POS 384 CIVIL LIBERTIES
In class today, Thursday 12/13, we first finished up our discussion of Jackson Women's Health. We then went through the underlying facts and Thomas' dissent in Gee v. Planned Parenthood. The exam will cover through Gee.
On Tuesday 12/18 from 9:30-10:45, the class will have exam #2. If you are missing any handouts, you must email me with what you need me to bring by 8:00 pm on Monday 12/17.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 12/13, we finished our discussion of subject-matter jurisdiction by looking at St. James v. Coinmach and federal diversity of citizenship. We also discussed the other basis of federal subject-matter jurisdiction, federal question jurisdiction. We then went over personal jurisdiction. We looked at 4 bases for asserting jurisdiction over a defendant: service of process within the state; domicile of the defendant; waiver of objection; and minimal contacts by the defendant with the forum state. We discussed Swoboda v. Hero Decks, and why the court there found the lack of personal jurisdiction over the defendant. I then discussed a recent U. S. Supreme Court case, Walden v. Fiore, in which the Court examined whether Nevada had personal jurisdiction over a Georgia drug enforcement agent for his Georgia misdeeds.
On Thursday 12/20 from 9:30-10:45, the class will have exam #2. If you are missing any handouts, you must email me with what you need me to bring by 8:00 pm on Wednesday 12/19.
Thursday, December 13, 2018
Tuesday, December 11, 2018
December 11, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 12/11, I distributed one last handout, yesterday's denial of cert. in Gee v. Planned Parenthood of Gulf Coast. We first went through Thomas' dissent in Whole Woman's Health. We looked at both his big picture (use of tiers of scrutiny at all) as well as several smaller pictures (manipulation use tiers of scrutiny, abortion jurisprudence, proper interpretation of Casey). We then began our examination of Jackson Women's Health Org. v. Currier. We got through all but Parts V and VI of Jackson,which we'll finish on Thursday.
The assignment for Thursday 12/13 is to review Jackson, and to read and prepare to discuss today's handout.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 12/11, I distributed one handout, excerpts from Maine's subject-matter jurisdiction statutes. We first went back to the Obergefell excerpt handed out last class, and saw how the Court mandated recognition of out-of-state same-sex marriages, even though those marriages do not result from judicial proceedings. We then went into the world of subject-matter jurisdiction. We discussed Cheap Escape from the text, and how the Ohio Supreme Court interpreted the Ohio jurisdictional statute on municipal courts as requiring a connection between the location of the court and the location of the cause of action. I then talked about two other subject-matter jurisdiction cases. In the U.S. Supreme Court case of Bowles v. Russell. the 5-4 majority ruled that a time limit in a federal statute was a question of subject-matter jurisdiction, and therefore could not be waived even though the time was exceeded only because the prisoner was following the instruction of the U.S. District Court judge. In the Maine Supreme Court case, Landmark Realty v. Leasure, the Court held that claims processing rules like time limits were not questions of subject matter jurisdiction, and therefore could be waived. Then we went over V.L. v. E.L., another handout from last Thursday. Finally we started going over today's Maine statutory handout.
The assignment for Thursday 12/13 is to review today's handout, and review Swoboda v. Hero Decks (previously assigned), and to read and prepare to discuss through p. 141 in the text, including St. James v. Coinmach.
In class today, Tuesday 12/11, I distributed one last handout, yesterday's denial of cert. in Gee v. Planned Parenthood of Gulf Coast. We first went through Thomas' dissent in Whole Woman's Health. We looked at both his big picture (use of tiers of scrutiny at all) as well as several smaller pictures (manipulation use tiers of scrutiny, abortion jurisprudence, proper interpretation of Casey). We then began our examination of Jackson Women's Health Org. v. Currier. We got through all but Parts V and VI of Jackson,which we'll finish on Thursday.
The assignment for Thursday 12/13 is to review Jackson, and to read and prepare to discuss today's handout.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 12/11, I distributed one handout, excerpts from Maine's subject-matter jurisdiction statutes. We first went back to the Obergefell excerpt handed out last class, and saw how the Court mandated recognition of out-of-state same-sex marriages, even though those marriages do not result from judicial proceedings. We then went into the world of subject-matter jurisdiction. We discussed Cheap Escape from the text, and how the Ohio Supreme Court interpreted the Ohio jurisdictional statute on municipal courts as requiring a connection between the location of the court and the location of the cause of action. I then talked about two other subject-matter jurisdiction cases. In the U.S. Supreme Court case of Bowles v. Russell. the 5-4 majority ruled that a time limit in a federal statute was a question of subject-matter jurisdiction, and therefore could not be waived even though the time was exceeded only because the prisoner was following the instruction of the U.S. District Court judge. In the Maine Supreme Court case, Landmark Realty v. Leasure, the Court held that claims processing rules like time limits were not questions of subject matter jurisdiction, and therefore could be waived. Then we went over V.L. v. E.L., another handout from last Thursday. Finally we started going over today's Maine statutory handout.
The assignment for Thursday 12/13 is to review today's handout, and review Swoboda v. Hero Decks (previously assigned), and to read and prepare to discuss through p. 141 in the text, including St. James v. Coinmach.
Thursday, December 6, 2018
December 6, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 12/6, I distributed one handout, the recent U.S. District Court opinion of Jackson Women's Health v. Currier. We started back in on Breyer's opinion in Whole Woman's Health, and went paragraph by paragraph through the opinion. We also looked back at the language of Casey itself, and saw how the Court of Appeals might have come to their (incorrect) understanding of the test that was created by Casey.
The assignment for Tuesday 12/11 is to review Thomas' dissent in Whole Woman's Health, and to read and prepare to discuss today's handout.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 12/6, I distributed 2 handouts: an excerpt from the Supreme Court same sex marriage case of Obergefell v. Hodges, and the Supreme Court opinion in V.L. v. E.L. We finished Chapter 3 of the text by going through the Full Faith and Credit case of Finstuen v. Crutcher. We talked about the difference between states having to enforce statutes of other states, versus having to enforce court judgments of other states. We went through how that affects marriage, divorce, and adoption recognition. We went into Chapter 4 of the text, looking at trial courts and their relationship to appellate courts. I talked about the difference between subject matter jurisdiction and personal jurisdiction. We began our discussion of Cheap Escape v. Haddox, going over the contract language that specified which courts could hear any dispute about the advertising. We will continue with Cheap Escape on Tuesday.
The assignment for Tuesday 12/11 is to review Cheap Escape, read and prepare to discuss today's two handouts, and read in addition in the text through p. 135 (including Swoboda v. Hero Decks).
In class today, Thursday 12/6, I distributed one handout, the recent U.S. District Court opinion of Jackson Women's Health v. Currier. We started back in on Breyer's opinion in Whole Woman's Health, and went paragraph by paragraph through the opinion. We also looked back at the language of Casey itself, and saw how the Court of Appeals might have come to their (incorrect) understanding of the test that was created by Casey.
The assignment for Tuesday 12/11 is to review Thomas' dissent in Whole Woman's Health, and to read and prepare to discuss today's handout.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 12/6, I distributed 2 handouts: an excerpt from the Supreme Court same sex marriage case of Obergefell v. Hodges, and the Supreme Court opinion in V.L. v. E.L. We finished Chapter 3 of the text by going through the Full Faith and Credit case of Finstuen v. Crutcher. We talked about the difference between states having to enforce statutes of other states, versus having to enforce court judgments of other states. We went through how that affects marriage, divorce, and adoption recognition. We went into Chapter 4 of the text, looking at trial courts and their relationship to appellate courts. I talked about the difference between subject matter jurisdiction and personal jurisdiction. We began our discussion of Cheap Escape v. Haddox, going over the contract language that specified which courts could hear any dispute about the advertising. We will continue with Cheap Escape on Tuesday.
The assignment for Tuesday 12/11 is to review Cheap Escape, read and prepare to discuss today's two handouts, and read in addition in the text through p. 135 (including Swoboda v. Hero Decks).
Tuesday, December 4, 2018
December 4, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 12/4, I distributed one handout, Thomas' dissenting opinion in Whole Woman's Health. The class voted that when we have our 75 minute exam number 2 on Tuesday 12/18, we will begin at 9:30 and end at 10:45. I also urged all students to fill out the online evaluations that have been sent to your emails. We finished up our discussion of Casey by going over the Blackmun, Stevens, Rehnquist and Scalia opinions. We then turned to Breyer's opinion in Whole Woman's Health. We got as far as ¶14, in which Breyer discussed what was wrong with the legal standard used by the Court of Appeals. We will pick up at that point on Thursday.
The assignment for Thursday 12/6 is to review Breyer's opinion in Whole Woman's Health, and then read Thomas' dissent that was distributed today.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 12/4, the class voted that when we have our 75 minute exam number 2 on Thursday 12/20, we will begin at 9:30 and end at 10:45. I also urged all students to fill out the online evaluations that have been sent to your emails. I talked about a textbook case that I had not assigned, Strunk v. Strunk, that raised the question of what a court is to do when there is no precedent on point to help the court decide a difficult common law question. We then went to today's assigned cases, Hubbard v. Greeson and Land v. Yamaha. We talked about how the forum state (the state where the case is brought) follows its own choice of laws rule to determine which state's substantive law applies. In Hubbard, we saw how the Indiana Supreme Court changed its choice of laws rule, much to the detriment of the plaintiff. In Land v. Yamaha, we saw how the federal district court in diversity cases applies the choice of law rules of the state in which the federal court sits to determine which state's substantive law applies. The federal court ending up applying Indiana choice of law rules to then apply the substantive Indiana Statute of Repose, again much to the detriment of the plaintiff.
The assignment for Thursday 12/6 is to read in the text from p. 116 to 129 (including Finstuen v. Crutcher and Cheap Escape v. Haddox).
In class today, Tuesday 12/4, I distributed one handout, Thomas' dissenting opinion in Whole Woman's Health. The class voted that when we have our 75 minute exam number 2 on Tuesday 12/18, we will begin at 9:30 and end at 10:45. I also urged all students to fill out the online evaluations that have been sent to your emails. We finished up our discussion of Casey by going over the Blackmun, Stevens, Rehnquist and Scalia opinions. We then turned to Breyer's opinion in Whole Woman's Health. We got as far as ¶14, in which Breyer discussed what was wrong with the legal standard used by the Court of Appeals. We will pick up at that point on Thursday.
The assignment for Thursday 12/6 is to review Breyer's opinion in Whole Woman's Health, and then read Thomas' dissent that was distributed today.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 12/4, the class voted that when we have our 75 minute exam number 2 on Thursday 12/20, we will begin at 9:30 and end at 10:45. I also urged all students to fill out the online evaluations that have been sent to your emails. I talked about a textbook case that I had not assigned, Strunk v. Strunk, that raised the question of what a court is to do when there is no precedent on point to help the court decide a difficult common law question. We then went to today's assigned cases, Hubbard v. Greeson and Land v. Yamaha. We talked about how the forum state (the state where the case is brought) follows its own choice of laws rule to determine which state's substantive law applies. In Hubbard, we saw how the Indiana Supreme Court changed its choice of laws rule, much to the detriment of the plaintiff. In Land v. Yamaha, we saw how the federal district court in diversity cases applies the choice of law rules of the state in which the federal court sits to determine which state's substantive law applies. The federal court ending up applying Indiana choice of law rules to then apply the substantive Indiana Statute of Repose, again much to the detriment of the plaintiff.
The assignment for Thursday 12/6 is to read in the text from p. 116 to 129 (including Finstuen v. Crutcher and Cheap Escape v. Haddox).
Thursday, November 29, 2018
November 29, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/29, I distributed one handout, Breyer's opinion in Whole Woman's Health v. Hellerstedt. We began class by reviewing Roe v.Wade. We looked at its use of strict scrutiny, both in terms of trimesters and in terms of viability of the fetus. We also reviewed the Roe dissenting opinions. We looked at the Gallup poll on abortion and talked about how well its categories applied to the different opinions in Roe. We then went to Casey. We counted votes. We then used the outline of the Joint Opinion to follow its opinion, which both upheld the "essential holding" of Roe, but also made significant changes both in terms of the flow chart of "liberty" analysis, and the time frames of permissible state regulation of abortion. We started to discuss Blackmun's opinion, which is what we'll pick up with on Tuesday.
The assignment for Tuesday 12/4 is to review the remaining opinions in Casey, and to read and prepare to discuss today's handout.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/29, we began by going over Butler and the subject of dictum. We saw how the Ohio Supreme Court basically wrote off explicit language in the U.S. Supreme Court Miranda case that said the opposite of what the Ohio court was saying, and why the Ohio court was able to get away with that. I then talked about the 1971 U.S. Supreme Court case of Harris v. New York, which came to the same conclusion about the use of un-Mirandized statements used for purposes of impeachment as had the Butler court. We then moved to the subject of prospective v. retroactive application of a court decision. I went over Johnson v. New Jersey, which settled the question of whether the Miranda opinion itself applies to cases that were commenced before the date of the Miranda opinion. I also reminded the class of Montgomery v. Louisiana, which had the broadest possible retroactive application. We went over Dempsey v. Allstate from the text, in which the Montana Supreme Court decided on a retroactivity rule that was like neither the old nor the new federal retroactivity rule.
The assignment for Tuesday 12/4 is to read in the text pp. 113-116 (Hubbard v. Greeson) and also 144-146 (Land v. Yamaha).
In class today, Thursday 11/29, I distributed one handout, Breyer's opinion in Whole Woman's Health v. Hellerstedt. We began class by reviewing Roe v.Wade. We looked at its use of strict scrutiny, both in terms of trimesters and in terms of viability of the fetus. We also reviewed the Roe dissenting opinions. We looked at the Gallup poll on abortion and talked about how well its categories applied to the different opinions in Roe. We then went to Casey. We counted votes. We then used the outline of the Joint Opinion to follow its opinion, which both upheld the "essential holding" of Roe, but also made significant changes both in terms of the flow chart of "liberty" analysis, and the time frames of permissible state regulation of abortion. We started to discuss Blackmun's opinion, which is what we'll pick up with on Tuesday.
The assignment for Tuesday 12/4 is to review the remaining opinions in Casey, and to read and prepare to discuss today's handout.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/29, we began by going over Butler and the subject of dictum. We saw how the Ohio Supreme Court basically wrote off explicit language in the U.S. Supreme Court Miranda case that said the opposite of what the Ohio court was saying, and why the Ohio court was able to get away with that. I then talked about the 1971 U.S. Supreme Court case of Harris v. New York, which came to the same conclusion about the use of un-Mirandized statements used for purposes of impeachment as had the Butler court. We then moved to the subject of prospective v. retroactive application of a court decision. I went over Johnson v. New Jersey, which settled the question of whether the Miranda opinion itself applies to cases that were commenced before the date of the Miranda opinion. I also reminded the class of Montgomery v. Louisiana, which had the broadest possible retroactive application. We went over Dempsey v. Allstate from the text, in which the Montana Supreme Court decided on a retroactivity rule that was like neither the old nor the new federal retroactivity rule.
The assignment for Tuesday 12/4 is to read in the text pp. 113-116 (Hubbard v. Greeson) and also 144-146 (Land v. Yamaha).
Tuesday, November 27, 2018
November 27. 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/27, I distributed one handout, a recent article about the current retaliatory arrest/free speech case of Nieves v. Bartlett. We began by finishing our discussion of Lozman v. Riviera Beach. We saw how Kennedy avoided the underlying issue, and crafted a rule for only a small subset of retaliatory arrests. We also went over Thomas' dissent, in which he started with criticism of the majority for not deciding the underlying issue. (That issue, the causation standard for retaliatory arrests, is the subject Nieves v. Bartlett.) We then left free speech and moved on to the right of privacy. I discussed Griswold v. Connecticut and the creation of the right to privacy. We then went through both the majority and dissenting opinions in Roe v. Wade. We got up to White's dissent, which is where we'll begin on Thursday.
The assignment for Thursday 11/29 is to read today's handout, review the rest of Roe v. Wade, and read in the text through p/ 425, including all of the opinions in Planned Parenthood v. Casey. And remember to please bring your textbooks to class.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/27, I handed back the Klein case briefs, and distributed the Comment Key to my comments on your briefs. I talked a little more about how facts are what make a case brief useful, and what kind of statements are not "facts". We then went into Chapter III of the text. We went through the opinions in NFIB v. Sebelius, and also discussed the status of this commerce clause part of the opinion as being dictum.
The assignment for Thursday 11/29 is to review Butler (p. 104, previously assigned) and to read through p. 110, including Dempsey v. Allstate (p. 107).
In class today, Tuesday 11/27, I distributed one handout, a recent article about the current retaliatory arrest/free speech case of Nieves v. Bartlett. We began by finishing our discussion of Lozman v. Riviera Beach. We saw how Kennedy avoided the underlying issue, and crafted a rule for only a small subset of retaliatory arrests. We also went over Thomas' dissent, in which he started with criticism of the majority for not deciding the underlying issue. (That issue, the causation standard for retaliatory arrests, is the subject Nieves v. Bartlett.) We then left free speech and moved on to the right of privacy. I discussed Griswold v. Connecticut and the creation of the right to privacy. We then went through both the majority and dissenting opinions in Roe v. Wade. We got up to White's dissent, which is where we'll begin on Thursday.
The assignment for Thursday 11/29 is to read today's handout, review the rest of Roe v. Wade, and read in the text through p/ 425, including all of the opinions in Planned Parenthood v. Casey. And remember to please bring your textbooks to class.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/27, I handed back the Klein case briefs, and distributed the Comment Key to my comments on your briefs. I talked a little more about how facts are what make a case brief useful, and what kind of statements are not "facts". We then went into Chapter III of the text. We went through the opinions in NFIB v. Sebelius, and also discussed the status of this commerce clause part of the opinion as being dictum.
The assignment for Thursday 11/29 is to review Butler (p. 104, previously assigned) and to read through p. 110, including Dempsey v. Allstate (p. 107).
Tuesday, November 20, 2018
November 20, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/20, I handed back the NIFLA outlines. I also distributed 2 handouts, my version of the NIFLA outline, and a Comment Key to some of my comments on your papers. We went over some aspects of the outline, including the significance of this being a preliminary injunction, Breyer's criticism of the flow chart of strict scrutiny, his use of Akron and Thornburgh to highlight Casey as the controlling precedent, and the failure of the majority to discuss viewpoint discrimination.
The class then voted on which Civil Liberties issue to study next, and chose abortion rights. (That decision is reflected on the assignment below.)
We then began our discussion of Lozman. We got to that part of the opinion that contrasted the Mt. Healthy test v. the Hartman test for what the plaintiff must show when asserting a claim that action by government was in retaliation for protected speech. We will pick up next Tuesday with Part IV of Kennedy's opinion.
The assignment for Tuesday 11/27 is to review Lozman, and to read in the text pp. 401-410, including Roe v. Wade.
I hope you have a good Thanksgiving.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/20, I collected the Klein case briefs, and I distributed my version of that case brief. We spent the class period going over the case and the case brief.
The assignment for Tuesday 11/27 is to review Butler (previously assigned) and to read in addition all of Chapter 3 up to Butler (including NFIB v. Sebelius). So in other words, read and prepare to discuss from p. 89 through p. 106 of the text.
I hope you have a good Thanksgiving.
In class today, Tuesday 11/20, I handed back the NIFLA outlines. I also distributed 2 handouts, my version of the NIFLA outline, and a Comment Key to some of my comments on your papers. We went over some aspects of the outline, including the significance of this being a preliminary injunction, Breyer's criticism of the flow chart of strict scrutiny, his use of Akron and Thornburgh to highlight Casey as the controlling precedent, and the failure of the majority to discuss viewpoint discrimination.
The class then voted on which Civil Liberties issue to study next, and chose abortion rights. (That decision is reflected on the assignment below.)
We then began our discussion of Lozman. We got to that part of the opinion that contrasted the Mt. Healthy test v. the Hartman test for what the plaintiff must show when asserting a claim that action by government was in retaliation for protected speech. We will pick up next Tuesday with Part IV of Kennedy's opinion.
The assignment for Tuesday 11/27 is to review Lozman, and to read in the text pp. 401-410, including Roe v. Wade.
I hope you have a good Thanksgiving.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/20, I collected the Klein case briefs, and I distributed my version of that case brief. We spent the class period going over the case and the case brief.
The assignment for Tuesday 11/27 is to review Butler (previously assigned) and to read in addition all of Chapter 3 up to Butler (including NFIB v. Sebelius). So in other words, read and prepare to discuss from p. 89 through p. 106 of the text.
I hope you have a good Thanksgiving.
Thursday, November 15, 2018
November 15, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/15, I collected the NIFLA outlines. We then went over the outline bit by bit. I plan on grading the outlines this weekend, and returning them on Tuesday. We then watched a youtube clip of Fane Lozman being arrested when he tried to address the Riviera Beach City Council. We will pick up the the Lozman opinion on Tuesday. I also plan to poll the class about what subject the class would like to tackle next. Two options that I can think of are 2nd Amendment rights and abortion rights. If you have additional subjects that you think would be appropriate and interesting for Civil Liberties class, please let me know.
The assignment for Tuesday 11/20 is to review Lozman, previously assigned.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/15, I first tried to clarify a bit more of the Klein case brief assignment. In line with my previous instruction to treat the final order of the Oregon BOLI as the prior proceedings, you should treat the BOLI as the plaintiff in the case. I also talked about how the Glassford arbitration case was not typical of the direction of American law. as the Supreme Court has ruled repeatedly in the past 10 years that the federal statute favoring arbitration prevails over seemingly contrary state common law and statutory law, and federal statutory law
We then went through Caperton v. Massey Coal. We saw how the Court created a rule for when due process requires recusal. They then defined what that rule means. They then applied that definition to the facts of the case.
After finishing Caperton, I also talked about a more recent Supreme Court case, Williams v, Pennsylvania, in which the Court ruled on whether recusal was required in the case of a former prosecutor who later sits in judgment as a Justice of the state Supreme Court in the case of a convict that his office had prosecuted.
The assignment for Tuesday 11/20 is to finish your Klein case brief, due at the beginning of Tuesday's class. In addition, read and prepare to discuss p. 104-106 of the text, State v. Butler.
In class today, Thursday 11/15, I collected the NIFLA outlines. We then went over the outline bit by bit. I plan on grading the outlines this weekend, and returning them on Tuesday. We then watched a youtube clip of Fane Lozman being arrested when he tried to address the Riviera Beach City Council. We will pick up the the Lozman opinion on Tuesday. I also plan to poll the class about what subject the class would like to tackle next. Two options that I can think of are 2nd Amendment rights and abortion rights. If you have additional subjects that you think would be appropriate and interesting for Civil Liberties class, please let me know.
The assignment for Tuesday 11/20 is to review Lozman, previously assigned.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/15, I first tried to clarify a bit more of the Klein case brief assignment. In line with my previous instruction to treat the final order of the Oregon BOLI as the prior proceedings, you should treat the BOLI as the plaintiff in the case. I also talked about how the Glassford arbitration case was not typical of the direction of American law. as the Supreme Court has ruled repeatedly in the past 10 years that the federal statute favoring arbitration prevails over seemingly contrary state common law and statutory law, and federal statutory law
We then went through Caperton v. Massey Coal. We saw how the Court created a rule for when due process requires recusal. They then defined what that rule means. They then applied that definition to the facts of the case.
After finishing Caperton, I also talked about a more recent Supreme Court case, Williams v, Pennsylvania, in which the Court ruled on whether recusal was required in the case of a former prosecutor who later sits in judgment as a Justice of the state Supreme Court in the case of a convict that his office had prosecuted.
The assignment for Tuesday 11/20 is to finish your Klein case brief, due at the beginning of Tuesday's class. In addition, read and prepare to discuss p. 104-106 of the text, State v. Butler.
Tuesday, November 13, 2018
November 13, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/13, I distributed one handout, the recent Supreme Court opinion in Lozman v, Riviera Beach. After giving some background to that case, we talked a little about the Breyer NIFLA outline due Thursday. I repeated that there is no need to repeat an answer to a question if the answer will be given in the sub-segments that follow a question. I also reminded the class that if additional segments are added, they should be in parentheses. I also emphasized that questions and answers should be as specific as possible.
We then finished our class outline of Thomas' NIFLA opinion. Getting what Thomas was saying is crucial to understanding what Breyer was responding to. Along the way, I drew a Venn diagram showing what the concept of being "underinclusive" looks like.
The assignment for Thursday 11/15 is the finish your Breyer NIFLA outline, due at the beginning of Thursday's class. In addition, read and prepare to discuss today's Lozman opinion
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/13, I first discussed a few aspects of the Klein case brief due next Tuesday. I went over the instruction that says to ignore all parts of the case that don't involve the two issues that made it to my edited version of the case, including in your cause of action, prior proceedings, etc. And for prior proceedings, I explained that you should treat the final BOLI order (¶19) as the only prior proceeding to which you should refer, and even that, only as to our two issues.
We then discussed Glassford v. BrickKicker, putting that case into our case brief format. We went through all three issues that the Vermont court decided. Along the way, I went over the meaning of a summary judgment motion.
The assignment for Thursday 11/15 is to read and brief (for yourselves) Caperton v. Massey Coal, reading through the end of Chapter 2 of the text. Also, continue working on your Klein case briefs, due at the beginning of class next Tuesday 11/20.
In class today, Tuesday 11/13, I distributed one handout, the recent Supreme Court opinion in Lozman v, Riviera Beach. After giving some background to that case, we talked a little about the Breyer NIFLA outline due Thursday. I repeated that there is no need to repeat an answer to a question if the answer will be given in the sub-segments that follow a question. I also reminded the class that if additional segments are added, they should be in parentheses. I also emphasized that questions and answers should be as specific as possible.
We then finished our class outline of Thomas' NIFLA opinion. Getting what Thomas was saying is crucial to understanding what Breyer was responding to. Along the way, I drew a Venn diagram showing what the concept of being "underinclusive" looks like.
The assignment for Thursday 11/15 is the finish your Breyer NIFLA outline, due at the beginning of Thursday's class. In addition, read and prepare to discuss today's Lozman opinion
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/13, I first discussed a few aspects of the Klein case brief due next Tuesday. I went over the instruction that says to ignore all parts of the case that don't involve the two issues that made it to my edited version of the case, including in your cause of action, prior proceedings, etc. And for prior proceedings, I explained that you should treat the final BOLI order (¶19) as the only prior proceeding to which you should refer, and even that, only as to our two issues.
We then discussed Glassford v. BrickKicker, putting that case into our case brief format. We went through all three issues that the Vermont court decided. Along the way, I went over the meaning of a summary judgment motion.
The assignment for Thursday 11/15 is to read and brief (for yourselves) Caperton v. Massey Coal, reading through the end of Chapter 2 of the text. Also, continue working on your Klein case briefs, due at the beginning of class next Tuesday 11/20.
Thursday, November 8, 2018
November 8, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/8, we began by finishing our discussion of Alvarez. I talked about Google's decision to pull ads from Crisis Pregnancy Centers because they were misleading, and about the local ordinances in San Francisco and Oakland that outlawed certain Crisis Pregnancy Center ads as deceptive advertising, and how both of those situations were different from the issue in NIFLA. We then moved on to Thomas' opinion in NIFLA. We looked at the outline that Thomas provided, and we put labels (questions, or questions and answers) on those parts. We also added some sub-elements to Thomas' structure, and talked about how to know when to add sub-elements.
I did make two modifications to the Breyer Assignment:
1) The assignment asked for questions (but no answer) for Roman Numerals, and questions and answers for all other elements of the outline. I changed that to be questions (but no answer) for any part of the outline that is further broken down, where those sub-elements together provide the answer to the bigger question. In other words, there is nowhere in the outline that you need to repeat an answer. For example, if the question for Thomas' I A is "What are the statute's notice requirements for both licensed and unlicensed facilities?", you don't need to answer that question right in "A" if you are going to add sub-elements to "A" (dividing it into (1)licensed and (2)unlicensed facilities) and answering the questions in those added elements.
2) If you add sub-elements to the opinion's structure, put those added elements in parentheses in your outline.
We got as far as Thomas' ¶23, which is where we'll pick up next Tuesday.
We also discussed the procedural posture of this case. It reached the Supreme Court still in the stage of a preliminary injunction. We went over Temporary Restraining Orders and Preliminary injunctions, and how this case is really about the likelihood of success.
The assignment for Tuesday 11/13 is to review Thomas' NIFLA opinion, and to continue work on your outline of the Breyer's dissent, due at the beginning of Thursday's class, 11/15.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/8, I distributed two handouts, Assignment #2 (reproduced below) and the case you'll be briefing, Klein v. Oregon BOLI. We went over the assignment, and the particular rules regarding it: its prior proceeding are administrative (not in court) and I have edited out many of the original issues raised in the case. (The assignment gives instructions for how to deal with these.) We then finished our discussion of Lawrence v. Texas. We saw how Kennedy looked as if he was doing a "fundamental rights" analysis, and then switched to a "legitimate interest" test. We discussed the nature of substantive due process claims as claims that there are choices by the individual that the majority may not take away from the individual. We saw how Kennedy characterized that right here as the right to form an intimate personal relationship, not just the right to choose how to have sex.
We then began our discussion of Glassford v. BrickKicker. We talked about why businesses may want arbitration rather than a court process, including the question of class actions in court versus individual arbitration in arbitration clauses. We will continue with the exact issues in Glassford next Tuesday.
The assignment for Tuesday 11/13 is to review Glassford, and to begin work on your Klein case brief.
Assignment due Tuesday, November 20, 2018
The assignment (graded) is to do a Case Brief of the edited version of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Oregon Ct. of App., 2017) (also distributed to the class today). I have edited out much of the original case, leaving only two issues: Free Exercise of Religion and Commissioner’s Failure to Recuse Himself. Because of this editing, you in your case brief should likewise confine yourself to those two issues, including for the “set-up” portions of the brief such as Prior Proceedings and Contentions on Appeal. Also, because this is an appeal from an administrative agency, treat the agency’s decision as the prior proceeding.
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.
For this brief, include only the winner’s facts (“..., when...”) and not the loser’s facts (“..., even though...”)
Follow the format from the Sample Briefs that I’ve distributed. For this assignment, do not include the loser’s facts (the “even though” portion of the facts).
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 Tuesday 11/20, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. To the extent that we discuss this case in class, do not share that discussion with others, even if they have missed class. Do no outside research. Do not troll the internet. Just work from the handout itself. See the syllabus regarding plagiarism and collaboration.
In class today, Thursday 11/8, we began by finishing our discussion of Alvarez. I talked about Google's decision to pull ads from Crisis Pregnancy Centers because they were misleading, and about the local ordinances in San Francisco and Oakland that outlawed certain Crisis Pregnancy Center ads as deceptive advertising, and how both of those situations were different from the issue in NIFLA. We then moved on to Thomas' opinion in NIFLA. We looked at the outline that Thomas provided, and we put labels (questions, or questions and answers) on those parts. We also added some sub-elements to Thomas' structure, and talked about how to know when to add sub-elements.
I did make two modifications to the Breyer Assignment:
1) The assignment asked for questions (but no answer) for Roman Numerals, and questions and answers for all other elements of the outline. I changed that to be questions (but no answer) for any part of the outline that is further broken down, where those sub-elements together provide the answer to the bigger question. In other words, there is nowhere in the outline that you need to repeat an answer. For example, if the question for Thomas' I A is "What are the statute's notice requirements for both licensed and unlicensed facilities?", you don't need to answer that question right in "A" if you are going to add sub-elements to "A" (dividing it into (1)licensed and (2)unlicensed facilities) and answering the questions in those added elements.
2) If you add sub-elements to the opinion's structure, put those added elements in parentheses in your outline.
We got as far as Thomas' ¶23, which is where we'll pick up next Tuesday.
We also discussed the procedural posture of this case. It reached the Supreme Court still in the stage of a preliminary injunction. We went over Temporary Restraining Orders and Preliminary injunctions, and how this case is really about the likelihood of success.
The assignment for Tuesday 11/13 is to review Thomas' NIFLA opinion, and to continue work on your outline of the Breyer's dissent, due at the beginning of Thursday's class, 11/15.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/8, I distributed two handouts, Assignment #2 (reproduced below) and the case you'll be briefing, Klein v. Oregon BOLI. We went over the assignment, and the particular rules regarding it: its prior proceeding are administrative (not in court) and I have edited out many of the original issues raised in the case. (The assignment gives instructions for how to deal with these.) We then finished our discussion of Lawrence v. Texas. We saw how Kennedy looked as if he was doing a "fundamental rights" analysis, and then switched to a "legitimate interest" test. We discussed the nature of substantive due process claims as claims that there are choices by the individual that the majority may not take away from the individual. We saw how Kennedy characterized that right here as the right to form an intimate personal relationship, not just the right to choose how to have sex.
We then began our discussion of Glassford v. BrickKicker. We talked about why businesses may want arbitration rather than a court process, including the question of class actions in court versus individual arbitration in arbitration clauses. We will continue with the exact issues in Glassford next Tuesday.
The assignment for Tuesday 11/13 is to review Glassford, and to begin work on your Klein case brief.
Assignment due Tuesday, November 20, 2018
The assignment (graded) is to do a Case Brief of the edited version of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Oregon Ct. of App., 2017) (also distributed to the class today). I have edited out much of the original case, leaving only two issues: Free Exercise of Religion and Commissioner’s Failure to Recuse Himself. Because of this editing, you in your case brief should likewise confine yourself to those two issues, including for the “set-up” portions of the brief such as Prior Proceedings and Contentions on Appeal. Also, because this is an appeal from an administrative agency, treat the agency’s decision as the prior proceeding.
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.
For this brief, include only the winner’s facts (“..., when...”) and not the loser’s facts (“..., even though...”)
Follow the format from the Sample Briefs that I’ve distributed. For this assignment, do not include the loser’s facts (the “even though” portion of the facts).
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 Tuesday 11/20, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. To the extent that we discuss this case in class, do not share that discussion with others, even if they have missed class. Do no outside research. Do not troll the internet. Just work from the handout itself. See the syllabus regarding plagiarism and collaboration.
Tuesday, November 6, 2018
November 6, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 11/6, I distributed two handouts: assignment #2 (reproduced below) and the opinion you'll be outlining, Breyer's dissent in NIFLA v. Becerra. I went over the requirements of the assignment. We then talked about a recent poll that reported that one-third of college students felt that violence was justified in order to stop hate speech. We counted votes in Alvarez, and then went through the plurality opinion. We began by reviewing the flow chart of strict scrutiny, and then saw how for Kennedy, government was able to jump the compelling interest hurdle, but not the necessary and causal link hurdle. We also went over the categories of unprotected speech, and saw how Kennedy was loathe to expand that list. We saw how Breyer's concurrence disagreed with the flow chart altogether, and favoring a balancing test instead of a high hurdles/low hurdles pigeon-holing. We will begin on Thursday with the dissent in Alvarez, and then move on to the majority opinion in NIFLA.
The assignment for Thursday 11/8 is to review Alvarez and the majority NIFLA opinion, and begin work on assignment #2. In reviewing Thomas' NIFLA opinion, work out the outline for the opinion (not handed in or graded, but definitely useful for the assignment).
Assignment due at the beginning of class Thursday, November 15, 2018
The assignment is to do an outline of Justice Breyer’s dissenting opinion in NIFLA v. Becerra (also distributed to the class today).
Follow the format from the Sample Outlines that I’ve distributed, with the following clarification: Use Question only for the Roman numerals, and then Question and Answer for all the other elements. Both the questions and the answers should be complete sentences.
The structure should go like this:
Roman numeral; Capital Letter; Numbers; Lower Case Letter; Lower Case Roman Numerals.
For example:
I. (Question)
A. (Question and Answer)
1. (Question and Answer)
2. (Question and Answer)
a. (Question and Answer)
b. (Question and Answer)
i. (Question and Answer)
ii. (Question and Answer)
B. (Question and Answer)
II. (Question)
Follow the structure already provided by Justice Breyer:
Introductory paragraph
I.
A.
B.
C.
1.
2.
D.
II.
Add additional sub-elements to this as is appropriate, but don’t alter Breyer’s structure. What makes an additional sub-element appropriate? Basically, it's when Breyer is addressing a different question.
If there’s a (1), there should be a (2). If you’ve only got one thing to say, just say it without the further division.
Here’s my suggestion for the best way to proceed: First, figure out what the thought is for each paragraph. Second, group the paragraphs together in terms of what question they are addressing. Last, put the actual questions in, with the roman numerals questions as the final thing. In other words, work from smallest to largest.
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 Thursday 11/15, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
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. Do not do any outside research. Just work from the handout itself. Do not troll the internet. See the syllabus regarding plagiarism and collaboration. The only source you can address for questions or feedback is me.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/6, we first went through the Maine Hindering Apprehension statute and discussed how Ms. Mobbley might be charged. We then discussed the Holland case, both in terms of the creation of common law crimes, and then in terms of the crime of failing to report a felony. We looked at the Maine statute regarding common law crimes, and then looked at the Maine statutes that do impose a duty to report crimes or neglect in certain limited situations. We also looked at the federal statute about misprision of a felony. Then we turned to Lawrence v. Texas. We talked about the difference between the due process and the equal protection claims, the precedent of Bowers v Hardwick, and the reason for the decision to deal with due process instead of equal protection. We saw how Kennedy looked at both the description of the right asserted and the history and tradition of those restrictive laws, and found Hardwick lacking in both questions. We will pick up on Thursday with a look at the precedent relied on by Kennedy.
The assignment for Thursday 11/8 is to review Lawrence v. Texas, and to read in addition through p. 77 of the text, including Glassford v. BrickKicker.
In class today, Tuesday 11/6, I distributed two handouts: assignment #2 (reproduced below) and the opinion you'll be outlining, Breyer's dissent in NIFLA v. Becerra. I went over the requirements of the assignment. We then talked about a recent poll that reported that one-third of college students felt that violence was justified in order to stop hate speech. We counted votes in Alvarez, and then went through the plurality opinion. We began by reviewing the flow chart of strict scrutiny, and then saw how for Kennedy, government was able to jump the compelling interest hurdle, but not the necessary and causal link hurdle. We also went over the categories of unprotected speech, and saw how Kennedy was loathe to expand that list. We saw how Breyer's concurrence disagreed with the flow chart altogether, and favoring a balancing test instead of a high hurdles/low hurdles pigeon-holing. We will begin on Thursday with the dissent in Alvarez, and then move on to the majority opinion in NIFLA.
The assignment for Thursday 11/8 is to review Alvarez and the majority NIFLA opinion, and begin work on assignment #2. In reviewing Thomas' NIFLA opinion, work out the outline for the opinion (not handed in or graded, but definitely useful for the assignment).
Assignment due at the beginning of class Thursday, November 15, 2018
The assignment is to do an outline of Justice Breyer’s dissenting opinion in NIFLA v. Becerra (also distributed to the class today).
Follow the format from the Sample Outlines that I’ve distributed, with the following clarification: Use Question only for the Roman numerals, and then Question and Answer for all the other elements. Both the questions and the answers should be complete sentences.
The structure should go like this:
Roman numeral; Capital Letter; Numbers; Lower Case Letter; Lower Case Roman Numerals.
For example:
I. (Question)
A. (Question and Answer)
1. (Question and Answer)
2. (Question and Answer)
a. (Question and Answer)
b. (Question and Answer)
i. (Question and Answer)
ii. (Question and Answer)
B. (Question and Answer)
II. (Question)
Follow the structure already provided by Justice Breyer:
Introductory paragraph
I.
A.
B.
C.
1.
2.
D.
II.
Add additional sub-elements to this as is appropriate, but don’t alter Breyer’s structure. What makes an additional sub-element appropriate? Basically, it's when Breyer is addressing a different question.
If there’s a (1), there should be a (2). If you’ve only got one thing to say, just say it without the further division.
Here’s my suggestion for the best way to proceed: First, figure out what the thought is for each paragraph. Second, group the paragraphs together in terms of what question they are addressing. Last, put the actual questions in, with the roman numerals questions as the final thing. In other words, work from smallest to largest.
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 Thursday 11/15, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
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. Do not do any outside research. Just work from the handout itself. Do not troll the internet. See the syllabus regarding plagiarism and collaboration. The only source you can address for questions or feedback is me.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/6, we first went through the Maine Hindering Apprehension statute and discussed how Ms. Mobbley might be charged. We then discussed the Holland case, both in terms of the creation of common law crimes, and then in terms of the crime of failing to report a felony. We looked at the Maine statute regarding common law crimes, and then looked at the Maine statutes that do impose a duty to report crimes or neglect in certain limited situations. We also looked at the federal statute about misprision of a felony. Then we turned to Lawrence v. Texas. We talked about the difference between the due process and the equal protection claims, the precedent of Bowers v Hardwick, and the reason for the decision to deal with due process instead of equal protection. We saw how Kennedy looked at both the description of the right asserted and the history and tradition of those restrictive laws, and found Hardwick lacking in both questions. We will pick up on Thursday with a look at the precedent relied on by Kennedy.
The assignment for Thursday 11/8 is to review Lawrence v. Texas, and to read in addition through p. 77 of the text, including Glassford v. BrickKicker.
Thursday, November 1, 2018
November 1, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 11/1, I distributed one handout, the majority and concurring opinions in the recent Supreme Court case of National Institute of Family and Life Advocates (NIFLA) v. Becerra. We then went through Snyder v. Phelps. I also talked about the history of free speech protection in defamation and infliction of emotional distress cases, starting with New York Times v. Sullivan. We went over the protections for public officials, and then public figures, and then matters of public concern. I talked about the web site that the Phelps family ran, and how the Supreme Court avoided the issue of the rules for web-based attacks. This led to a discussion of another recent Supreme Court, U.S. v. Elonis, that also ducked the issue of on-line threats and their free speech protection. In Elonis, the Court ruled instead on the implied (not spelled out in the text of the statute) mental state required for a conviction for threatening: negligence (on which the jury had been instructed) was not sufficient, and intent or knowledge was sufficient. On Tuesday we will pick up with U.S. v. Alvarez.
The assignment for Tuesday 11/6 is to review U.S. v. Alvarez (textbook; previously assigned), and read and prepare to discuss both the outline and the substance of today's handout of NIFLA.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/1, I distributed one handout, excerpts from Maine and federal statutes about hindering apprehension, common law crimes, and duty to report, and misprision of a felony. We began our discussion by finishing the dissenting opinions in Gregg v. Georgia. We saw how Brennan and Marshall differed from each other, as well as from the plurality opinion. We went through the Mobbley case, looking at the rules of statutory interpretation. I also used Mobbley to discuss the concept of dictum, statements made by the Court that are not strictly needed in order for the Court to reach its holding. I went over the President's proposal for an executive order to end U.S. citizenship by birth, and how statements made by the U.S. Supreme Court in an old case might be characterized as dictum. Finally we looked at the Maine statute about hindering apprehension, and saw that Maine has no spousal safe-haven similar to the one in Mobbley. We will pick up next week with the question of the exact crime with which the prosecution might charge Ms. Mobbley if her conduct had happened in Maine.
The assignment for Tuesday 11/6 is to read today's handout, review Holland (previously assigned) and to read in addition in the text through p. 72 (including Lawrence v. Texas).
In class today, Thursday 11/1, I distributed one handout, the majority and concurring opinions in the recent Supreme Court case of National Institute of Family and Life Advocates (NIFLA) v. Becerra. We then went through Snyder v. Phelps. I also talked about the history of free speech protection in defamation and infliction of emotional distress cases, starting with New York Times v. Sullivan. We went over the protections for public officials, and then public figures, and then matters of public concern. I talked about the web site that the Phelps family ran, and how the Supreme Court avoided the issue of the rules for web-based attacks. This led to a discussion of another recent Supreme Court, U.S. v. Elonis, that also ducked the issue of on-line threats and their free speech protection. In Elonis, the Court ruled instead on the implied (not spelled out in the text of the statute) mental state required for a conviction for threatening: negligence (on which the jury had been instructed) was not sufficient, and intent or knowledge was sufficient. On Tuesday we will pick up with U.S. v. Alvarez.
The assignment for Tuesday 11/6 is to review U.S. v. Alvarez (textbook; previously assigned), and read and prepare to discuss both the outline and the substance of today's handout of NIFLA.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/1, I distributed one handout, excerpts from Maine and federal statutes about hindering apprehension, common law crimes, and duty to report, and misprision of a felony. We began our discussion by finishing the dissenting opinions in Gregg v. Georgia. We saw how Brennan and Marshall differed from each other, as well as from the plurality opinion. We went through the Mobbley case, looking at the rules of statutory interpretation. I also used Mobbley to discuss the concept of dictum, statements made by the Court that are not strictly needed in order for the Court to reach its holding. I went over the President's proposal for an executive order to end U.S. citizenship by birth, and how statements made by the U.S. Supreme Court in an old case might be characterized as dictum. Finally we looked at the Maine statute about hindering apprehension, and saw that Maine has no spousal safe-haven similar to the one in Mobbley. We will pick up next week with the question of the exact crime with which the prosecution might charge Ms. Mobbley if her conduct had happened in Maine.
The assignment for Tuesday 11/6 is to read today's handout, review Holland (previously assigned) and to read in addition in the text through p. 72 (including Lawrence v. Texas).
Tuesday, October 30, 2018
October 30, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 10/30, I returned the Masterpiece papers, along with a Comment Key to some of my comments on the papers. We went over the assignment and the comment sheet. I then talked more about the standard for incitement under the law, and we looked both at the dissent by Holmes and Brandeis in the Gitlow case (p. 200 of the text) and the social media posts by the alleged shooter in Pittsburgh, Robert Bowers. We then went to the opinions in the McCullen v. Coakley case, looking at the nature of the forum, the analysis of content-neutrality, and the analysis of narrow tailoring, all for both the majority and the concurrence.
The assignment for Thursday 11/1 is to read in the text pp. 247-259, including both Snyder v. Phelps and Alvarez.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/30, I returned the Paffhausen case briefs, along with a Comment Key to some of my comments on the brief, and my own version of the Paffhausen case brief. I also distributed an article about how the 1972 Furman case came very close to finding capital punishment a per se violation of the cruel and unusual clause of the 8th Amendment. We went through the case briefs and what I was looking for. We then turned to Chapter 2 of the text and Gregg v. Georgia, We got through the plurality opinion, and began discussing both the Brennan and the Marshall dissents. We will pick up with those dissents on Thursday.
The assignment for Thursday 11/1 is to review Gregg and read in the text through p.67 (including both Mobbley and Holland).
In class today, Tuesday 10/30, I returned the Masterpiece papers, along with a Comment Key to some of my comments on the papers. We went over the assignment and the comment sheet. I then talked more about the standard for incitement under the law, and we looked both at the dissent by Holmes and Brandeis in the Gitlow case (p. 200 of the text) and the social media posts by the alleged shooter in Pittsburgh, Robert Bowers. We then went to the opinions in the McCullen v. Coakley case, looking at the nature of the forum, the analysis of content-neutrality, and the analysis of narrow tailoring, all for both the majority and the concurrence.
The assignment for Thursday 11/1 is to read in the text pp. 247-259, including both Snyder v. Phelps and Alvarez.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/30, I returned the Paffhausen case briefs, along with a Comment Key to some of my comments on the brief, and my own version of the Paffhausen case brief. I also distributed an article about how the 1972 Furman case came very close to finding capital punishment a per se violation of the cruel and unusual clause of the 8th Amendment. We went through the case briefs and what I was looking for. We then turned to Chapter 2 of the text and Gregg v. Georgia, We got through the plurality opinion, and began discussing both the Brennan and the Marshall dissents. We will pick up with those dissents on Thursday.
The assignment for Thursday 11/1 is to review Gregg and read in the text through p.67 (including both Mobbley and Holland).
Thursday, October 25, 2018
October 25, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 10/25, I handed back Exam #1, and we went over it. I collected the Assignment #1 papers. We discussed whether the transgender case had any significant differences from the wedding cake case.
The assignment for Tuesday 10/30 is to review McCullen v. Coakley (previously assigned) and to also review Thomas' free speech analysis in Masterpiece Cakeshop (also previously assigned).
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/25, I handed back Exam #1, and we went over it. I collected the Case Brief #1 papers, and we went through part of the case brief. We will finish Paffhausen on Tuesday.
The assignment for Tuesday 10/30 is to read in textbook through p. 58 (including Gregg v. Georgia).
In class today, Thursday 10/25, I handed back Exam #1, and we went over it. I collected the Assignment #1 papers. We discussed whether the transgender case had any significant differences from the wedding cake case.
The assignment for Tuesday 10/30 is to review McCullen v. Coakley (previously assigned) and to also review Thomas' free speech analysis in Masterpiece Cakeshop (also previously assigned).
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/25, I handed back Exam #1, and we went over it. I collected the Case Brief #1 papers, and we went through part of the case brief. We will finish Paffhausen on Tuesday.
The assignment for Tuesday 10/30 is to read in textbook through p. 58 (including Gregg v. Georgia).
Tuesday, October 23, 2018
October 23, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 10/23, the class took Exam #1. I plan to return the exams on Thursday, and we will go over them.
The assignment for Thursday 10/25 to to finish up work on Assignment #1, which is due at the beginning of Thursday's class.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/23, the class took Exam #1. I plan to return the exams on Thursday, and we will go over them.
The assignment for Thursday 10/25 to to finish up work on Case Brief #1, which is due at the beginning of Thursday's class.
In class today, Tuesday 10/23, the class took Exam #1. I plan to return the exams on Thursday, and we will go over them.
The assignment for Thursday 10/25 to to finish up work on Assignment #1, which is due at the beginning of Thursday's class.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/23, the class took Exam #1. I plan to return the exams on Thursday, and we will go over them.
The assignment for Thursday 10/25 to to finish up work on Case Brief #1, which is due at the beginning of Thursday's class.
Thursday, October 18, 2018
October 18, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 10/18, we first finished our discussion of Texas v. Johnson. I went through Brennan's flow chart, and we saw how the evaluation of the government purposes led the Court to strict scrutiny. We then saw how strict scrutiny was not satisfied. We contrasted several of Brennan's holding with the view of the dissent, including the uniqueness of the flag, the role of the political judgment of 48 of the states, and the availability of the remaining avenues of expression. We then discussed Brandenburg v. Ohio, and the requirement of the likelihood of imminent violence as the test for incitement of violence. Finally we went as far into McCullen v. Coakley as the question of whether the Massachusetts law was content-based.
On Tuesday 10/23, we will have Exam #1. If you are missing any handouts and want me to have them for you, you need to email me with your request by 8:00 pm on Monday evening. Also, remember that Assignment #1 is due at the beginning of class on Thursday 10/25.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/18, we finished up our discussion of Suggs v. Norris. We looked at three issues that the court dealt with: the legal standard for cohabiting partner agreements, whether there was evidence that the legal standard was met, and whether the work was gratuitous. We talked about the deference that the appellate court owes to the trial court in terms of findings of fact. We then talked about Paffhausen v. Balano. We saw how the structure of the two cases was similar: first decide what the legal rule is, and then ask what evidence there was that the rule was satisfied. We also looked at the authority relied on by the Paffhausen court. I talked about the ultimate disposition of the Paffhausen case on remand, where Paffhausen still did not get what he was looking for after two trips to the Maine Supreme Court.
On Tuesday 10/23, we will have Exam #1. If you are missing any handouts and want me to have them for you, you need to email me with your request by 8:00 pm on Monday evening. Also, remember that Case Brief #1 is due at the beginning of class on Thursday 10/25.
In class today, Thursday 10/18, we first finished our discussion of Texas v. Johnson. I went through Brennan's flow chart, and we saw how the evaluation of the government purposes led the Court to strict scrutiny. We then saw how strict scrutiny was not satisfied. We contrasted several of Brennan's holding with the view of the dissent, including the uniqueness of the flag, the role of the political judgment of 48 of the states, and the availability of the remaining avenues of expression. We then discussed Brandenburg v. Ohio, and the requirement of the likelihood of imminent violence as the test for incitement of violence. Finally we went as far into McCullen v. Coakley as the question of whether the Massachusetts law was content-based.
On Tuesday 10/23, we will have Exam #1. If you are missing any handouts and want me to have them for you, you need to email me with your request by 8:00 pm on Monday evening. Also, remember that Assignment #1 is due at the beginning of class on Thursday 10/25.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/18, we finished up our discussion of Suggs v. Norris. We looked at three issues that the court dealt with: the legal standard for cohabiting partner agreements, whether there was evidence that the legal standard was met, and whether the work was gratuitous. We talked about the deference that the appellate court owes to the trial court in terms of findings of fact. We then talked about Paffhausen v. Balano. We saw how the structure of the two cases was similar: first decide what the legal rule is, and then ask what evidence there was that the rule was satisfied. We also looked at the authority relied on by the Paffhausen court. I talked about the ultimate disposition of the Paffhausen case on remand, where Paffhausen still did not get what he was looking for after two trips to the Maine Supreme Court.
On Tuesday 10/23, we will have Exam #1. If you are missing any handouts and want me to have them for you, you need to email me with your request by 8:00 pm on Monday evening. Also, remember that Case Brief #1 is due at the beginning of class on Thursday 10/25.
Tuesday, October 16, 2018
October 16, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 10/16, we first did a practice test in preparation for Exam #1 next Tuesday (10/23). I also reminded the class of Assignment #1, due Thursday 10/25. We then went through U.S. v. O'Brien. We discussed this as an "as-applied" challenge, in contrast to a "facial" challenge. We looked at how the Court dealt with the question of whether this draft-card burning was "speech" at all, and then the flow chart of how the government could justify this restriction. We then followed the same footsteps in going through Texas v. Johnson. We got as far as the state's justification in terms of preventing a breach of the peace, both an actual fight and the likelihood of a fight. That's where we'll pick up on Thursday.
The assignment for Thursday 10/18 is to work on your Assignment #1, prepare for Exam #1, and review Texas v. Johnson. In addition, read in the text pp. 216-219 (Brandenburg) and pp. 242-247 (McCullen v. Coakley).
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/16, I distributed two handouts, a practice test and the Maine statute regarding use of force in defense of premises. We did the practice test in preparation for Exam #1 next Tuesday (10/23). I also reminded the class of Assignment #1, due Thursday 10/25. We then went through the Maine statute, asking as we went along how Mr. Briney would fare under Maine's criminal statute. Finally we went back to Suggs v. Norris, getting up to the "facts" of the first issue, the public policy question.
The assignment for Thursday 10/18 is to review Suggs v. Norris and its case brief, study for the exam and work on the assignment.
In class today, Tuesday 10/16, we first did a practice test in preparation for Exam #1 next Tuesday (10/23). I also reminded the class of Assignment #1, due Thursday 10/25. We then went through U.S. v. O'Brien. We discussed this as an "as-applied" challenge, in contrast to a "facial" challenge. We looked at how the Court dealt with the question of whether this draft-card burning was "speech" at all, and then the flow chart of how the government could justify this restriction. We then followed the same footsteps in going through Texas v. Johnson. We got as far as the state's justification in terms of preventing a breach of the peace, both an actual fight and the likelihood of a fight. That's where we'll pick up on Thursday.
The assignment for Thursday 10/18 is to work on your Assignment #1, prepare for Exam #1, and review Texas v. Johnson. In addition, read in the text pp. 216-219 (Brandenburg) and pp. 242-247 (McCullen v. Coakley).
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/16, I distributed two handouts, a practice test and the Maine statute regarding use of force in defense of premises. We did the practice test in preparation for Exam #1 next Tuesday (10/23). I also reminded the class of Assignment #1, due Thursday 10/25. We then went through the Maine statute, asking as we went along how Mr. Briney would fare under Maine's criminal statute. Finally we went back to Suggs v. Norris, getting up to the "facts" of the first issue, the public policy question.
The assignment for Thursday 10/18 is to review Suggs v. Norris and its case brief, study for the exam and work on the assignment.
Thursday, October 11, 2018
October 11, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 10/11, I distributed one handout, assignment #1, which is reproduced below. We went over the requirements of the assignment. I also went over the upcoming schedule for the next few weeks. On Tuesday 10/16 we will have an in-class exercise of practice questions for Exam #1. We will have Exam #1 on Tuesday 10/23. Assignment #1 will be due Thursday 10/25.
We went over the remaining Masterpiece opinions, including reviewing Kagan, and discussing Gorsuch, Thomas, and Ginsburg. Our discussion was focused on the question for Assignment #1, whether reaching a different result for Phillips and the Jack bakers is inherently inconsistent and therefore explained only as an expression of hostility to Phillips' religion.
Then we began our discussion of free speech by going over the definition of "free" and "speech", including the concepts of prior restraints, the Alien and Sedition Acts, and symbolic speech. We began our discussion of draft-burning and the O'Brien case, which is where we'll start on Tuesday.
The assignment for Tuesday 10/16 is to review the pages already assigned in the text (224-233) and to read in addition pp. 221-224. Also review Thomas' concurrence in Masterpiece.
POS 384 Assignment #1 due Thursday, October 25th
Congratulations! President Trump has summoned you to Trump Tower, and offered you the position of Legal Analyst. This newly created position objectively analyzes up-coming cases in accordance with existing precedent. This is all in the service of improving the legal quality of the President’s tweets.
Your first assignment is to do an analysis of the current case brought by the Colorado baker Jack Phillips against the Colorado Civil Rights Commission (CCRC). The case was discussed in the Washington Post article by Amy Wang that I distributed to the class on September 25th. Autumn Scardina wanted a cake to celebrate, in part, the anniversary of the date that she had come out as transgender. Phillips refused to bake such a cake because “it would have celebrated messages contrary to his religious belief that sex — the status of being male or female — is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed”. The CCRC ruled that there was probable cause that Phillips had discriminated against Scardina on the basis of gender identity (and assume that gender identity is a protected class under the Colorado anti-discrimination statute).
As you know, the Supreme Court in its Masterpiece Cakeshop opinion did not ultimately rule on whether Phillips could refuse to bake the wedding cake for the same-sex couple. Rather, the Court ruled that the consideration of Phillips’ claim had been tainted by hostility to his religious beliefs.
Assume that in the current transgender case, the members of the CCRC say nothing about “despicable rhetoric”, nor anything about leaving his religion beliefs out of his business practices, or anything like that. The only possible expression of hostility to Phillips' religious views would be in different outcomes for Phillips and Mr. Jack (yes, Mr. Jack's back).
Assume that Phillips would testify that he would bake other cakes for a transgender person, just as long as they didn’t convey a message of celebration of being transgender. He will also testify that he would bake the identical pink and blue cake under different circumstances (say for a male and female twins).
Assume also Mr. Jack goes to the same three bakers that he went to previously, and asks them to bake cakes bearing the message “Changing genders is a sin unto the Lord”. Assume that the three bakers refuse to bake cakes with such a message (for anyone), and that the CCRC rules in favor of the Jack bakers, but rules against Phillips. Assume that the three bakers would testify that they would bake other cakes for Mr. Jack, just as long as the cakes didn’t convey a message of demeaning someone who is transgender.
The question for you to address is whether the CCRC can have different outcomes for the Phillips case and the Jack cases, or do different outcomes inherently represent impermissible hostility to Phillips’ religious convictions? As the Alliance Defending Freedom (representing Phillips) puts it: “[I]t seems like some in the state government are hellbent on punishing Jack for living according to his faith. If that isn’t hostility, what is?”
What do you have to work with? There are the five opinions from Masterpiece: the Kennedy opinion unadorned (which now represents only the view of Roberts); the Kagan concurrence; the Gorsuch concurrence; the Thomas concurrence; and the Ginsburg dissent. They all had something to say about the analysis of hostility without the comments of the Commissioners. You are not giving your own opinion, but analyzing those five Supreme Court opinions.
The paper should have five sections tracking the five opinions. I expect the sections to be about a half page long or so, so a total of around three pages for the assignment.
Use no other cases, and do no outside research. This assignment is totally based on what’s in the Masterpiece opinions.
The President wants a very particular format: a few sentences explaining what each Masterpiece opinion had to say about how the case comes out without the comments of the Commissioners, and then a few sentences explaining whether the transgender case is different from the wedding cake case. If so moved, you may suggest a succinct tweet to the President.
Don’t give any introduction to the paper, or history of the case, etc. Just get right to the analysis. No fluff.
Be specific as possible. Make your language as clear and simple as possible. Remember your audience. Use your own words as much as possible. Quote only in snippets and only where the exact words of an opinion are important. If you quote or are otherwise taking your analysis from a specific paragraph, give the paragraph number, as in "Ginsburg at ¶7".
The assignment will be graded on both the structure and the content of your analysis. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion. I would expect the paper to be in the neighborhood of three pages long.
You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.
I am the only person with whom you can discuss, question, clarify, etc. any aspect of this assignment.
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. Do not troll the internet for other people’s analysis. The idea is to think it out for yourself. See the syllabus regarding plagiarism and collaboration.
The assignment is due at the beginning of class on Thursday 10/25. If you cannot be in class on that day, you should still e-mail me your assignment by the beginning of the class. 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. See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/11, I distributed two handouts, Assignment #1, which is reproduced below, and the case you'll be briefing, Paffhausen v. Balano. We went over the requirements of the assignment. I also went over the upcoming schedule for the next few weeks. On Tuesday 10/16 we will have an in-class exercise of practice questions for Exam #1. We will have Exam #1 on Tuesday 10/23. Assignment #1 will be due Thursday 10/25.
We then finished Katko v. Briney. We looked at the punitive damages issue, and how the failure to timely raise it cost the Brineys the opportunity to make their case. We went over the views of the dissent. We then went back and looked at the authority relied on by the court. We discussed primary authority v. secondary authority.
We began our discussion of Suggs v. Norris. We discussed the basic public policy issue, and how the court resolved it. We looked again at the authority relied on by the court. We went through the case brief of the case as far as the prior proceedings. We will pick there at that point on Tuesday. Also, I plan to distribute to the class the Maine criminal statute regarding the use of force in defense of property and premises.
The assignment for Tuesday 10/16 is to review Suggs, and begin work on your Paffhausen case brief, due 10/25.
Assignment due Thursday, October 25, 2018
The assignment (graded) is to do a Case Brief of the case of Paffhausen v. Balano, 1998 ME 47, 708 A.2d 269 (also distributed to the class today).
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 (from Speelman): Under the 14th Amendment requirement of due process, is sending a notice addressed to the residence of the tenant reasonably calculated to reach her when the sender knew at the time that it sent the notice that the tenant was in jail, and she therefore would not receive the notice sent to her residence (even though addressing the notice to the place of residence is under most circumstances reasonably calculated to reach the tenant)?
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. That depends largely on what you identify as "facts" of the case.
What are “facts”? Facts are not the story of the case. They are not the rules that govern a case. They are not the legal arguments of the parties. They are not the legal conclusions of the Court. “Facts” are the circumstances that the Court looks at in order to decide the legal question.
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.
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 troll the internet to find other commentary of the case. The work needs to be entirely your own. I am the only person with whom you can discuss, question, clarify, etc. any aspect of this assignment.
If you cannot be in class on Thursday 10/25, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
In class today, Thursday 10/11, I distributed one handout, assignment #1, which is reproduced below. We went over the requirements of the assignment. I also went over the upcoming schedule for the next few weeks. On Tuesday 10/16 we will have an in-class exercise of practice questions for Exam #1. We will have Exam #1 on Tuesday 10/23. Assignment #1 will be due Thursday 10/25.
We went over the remaining Masterpiece opinions, including reviewing Kagan, and discussing Gorsuch, Thomas, and Ginsburg. Our discussion was focused on the question for Assignment #1, whether reaching a different result for Phillips and the Jack bakers is inherently inconsistent and therefore explained only as an expression of hostility to Phillips' religion.
Then we began our discussion of free speech by going over the definition of "free" and "speech", including the concepts of prior restraints, the Alien and Sedition Acts, and symbolic speech. We began our discussion of draft-burning and the O'Brien case, which is where we'll start on Tuesday.
The assignment for Tuesday 10/16 is to review the pages already assigned in the text (224-233) and to read in addition pp. 221-224. Also review Thomas' concurrence in Masterpiece.
POS 384 Assignment #1 due Thursday, October 25th
Congratulations! President Trump has summoned you to Trump Tower, and offered you the position of Legal Analyst. This newly created position objectively analyzes up-coming cases in accordance with existing precedent. This is all in the service of improving the legal quality of the President’s tweets.
Your first assignment is to do an analysis of the current case brought by the Colorado baker Jack Phillips against the Colorado Civil Rights Commission (CCRC). The case was discussed in the Washington Post article by Amy Wang that I distributed to the class on September 25th. Autumn Scardina wanted a cake to celebrate, in part, the anniversary of the date that she had come out as transgender. Phillips refused to bake such a cake because “it would have celebrated messages contrary to his religious belief that sex — the status of being male or female — is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed”. The CCRC ruled that there was probable cause that Phillips had discriminated against Scardina on the basis of gender identity (and assume that gender identity is a protected class under the Colorado anti-discrimination statute).
As you know, the Supreme Court in its Masterpiece Cakeshop opinion did not ultimately rule on whether Phillips could refuse to bake the wedding cake for the same-sex couple. Rather, the Court ruled that the consideration of Phillips’ claim had been tainted by hostility to his religious beliefs.
Assume that in the current transgender case, the members of the CCRC say nothing about “despicable rhetoric”, nor anything about leaving his religion beliefs out of his business practices, or anything like that. The only possible expression of hostility to Phillips' religious views would be in different outcomes for Phillips and Mr. Jack (yes, Mr. Jack's back).
Assume that Phillips would testify that he would bake other cakes for a transgender person, just as long as they didn’t convey a message of celebration of being transgender. He will also testify that he would bake the identical pink and blue cake under different circumstances (say for a male and female twins).
Assume also Mr. Jack goes to the same three bakers that he went to previously, and asks them to bake cakes bearing the message “Changing genders is a sin unto the Lord”. Assume that the three bakers refuse to bake cakes with such a message (for anyone), and that the CCRC rules in favor of the Jack bakers, but rules against Phillips. Assume that the three bakers would testify that they would bake other cakes for Mr. Jack, just as long as the cakes didn’t convey a message of demeaning someone who is transgender.
The question for you to address is whether the CCRC can have different outcomes for the Phillips case and the Jack cases, or do different outcomes inherently represent impermissible hostility to Phillips’ religious convictions? As the Alliance Defending Freedom (representing Phillips) puts it: “[I]t seems like some in the state government are hellbent on punishing Jack for living according to his faith. If that isn’t hostility, what is?”
What do you have to work with? There are the five opinions from Masterpiece: the Kennedy opinion unadorned (which now represents only the view of Roberts); the Kagan concurrence; the Gorsuch concurrence; the Thomas concurrence; and the Ginsburg dissent. They all had something to say about the analysis of hostility without the comments of the Commissioners. You are not giving your own opinion, but analyzing those five Supreme Court opinions.
The paper should have five sections tracking the five opinions. I expect the sections to be about a half page long or so, so a total of around three pages for the assignment.
Use no other cases, and do no outside research. This assignment is totally based on what’s in the Masterpiece opinions.
The President wants a very particular format: a few sentences explaining what each Masterpiece opinion had to say about how the case comes out without the comments of the Commissioners, and then a few sentences explaining whether the transgender case is different from the wedding cake case. If so moved, you may suggest a succinct tweet to the President.
Don’t give any introduction to the paper, or history of the case, etc. Just get right to the analysis. No fluff.
Be specific as possible. Make your language as clear and simple as possible. Remember your audience. Use your own words as much as possible. Quote only in snippets and only where the exact words of an opinion are important. If you quote or are otherwise taking your analysis from a specific paragraph, give the paragraph number, as in "Ginsburg at ¶7".
The assignment will be graded on both the structure and the content of your analysis. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.
Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion. I would expect the paper to be in the neighborhood of three pages long.
You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.
I am the only person with whom you can discuss, question, clarify, etc. any aspect of this assignment.
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. Do not troll the internet for other people’s analysis. The idea is to think it out for yourself. See the syllabus regarding plagiarism and collaboration.
The assignment is due at the beginning of class on Thursday 10/25. If you cannot be in class on that day, you should still e-mail me your assignment by the beginning of the class. 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. See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/11, I distributed two handouts, Assignment #1, which is reproduced below, and the case you'll be briefing, Paffhausen v. Balano. We went over the requirements of the assignment. I also went over the upcoming schedule for the next few weeks. On Tuesday 10/16 we will have an in-class exercise of practice questions for Exam #1. We will have Exam #1 on Tuesday 10/23. Assignment #1 will be due Thursday 10/25.
We then finished Katko v. Briney. We looked at the punitive damages issue, and how the failure to timely raise it cost the Brineys the opportunity to make their case. We went over the views of the dissent. We then went back and looked at the authority relied on by the court. We discussed primary authority v. secondary authority.
We began our discussion of Suggs v. Norris. We discussed the basic public policy issue, and how the court resolved it. We looked again at the authority relied on by the court. We went through the case brief of the case as far as the prior proceedings. We will pick there at that point on Tuesday. Also, I plan to distribute to the class the Maine criminal statute regarding the use of force in defense of property and premises.
The assignment for Tuesday 10/16 is to review Suggs, and begin work on your Paffhausen case brief, due 10/25.
Assignment due Thursday, October 25, 2018
The assignment (graded) is to do a Case Brief of the case of Paffhausen v. Balano, 1998 ME 47, 708 A.2d 269 (also distributed to the class today).
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 (from Speelman): Under the 14th Amendment requirement of due process, is sending a notice addressed to the residence of the tenant reasonably calculated to reach her when the sender knew at the time that it sent the notice that the tenant was in jail, and she therefore would not receive the notice sent to her residence (even though addressing the notice to the place of residence is under most circumstances reasonably calculated to reach the tenant)?
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. That depends largely on what you identify as "facts" of the case.
What are “facts”? Facts are not the story of the case. They are not the rules that govern a case. They are not the legal arguments of the parties. They are not the legal conclusions of the Court. “Facts” are the circumstances that the Court looks at in order to decide the legal question.
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.
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 troll the internet to find other commentary of the case. The work needs to be entirely your own. I am the only person with whom you can discuss, question, clarify, etc. any aspect of this assignment.
If you cannot be in class on Thursday 10/25, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
Thursday, October 4, 2018
October 4, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 10/4, I distributed 2 handouts: my version of the outline of Kennedy's Masterpiece Cake opinion, and Ginsburg's dissenting opinion in that case. We finished going through Kennedy's opinion and putting it in outline form. We then started with the battle of the concurrences. We went over how Kagan's concurrence pointed Colorado to how they can reach a different result in the Phillips and Jack cases without expressing religious hostility. We began our exploration of how Gorsuch concluded that it is impossible to have different results for the two scenarios. We talked about Kennedy's footnote 2, where he put his toe into those waters, but didn't fully jump in. We will pick up next Thursday with more exploration of Gorsuch's concurrence (including whether he agreed with Thomas that the Commission statements are unnecessary to the finding of hostility) and then move to the Thomas and Ginsburg opinions. (I also want to go back to the question of enforcement of order to end discrimination, and go over civil contempt.)
There is no class on Tuesday 10/9. The assignment for Thursday 10/11 is to review the concurrences, and to read today's Ginsburg handout. In addition, read in the textbook pp.224-233.
I also told the class about my plan for the upcoming graded assignment. I'm hoping to have the assignment for the class on Thursday 10/11. My thought is to have the assignment be an analysis of the current transgender case brought by Phillips against the Colorado Civil Rights Commission (as described in the handout from 9/25) using the various Masterpiece Cakeshop opinions as fodder for an analysis about how the new case will ultimately come out.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/4, I distributed one handout, my version of the Katko v. Briney case brief. We first went through the Speelman hypotheticals that I handed out last class. We then went through the notice of termination and discussed whether there were any defenses to the voucher termination once Ms. Speelman gets her hearing. We then turned to Katko v. Briney, and got through most of the case brief. We will pick up with the Iowa Supreme Court's resolution of the punitive damages issue next week, as well as discussing primary v. secondary authority. Along the way we also discussed the different standards of persuasion for criminal v. civil cases.
There is no class on Tuesday 10/9. The assignment for Thursday 10/11 is to read to the end of Chapter 1 of the text, and do a case brief of Suggs v. Norris (not handed in or graded).
In class today, Thursday 10/4, I distributed 2 handouts: my version of the outline of Kennedy's Masterpiece Cake opinion, and Ginsburg's dissenting opinion in that case. We finished going through Kennedy's opinion and putting it in outline form. We then started with the battle of the concurrences. We went over how Kagan's concurrence pointed Colorado to how they can reach a different result in the Phillips and Jack cases without expressing religious hostility. We began our exploration of how Gorsuch concluded that it is impossible to have different results for the two scenarios. We talked about Kennedy's footnote 2, where he put his toe into those waters, but didn't fully jump in. We will pick up next Thursday with more exploration of Gorsuch's concurrence (including whether he agreed with Thomas that the Commission statements are unnecessary to the finding of hostility) and then move to the Thomas and Ginsburg opinions. (I also want to go back to the question of enforcement of order to end discrimination, and go over civil contempt.)
There is no class on Tuesday 10/9. The assignment for Thursday 10/11 is to review the concurrences, and to read today's Ginsburg handout. In addition, read in the textbook pp.224-233.
I also told the class about my plan for the upcoming graded assignment. I'm hoping to have the assignment for the class on Thursday 10/11. My thought is to have the assignment be an analysis of the current transgender case brought by Phillips against the Colorado Civil Rights Commission (as described in the handout from 9/25) using the various Masterpiece Cakeshop opinions as fodder for an analysis about how the new case will ultimately come out.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/4, I distributed one handout, my version of the Katko v. Briney case brief. We first went through the Speelman hypotheticals that I handed out last class. We then went through the notice of termination and discussed whether there were any defenses to the voucher termination once Ms. Speelman gets her hearing. We then turned to Katko v. Briney, and got through most of the case brief. We will pick up with the Iowa Supreme Court's resolution of the punitive damages issue next week, as well as discussing primary v. secondary authority. Along the way we also discussed the different standards of persuasion for criminal v. civil cases.
There is no class on Tuesday 10/9. The assignment for Thursday 10/11 is to read to the end of Chapter 1 of the text, and do a case brief of Suggs v. Norris (not handed in or graded).
Tuesday, October 2, 2018
October 2, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 10/2, we started going through the outline of Kennedy's opinion in Masterpiece Cakeshop. We got as far as that "despicable piece of rhetoric", which is what we'll pick up with on Thursday. Along the way, we looked at which parts of Kennedy's opinion were dictum, rather than the holding of the case.
The assignment for Thursday 10/4 is to refine your outline of Kennedy's opinion, and to review your outlines and the point of all of the concurrences.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/2, I distributed 2 handouts: my version of the Speelman case brief, and some hypotheticals to see what use we might make out of the Speelman opinion. We went through the case brief of Speelman. Along the way we went over forms of preliminary relief, including a Temporary Restraining Order (TRO) and Preliminary Injunction. We went over how the requirements for relief are part of the common law of the state, made by the state Supreme Court. We talked about mandatory authority as precedent from the line of authority of a court (as the Washington Supreme Court creates mandatory authority for the Washington Court of Appeals). We went over how a court can follow precedent (the same side wins) or distinguish precedent (a different side wins because the facts are different). Finally I talked about the 2006 U.S. Supreme Court case of Jones v. Flowers, in which the Court held that notice reasonably calculated to reach a recipient has to include some extra effort if the sender knows that the letter did not get through to the intended recipient.
The assignment for Thursday 10/4 is to read and prepare to discuss the Speelman hypotheticals, and read and do a practice case brief (not handed in or graded) of Katko v. Briney in the text (through p. 43).
In class today, Tuesday 10/2, we started going through the outline of Kennedy's opinion in Masterpiece Cakeshop. We got as far as that "despicable piece of rhetoric", which is what we'll pick up with on Thursday. Along the way, we looked at which parts of Kennedy's opinion were dictum, rather than the holding of the case.
The assignment for Thursday 10/4 is to refine your outline of Kennedy's opinion, and to review your outlines and the point of all of the concurrences.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 10/2, I distributed 2 handouts: my version of the Speelman case brief, and some hypotheticals to see what use we might make out of the Speelman opinion. We went through the case brief of Speelman. Along the way we went over forms of preliminary relief, including a Temporary Restraining Order (TRO) and Preliminary Injunction. We went over how the requirements for relief are part of the common law of the state, made by the state Supreme Court. We talked about mandatory authority as precedent from the line of authority of a court (as the Washington Supreme Court creates mandatory authority for the Washington Court of Appeals). We went over how a court can follow precedent (the same side wins) or distinguish precedent (a different side wins because the facts are different). Finally I talked about the 2006 U.S. Supreme Court case of Jones v. Flowers, in which the Court held that notice reasonably calculated to reach a recipient has to include some extra effort if the sender knows that the letter did not get through to the intended recipient.
The assignment for Thursday 10/4 is to read and prepare to discuss the Speelman hypotheticals, and read and do a practice case brief (not handed in or graded) of Katko v. Briney in the text (through p. 43).
Thursday, September 27, 2018
September 27, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 9/27 we began by going over the aftermath of the Smith opinion: the federal RFRA imposing strict scrutiny, the Supreme Court striking down RFRA as it applies to the states, the Supreme Court oversight over what is "appropriate" legislation under the 14th amendment, and the passage of "mini-RFRA"s by some states.
I then gave some background on the history of gay rights cases in the Supreme Court, and Kennedy's role in them, including Romer v. Evans. I also went over the case of Newman v. Piggie Park, in which there was a parallel claim of religious objection to compliance with an anti-discrimination statute. I read an excerpt from the oral argument in Masterpiece Cakeshop in which Kennedy signaled his focus on hostility from the Civil Rights Commission.
We will begin our review of the outline of Kennedy's opinion in Masterpiece Cakeshop on Tuesday.
The assignment for Tuesday 10/2 is to refine your outline of Kennedy's opinion, and to outline (not handed in or graded) all the concurring opinions distributed on Tuesday.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/27, I distributed one handout, my version of the Glucksberg case brief. We went through that case brief, and discussed the concept of fundamental rights, and low and high hurdles. I also talked about the Maine assisted suicide statute. We also went through Souter's concurrence in the judgment, in which he agreed with who wins the case, but not with Rehnquist's reasoning.
The assignment for Tuesday 10/2 is to read through p. 38 of the text. Do a case brief of the Speelman case (not handed in or graded).
In class today, Thursday 9/27 we began by going over the aftermath of the Smith opinion: the federal RFRA imposing strict scrutiny, the Supreme Court striking down RFRA as it applies to the states, the Supreme Court oversight over what is "appropriate" legislation under the 14th amendment, and the passage of "mini-RFRA"s by some states.
I then gave some background on the history of gay rights cases in the Supreme Court, and Kennedy's role in them, including Romer v. Evans. I also went over the case of Newman v. Piggie Park, in which there was a parallel claim of religious objection to compliance with an anti-discrimination statute. I read an excerpt from the oral argument in Masterpiece Cakeshop in which Kennedy signaled his focus on hostility from the Civil Rights Commission.
We will begin our review of the outline of Kennedy's opinion in Masterpiece Cakeshop on Tuesday.
The assignment for Tuesday 10/2 is to refine your outline of Kennedy's opinion, and to outline (not handed in or graded) all the concurring opinions distributed on Tuesday.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/27, I distributed one handout, my version of the Glucksberg case brief. We went through that case brief, and discussed the concept of fundamental rights, and low and high hurdles. I also talked about the Maine assisted suicide statute. We also went through Souter's concurrence in the judgment, in which he agreed with who wins the case, but not with Rehnquist's reasoning.
The assignment for Tuesday 10/2 is to read through p. 38 of the text. Do a case brief of the Speelman case (not handed in or graded).
Tuesday, September 25, 2018
September 25, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 9/25, I distributed 2 handouts: the concurring opinions in Masterpiece Cakeshop, and a newspaper article about the further adventures of Phillips the baker. I went back and reviewed the pre-Smith cases,and then we spent the rest of class going through the three Smith opinions in the text. Along the way, we saw how the ideological alignment of Justices has shifted: the liberals in Smith wanted to apply strict scrutiny and not defer to a state's policy choices, and the liberals in Trinity Lutheran did not want to apply strict scrutiny (at least in that context). We will pick up Thursday with the aftermath of Smith (RFRA ansd Boerne), and then move on to Masterpiece Cakeshop (Kennedy's opinion).
The assignment for Thursday 9/27 is to review the aftermath of Smith in the text (previously assigned), to review the Kennedy opinion in Masterpiece Cakeshop, and to refine your own outline of that opinion (not handed in or graded). Also read the newpaper article I distributed today. To the extent that you're all caught up, also read and outline the concurring opinions in Masterpiece that I distributed today.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/25, I distributed 2 handouts: an excerpt from Obergefell v. Hodges about substantive due process, and an article by Brittany Maynard about her end of life choice. We first went back and looked at the Maine sentencing statute, and I went over Maine statutory citation format.
We then moved to the Glucksberg case. I went over the organization of the federal court system, including both panel and en banc Court of Appeala decisions. We worked our way through the case brief for Glucksberg, getting as far as the first issue, which is where we'll pick up on Thursday.
The assignment for Thursday 9/27 is to review the Glucksberg opinion and refine your case brief of that opinion (not handed in or graded). Also read today's 2 handouts.
In class today, Tuesday 9/25, I distributed 2 handouts: the concurring opinions in Masterpiece Cakeshop, and a newspaper article about the further adventures of Phillips the baker. I went back and reviewed the pre-Smith cases,and then we spent the rest of class going through the three Smith opinions in the text. Along the way, we saw how the ideological alignment of Justices has shifted: the liberals in Smith wanted to apply strict scrutiny and not defer to a state's policy choices, and the liberals in Trinity Lutheran did not want to apply strict scrutiny (at least in that context). We will pick up Thursday with the aftermath of Smith (RFRA ansd Boerne), and then move on to Masterpiece Cakeshop (Kennedy's opinion).
The assignment for Thursday 9/27 is to review the aftermath of Smith in the text (previously assigned), to review the Kennedy opinion in Masterpiece Cakeshop, and to refine your own outline of that opinion (not handed in or graded). Also read the newpaper article I distributed today. To the extent that you're all caught up, also read and outline the concurring opinions in Masterpiece that I distributed today.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/25, I distributed 2 handouts: an excerpt from Obergefell v. Hodges about substantive due process, and an article by Brittany Maynard about her end of life choice. We first went back and looked at the Maine sentencing statute, and I went over Maine statutory citation format.
We then moved to the Glucksberg case. I went over the organization of the federal court system, including both panel and en banc Court of Appeala decisions. We worked our way through the case brief for Glucksberg, getting as far as the first issue, which is where we'll pick up on Thursday.
The assignment for Thursday 9/27 is to review the Glucksberg opinion and refine your case brief of that opinion (not handed in or graded). Also read today's 2 handouts.
Thursday, September 20, 2018
September 20, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 9/20, I distributed 2 handouts: my version of the outline of Sotomayor's dissent in Trinity Lutheran, and the majority opinion in the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. We finished going through the outline of Sotomayor's dissent, highlighting her views on "religious activity" and the use of strict scrutiny. Along the way, we went over the tests involved in strict scrutiny, and also the difference between a concurrence in the opinion versus a concurrence in the judgment. We then went into the reading from the textbook. I talked about the cases that preceded the assigned pages in the text, including Sherbert and Yoder. We went over the cases discussed in the text, including Thomas and Bob Jones University (p. 114), and Lee and Goldman (p. 115). We will pick up next Tuesday with the rest of the assigned textbook reading, Employment Div. v. Smith and its aftermath (the RFRA).
The assignment for Tuesday 9/25 is to review Smith (previously assigned) and to read and outline (not handed in or graded) the majority opinion in Masterpiece Cakeshop that I distributed today.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/20 we picked up with the dissenting opinions in Miller. We saw how Roberts and Thomas, though they both dissented, had different ideas about the method of defining what the words of the 8th Amendment mean (evolving standards of decency versus original meaning). We also discussed how Roberts deferred to the legislative judgment about what was allowable punishment for juveniles, and whether that fit into the concept of a constitution that puts certain choices off the table for the legislature. After finishing Miller, I discussed the 2016 Supreme Court case of Montgomery v. Alabama. In that case, the Court majority decided that the Miller opinion applies retroactively. I went over the votes in the 2 cases, Miller and Montgomery, and what we might discern from those votes. We went over the retroactivity rules regarding substantive versus procedural rules. We then went over the two Due Process clauses in the amendments to the constitution, and why we have two of them. I discussed the history of the 14th Amendment, and how we got to the concept of substantive due process. One thing I forgot to go over was the handout with the Maine sentencing statutes, so we'll go back and discuss that as well.
The assignment for Tuesday 9/25 is read Washington v.Glucksberg (pp. 26-34). Do a case brief of the majority opinion in Glucksberg (not handed in or graded).
In class today, Thursday 9/20, I distributed 2 handouts: my version of the outline of Sotomayor's dissent in Trinity Lutheran, and the majority opinion in the recent case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. We finished going through the outline of Sotomayor's dissent, highlighting her views on "religious activity" and the use of strict scrutiny. Along the way, we went over the tests involved in strict scrutiny, and also the difference between a concurrence in the opinion versus a concurrence in the judgment. We then went into the reading from the textbook. I talked about the cases that preceded the assigned pages in the text, including Sherbert and Yoder. We went over the cases discussed in the text, including Thomas and Bob Jones University (p. 114), and Lee and Goldman (p. 115). We will pick up next Tuesday with the rest of the assigned textbook reading, Employment Div. v. Smith and its aftermath (the RFRA).
The assignment for Tuesday 9/25 is to review Smith (previously assigned) and to read and outline (not handed in or graded) the majority opinion in Masterpiece Cakeshop that I distributed today.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/20 we picked up with the dissenting opinions in Miller. We saw how Roberts and Thomas, though they both dissented, had different ideas about the method of defining what the words of the 8th Amendment mean (evolving standards of decency versus original meaning). We also discussed how Roberts deferred to the legislative judgment about what was allowable punishment for juveniles, and whether that fit into the concept of a constitution that puts certain choices off the table for the legislature. After finishing Miller, I discussed the 2016 Supreme Court case of Montgomery v. Alabama. In that case, the Court majority decided that the Miller opinion applies retroactively. I went over the votes in the 2 cases, Miller and Montgomery, and what we might discern from those votes. We went over the retroactivity rules regarding substantive versus procedural rules. We then went over the two Due Process clauses in the amendments to the constitution, and why we have two of them. I discussed the history of the 14th Amendment, and how we got to the concept of substantive due process. One thing I forgot to go over was the handout with the Maine sentencing statutes, so we'll go back and discuss that as well.
The assignment for Tuesday 9/25 is read Washington v.Glucksberg (pp. 26-34). Do a case brief of the majority opinion in Glucksberg (not handed in or graded).
Tuesday, September 18, 2018
September 18, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 9/18, we began by having a conversation about the upcoming continuation of the Kavanaugh confirmation hearings, and the test to be applied in evaluating allegations that are difficult to either prove or disprove. We then returned to the outline of the Sotomayor dissent in Trinity. We got to her Part III(B)(2), which is where we'll pick up on Thursday. The specific question that I asked the class to think about was how Sotomayor's view of "religious activity" compared with that of Roberts. Along the way we went over the nature of the Bill of Rights as protection against the federal power, and the strange history of the 14th Amendment that selectively incorporated portions of the Bill of Rights as protections for the individual against state power.
The assignment for Thursday 9/20 is to review the Sotomayor dissent and your Sotomayor outline (previously assigned). In addition, read in the text pp. 114 - 124.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/18, I distributed 2 handouts: my version of the Miller case brief, and an excerpt from the Maine sentencing statutes. We put the Miller case into our case brief format. We went over the question not addressed by Kagan, whether Life w/o Parole can ever be imposed as a juvenile's punishment. We then went over Breyer's concurrence. We discussed the difference between concurring in the judgment versus concurring in the opinion. We talked about the lack of intent to kill in both felony murder and in accomplice liability. We began Roberts' dissent, talking about the ways of reading "cruel and unusual", as a unitary phrase versus as two disjunctive requirements. We will pick up on Thursday with the phrase used by Roberts, "evolving standards of decency".
The assignment for Thursday 9/20 is to review the remaining Miller opinions, read today's handouts, and read in the text through p. 27 (up to Washington v. Glucksberg).
In class today, Tuesday 9/18, we began by having a conversation about the upcoming continuation of the Kavanaugh confirmation hearings, and the test to be applied in evaluating allegations that are difficult to either prove or disprove. We then returned to the outline of the Sotomayor dissent in Trinity. We got to her Part III(B)(2), which is where we'll pick up on Thursday. The specific question that I asked the class to think about was how Sotomayor's view of "religious activity" compared with that of Roberts. Along the way we went over the nature of the Bill of Rights as protection against the federal power, and the strange history of the 14th Amendment that selectively incorporated portions of the Bill of Rights as protections for the individual against state power.
The assignment for Thursday 9/20 is to review the Sotomayor dissent and your Sotomayor outline (previously assigned). In addition, read in the text pp. 114 - 124.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/18, I distributed 2 handouts: my version of the Miller case brief, and an excerpt from the Maine sentencing statutes. We put the Miller case into our case brief format. We went over the question not addressed by Kagan, whether Life w/o Parole can ever be imposed as a juvenile's punishment. We then went over Breyer's concurrence. We discussed the difference between concurring in the judgment versus concurring in the opinion. We talked about the lack of intent to kill in both felony murder and in accomplice liability. We began Roberts' dissent, talking about the ways of reading "cruel and unusual", as a unitary phrase versus as two disjunctive requirements. We will pick up on Thursday with the phrase used by Roberts, "evolving standards of decency".
The assignment for Thursday 9/20 is to review the remaining Miller opinions, read today's handouts, and read in the text through p. 27 (up to Washington v. Glucksberg).
Thursday, September 13, 2018
September 13, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 9/13, I began by talking about two cases that dealt with a subject that was brought up in class last time: whether colleges have to provide funding for student organizations that are religious. In Rosenberger v. University of Virginia the Court held 5-4 that the school could not refuse funding to a Christian student publication. In Christian Legal Society v. Martinez, the Court held 5-4 that a school could refuse funding for a student group that denied membership to gay students, even though the group said that it was just denying membership because of the beliefs and conduct of gay students did not correspond with the group's (but not on the basis of the gay students' status).
We then returned to Trinity. We began by trying to give a succinct Holding of the Roberts opinion, including fn.3. We went over the Thomas, Gorsuch, and Breyer concurrences. We began the Sotomayor dissent, getting through part II. We'll pick up with Section III next week.
The assignment for Tuesday 9/18 is to review the Sotomayor dissent. Continue work on your version of the outline of the dissent (not handed in or graded, but do write it out for yourself).
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/13, we began by finishing the Heffron hypotheticals that I distributed last class. We then talked about the introductory section of the text. I clarified that, as used in class, the term common law will mean law made by judges in the absence of enacted law. We talked about natural law and MLK's Letter from the Birmingham Jail. We talked about the strange history of the courts of law and the courts of equity, and the echo of those two systems in injunctive relief in present day courts. Finally we began our discussion of juvenile justice and the 8th Amendment.
The assignment for Tuesday 9/18 is to read in text pp. 16-23. Try your hand at writing a case brief of the majority opinion in Miller (not handed in or graded), using the case brief template and my version of the Heffron case as guides for what the segments of the brief are, and what kind of stuff goes into each segment.
In class today, Thursday 9/13, I began by talking about two cases that dealt with a subject that was brought up in class last time: whether colleges have to provide funding for student organizations that are religious. In Rosenberger v. University of Virginia the Court held 5-4 that the school could not refuse funding to a Christian student publication. In Christian Legal Society v. Martinez, the Court held 5-4 that a school could refuse funding for a student group that denied membership to gay students, even though the group said that it was just denying membership because of the beliefs and conduct of gay students did not correspond with the group's (but not on the basis of the gay students' status).
We then returned to Trinity. We began by trying to give a succinct Holding of the Roberts opinion, including fn.3. We went over the Thomas, Gorsuch, and Breyer concurrences. We began the Sotomayor dissent, getting through part II. We'll pick up with Section III next week.
The assignment for Tuesday 9/18 is to review the Sotomayor dissent. Continue work on your version of the outline of the dissent (not handed in or graded, but do write it out for yourself).
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/13, we began by finishing the Heffron hypotheticals that I distributed last class. We then talked about the introductory section of the text. I clarified that, as used in class, the term common law will mean law made by judges in the absence of enacted law. We talked about natural law and MLK's Letter from the Birmingham Jail. We talked about the strange history of the courts of law and the courts of equity, and the echo of those two systems in injunctive relief in present day courts. Finally we began our discussion of juvenile justice and the 8th Amendment.
The assignment for Tuesday 9/18 is to read in text pp. 16-23. Try your hand at writing a case brief of the majority opinion in Miller (not handed in or graded), using the case brief template and my version of the Heffron case as guides for what the segments of the brief are, and what kind of stuff goes into each segment.
Tuesday, September 11, 2018
September 11, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 9/11, I distributed 2 handouts: my version of an outline of the Roberts opinion in Trinity Lutheran Church, and the Sotomayor dissenting opinion in Trinity. We began class by finishing the process of putting labels on the outline structure in Roberts' opinion. I then handed out my outline of the Roberts' opinion. I filled in with Q & A format the substance of the discussion within each part of the Roberts outline, and I also added sub-elements of an outline beneath the structure provided by Roberts. We went over five of the cases discussed in particular detail in the Roberts opinion,
(McDaniel, Lukumi, Lyng, Smith, and Locke) and discussed how the Court followed or distinguished each of those cases. Along the way we discussed the concepts of plurality opinions and dictum. We also discussed footnote 3 some more. I read an excerpt from the oral argument in Trinity, and we saw how Kagan was particularly interested in the question of whether the playground was actually used for any religious exercise. We will pick up on Thursday with a discussion of the concurring opinions.
The assignment for Thursday 9/13 is to read my version of the Roberts outline, and read Sotomayor's dissent. Try your hand at outlining the Sotomayor dissent, following the format of today's handout of my outline.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/11, I distributed 2 handouts: my version of the Heffron case brief, and some hypotheticals with which to test your Holdings from Heffron. We first went over the remaining issues from the Heffron opinion, putting them in the format from the case brief template that I distributed last time. In terms of the free speech issue raised by Heffron, I went over a 2014 U.S. Supreme Court case, Elonis v. U.S., in which there was also a prosecution after a post on Facebook after a Protection from Abuse order had been issued. In Elonis, the Court ended up not deciding the free speech issue, but rather ruling on the required mental state. We went over the 4 mental states of intent, knowledge, recklessness, and negligence. We then started working our way through the hypotheticals that I had distributed today, leaving off with the third one, which is where we'll pick up on Thursday.
The assignment for Thursday 9/13 is to review the hypotheticals, and then read in the text through p.15.
In class today, Tuesday 9/11, I distributed 2 handouts: my version of an outline of the Roberts opinion in Trinity Lutheran Church, and the Sotomayor dissenting opinion in Trinity. We began class by finishing the process of putting labels on the outline structure in Roberts' opinion. I then handed out my outline of the Roberts' opinion. I filled in with Q & A format the substance of the discussion within each part of the Roberts outline, and I also added sub-elements of an outline beneath the structure provided by Roberts. We went over five of the cases discussed in particular detail in the Roberts opinion,
(McDaniel, Lukumi, Lyng, Smith, and Locke) and discussed how the Court followed or distinguished each of those cases. Along the way we discussed the concepts of plurality opinions and dictum. We also discussed footnote 3 some more. I read an excerpt from the oral argument in Trinity, and we saw how Kagan was particularly interested in the question of whether the playground was actually used for any religious exercise. We will pick up on Thursday with a discussion of the concurring opinions.
The assignment for Thursday 9/13 is to read my version of the Roberts outline, and read Sotomayor's dissent. Try your hand at outlining the Sotomayor dissent, following the format of today's handout of my outline.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/11, I distributed 2 handouts: my version of the Heffron case brief, and some hypotheticals with which to test your Holdings from Heffron. We first went over the remaining issues from the Heffron opinion, putting them in the format from the case brief template that I distributed last time. In terms of the free speech issue raised by Heffron, I went over a 2014 U.S. Supreme Court case, Elonis v. U.S., in which there was also a prosecution after a post on Facebook after a Protection from Abuse order had been issued. In Elonis, the Court ended up not deciding the free speech issue, but rather ruling on the required mental state. We went over the 4 mental states of intent, knowledge, recklessness, and negligence. We then started working our way through the hypotheticals that I had distributed today, leaving off with the third one, which is where we'll pick up on Thursday.
The assignment for Thursday 9/13 is to review the hypotheticals, and then read in the text through p.15.
Thursday, September 6, 2018
September 6, 2018
POS 384 CIVIL LIBERTIES
In class today, Thursday 9/6, we worked together in putting headings on the outline structure of Roberts' Trinity Lutheran opinion. (we got through III (B)). Along the way, we went over the order of the listed parties in the Supreme Court caption, the structure of the federal court system, the meaning of "play in the joints", and the relationship between the free exercise clause and the establishment clause. I talked about the Reynolds case (textbook, p.99), in which the Court said that "exercise" of religion protected a person's beliefs, but not their actual practices. Next week we will pick up by finishing the outline of the Roberts opinion, and we'll look in detail at the cases cited as precedent by Roberts.
The assignment for Tuesday 9/11 is to once again read the Trinity Lutheran handout, focusing on the cases cited by the Court and the parties. Also focus on how the three concurrences had different points of view from the Roberts group.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/6, I distributed one handout, a template for the case briefs that the class will be doing. We started applying that template to the Heffron case, getting through the first of the three issues that Heffron raised on appeal. We went over proper citation form, the parties, the plaintiff's objective, cause of action, defendant's trial court defense, prior proceedings, present proceedings, appellant's contentions on appeal, and the three parts of the first issue. We will pick up next Tuesday with the second of the issues that the Court dealt with.
The assignment for Tuesday 9/11 is to re-read Heffron. Try working out the phrasing of the second and third issues that the Court addresses using the template and today's discussion for how to do it. This assignment is not to be handed in or graded, but I do want you to write it out for yourselves.
In class today, Thursday 9/6, we worked together in putting headings on the outline structure of Roberts' Trinity Lutheran opinion. (we got through III (B)). Along the way, we went over the order of the listed parties in the Supreme Court caption, the structure of the federal court system, the meaning of "play in the joints", and the relationship between the free exercise clause and the establishment clause. I talked about the Reynolds case (textbook, p.99), in which the Court said that "exercise" of religion protected a person's beliefs, but not their actual practices. Next week we will pick up by finishing the outline of the Roberts opinion, and we'll look in detail at the cases cited as precedent by Roberts.
The assignment for Tuesday 9/11 is to once again read the Trinity Lutheran handout, focusing on the cases cited by the Court and the parties. Also focus on how the three concurrences had different points of view from the Roberts group.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 9/6, I distributed one handout, a template for the case briefs that the class will be doing. We started applying that template to the Heffron case, getting through the first of the three issues that Heffron raised on appeal. We went over proper citation form, the parties, the plaintiff's objective, cause of action, defendant's trial court defense, prior proceedings, present proceedings, appellant's contentions on appeal, and the three parts of the first issue. We will pick up next Tuesday with the second of the issues that the Court dealt with.
The assignment for Tuesday 9/11 is to re-read Heffron. Try working out the phrasing of the second and third issues that the Court addresses using the template and today's discussion for how to do it. This assignment is not to be handed in or graded, but I do want you to write it out for yourselves.
Tuesday, September 4, 2018
September 4, 2018
POS 384 CIVIL LIBERTIES
In class today, Tuesday 9/4, I distributed 5 handouts: the syllabus; an article from the Bangor Daily News about public funds for religious schools; the case we'll study (Trinity Lutheran Church v. Comer); a list of Justices of the Supreme Court; and an excerpt from the Maine Constitution and the Maine statute regarding funding religious schools. We went over the Syllabus. We looked at the language of the 1st Amendment and talked about what it might mean. I went over the difference between a judgment of the Court versus the opinion of the Court.
The assignment for Thursday 9/6 is to read all five handouts. We will focus on the Trinity Lutheran case on Thursday, going over the opinion in some detail, so be sure to note any questions that you have as you read the opinion.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/4, I distributed 3 handouts: the syllabus; the first case we'll study (State v. Heffron); and a list of questions to guide your reading of Heffron. We went over the Syllabus. We talked about the unusual structure of the Maine court system (with two trial courts, and no intermediate appellate court). We discussed the order of the listing of the parties in the caption of the case, the roles of the judge in a jury-waived trial and a jury trial, and the different roles of the trial and appellate courts.
The assignment for Thursday 9/6 is to read all three handouts. We will focus on the Heffron case on Thursday, going over the opinion in some detail, so be sure to note any questions that you have as you read the opinion.
In class today, Tuesday 9/4, I distributed 5 handouts: the syllabus; an article from the Bangor Daily News about public funds for religious schools; the case we'll study (Trinity Lutheran Church v. Comer); a list of Justices of the Supreme Court; and an excerpt from the Maine Constitution and the Maine statute regarding funding religious schools. We went over the Syllabus. We looked at the language of the 1st Amendment and talked about what it might mean. I went over the difference between a judgment of the Court versus the opinion of the Court.
The assignment for Thursday 9/6 is to read all five handouts. We will focus on the Trinity Lutheran case on Thursday, going over the opinion in some detail, so be sure to note any questions that you have as you read the opinion.
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 9/4, I distributed 3 handouts: the syllabus; the first case we'll study (State v. Heffron); and a list of questions to guide your reading of Heffron. We went over the Syllabus. We talked about the unusual structure of the Maine court system (with two trial courts, and no intermediate appellate court). We discussed the order of the listing of the parties in the caption of the case, the roles of the judge in a jury-waived trial and a jury trial, and the different roles of the trial and appellate courts.
The assignment for Thursday 9/6 is to read all three handouts. We will focus on the Heffron case on Thursday, going over the opinion in some detail, so be sure to note any questions that you have as you read the opinion.
Thursday, May 3, 2018
May 3, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 5/3, we first went over the Frump case regarding the calculation of the jurisdictional amount for federal court diversity subject matter jurisdiction. We then dipped into Chapter 5 of the text with Salmon v. Atkinson and the question of when an Arkansas quantum merit cause of action accrues if a client terminates a contingency fee agreement with her lawyer. Finally I talked about a Maine Supreme Court case, Paffhausen v. Estate of Balano, in which the Court clarified the distinction in Maine between the theories of quantum meruit v. unjust enrichment, as well as the measure of damages for each theory. That's how far the exam will cover.
Exam #2 is Tuesday 5/8, from 8:45-10:00, open-book and open-note. It will cover the material we've studied since the last exam (i.e., it's not comprehensive over the entire semester). If you are missing any handouts, you need to notify me of what you're missing by 8:00 p.m. of Monday 5/7.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 5/3, we first went over the Sheppard v. Maxwell case. We then looked back at the 2 handouts from last week, and examined the Maine Rules regarding jury sequestration and the ethical rules for lawyers regarding trying a case in the press. We talked about the difference between the Maine Rule and the ABA Model Rule. We then talked the Gannett v. DePasquale case as a prelude to Richmond Newspapers v. Virginia. For that case we went over the 3 opinions, the majority, Brennan's concurrence, and Rehnquist's dissent. That's how far the exam will cover.
Exam #2 is Tuesday 5/8, from 10:30-11:45, open-book and open-note. It will cover the material we've studied since the last exam (i.e., it's not comprehensive over the entire semester). If you are missing any handouts, you need to notify me of what you're missing by 8:00 p.m. of Monday 5/7.
In class today, Thursday 5/3, we first went over the Frump case regarding the calculation of the jurisdictional amount for federal court diversity subject matter jurisdiction. We then dipped into Chapter 5 of the text with Salmon v. Atkinson and the question of when an Arkansas quantum merit cause of action accrues if a client terminates a contingency fee agreement with her lawyer. Finally I talked about a Maine Supreme Court case, Paffhausen v. Estate of Balano, in which the Court clarified the distinction in Maine between the theories of quantum meruit v. unjust enrichment, as well as the measure of damages for each theory. That's how far the exam will cover.
Exam #2 is Tuesday 5/8, from 8:45-10:00, open-book and open-note. It will cover the material we've studied since the last exam (i.e., it's not comprehensive over the entire semester). If you are missing any handouts, you need to notify me of what you're missing by 8:00 p.m. of Monday 5/7.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 5/3, we first went over the Sheppard v. Maxwell case. We then looked back at the 2 handouts from last week, and examined the Maine Rules regarding jury sequestration and the ethical rules for lawyers regarding trying a case in the press. We talked about the difference between the Maine Rule and the ABA Model Rule. We then talked the Gannett v. DePasquale case as a prelude to Richmond Newspapers v. Virginia. For that case we went over the 3 opinions, the majority, Brennan's concurrence, and Rehnquist's dissent. That's how far the exam will cover.
Exam #2 is Tuesday 5/8, from 10:30-11:45, open-book and open-note. It will cover the material we've studied since the last exam (i.e., it's not comprehensive over the entire semester). If you are missing any handouts, you need to notify me of what you're missing by 8:00 p.m. of Monday 5/7.
Tuesday, May 1, 2018
May 1, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday, 5/1, I first went over the upcoming exam. It will be Tuesday 5/8, and will be from 8:45-10:00 (not 8:00). Any requests for missing handouts should be sent to me by email by 8:00pm on Monday 5/7. I also reminded the class of the need to fill out evaluations on-line for this class. The link was sent in an email to you from Brian Doore of the Office of Assessment, and I believe that you can also access the evaluation through Blackboard.
We reviewed the 4 bases for personal jurisdiction from last weeks' discussion, and then went over the Swoboda case. I talked about two other personal jurisdiction cases, Commerce Bank v. Dworman, 2004 ME 142, and Walden v. Fiore, 571 US ___ (2014). I also went over the difference between general jurisdiction v. specific jurisdiction. Then we went back to subject matter jurisdiction, this time in federal court, and we discussed the case of St. James v. Coinmach.
The assignment for Thursday 5/3 is to read in the textbook the remainder of Chaper 4 (including Frump v. Claire's Boutiques, p. 142) and to read in Chapter 5 through p. 158 (including Salmon v. Atkinson, p. 156).
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday, 5/1, I first went over the upcoming exam. It will be Tuesday 5/8, and will be from 10:30- 11:45 (not 12:30). Any requests for missing handouts should be sent to me by email by 8:00pm on Monday 5/7. I also reminded the class of the need to fill out evaluations on-line for this class. The link was sent in an email to you from Brian Doore of the Office of Assessment, and I believe that you can also access the evaluation through Blackboard.
I distributed one handout, an excerpt from the Maine Rules of Evidence, Maine Rules of Professional Conduct, and the ABA Model Rules of Professional Conduct. We began by going over Batson, and then looking at last week's handout on jury selection in Maine. I then talked about two recent Supreme Court cases regarding juror racial bias in jury deliberations, Pena-Rodriguez v. Colorado and Tharpe v. Sellers. We looked briefly at today's handout regarding the Maine Rules of Evidence regarding Jury Deliberations.
The assignment for Thursday 5/3 is to review today's handout, review the Sheppard case (previously assigned) and to read in addition Richmond Newspapers v. Virginia (through p. 565 of the text).
In class today, Tuesday, 5/1, I first went over the upcoming exam. It will be Tuesday 5/8, and will be from 8:45-10:00 (not 8:00). Any requests for missing handouts should be sent to me by email by 8:00pm on Monday 5/7. I also reminded the class of the need to fill out evaluations on-line for this class. The link was sent in an email to you from Brian Doore of the Office of Assessment, and I believe that you can also access the evaluation through Blackboard.
We reviewed the 4 bases for personal jurisdiction from last weeks' discussion, and then went over the Swoboda case. I talked about two other personal jurisdiction cases, Commerce Bank v. Dworman, 2004 ME 142, and Walden v. Fiore, 571 US ___ (2014). I also went over the difference between general jurisdiction v. specific jurisdiction. Then we went back to subject matter jurisdiction, this time in federal court, and we discussed the case of St. James v. Coinmach.
The assignment for Thursday 5/3 is to read in the textbook the remainder of Chaper 4 (including Frump v. Claire's Boutiques, p. 142) and to read in Chapter 5 through p. 158 (including Salmon v. Atkinson, p. 156).
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday, 5/1, I first went over the upcoming exam. It will be Tuesday 5/8, and will be from 10:30- 11:45 (not 12:30). Any requests for missing handouts should be sent to me by email by 8:00pm on Monday 5/7. I also reminded the class of the need to fill out evaluations on-line for this class. The link was sent in an email to you from Brian Doore of the Office of Assessment, and I believe that you can also access the evaluation through Blackboard.
I distributed one handout, an excerpt from the Maine Rules of Evidence, Maine Rules of Professional Conduct, and the ABA Model Rules of Professional Conduct. We began by going over Batson, and then looking at last week's handout on jury selection in Maine. I then talked about two recent Supreme Court cases regarding juror racial bias in jury deliberations, Pena-Rodriguez v. Colorado and Tharpe v. Sellers. We looked briefly at today's handout regarding the Maine Rules of Evidence regarding Jury Deliberations.
The assignment for Thursday 5/3 is to review today's handout, review the Sheppard case (previously assigned) and to read in addition Richmond Newspapers v. Virginia (through p. 565 of the text).
Thursday, April 26, 2018
April 26, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/26, we first went over the two Maine statutory handouts from last class, the one about adoptions, and the one about Maine subject matter jurisdiction. We then went over Cheap Escape v. Haddox, and the somewhat weird Ohio statute. I then discussed three other cases regarding the meaning of subject matter jurisdiction: Landmark Realty v. Leasure from the Maine Supreme Court, and two cases from the U.S. Supreme Court, Bowles v. Russell and Hamer v. Neighborhood Housing. Finally I started our discussion of personal jurisdiction by going over 4 bases of personal jurisdiction: service of process within the state, waiver, domicile, and contacts.
The assignment for Tuesday 5/1 is to review Swoboda v. Hero Decks (previously assigned) and to read in addition through p. 141, including St. James Apartments v. Coinmatch.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/26, I distributed one handout, an excerpt of the Maine Rules of Court regarding jury selection. We reviewed the Powell case, and then went through the two opinions in Gideon v. Wainwright. We discussed the current case of McCoy v. Louisiana from the two handouts from last class, and the question of of whether effective assistance of counsel requires that lawyers follow the instructions of the client, even if the client is making bad choices. We began our discussion of the selection of juries, and will pick up next week with the Batson case. I will also talk about two recent cases that I didn't get to today, Pena-Rodriguez v. Colorado and Tharpe v. Sellers.
The assignment for Tuesday 5/1 is to review Batson v. Kentucky (previously assigned), to read today's handout, and to read from the text pp. 555-562 (including Sheppard v. Maxwell).
In class today, Thursday 4/26, we first went over the two Maine statutory handouts from last class, the one about adoptions, and the one about Maine subject matter jurisdiction. We then went over Cheap Escape v. Haddox, and the somewhat weird Ohio statute. I then discussed three other cases regarding the meaning of subject matter jurisdiction: Landmark Realty v. Leasure from the Maine Supreme Court, and two cases from the U.S. Supreme Court, Bowles v. Russell and Hamer v. Neighborhood Housing. Finally I started our discussion of personal jurisdiction by going over 4 bases of personal jurisdiction: service of process within the state, waiver, domicile, and contacts.
The assignment for Tuesday 5/1 is to review Swoboda v. Hero Decks (previously assigned) and to read in addition through p. 141, including St. James Apartments v. Coinmatch.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/26, I distributed one handout, an excerpt of the Maine Rules of Court regarding jury selection. We reviewed the Powell case, and then went through the two opinions in Gideon v. Wainwright. We discussed the current case of McCoy v. Louisiana from the two handouts from last class, and the question of of whether effective assistance of counsel requires that lawyers follow the instructions of the client, even if the client is making bad choices. We began our discussion of the selection of juries, and will pick up next week with the Batson case. I will also talk about two recent cases that I didn't get to today, Pena-Rodriguez v. Colorado and Tharpe v. Sellers.
The assignment for Tuesday 5/1 is to review Batson v. Kentucky (previously assigned), to read today's handout, and to read from the text pp. 555-562 (including Sheppard v. Maxwell).
Tuesday, April 24, 2018
April 24, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/24, I distributed three handouts: an excerpt from Obergefell v. Hodges about recognition of out-of-state same-sex marriages, an excerpt of Maine statutes regarding adoptions, and Maine statutes regarding subject-matter jurisdiction. I started class by reviewing the concept of conflict of laws (or "choice of laws") by going over the recent case of Norris v. Myers Springs. We saw how a double dose of bad lawyering may have gotten the plaintiff what he wanted all along. We then moved on to Full Faith and Credit. We discussed the difference in recognition of judicial judgments versus things like marriage that do not require a court's blessing. We went over Finstuen v. Crutcher, and then we went over the excerpt from Obergefell that mandated recognition of out-of-state same sex marriages. I talked about a recent U.S. Supreme Court case, V.L. v. E.L., in which the necessity of recognition of an out-of-state adoption depended on whether that out-of-state adoption court had subject-matter jurisdiction over the adoption, even if it appears that it didn't follow the state statute. We then began our discussion of subject matter jurisdiction and the Cheap Escape case. On Thursday I will begin by looking at today's handout of Maine statutes on adoption, and ask whether Maine would grant an adoption in the same circumstance as in V.L., as well as what federal law says about recognition of same sex relationships. We will then finish our discussion of Cheap Escape. I plan to discuss some Maine and federal cases regarding what those governments mean by the the term subject matter jurisdiction.
The assignment for Thursday 4/26 is review Cheap Escape, review today's handouts, and to read in addition pp. 129-136 of the text, including Swoboda v. Hero Decks.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/24, I handed back the Assignment #2 papers, as well as a sheet of notes about my comments on the papers and an explanation of how the papers were graded. I also distributed two other handouts, both a preview and an analysis of the oral argument in the current Supreme Court case of McCoy v. Louisiana. In that case, the accused wanted to maintain his innocence, but his lawyer basically overrode the client's wishes, and admitted guilt (in a fruitless effort to avoid the death penalty). If the lawyer does that, is the client denied the effective assistance of counsel?
After going over the assignment, we went through the Powell v. Alabama case. We looked at four issues brought up by the majority: whether the appointment of counsel lasted beyond the arraignment; whether the lack of a lawyer to make use of the time between the arraignment and the trial violated due process; whether the failure to appoint counsel who was specifically responsible for the case violated due process; and whether due process requires that appointment in the circumstances, include not only of a lawyer, but the appointment of an effective lawyer.
The assignment for Thursday 4/26 is to read the two handouts, review Gideon, and to read in addition through p. 556 of the text (Batson).
In class today, Tuesday 4/24, I distributed three handouts: an excerpt from Obergefell v. Hodges about recognition of out-of-state same-sex marriages, an excerpt of Maine statutes regarding adoptions, and Maine statutes regarding subject-matter jurisdiction. I started class by reviewing the concept of conflict of laws (or "choice of laws") by going over the recent case of Norris v. Myers Springs. We saw how a double dose of bad lawyering may have gotten the plaintiff what he wanted all along. We then moved on to Full Faith and Credit. We discussed the difference in recognition of judicial judgments versus things like marriage that do not require a court's blessing. We went over Finstuen v. Crutcher, and then we went over the excerpt from Obergefell that mandated recognition of out-of-state same sex marriages. I talked about a recent U.S. Supreme Court case, V.L. v. E.L., in which the necessity of recognition of an out-of-state adoption depended on whether that out-of-state adoption court had subject-matter jurisdiction over the adoption, even if it appears that it didn't follow the state statute. We then began our discussion of subject matter jurisdiction and the Cheap Escape case. On Thursday I will begin by looking at today's handout of Maine statutes on adoption, and ask whether Maine would grant an adoption in the same circumstance as in V.L., as well as what federal law says about recognition of same sex relationships. We will then finish our discussion of Cheap Escape. I plan to discuss some Maine and federal cases regarding what those governments mean by the the term subject matter jurisdiction.
The assignment for Thursday 4/26 is review Cheap Escape, review today's handouts, and to read in addition pp. 129-136 of the text, including Swoboda v. Hero Decks.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/24, I handed back the Assignment #2 papers, as well as a sheet of notes about my comments on the papers and an explanation of how the papers were graded. I also distributed two other handouts, both a preview and an analysis of the oral argument in the current Supreme Court case of McCoy v. Louisiana. In that case, the accused wanted to maintain his innocence, but his lawyer basically overrode the client's wishes, and admitted guilt (in a fruitless effort to avoid the death penalty). If the lawyer does that, is the client denied the effective assistance of counsel?
After going over the assignment, we went through the Powell v. Alabama case. We looked at four issues brought up by the majority: whether the appointment of counsel lasted beyond the arraignment; whether the lack of a lawyer to make use of the time between the arraignment and the trial violated due process; whether the failure to appoint counsel who was specifically responsible for the case violated due process; and whether due process requires that appointment in the circumstances, include not only of a lawyer, but the appointment of an effective lawyer.
The assignment for Thursday 4/26 is to read the two handouts, review Gideon, and to read in addition through p. 556 of the text (Batson).
Thursday, April 19, 2018
April 19, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/19, we first went through Hubbard v. Greeson, exploring the concept of common law choice of law rules, and then seeing how the Indiana Supreme Court changed their long-standing Indiana choice of law rule. We then saw how the new rule from Hubbard got applied by the federal courts in Land v. Yamaha. We talked about the Indiana Statute of Repose that barred any action against Yamaha, and contrasted that with the standard Statute of Limitations. We also talked about the two bases for federal court subject-matter jurisdiction, federal question jurisdiction and diversity jurisdiction. I also introduced the concept of personal jurisdiction, which we will get to later next week.
The assignment for Tuesday 4/24 is to read in the text pp. 115-119 (Full Faith and Credit, Finstuen v.Crutcher, and pp. 123-129 (subject-matter jurisdiction and Cheap Escape v. Haddox).
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/19, I collected the assignments. I plan to grade them this weekend, and to return them on Tuesday. We spent most of the class period going over the assignment. Along the way, we also went over the status of authority between the state court system and the federal courts (whether a federal court op appeals has mandatory authority over a state supreme court). In addition to assignment questions, we also discussed the separate issue of voluntariness.
The assignment for Tuesday 4/24 is to read in the text pp.536-545, including Powell v. Alabama and Gideon v. Wainwright.
In class today, Thursday 4/19, we first went through Hubbard v. Greeson, exploring the concept of common law choice of law rules, and then seeing how the Indiana Supreme Court changed their long-standing Indiana choice of law rule. We then saw how the new rule from Hubbard got applied by the federal courts in Land v. Yamaha. We talked about the Indiana Statute of Repose that barred any action against Yamaha, and contrasted that with the standard Statute of Limitations. We also talked about the two bases for federal court subject-matter jurisdiction, federal question jurisdiction and diversity jurisdiction. I also introduced the concept of personal jurisdiction, which we will get to later next week.
The assignment for Tuesday 4/24 is to read in the text pp. 115-119 (Full Faith and Credit, Finstuen v.Crutcher, and pp. 123-129 (subject-matter jurisdiction and Cheap Escape v. Haddox).
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/19, I collected the assignments. I plan to grade them this weekend, and to return them on Tuesday. We spent most of the class period going over the assignment. Along the way, we also went over the status of authority between the state court system and the federal courts (whether a federal court op appeals has mandatory authority over a state supreme court). In addition to assignment questions, we also discussed the separate issue of voluntariness.
The assignment for Tuesday 4/24 is to read in the text pp.536-545, including Powell v. Alabama and Gideon v. Wainwright.
Tuesday, April 17, 2018
April 17, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today. Tuesday 4/17, I handed back the Corbin case briefs, as well as distributing my Comment Key to the brief. I went over what I was looking for in the case brief, and how a case brief can be useful in evaluating other situations. Then we went over the Dempsey case, and looked at the choices made by the Montana Supreme Court regarding the rules for retroactive application of a new rule. I then went over the four federal cases discussed in Dempsey: Chevron, Harper, Linkletter and Griffith. Finally, we went over the Strunk case, looking at the situation in which there's really no precedent on point for a court to follow.
The assignment for Thursday 4/19 is to read in the text from pp. 113-116 (including Hubbard) and also pp. 144-146 (including Land).
POS 484 CRIMINAL DUE PROCESS
In class today. Tuesday 4/17, we first went over some questions about the assignment. We then went back through Ormsby, discussing both the issues that are part of the assignment, as well as those issues that are not part of the assignment. We began our discussion of Bridges, going over the basic facts of the events of the shooting, the alibi, and the 3 interviews. We will finish our discussion of Bridges, as well as Nightingale, on Thursday.
The assignment for Thursday 4/19 is to finish your Assignment #2 (due at the beginning of class on Thursday). In addition, review Bridges and Nightingale.
In class today. Tuesday 4/17, I handed back the Corbin case briefs, as well as distributing my Comment Key to the brief. I went over what I was looking for in the case brief, and how a case brief can be useful in evaluating other situations. Then we went over the Dempsey case, and looked at the choices made by the Montana Supreme Court regarding the rules for retroactive application of a new rule. I then went over the four federal cases discussed in Dempsey: Chevron, Harper, Linkletter and Griffith. Finally, we went over the Strunk case, looking at the situation in which there's really no precedent on point for a court to follow.
The assignment for Thursday 4/19 is to read in the text from pp. 113-116 (including Hubbard) and also pp. 144-146 (including Land).
POS 484 CRIMINAL DUE PROCESS
In class today. Tuesday 4/17, we first went over some questions about the assignment. We then went back through Ormsby, discussing both the issues that are part of the assignment, as well as those issues that are not part of the assignment. We began our discussion of Bridges, going over the basic facts of the events of the shooting, the alibi, and the 3 interviews. We will finish our discussion of Bridges, as well as Nightingale, on Thursday.
The assignment for Thursday 4/19 is to finish your Assignment #2 (due at the beginning of class on Thursday). In addition, review Bridges and Nightingale.
Thursday, April 12, 2018
April 12, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/12, I distributed one handout, my version of the Corbin case brief. I collected the case briefs from the class, and plan to return them on Tuesday. After going over the Corbin case brief, we went back into the textbook. We finished our discussion of Butler. I went over the Miranda case, and then the case of Harris v. N.Y., which basically took the same position as the Ohio Supreme Court had taken in Butler. I went through the votes in Miranda and Harris, which showed that the different results in those two cases was not due to any of the Justices really thinking that there should be different results for unMirandized statements in the case-in-chief v. for purposes of impeachment. I also went over three examples of different types of dictum from three case we have studied so far, Butler, NFIB, and Mobbley.
The assignment for Tuesday 4/17 is to read in the text through p. 113, including Dempsey and Strunk.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/12, we first went over the 4 questions of assignment #2, trying to get to the point of each question. (I reminded the class that the non-collaboration rule includes not sharing class notes or discussion with anyone who was not in class today). Then we started dissecting the first issue in Ormsby, whether he was in custody before the break. We went through the 10 custody factors,and saw how many of them pointed to custody, even though the Court concluded that Ormsby was not in custody. We will pick up with the remainder of the Ormsby issues, and with Bridges and Nightingale, on Tuesday.
The assignment for Tuesday 4/17 is to work on Assignment #2 (due at the beginning of class Thursday, 4/19) and to review Ormsby, Bridges and Nightingale.
In class today, Thursday 4/12, I distributed one handout, my version of the Corbin case brief. I collected the case briefs from the class, and plan to return them on Tuesday. After going over the Corbin case brief, we went back into the textbook. We finished our discussion of Butler. I went over the Miranda case, and then the case of Harris v. N.Y., which basically took the same position as the Ohio Supreme Court had taken in Butler. I went through the votes in Miranda and Harris, which showed that the different results in those two cases was not due to any of the Justices really thinking that there should be different results for unMirandized statements in the case-in-chief v. for purposes of impeachment. I also went over three examples of different types of dictum from three case we have studied so far, Butler, NFIB, and Mobbley.
The assignment for Tuesday 4/17 is to read in the text through p. 113, including Dempsey and Strunk.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 4/12, we first went over the 4 questions of assignment #2, trying to get to the point of each question. (I reminded the class that the non-collaboration rule includes not sharing class notes or discussion with anyone who was not in class today). Then we started dissecting the first issue in Ormsby, whether he was in custody before the break. We went through the 10 custody factors,and saw how many of them pointed to custody, even though the Court concluded that Ormsby was not in custody. We will pick up with the remainder of the Ormsby issues, and with Bridges and Nightingale, on Tuesday.
The assignment for Tuesday 4/17 is to work on Assignment #2 (due at the beginning of class Thursday, 4/19) and to review Ormsby, Bridges and Nightingale.
Tuesday, April 10, 2018
April 10, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/10, I first reminded the class that the Corbin case briefs are due Thursday. We went over a few questions about the case brief. We reviewed the limits on Congress by Article I Section 8, and We then went over NFIB v. Sebelius. We went through Roberts' opinion, looking at his arguments from the text of the constitution, from precedent, and from the consequences of a decision the other way (the parade of horribles). We also looked at Ginsburg's dissent, and the "Joint Dissent's" agreement with Roberts. In terms of limitations on state power, I talked about the U.S. Supreme court case of Rowe v. N.H. Motor Transport, in which the Court struck down a Maine statute because the federal power had preempted any state power to regulate the delivery of cigarette products to minors in Maine. We began our discussion of Butler by going over what it was the the Court had decided in Miranda. On Thursday we will first go over the Corbin case brief, and then we'll pick up with Butler's analysis of dictum in Miranda.
The assignment for Thursday 4/12 is to finish your Corbin case briefs, due at the beginning of Thursday's class, and to review Butler, previously assigned.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/10, I distributed 3 handouts: Assignment #2 (reproduced below); State v. Bridges, 2003 ME 103; and State v. Nightingale, 2012 ME 132. We went over the requirements of the assignment, which is due at the beginning of class Thursday 4/19. We then went back through the 3 Seibert opinions, trying to pick out the positions taken by each opinion, as well as guessing about which of the opinions states the actual holding of Seibert. We then turned to Ormsby. We went over the background facts, and the sequence regarding Mirandizing Ormsby. We began watching the youtube video of a portion of the interrogation, but time ran out on us. On Thursday we will finish our discussion of Ormsby. I also want to be able to discuss Assignment #2 with the class, so the assignment for Thursday 4/12 is to review Ormsby, read Bridges and Nightingale, and try to figure out in Assignment #2, what is the legal issue behind each of the 4 questions in the assignment, and what authority will you use to address the question. Also, please finish watching the video of the Ormsby interrogation, which can be found at
https://www.youtube.com/watch?v=me5Qhw_LHmY
(or else just go to youtube and search for Ormsby Maine interrogation).
Assignment due the beginning of class Thursday, April 19, 2018
The assignment consists of a total of four 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 you want that confession be admissible in the Maine courts.
When the question asks you to make a specific assumption, that assumption just applies to that specific question only. 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, Bridges, and Nightingale, as well as all the relevant cases from the textbook. No additional cases are required or allowed
Question 1:
Officers Fife and Pyle are brand new members of 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. Andy is a college student at the nearby university. The car belongs to Andy, and the body turns out to be Andy’s roommate Opie. Opie’s death is clearly a homicide, as forensics determines that he was dead of blunt force trauma before he went into the water. Officers Fife and Pyle immediately have a hunch that Andy is the perpetrator of the homicide, and he is the focus of their interrogation. DNA from the car matches Andy’s, but, as Officer Fife points out to Officer Pyle, that doesn’t help much, since the car belongs to Andy.
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 wring a confession out of Andy.
Officer Fife wants to tell Andy as soon as Andy comes to the station that they’ve got some additional questions for him (beside the identification of the car), but that he’s free to leave if he wishes. He thinks (with good reason) that Andy won’t want to leave at that point, because Andy doesn’t know that he’s already the focus of the 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 the 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.
1) Assuming that Andy is not in custody at this point, which officer has the better plan in terms of whether to Mirandize Andy right away?
Question 2:
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 for the entirety of Question 2.
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 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 (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.
2) Is there any problem with continued interrogation after Andy has asked for an attorney?
Question 3:
Assume instead that Andy did not ask for an attorney, and was not Mirandized at any point up to the beginning of Question 3, Assume also that Fife and Pyle are pretty sure that they can get a confession out of Andy after he gets some pizza in his belly. They are pretty sure that they’ve got enough to arrest him already (and you can assume that they are right) but it sure would be nice to get a confession out of Andy. Assume that Andy is in custody for Miranda purposes.
Officer Fife now wants to tell Andy that he’s under arrest, then Mirandize Andy, and then get him to admit that he killed Opie. 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 did it (without telling him that he’s under arrest or Mirandizing him). If Andy admits to the killing, 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 be willing to do that, since he’s already admitted it once).
3) Which officer has the better plan in terms of when to Mirandize Andy?
Question 4:
Assume the facts from questions 1 through 3, but not any assumptions about whether Andy has not been in custody for Miranda purposes. Assume that Andy has been told that he’s free to leave, but has never been Mirandized.
The pizza break is over. The entire time in the police station has gone on for three 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 tells Andy that he knows that Andy is lying, and that soon the truth will come out. He says (falsely) that the police have the DNA to prove that Andy killed Opie. Fife (as good cop) then just repeats that confessing would be good for Andy’s soul, and that Andy will finally feel better if he tells them everything. He says that things will go better in court for Andy if he tells the truth now.
Andy finally breaks down and confesses that he killed Opie after a fight about Opie eating Andy’s leftover pizza from the refrigerator.
4) Analyze whether Andy has been in custody for Miranda purposes at any point (and if so, at what point) during the events related in Questions 1 through 4.
You should clearly mark 1-4 for the 4 questions. Don’t repeat the questions - just give the answers. I anticipate that your paper will be roughly 2 or 3 pages long. When citing a case, underline the name of the case.
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) Fife has the better plan. If Andy is Mirandized right away, there’s basically no way that any statement that they get out of Andy will be suppressed. After all, both Ormsby and Nightingale were Mirandized right away, and so their statements were not suppressed. Ormsby §12; Nightingale, ¶15. On the other hand, Bridges was not Mirandized, and so her statements were suppressed (Bridges ¶12). There’s really no way to predict whether the Court will find whether a statement is voluntary or not, and so Mirandizing right away is the only way to make a statement admissible. Miranda itself says that no statements of a suspect can be admitted unless the 4 warnings have first been given (Miranda, text, p. 547)
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. 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 Thursday 4/19, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the 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.
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. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
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.
In class today, Tuesday 4/10, I first reminded the class that the Corbin case briefs are due Thursday. We went over a few questions about the case brief. We reviewed the limits on Congress by Article I Section 8, and We then went over NFIB v. Sebelius. We went through Roberts' opinion, looking at his arguments from the text of the constitution, from precedent, and from the consequences of a decision the other way (the parade of horribles). We also looked at Ginsburg's dissent, and the "Joint Dissent's" agreement with Roberts. In terms of limitations on state power, I talked about the U.S. Supreme court case of Rowe v. N.H. Motor Transport, in which the Court struck down a Maine statute because the federal power had preempted any state power to regulate the delivery of cigarette products to minors in Maine. We began our discussion of Butler by going over what it was the the Court had decided in Miranda. On Thursday we will first go over the Corbin case brief, and then we'll pick up with Butler's analysis of dictum in Miranda.
The assignment for Thursday 4/12 is to finish your Corbin case briefs, due at the beginning of Thursday's class, and to review Butler, previously assigned.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/10, I distributed 3 handouts: Assignment #2 (reproduced below); State v. Bridges, 2003 ME 103; and State v. Nightingale, 2012 ME 132. We went over the requirements of the assignment, which is due at the beginning of class Thursday 4/19. We then went back through the 3 Seibert opinions, trying to pick out the positions taken by each opinion, as well as guessing about which of the opinions states the actual holding of Seibert. We then turned to Ormsby. We went over the background facts, and the sequence regarding Mirandizing Ormsby. We began watching the youtube video of a portion of the interrogation, but time ran out on us. On Thursday we will finish our discussion of Ormsby. I also want to be able to discuss Assignment #2 with the class, so the assignment for Thursday 4/12 is to review Ormsby, read Bridges and Nightingale, and try to figure out in Assignment #2, what is the legal issue behind each of the 4 questions in the assignment, and what authority will you use to address the question. Also, please finish watching the video of the Ormsby interrogation, which can be found at
https://www.youtube.com/watch?v=me5Qhw_LHmY
(or else just go to youtube and search for Ormsby Maine interrogation).
Assignment due the beginning of class Thursday, April 19, 2018
The assignment consists of a total of four 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 you want that confession be admissible in the Maine courts.
When the question asks you to make a specific assumption, that assumption just applies to that specific question only. 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, Bridges, and Nightingale, as well as all the relevant cases from the textbook. No additional cases are required or allowed
Question 1:
Officers Fife and Pyle are brand new members of 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. Andy is a college student at the nearby university. The car belongs to Andy, and the body turns out to be Andy’s roommate Opie. Opie’s death is clearly a homicide, as forensics determines that he was dead of blunt force trauma before he went into the water. Officers Fife and Pyle immediately have a hunch that Andy is the perpetrator of the homicide, and he is the focus of their interrogation. DNA from the car matches Andy’s, but, as Officer Fife points out to Officer Pyle, that doesn’t help much, since the car belongs to Andy.
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 wring a confession out of Andy.
Officer Fife wants to tell Andy as soon as Andy comes to the station that they’ve got some additional questions for him (beside the identification of the car), but that he’s free to leave if he wishes. He thinks (with good reason) that Andy won’t want to leave at that point, because Andy doesn’t know that he’s already the focus of the 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 the 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.
1) Assuming that Andy is not in custody at this point, which officer has the better plan in terms of whether to Mirandize Andy right away?
Question 2:
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 for the entirety of Question 2.
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 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 (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.
2) Is there any problem with continued interrogation after Andy has asked for an attorney?
Question 3:
Assume instead that Andy did not ask for an attorney, and was not Mirandized at any point up to the beginning of Question 3, Assume also that Fife and Pyle are pretty sure that they can get a confession out of Andy after he gets some pizza in his belly. They are pretty sure that they’ve got enough to arrest him already (and you can assume that they are right) but it sure would be nice to get a confession out of Andy. Assume that Andy is in custody for Miranda purposes.
Officer Fife now wants to tell Andy that he’s under arrest, then Mirandize Andy, and then get him to admit that he killed Opie. 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 did it (without telling him that he’s under arrest or Mirandizing him). If Andy admits to the killing, 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 be willing to do that, since he’s already admitted it once).
3) Which officer has the better plan in terms of when to Mirandize Andy?
Question 4:
Assume the facts from questions 1 through 3, but not any assumptions about whether Andy has not been in custody for Miranda purposes. Assume that Andy has been told that he’s free to leave, but has never been Mirandized.
The pizza break is over. The entire time in the police station has gone on for three 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 tells Andy that he knows that Andy is lying, and that soon the truth will come out. He says (falsely) that the police have the DNA to prove that Andy killed Opie. Fife (as good cop) then just repeats that confessing would be good for Andy’s soul, and that Andy will finally feel better if he tells them everything. He says that things will go better in court for Andy if he tells the truth now.
Andy finally breaks down and confesses that he killed Opie after a fight about Opie eating Andy’s leftover pizza from the refrigerator.
4) Analyze whether Andy has been in custody for Miranda purposes at any point (and if so, at what point) during the events related in Questions 1 through 4.
You should clearly mark 1-4 for the 4 questions. Don’t repeat the questions - just give the answers. I anticipate that your paper will be roughly 2 or 3 pages long. When citing a case, underline the name of the case.
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) Fife has the better plan. If Andy is Mirandized right away, there’s basically no way that any statement that they get out of Andy will be suppressed. After all, both Ormsby and Nightingale were Mirandized right away, and so their statements were not suppressed. Ormsby §12; Nightingale, ¶15. On the other hand, Bridges was not Mirandized, and so her statements were suppressed (Bridges ¶12). There’s really no way to predict whether the Court will find whether a statement is voluntary or not, and so Mirandizing right away is the only way to make a statement admissible. Miranda itself says that no statements of a suspect can be admitted unless the 4 warnings have first been given (Miranda, text, p. 547)
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. 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 Thursday 4/19, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the 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.
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. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
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.
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