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).
Tuesday, October 30, 2018
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).
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