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).

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.

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).

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).

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.

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.

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.

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.