POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/27, I first went over some questions about the Legassie case brief due Thursday. I clarified that you can ignore, for all segments of the brief, all the charges other than the indecent conduct; that there were two issues; and that the "facts" need to answer the question of what circumstances make one side a winner. We then did an in-class exercise of a Sample Test in preparation for Exam #1 on Tuesday 3/6. If you are missing any handouts, you need to email me by 8:00 pm on Monday 3/5 to let me know that you want me to bring them to the exam. Finally we went over the hypothetical variations from Speelman that I handed out last week. The idea was to test our holding for Speelman (e.g., what if you know that the tenant isn't living at home, but you don't know exactly where she is). On Thursday 3/1, after going over the Legassie case briefs, I want to go over the U.S. Supreme Court case of Jones v. Flowers, as well as go over the question of whether Speelman will have any actual defenses to the revocation of her subsidy, now that she's gotten the right to have a hearing.
The assignment for Thursday 3/1 is to finish your Legassie case briefs (due at the beginning of class). If for any reason you can't be in class Thursday to hand the case brief in, you should email it to me by the beginning of class. Also, review Katko v. Briney (p.39) previously assigned.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 2/27, we first went over some aspects of the Wesby outline due on Thursday. We discussed how Thomas divided his opinion into analysis of the issues themselves, and then analysis of how the lower court went wrong. We then did an in-class exercise of a Sample Test in preparation for Exam #1 on Tuesday 3/6. If you are missing any handouts, you need to email me by 8:00 pm on Monday 3/5 to let me know that you want me to bring them to the exam. Then we went over the Safford v. Redding majority opinion. On Thursday, after we go over Wesby, I plan to start with the dissent in Safford.
The assignment for Thursday 3/1 is is to finish your Wesby outline (due at the beginning of class). If for any reason you can't be in class Thursday to hand the case brief in, you should email it to me by the beginning of class. Also, read in the text through p. 498, including Terry v. Ohio.
Tuesday, February 27, 2018
Thursday, February 22, 2018
February 22, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/22, I distributed 2 handouts: my version of the Speelman case brief, and some hypotheticals about the Speelman fact pattern. We first talked about the Legassie case brief (due next Thursday). I clarified that you should basically ignore the Best Evidence discussion for all segments of the brief, and just deal with the Indecent Conduct issue. We went over what discrete questions the Legassie Court needed to deal with, and how it dealt with them. We looked at the exact words of the statute that were at issue. We also discussed the constitutional implications of the statute that were not addressed by the Court, but would need to be if the Court adopted a broader definition of the scope of the statute. I also went over the more specific alternative crime discussed by the Court that the state did not charge Legassie with, and the problems with proving that statute. I also clarified to the class that, even though students are usually encouraged to share information with students who missed a class, our class discussions regarding the Legassie brief are not to shared, and absent students are limited to emailing me. We then went through the Speelman case, and put it into the case brief format. I also clarified the requirements of a Temporary Restraining Order (TRO) and a Preliminary Injunction.
The assignment for Tuesday 2/27 is a) work on your Legassie case brief; b) read over and prepare to discuss the Speelman hypotheticals; and c) read in the text pp. 38-43 (including Katko v. Briney). Also on Tuesday, I plan to give a sample test so students know the kind of questions that will be on the 3/6 exam, discuss the recent U.S. Supreme Court due process (notice) case of Jones v. Flowers, and discuss whether, now that Speelman has gotten a hearing, whether there are any actual defenses to the charges against her.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/22, we first discussed the Wesby outline that is due next Thursday. I went over the underlying error by the police, in that they made the arrests thinking that the D.C. Code only required being in the apartment without a right to be there, as opposed to knowing that they had no right to be there. From this argument (clarified in Ginsburg's concurrence) we saw how Ginsburg suggested reexamining the doctrine that says police actual purpose in a search or seizure is irrelevant, as decided in the case of Whren v. U.S. (also in Ginsburg's concurrence). So I talked about Whren, where drug police made a stop for a traffic infraction. This led us back to a case we had started discussing on Tuesday, Navarette v. California. In that 5-4 decision, the Court found that there was reasonable suspicion based on an anonymous tip. The police justified their belief that the crime was on-going on the supposition that the driver was drunk, even though 5 minutes of following the driver produced only flawless driving. We talked about Kyllo case (p. 483) and then we turned to Florida v. Jardines, and saw how it followed Jones in terms of protected property interest layered on top of privacy interest.
The assignment for Tuesday 2/27 is to continue work on your Wesby outline, and to read in the text through p. 493, including Safford v. Redding.
In class today, Thursday 2/22, I distributed 2 handouts: my version of the Speelman case brief, and some hypotheticals about the Speelman fact pattern. We first talked about the Legassie case brief (due next Thursday). I clarified that you should basically ignore the Best Evidence discussion for all segments of the brief, and just deal with the Indecent Conduct issue. We went over what discrete questions the Legassie Court needed to deal with, and how it dealt with them. We looked at the exact words of the statute that were at issue. We also discussed the constitutional implications of the statute that were not addressed by the Court, but would need to be if the Court adopted a broader definition of the scope of the statute. I also went over the more specific alternative crime discussed by the Court that the state did not charge Legassie with, and the problems with proving that statute. I also clarified to the class that, even though students are usually encouraged to share information with students who missed a class, our class discussions regarding the Legassie brief are not to shared, and absent students are limited to emailing me. We then went through the Speelman case, and put it into the case brief format. I also clarified the requirements of a Temporary Restraining Order (TRO) and a Preliminary Injunction.
The assignment for Tuesday 2/27 is a) work on your Legassie case brief; b) read over and prepare to discuss the Speelman hypotheticals; and c) read in the text pp. 38-43 (including Katko v. Briney). Also on Tuesday, I plan to give a sample test so students know the kind of questions that will be on the 3/6 exam, discuss the recent U.S. Supreme Court due process (notice) case of Jones v. Flowers, and discuss whether, now that Speelman has gotten a hearing, whether there are any actual defenses to the charges against her.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/22, we first discussed the Wesby outline that is due next Thursday. I went over the underlying error by the police, in that they made the arrests thinking that the D.C. Code only required being in the apartment without a right to be there, as opposed to knowing that they had no right to be there. From this argument (clarified in Ginsburg's concurrence) we saw how Ginsburg suggested reexamining the doctrine that says police actual purpose in a search or seizure is irrelevant, as decided in the case of Whren v. U.S. (also in Ginsburg's concurrence). So I talked about Whren, where drug police made a stop for a traffic infraction. This led us back to a case we had started discussing on Tuesday, Navarette v. California. In that 5-4 decision, the Court found that there was reasonable suspicion based on an anonymous tip. The police justified their belief that the crime was on-going on the supposition that the driver was drunk, even though 5 minutes of following the driver produced only flawless driving. We talked about Kyllo case (p. 483) and then we turned to Florida v. Jardines, and saw how it followed Jones in terms of protected property interest layered on top of privacy interest.
The assignment for Tuesday 2/27 is to continue work on your Wesby outline, and to read in the text through p. 493, including Safford v. Redding.
Tuesday, February 20, 2018
February 20, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/20 I distributed 2 handouts: Assignment #1, reproduced below, and the case you'll be briefing, State v. Legassie. I let the class know I plan our Exam #1 for Tuesday March 6th. I talked about the case brief assignment, and a little about the Best Evidence rule issue that you will not be briefing. We then went through Lawrence v. Texas, and put it into the format of a case brief. We saw how Kennedy criticized the "fundamental right" analysis of Bowers v. Hardwick, but then surprisingly did not find a fundamental right to be involved in Lawrence. I also talked about the concurring opinion of Justice O'Connor, which was based on Equal Protection instead of Due Process. We talked about the scope of the Lawrence holding, and how it might apply to the assigned case of Legassie and Indecent Conduct. Along the way, we also discussed the concept of de novo review by an appellate court (usually limited to questions of law), as contrasted with review of the sufficiency of the evidence (usually applied to questions of fact), and how that wasn't the process in Texas in the Lawrence prior proceedings.
The assignment for Thursday 2/22 is to read Legassie, so that we can discuss it in class, and to read in the text pp.34-38, including Speelman v. Housing Authority.
Assignment due Thursday, March 1, 2018
The assignment (graded) is to do a Case Brief of the Indecent Conduct portion the case of State v. Legassie, 2017 ME 202, __ A.3d __ (also distributed to the class today). (I have omitted the second part of the case, regarding the Best Evidence rule, and the assignment is to just brief the Indecent Conduct discussion).
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I've distributed. 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 Thursday 3/1, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else's work. Do not discuss your case brief with anyone but me. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 2/20 I distributed 2 handouts: Assignment #1, reproduced below, and the case you'll be outlining, D.C. v. Wesby. I let the class know I plan our Exam #1 for Tuesday March 6th. We first went over the requirements of the outline, and I gave some explanation of the second issue in Wesby, the existence of qualified immunity even if there had been no probable cause for the arrests. We then moved to the definition of probable cause, and the Gates case. We went over the pre-Gates test, and saw how Gates changed it. We outlined together the Gates opinion, putting Roman Numerals and sub-elements into the opinion. We also went over the dissent. I then talked about a 2014 case Navarette v. California, in which the Court decided whether reasonable suspicion was generated by an anonymous tip. I left off at the question of how the the Court found support for the existence of an on-going crime, which is where I'll pick up on Thursday. Along the way, we also discussed the concept of de novo review by an appellate court (usually limited to questions of law), as contrasted with review of the sufficiency of the evidence (as in the decision of the Magistrate regarding probable cause).
The assignment for Thursday 2/22 is to read the Wesby case (so that I can answer any questions) and read in the text pp. 483-487 (including Florida v. Jardines).
Assignment due Thursday, March 1, 2018
The assignment is to do an outline of Justice Thomas' opinion in D.C. v. Wesby (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.
For example:
I. (Question)
A. (Question and Answer)
1. (Question and Answer)
2. (Question and Answer)
a. (Question and Answer)
b. (Question and Answer)
B. (Question and Answer)
II. (Question)
Follow the structure already provided by Justice Thomas:
I.
II.
III.
A.
B.
IV.
A.
B.
Add additional sub-elements to this as is appropriate, but don't alter Thomas' structure. What makes an addition appropriate? Basically, when Thomas 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 3/1, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
The work should be entirely your own, with no collaboration or plagiarism. Do not show your paper to anyone. Do not look at anyone else's paper. Do not do any outside research. Just work from the handout itself. Do not troll the internet. See the syllabus regarding plagiarism and collaboration.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
In class today, Tuesday 2/20 I distributed 2 handouts: Assignment #1, reproduced below, and the case you'll be briefing, State v. Legassie. I let the class know I plan our Exam #1 for Tuesday March 6th. I talked about the case brief assignment, and a little about the Best Evidence rule issue that you will not be briefing. We then went through Lawrence v. Texas, and put it into the format of a case brief. We saw how Kennedy criticized the "fundamental right" analysis of Bowers v. Hardwick, but then surprisingly did not find a fundamental right to be involved in Lawrence. I also talked about the concurring opinion of Justice O'Connor, which was based on Equal Protection instead of Due Process. We talked about the scope of the Lawrence holding, and how it might apply to the assigned case of Legassie and Indecent Conduct. Along the way, we also discussed the concept of de novo review by an appellate court (usually limited to questions of law), as contrasted with review of the sufficiency of the evidence (usually applied to questions of fact), and how that wasn't the process in Texas in the Lawrence prior proceedings.
The assignment for Thursday 2/22 is to read Legassie, so that we can discuss it in class, and to read in the text pp.34-38, including Speelman v. Housing Authority.
Assignment due Thursday, March 1, 2018
The assignment (graded) is to do a Case Brief of the Indecent Conduct portion the case of State v. Legassie, 2017 ME 202, __ A.3d __ (also distributed to the class today). (I have omitted the second part of the case, regarding the Best Evidence rule, and the assignment is to just brief the Indecent Conduct discussion).
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I've distributed. 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 Thursday 3/1, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else's work. Do not discuss your case brief with anyone but me. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 2/20 I distributed 2 handouts: Assignment #1, reproduced below, and the case you'll be outlining, D.C. v. Wesby. I let the class know I plan our Exam #1 for Tuesday March 6th. We first went over the requirements of the outline, and I gave some explanation of the second issue in Wesby, the existence of qualified immunity even if there had been no probable cause for the arrests. We then moved to the definition of probable cause, and the Gates case. We went over the pre-Gates test, and saw how Gates changed it. We outlined together the Gates opinion, putting Roman Numerals and sub-elements into the opinion. We also went over the dissent. I then talked about a 2014 case Navarette v. California, in which the Court decided whether reasonable suspicion was generated by an anonymous tip. I left off at the question of how the the Court found support for the existence of an on-going crime, which is where I'll pick up on Thursday. Along the way, we also discussed the concept of de novo review by an appellate court (usually limited to questions of law), as contrasted with review of the sufficiency of the evidence (as in the decision of the Magistrate regarding probable cause).
The assignment for Thursday 2/22 is to read the Wesby case (so that I can answer any questions) and read in the text pp. 483-487 (including Florida v. Jardines).
Assignment due Thursday, March 1, 2018
The assignment is to do an outline of Justice Thomas' opinion in D.C. v. Wesby (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.
For example:
I. (Question)
A. (Question and Answer)
1. (Question and Answer)
2. (Question and Answer)
a. (Question and Answer)
b. (Question and Answer)
B. (Question and Answer)
II. (Question)
Follow the structure already provided by Justice Thomas:
I.
II.
III.
A.
B.
IV.
A.
B.
Add additional sub-elements to this as is appropriate, but don't alter Thomas' structure. What makes an addition appropriate? Basically, when Thomas 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 3/1, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the outline. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
The work should be entirely your own, with no collaboration or plagiarism. Do not show your paper to anyone. Do not look at anyone else's paper. Do not do any outside research. Just work from the handout itself. Do not troll the internet. See the syllabus regarding plagiarism and collaboration.
IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.
Thursday, February 15, 2018
February 15, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/15, we finished our discussion of Glucksberg. After reviewing the "fundamental" rights analysis, we saw how the Court applied the low hurdles ("rational basis" review) to the state's justification for the ban on assisted suicide. We discussed the Souter concurrence, in which he disagreed with Rehnquist about the characterization of the right asserted, but still ruled in favor of the state because of his concern about the separation of powers. I went over three institutional questions frequently confronted by the Court: the rights of the individual versus the power of government; the separation of powers between the three branches; and the separtion of powers between the federal and the state governments. We then looked at the Maynard article, and her description of what it feels like when somebody else makes a decision for you when you believe that you have the right to make for yourself. We discussed the excerpt from Obergefell, in which Kennedy and Roberts disagreed about whether the Court was adhering to Glucksberg. I then gave an introduction to Lawrence v. Texas, contrasting the equal protection theory with the substantive due process theory.
The assignment for Tuesday 2/20 is to read in the text pp. 67-72 (including Lawrence v. Texas).
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/15 we did our prediction for Carpenter based on the oral argument. We went through Justice by Justice and evaluated how the questions asked might reflect the ultimate vote in the case. We considered such subjects as the ability to distinguish the 3rd party doctrine cases, technological change itself as a distinction, the rules about subpoenas, and the existence of a property interest in the CSLI. I came down to a 6-2 vote for Carpenter (not counting Thomas), but with no majority opinion. (The Carpenter votes would be split 4-2 on privacy theory versus property theory. But I would be shocked if the case actually came out this way.)
The assignment for Tuesday 2/20 is to read in the text pp. 479-483 (including Gates).
In class today, Thursday 2/15, we finished our discussion of Glucksberg. After reviewing the "fundamental" rights analysis, we saw how the Court applied the low hurdles ("rational basis" review) to the state's justification for the ban on assisted suicide. We discussed the Souter concurrence, in which he disagreed with Rehnquist about the characterization of the right asserted, but still ruled in favor of the state because of his concern about the separation of powers. I went over three institutional questions frequently confronted by the Court: the rights of the individual versus the power of government; the separation of powers between the three branches; and the separtion of powers between the federal and the state governments. We then looked at the Maynard article, and her description of what it feels like when somebody else makes a decision for you when you believe that you have the right to make for yourself. We discussed the excerpt from Obergefell, in which Kennedy and Roberts disagreed about whether the Court was adhering to Glucksberg. I then gave an introduction to Lawrence v. Texas, contrasting the equal protection theory with the substantive due process theory.
The assignment for Tuesday 2/20 is to read in the text pp. 67-72 (including Lawrence v. Texas).
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/15 we did our prediction for Carpenter based on the oral argument. We went through Justice by Justice and evaluated how the questions asked might reflect the ultimate vote in the case. We considered such subjects as the ability to distinguish the 3rd party doctrine cases, technological change itself as a distinction, the rules about subpoenas, and the existence of a property interest in the CSLI. I came down to a 6-2 vote for Carpenter (not counting Thomas), but with no majority opinion. (The Carpenter votes would be split 4-2 on privacy theory versus property theory. But I would be shocked if the case actually came out this way.)
The assignment for Tuesday 2/20 is to read in the text pp. 479-483 (including Gates).
Tuesday, February 13, 2018
February 13, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/13, I distributed three handouts: my version of the Gucksberg case brief; an article on death with dignity by Brittany Maynard; and an excerpt about fundamental rights from the same-sex marriage case of Obergefell v. Hodges. We started our discussion of the Glucksberg case by going through the requirements of how a right of the individual can come to be recognized as "fundamental", and then the flow chart of how a right is evaluated if it is, or is not, fundamental (high hurdles versus low hurdles). We saw how the plaintiffs in Glucksberg also argued that previous Supreme Court cases had already established the fundamental right to make intimate decisions about one's own body. We went through how these questions get written into a case brief. We also went over the difference between the panel decision of Court of Appeals, and the en banc decision. We left off with the low hurdles, the analysis once the individual right is determined not to be fundamental. We will pick up on Thursday with how the low hurdles analysis went in Glucksberg.
The assignment for Thursday 2/15 is to read the three handouts, and to review (re-read) the Glucksberg opinion, including the concurrence.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 2/13, we first finished up our discussion of the Court of Appeals opinion in Carpenter, including the concurring opinion. We then looked at the arguments advanced in the briefs of the parties, and how Carpenter tried to come within both wings of Jones , the privacy wing and a nod to the property wing. We then turned to the oral argument. We talked first about what the Justices use the oral argument for, and why Justice Thomas doesn't participate. We looked at how the Justices at the beginning were trying to get Wessler to distinguish this case from the 3rd party doctrine cases. We will pick up on Thursday with why Ginsburg and Sotomayor, liberals on the Court, appear to attack Wessler as well.
The assignment for Thursday 2/15 is to review the Carpenter oral argument. As you listen, try to make a prediction on how the individual Justices will rule, based on the questions they ask and the concerns that they voice.
In class today, Tuesday 2/13, I distributed three handouts: my version of the Gucksberg case brief; an article on death with dignity by Brittany Maynard; and an excerpt about fundamental rights from the same-sex marriage case of Obergefell v. Hodges. We started our discussion of the Glucksberg case by going through the requirements of how a right of the individual can come to be recognized as "fundamental", and then the flow chart of how a right is evaluated if it is, or is not, fundamental (high hurdles versus low hurdles). We saw how the plaintiffs in Glucksberg also argued that previous Supreme Court cases had already established the fundamental right to make intimate decisions about one's own body. We went through how these questions get written into a case brief. We also went over the difference between the panel decision of Court of Appeals, and the en banc decision. We left off with the low hurdles, the analysis once the individual right is determined not to be fundamental. We will pick up on Thursday with how the low hurdles analysis went in Glucksberg.
The assignment for Thursday 2/15 is to read the three handouts, and to review (re-read) the Glucksberg opinion, including the concurrence.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 2/13, we first finished up our discussion of the Court of Appeals opinion in Carpenter, including the concurring opinion. We then looked at the arguments advanced in the briefs of the parties, and how Carpenter tried to come within both wings of Jones , the privacy wing and a nod to the property wing. We then turned to the oral argument. We talked first about what the Justices use the oral argument for, and why Justice Thomas doesn't participate. We looked at how the Justices at the beginning were trying to get Wessler to distinguish this case from the 3rd party doctrine cases. We will pick up on Thursday with why Ginsburg and Sotomayor, liberals on the Court, appear to attack Wessler as well.
The assignment for Thursday 2/15 is to review the Carpenter oral argument. As you listen, try to make a prediction on how the individual Justices will rule, based on the questions they ask and the concerns that they voice.
Thursday, February 8, 2018
February 8. 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/8, I distributed two handouts: a list of the current Justices of the Supreme Court, and the Maine sentencing statutes. We first went through the three dissenting opinions in Miller, and saw especially how Roberts' dissent differed from Thomas'. I then went over the 2016 case of Montgomery v. Louisiana, regarding retroactive application of the Miller decision. We went through the votes in Montgomery, and discussed how the lineups only had one change from the lineup in Miller. We also talked about how the Court in Montgomery was basically doing the same task that we do in a case brief: figuring out exactly what a court has held. We then looked at the Maine sentencing statute handout, and saw what Maine thinks of mandatory life sentences. We also went over statutory citation form. We then began our discussion of Glucksberg (previously assigned) by looking at the 5th Amendment and the 14th Amendment due process clauses. I talked about the strange history of the 3 protections of the 14th Amendment, including the creation of substantive due process. We will begin our discussion of the actual Glucksberg opinion on Tuesday
The assignment for Tuesday 2/13 is to write out (though not to be handed in or graded) a case brief of the majority opinion in Glucksberg, following the format of the case brief template and the case briefs that I have handed out to the class.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/8, I distributed three handouts: my version of the Carpenter outline, and both Carpenter's and the U.S.' Summary of Argument in the briefing for the current Supreme Court appeal of the Carpenter Court of Appeals decision. We first finished our discussion of Jones by reviewing the differences between the Scalia and Alito opinions, and the significance of Sotomayor joining Scalia's opinion but agreeing as well with Alito's privacy analysis. We discussed at what point the search began, for the two camps. We talked about the concept of what a "search" is (in legalese, as opposed to English), and I talked about the Supreme Court opinion in Florida v. Jardines, a drug-sniffing dog case, in which the Court found a search because of a property interest, even if there was no expectation of privacy.
We then turned to Carpenter, and its view of the holding in Jones. We talked about mandatory versus persuasive authority, and the concepts of following versus distinguishing authority. We discussed how Sotomayor's agreement with Alito's opinion in Jones meant that there was a majority for the proposition of a privacy interest in long-term surveillance (even though Sotomayor didn't vote with Alito). We then turned to the task of outlining the Carpenter opinion. We will pick up next week with the outline how the Court of Appeals followed some authority and distinguished other authority.
The assignment for Tuesday 2/13 is to review both your and my versions of the Carpenter outline, to read today's Carpenter summaries. In addition, both read and listen to the oral argument in Carpenter. One site at which to watch it is
https://www.oyez.org/cases/2017/16-402
In class today, Thursday 2/8, I distributed two handouts: a list of the current Justices of the Supreme Court, and the Maine sentencing statutes. We first went through the three dissenting opinions in Miller, and saw especially how Roberts' dissent differed from Thomas'. I then went over the 2016 case of Montgomery v. Louisiana, regarding retroactive application of the Miller decision. We went through the votes in Montgomery, and discussed how the lineups only had one change from the lineup in Miller. We also talked about how the Court in Montgomery was basically doing the same task that we do in a case brief: figuring out exactly what a court has held. We then looked at the Maine sentencing statute handout, and saw what Maine thinks of mandatory life sentences. We also went over statutory citation form. We then began our discussion of Glucksberg (previously assigned) by looking at the 5th Amendment and the 14th Amendment due process clauses. I talked about the strange history of the 3 protections of the 14th Amendment, including the creation of substantive due process. We will begin our discussion of the actual Glucksberg opinion on Tuesday
The assignment for Tuesday 2/13 is to write out (though not to be handed in or graded) a case brief of the majority opinion in Glucksberg, following the format of the case brief template and the case briefs that I have handed out to the class.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/8, I distributed three handouts: my version of the Carpenter outline, and both Carpenter's and the U.S.' Summary of Argument in the briefing for the current Supreme Court appeal of the Carpenter Court of Appeals decision. We first finished our discussion of Jones by reviewing the differences between the Scalia and Alito opinions, and the significance of Sotomayor joining Scalia's opinion but agreeing as well with Alito's privacy analysis. We discussed at what point the search began, for the two camps. We talked about the concept of what a "search" is (in legalese, as opposed to English), and I talked about the Supreme Court opinion in Florida v. Jardines, a drug-sniffing dog case, in which the Court found a search because of a property interest, even if there was no expectation of privacy.
We then turned to Carpenter, and its view of the holding in Jones. We talked about mandatory versus persuasive authority, and the concepts of following versus distinguishing authority. We discussed how Sotomayor's agreement with Alito's opinion in Jones meant that there was a majority for the proposition of a privacy interest in long-term surveillance (even though Sotomayor didn't vote with Alito). We then turned to the task of outlining the Carpenter opinion. We will pick up next week with the outline how the Court of Appeals followed some authority and distinguished other authority.
The assignment for Tuesday 2/13 is to review both your and my versions of the Carpenter outline, to read today's Carpenter summaries. In addition, both read and listen to the oral argument in Carpenter. One site at which to watch it is
https://www.oyez.org/cases/2017/16-402
Tuesday, February 6, 2018
February 6, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/6, I distributed one handout, my version of the Miller case brief. We went through the majority opinion in Miller, as well as Breyer's concurrence. We discussed the difference between concurring in the judgment versus concurring in the opinion. We went through the votes in the Miller case, and saw how Kennedy's vote was crucial. I also went over four previous Supreme Court cases that discussed sentencing of juveniles: Thompson v. Oklahoma; Stanford v. Kentucky; Roper v. Simmons; and Graham v. Florida. We will pick up on Thursday with the three dissenting opinions in Miller. I will also discuss a recent Supreme Court case that deals with those juveniles (now old men) who were automatically sentenced to life without parole years prior to Miller.
The assignment for Thursday 2/8 is to read in the text through p. 34 (including the Glucksberg case). You don't have to write out a case brief of Glucksberg, but read it with an eye toward briefing.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 2/6, I distributed two handouts: my version of an outline of Jones, and the text of the Court of Appeals decision in U.S. v. Carpenter. We started class by finishing our discussion of Katz. We looked at how the Court switched the definition of "search" away from the intrusion into a protected space, and it moved to a violation of the reasonable expectation of privacy. We talked about the difference between a subjective versus an objective expectation of privacy, as laid out in Harlan's concurrence. We also talked about the third-party doctrine (sharing information with a third party, like a phone company or a bank, shows that it's not "private"), and the "open fields" doctrine (from Oliver v. U.S.: there is no reasonable expectation of privacy in open fields). We then went to the Jones case. We counted votes and saw how Sotomayor decided whether Scalia's or Alito's view would become the majority opinion. We saw how Scalia resurrected pre-Katz law of physical intrusion as one way of conducting a "search", and how Alito stuck to the Katz formulation of how to define a "search". We will begin Thursday by exploring the exact point at which there is a search (the attachment of the GPS?; the first use?; prolonged use?).
The assignment for Thursday 2/8 is to review Jones, look at my version of the Jones outline, read the Carpenter case (at least through p. 6), and then write out (not handed in or graded) an outline of those first 6 pages of Carpenter.
In class today, Tuesday 2/6, I distributed one handout, my version of the Miller case brief. We went through the majority opinion in Miller, as well as Breyer's concurrence. We discussed the difference between concurring in the judgment versus concurring in the opinion. We went through the votes in the Miller case, and saw how Kennedy's vote was crucial. I also went over four previous Supreme Court cases that discussed sentencing of juveniles: Thompson v. Oklahoma; Stanford v. Kentucky; Roper v. Simmons; and Graham v. Florida. We will pick up on Thursday with the three dissenting opinions in Miller. I will also discuss a recent Supreme Court case that deals with those juveniles (now old men) who were automatically sentenced to life without parole years prior to Miller.
The assignment for Thursday 2/8 is to read in the text through p. 34 (including the Glucksberg case). You don't have to write out a case brief of Glucksberg, but read it with an eye toward briefing.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 2/6, I distributed two handouts: my version of an outline of Jones, and the text of the Court of Appeals decision in U.S. v. Carpenter. We started class by finishing our discussion of Katz. We looked at how the Court switched the definition of "search" away from the intrusion into a protected space, and it moved to a violation of the reasonable expectation of privacy. We talked about the difference between a subjective versus an objective expectation of privacy, as laid out in Harlan's concurrence. We also talked about the third-party doctrine (sharing information with a third party, like a phone company or a bank, shows that it's not "private"), and the "open fields" doctrine (from Oliver v. U.S.: there is no reasonable expectation of privacy in open fields). We then went to the Jones case. We counted votes and saw how Sotomayor decided whether Scalia's or Alito's view would become the majority opinion. We saw how Scalia resurrected pre-Katz law of physical intrusion as one way of conducting a "search", and how Alito stuck to the Katz formulation of how to define a "search". We will begin Thursday by exploring the exact point at which there is a search (the attachment of the GPS?; the first use?; prolonged use?).
The assignment for Thursday 2/8 is to review Jones, look at my version of the Jones outline, read the Carpenter case (at least through p. 6), and then write out (not handed in or graded) an outline of those first 6 pages of Carpenter.
Thursday, February 1, 2018
February 1, 2018
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/1, we began by going over the different forms of authority cited by the Maine Supreme Court in the Snow opinion. We looked at mandatory authority, such as Maine and federal statutes, prior Maine Supreme Court opinions, and U.S. Supreme Court opinions. We also looked at persuasive authority, such as decisions of the U.S. Court of Appeals, and decisions from other state's courts . All of these are examples of primary authority, that is, law. We also saw an example of secondary authority, in the citation to a treatise (Corbin on Contracts) which is itself not law at all. We looked at what we can learn from citation form, in both the federal court system (U.S. District Court, U.S. Court of Appeals, and U.S. Supreme Court), and decisions from other states.
We then turned back to the lessons that we can learn from the Snow case, and discussed how to satisfy the Snow opinion, but still have the client sign away rights as much as possible. We discussed clarity of the agreement in terms of coverage of malpractice claims and giving up the right to a jury, which pieces of paper to use and where the Arbitration clause should go and how it should be brought to the client's attention, and whether it is necessary to do an oral explanation to the client.
We then briefly discussed some of the textbook introductory material that was assigned for today, including law and equity, and the concept of natural law.
The assignment for Tuesday 2/6 is to read in the text pp. 16-21 (the Miller case, including all the opinions). Think of how you would brief the case, although you don't need to write out a case brief.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/1, we began by finishing our discussion of the Gabriel opinion. We went over the justifications offered for the Old Town checkpoint, and discussed which of those were related to the border. We talked about the lack of much result, in terms of illegal entry, that happened at Old Town, and how that didn't matter to Judge Woodcock's opinion of how "reasonableness" is assessed. We speculated about whether the Gabriel opinion opens the door to checkpoints anywhere in Maine, anytime, or whether it is limited to time of events like political party conventions. Along the way, we discussed the authority upon which Judge Woodcock relied, looking at not only mandatory U.S. Supreme court precedent, but also mandatory 1st Circuit cases, and contrasted that with persuasive authority from other Circuits.
We then turned to the Katz case. I first went over the 1961 case of Silverman v. U.S., in which the U.S. Supreme Court found a 4th Amendment violation by use of a "spike mike". We started our discussion of Katz by going over Black's dissent, and his view of "persons, houses, papers, and effects". We then turned to Stewart's opinion regarding the test for what constitutes a "search", and the new answer that the Court came up with. We will pick up next Tuesday with Stewart's discussion of what the word "reasonable" means.
The assignment for Tuesday 2/6 is to review Katz, and to read in the text through p. 478 (all three opinions in Jones).
In class today, Thursday 2/1, we began by going over the different forms of authority cited by the Maine Supreme Court in the Snow opinion. We looked at mandatory authority, such as Maine and federal statutes, prior Maine Supreme Court opinions, and U.S. Supreme Court opinions. We also looked at persuasive authority, such as decisions of the U.S. Court of Appeals, and decisions from other state's courts . All of these are examples of primary authority, that is, law. We also saw an example of secondary authority, in the citation to a treatise (Corbin on Contracts) which is itself not law at all. We looked at what we can learn from citation form, in both the federal court system (U.S. District Court, U.S. Court of Appeals, and U.S. Supreme Court), and decisions from other states.
We then turned back to the lessons that we can learn from the Snow case, and discussed how to satisfy the Snow opinion, but still have the client sign away rights as much as possible. We discussed clarity of the agreement in terms of coverage of malpractice claims and giving up the right to a jury, which pieces of paper to use and where the Arbitration clause should go and how it should be brought to the client's attention, and whether it is necessary to do an oral explanation to the client.
We then briefly discussed some of the textbook introductory material that was assigned for today, including law and equity, and the concept of natural law.
The assignment for Tuesday 2/6 is to read in the text pp. 16-21 (the Miller case, including all the opinions). Think of how you would brief the case, although you don't need to write out a case brief.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/1, we began by finishing our discussion of the Gabriel opinion. We went over the justifications offered for the Old Town checkpoint, and discussed which of those were related to the border. We talked about the lack of much result, in terms of illegal entry, that happened at Old Town, and how that didn't matter to Judge Woodcock's opinion of how "reasonableness" is assessed. We speculated about whether the Gabriel opinion opens the door to checkpoints anywhere in Maine, anytime, or whether it is limited to time of events like political party conventions. Along the way, we discussed the authority upon which Judge Woodcock relied, looking at not only mandatory U.S. Supreme court precedent, but also mandatory 1st Circuit cases, and contrasted that with persuasive authority from other Circuits.
We then turned to the Katz case. I first went over the 1961 case of Silverman v. U.S., in which the U.S. Supreme Court found a 4th Amendment violation by use of a "spike mike". We started our discussion of Katz by going over Black's dissent, and his view of "persons, houses, papers, and effects". We then turned to Stewart's opinion regarding the test for what constitutes a "search", and the new answer that the Court came up with. We will pick up next Tuesday with Stewart's discussion of what the word "reasonable" means.
The assignment for Tuesday 2/6 is to review Katz, and to read in the text through p. 478 (all three opinions in Jones).
Subscribe to:
Posts (Atom)