will pick up at III (B) on Friday. Also on Friday, I anticipate assigning another graded opinion outline.
The assignment for Friday 4/7 is to review the remainder of Casey, previously assigned.
In class today, Wednesday 4/5, we went through the Glassford v. BrickKicker case. We talked about arbitration clauses, substantive and procedural unconscionability, and severability clauses. I plan to begin on Friday with a current arbitration case in front of the U.S. Supreme Court.
The assignment for Friday 4/7 is read in the textbook through p. 98 (NFIB v. Sebelius).
POS 384 CIVIL LIBERTIES
In class today, Wednesday 4/5, we first finished up the dissenting opinions in Roe v. Wade. We briefly went over the Akron case, and then began our discussion of Casey. We got through Part III (A) of the joint opinion, and will pick up at III (B) on Friday. Also on Friday, I anticipate assigning another graded opinion outline.
The assignment for Friday 4/7 is to review the remainder of Casey, previously assigned.
Monday, April 3, 2017
April 3, 2017
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 4/3, I handed back the Williams case briefs, as well as my comment key to the numbered comments that I had made. We went over Lawrence v. Texas, covering the equal protection v. due process field of battle, Kennedy's assessment of the previous Bowers v. Hartwick characterization of the right and history, the flow chart of fundamental rights, and Kennedy's ultimate conclusion of the lack of any legitimate state interest. We talked also about the legislating of morality overall.
The assignment for Wednesday 4/5 is to read in the text through p. 77 (Glassford v. BrickKicker).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/3, we first finished our discussion of Griswold by going over the dissenting opinions. We discussed the basic jurisprudential question: what's the line between what the legislature is allowed to make criminal, versus what the constitution protects as an individual's right and puts off the table to government regulation. That question becomes especially challenging when there's no specific constitutional provision to go by. Then we moved on to Roe v. Wade. We went through Blackmun's opinion in terms of whether the right to abortion is fundamental; where the right is located in the constitution; and whether (and when) the state nevertheless has a compelling interest in maintaining maternal health and protecting potential life. We will pick up on Wednesday with the dissenting opinions.
The assignment for Wednesday 4/5 is to review the rest of Roe, and to read in addition Planned Parenthod v. Casey (through p. 425). If you're unable to finish all that, at least try to get through the O'Connor/Kennedy/Souter plurality opinion (through p. 422)
In class today, Monday 4/3, I handed back the Williams case briefs, as well as my comment key to the numbered comments that I had made. We went over Lawrence v. Texas, covering the equal protection v. due process field of battle, Kennedy's assessment of the previous Bowers v. Hartwick characterization of the right and history, the flow chart of fundamental rights, and Kennedy's ultimate conclusion of the lack of any legitimate state interest. We talked also about the legislating of morality overall.
The assignment for Wednesday 4/5 is to read in the text through p. 77 (Glassford v. BrickKicker).
POS 384 CIVIL LIBERTIES
In class today, Monday 4/3, we first finished our discussion of Griswold by going over the dissenting opinions. We discussed the basic jurisprudential question: what's the line between what the legislature is allowed to make criminal, versus what the constitution protects as an individual's right and puts off the table to government regulation. That question becomes especially challenging when there's no specific constitutional provision to go by. Then we moved on to Roe v. Wade. We went through Blackmun's opinion in terms of whether the right to abortion is fundamental; where the right is located in the constitution; and whether (and when) the state nevertheless has a compelling interest in maintaining maternal health and protecting potential life. We will pick up on Wednesday with the dissenting opinions.
The assignment for Wednesday 4/5 is to review the rest of Roe, and to read in addition Planned Parenthod v. Casey (through p. 425). If you're unable to finish all that, at least try to get through the O'Connor/Kennedy/Souter plurality opinion (through p. 422)
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