POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/28, I collected the Carter case briefs, and I also distributed my own version of the brief. I plan to grade them this weekend, and return them on Tuesday. We spent the class period going over the case and the case brief.
I also laid out a scheduling plan for the next two weeks. I plan to give some practice exam questions on Tuesday 3/5, and to give Exam #1 on Tuesday 3/12.
The assignment for Tuesday 3/5 is to read in the text pp. 34-38, including Speelman v. Bellingham Housing Authority.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 2/28, I distributed 2 handouts: the 2017 Supreme Court opinion in Dunn v. Madison, and the 2/27/2019 (yesterday) opinion in Madison v. Alabama. We first went over the procedural story of the Dunn v. Madison opinion, and the effect of the federal AEDPA statute on the ability to get these issues into federal court. We also looked at both the Ginsburg and Breyer concurrences in that case. We then turned to the Madison oral argument. We saw how the Justices eventually got Stevenson to concede on Issue #1 that loss of memory alone was not sufficient for a finding of incompetency, but that it was somewhat confusing what qualified as the "plus" to add to loss of memory. We also saw how one looming question was whether the state competency judge had in fact ruled out dementia as a cause of incompetency, or, alternatively, had allowed it but hadn't found that the dementia in this case had met the Panetti standard. We will pick up briefly on Tuesday with the question of whether it was Alabama's position that dementia could not be the source of incompetency.
I also laid out a scheduling plan for the next two weeks. I plan to give some practice exam questions on Tuesday 3/5, and to give Exam #1 on Tuesday 3/12.
The assignment for Tuesday 3/5 is to read today's 2 Madison opinion handouts. The plan then for next Thursday is to discuss the Timbs opinion which I had distributed to the class on 2/21.
Thursday, February 28, 2019
Tuesday, February 26, 2019
February 26, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/26, I distributed one handout, my version of the Carter issues that were not assigned for the case brief. We did go over those non-assigned issues by putting them in the case brief format. Along the way, I talked about various levels of persuasion (beyond a reasonable doubt; clear and convincing; preponderance of the evidence; probable cause to believe; reasonable suspicion; a hunch). We went over the difference between an objective standard versus a subjective standard. We also went over the concept of the discretion of a trial judge, and how the appellate court just polices the outer boundaries of that discretion. We also reviewed the concept of dictum.
The assignment for Thursday 2/28 is to finish your Carter case brief, due at the beginning of Thursday's class.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/26, we began by reviewing the holding of Panetti. We also looked at some of the intricacies of habeus corpus, including deference (or not) by the federal proceeding to state court findings. We also discussed mandatory authority (versus persuasive authority) in terms of the federal District Court and the U.S. Court of Appeals decisions in Panetti. We then turned to Madison. We looked at the dispute over the formulation of the Question Presented in the case. We talked about whether the lack of memory of the crime itself was enough to negate competency. We discussed the two problems of lying about memory and blackouts and fugue states. We also went over the roles of the desire to be civilized in our executions, and the relationship between that and the lack of memory of the crime.
The assignment for Thursday 2/28 is to review the Madison briefs and especially the Madison oral argument.
In class today, Tuesday 2/26, I distributed one handout, my version of the Carter issues that were not assigned for the case brief. We did go over those non-assigned issues by putting them in the case brief format. Along the way, I talked about various levels of persuasion (beyond a reasonable doubt; clear and convincing; preponderance of the evidence; probable cause to believe; reasonable suspicion; a hunch). We went over the difference between an objective standard versus a subjective standard. We also went over the concept of the discretion of a trial judge, and how the appellate court just polices the outer boundaries of that discretion. We also reviewed the concept of dictum.
The assignment for Thursday 2/28 is to finish your Carter case brief, due at the beginning of Thursday's class.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/26, we began by reviewing the holding of Panetti. We also looked at some of the intricacies of habeus corpus, including deference (or not) by the federal proceeding to state court findings. We also discussed mandatory authority (versus persuasive authority) in terms of the federal District Court and the U.S. Court of Appeals decisions in Panetti. We then turned to Madison. We looked at the dispute over the formulation of the Question Presented in the case. We talked about whether the lack of memory of the crime itself was enough to negate competency. We discussed the two problems of lying about memory and blackouts and fugue states. We also went over the roles of the desire to be civilized in our executions, and the relationship between that and the lack of memory of the crime.
The assignment for Thursday 2/28 is to review the Madison briefs and especially the Madison oral argument.
Thursday, February 21, 2019
February 21, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/21, we first went through Souter's concurrence in Glucksberg. We talked about his views on the characterization of the asserted right, and the reason that he nonetheless voted against the doctors. Along the way, I went over three recurring institutional conflicts in the law: the rights of the individual versus the power of government; the tension in a federal system between the power of the federal government versus the power of the state governments; and the separation of powers between the executive, the legislative, and the judicial branches. We then turned to the Carter case that is the subject of next week's graded case brief assignment. We went over correct citation form for the case, and discussed the Massachusetts common law (non-statutory) crime of which she was convicted. We looked at the sufficiency of the evidence issue, and saw how it was really divided into two separate issues, ¶10-11 and then ¶12-16. We then took one of the issues that is not included in the assignment (for the Issue, Facts, and Holding segments), the Due Process issue of vagueness. We worked through the formulation of that issue. We refined our initial stab at the legal question ("...does the common law provide sufficient notice of the elements of involuntary manslaughter...") to the more specific ("...does the common law provide sufficient notice of whether instructing a victim to kill himself "causes" the victim's death..."). We will work together through the other 2 non-assigned issues in Carter (free speech and expert witness) next Tuesday.
The assignment for Tuesday 2/26 is to continue your work on the Carter case brief, due at the beginning of class 2/28.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 2/21, I distributed one handout, yesterday's Supreme Court opinion in Timbs v. Indiana. I started class talking about a Court decision this week, Moore v. Texas, in which the Court ruled in another competency to execute case, this one about intellectual disability (as opposed to Madison and dementia). I went over how the Court majority found that the instructions that it had previously given to the Texas court had been ignored, and how that's one way to get to take a case for the second time. We also went through the specific ways in which the intellectual disability had been evaluated by Texas (twice) and what the Court found was wrong with that evaluation. I briefly talked about the dissent in the case as well. We then returned to Panetti. I went over the problem that the Court identified with the Court of Appeals decision in the case: looking only at the prisoner's awareness of the state's reason for the execution, as opposed to the prisoner himself having a rational understanding of the reason for the execution. I want to begin next week with a look at mandatory authority used by Panetti, and the role of trial courts in findings of fact.
The assignment for Tuesday 2/26 is review both the majority and dissenting opinions in Panetti; review the Madison briefs; and listen to and read the oral argument in Madison.
In class today, Thursday 2/21, we first went through Souter's concurrence in Glucksberg. We talked about his views on the characterization of the asserted right, and the reason that he nonetheless voted against the doctors. Along the way, I went over three recurring institutional conflicts in the law: the rights of the individual versus the power of government; the tension in a federal system between the power of the federal government versus the power of the state governments; and the separation of powers between the executive, the legislative, and the judicial branches. We then turned to the Carter case that is the subject of next week's graded case brief assignment. We went over correct citation form for the case, and discussed the Massachusetts common law (non-statutory) crime of which she was convicted. We looked at the sufficiency of the evidence issue, and saw how it was really divided into two separate issues, ¶10-11 and then ¶12-16. We then took one of the issues that is not included in the assignment (for the Issue, Facts, and Holding segments), the Due Process issue of vagueness. We worked through the formulation of that issue. We refined our initial stab at the legal question ("...does the common law provide sufficient notice of the elements of involuntary manslaughter...") to the more specific ("...does the common law provide sufficient notice of whether instructing a victim to kill himself "causes" the victim's death..."). We will work together through the other 2 non-assigned issues in Carter (free speech and expert witness) next Tuesday.
The assignment for Tuesday 2/26 is to continue your work on the Carter case brief, due at the beginning of class 2/28.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 2/21, I distributed one handout, yesterday's Supreme Court opinion in Timbs v. Indiana. I started class talking about a Court decision this week, Moore v. Texas, in which the Court ruled in another competency to execute case, this one about intellectual disability (as opposed to Madison and dementia). I went over how the Court majority found that the instructions that it had previously given to the Texas court had been ignored, and how that's one way to get to take a case for the second time. We also went through the specific ways in which the intellectual disability had been evaluated by Texas (twice) and what the Court found was wrong with that evaluation. I briefly talked about the dissent in the case as well. We then returned to Panetti. I went over the problem that the Court identified with the Court of Appeals decision in the case: looking only at the prisoner's awareness of the state's reason for the execution, as opposed to the prisoner himself having a rational understanding of the reason for the execution. I want to begin next week with a look at mandatory authority used by Panetti, and the role of trial courts in findings of fact.
The assignment for Tuesday 2/26 is review both the majority and dissenting opinions in Panetti; review the Madison briefs; and listen to and read the oral argument in Madison.
Tuesday, February 19, 2019
February 19, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/19, I distributed 3 handouts: my version of the Glucksberg case brief; Assignment #1 (reproduced below); and the case you'll be briefing, Commonwealth of Massachusetts v. Carter.
We first finished out discussion of the majority decision in Glucksberg. We reviewed the flow chart of whether due process protects individual rights against what the legislature restricts. We did Venn diagrams of personal autonomy and fundamental rights, and of the rationale for government restrictions and the actual restrictions imposed. We also talked about the use of precedent, and we discussed three options when dealing with precedent: following it (the same side wins because the context is the same; overruling it (because the prior case was wrongly decided); and distinguishing it (the different side wins because the context is different). We then went through the Maine statutory handout from last week on murder and assisted suicide, and did as much as we could to figure out the meaning of the terms used in those statutes. We also reviewed Maine statutory citation form. We went through the excerpt from Obergefell that I handed out last week, seeing how the Court majority treated the Glucksberg flow chart, and then saw what Roberts in dissent thought of the majority's adherence to Glucksberg.
On Thursday we will begin by discussing Souter's concurrence in Glucksberg. Then we will discuss the Carter case that's the subject of the case brief.
The assignment for Thursday 2/21 is to review Souter's concurrence in Glucksberg, and then to read and be prepared to discuss all of the Michelle Carter case.
Assignment due Thursday, February 28, 2019
The assignment (graded) is to do a Case Brief of the case of Commonwealth v. Carter, __Mass.__ (2019) (also distributed to the class today).
For the Issue, Facts, and Holding, I want you to only include Issues “a” (Sufficiency of the evidence); “d” “Infliction” of serious bodily injury; and “e” “Reasonable juvenile”. I do want you to read all of the Opinion, though, as well as to include all of the arguments in the other portions of the brief, including “appellant’s contentions on appeal”.
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
For this brief, include only the winner’s facts (“..., when...”) and not the loser’s facts (“..., even though...”)
Follow the format from the Sample Briefs that I’ve distributed.
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 2/28, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. To the extent that we discuss this case in class, do not share that discussion with others, even if they have missed class. Do no outside research. Do not troll the internet. Just work from the handout itself. See the syllabus regarding plagiarism and collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/19, I handed back the Gamble papers, and we went over them. I also went over the Kagan and Gorsuch questions about the effect that incorporation had on the dual sovereigns exception. We began our discussion of Madison by going over the 1970s cases of Furman v. Georgia and Gregg v. Georgia, in which the Supreme Court found that execution was not "cruel and unusual" as long as there was justification for the execution (and there were proper procedures for imposing execution as a penalty). A plurality held that, while deterrence did not provide a justification, retribution did. I then went over the 1986 case of Ford v. Wainwright, in which a plurality held that retribution was not a sufficient justification for execution of the insane. We will pick up on Thursday with the handout of the Panetti case, and continue onto the Madison briefs.
The assignment for Thursday 2/21 is to review Panetti v. Quarterman, and the Madison v. Alabama briefs, previously distributed.
In class today, Tuesday 2/19, I distributed 3 handouts: my version of the Glucksberg case brief; Assignment #1 (reproduced below); and the case you'll be briefing, Commonwealth of Massachusetts v. Carter.
We first finished out discussion of the majority decision in Glucksberg. We reviewed the flow chart of whether due process protects individual rights against what the legislature restricts. We did Venn diagrams of personal autonomy and fundamental rights, and of the rationale for government restrictions and the actual restrictions imposed. We also talked about the use of precedent, and we discussed three options when dealing with precedent: following it (the same side wins because the context is the same; overruling it (because the prior case was wrongly decided); and distinguishing it (the different side wins because the context is different). We then went through the Maine statutory handout from last week on murder and assisted suicide, and did as much as we could to figure out the meaning of the terms used in those statutes. We also reviewed Maine statutory citation form. We went through the excerpt from Obergefell that I handed out last week, seeing how the Court majority treated the Glucksberg flow chart, and then saw what Roberts in dissent thought of the majority's adherence to Glucksberg.
On Thursday we will begin by discussing Souter's concurrence in Glucksberg. Then we will discuss the Carter case that's the subject of the case brief.
The assignment for Thursday 2/21 is to review Souter's concurrence in Glucksberg, and then to read and be prepared to discuss all of the Michelle Carter case.
Assignment due Thursday, February 28, 2019
The assignment (graded) is to do a Case Brief of the case of Commonwealth v. Carter, __Mass.__ (2019) (also distributed to the class today).
For the Issue, Facts, and Holding, I want you to only include Issues “a” (Sufficiency of the evidence); “d” “Infliction” of serious bodily injury; and “e” “Reasonable juvenile”. I do want you to read all of the Opinion, though, as well as to include all of the arguments in the other portions of the brief, including “appellant’s contentions on appeal”.
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
For this brief, include only the winner’s facts (“..., when...”) and not the loser’s facts (“..., even though...”)
Follow the format from the Sample Briefs that I’ve distributed.
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 2/28, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. To the extent that we discuss this case in class, do not share that discussion with others, even if they have missed class. Do no outside research. Do not troll the internet. Just work from the handout itself. See the syllabus regarding plagiarism and collaboration.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/19, I handed back the Gamble papers, and we went over them. I also went over the Kagan and Gorsuch questions about the effect that incorporation had on the dual sovereigns exception. We began our discussion of Madison by going over the 1970s cases of Furman v. Georgia and Gregg v. Georgia, in which the Supreme Court found that execution was not "cruel and unusual" as long as there was justification for the execution (and there were proper procedures for imposing execution as a penalty). A plurality held that, while deterrence did not provide a justification, retribution did. I then went over the 1986 case of Ford v. Wainwright, in which a plurality held that retribution was not a sufficient justification for execution of the insane. We will pick up on Thursday with the handout of the Panetti case, and continue onto the Madison briefs.
The assignment for Thursday 2/21 is to review Panetti v. Quarterman, and the Madison v. Alabama briefs, previously distributed.
Thursday, February 14, 2019
February 14, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/14, I distributed 2 handouts: the Maine assisted suicide statute, and an excerpt from the same-sex marriage case, Obergefell v. Hodges. We began class by going over Brittany Maynard's article regarding her right to make the decision to die on her own terms. We then started working our way through the Glucksberg case brief, getting up to the doctors' argument that the issue has already been decided by prior cases. That's where we'll pick up next week. We saw how the Court went about defining the "right" that's being examined, and how to decide if that right is "fundamental". Along the way, we also went over the difference between a "panel" decision of the Court of Appeals, versus an "en banc" opinion.
The assignment for Tuesday 2/19 is to continue work on the Glucksberg case brief, and to read today's two handouts.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 2/14, I first collected the Gamble papers, and we went over them a little by discussing the first question of the assignment. I distributed three handouts for our next case: Petitioner's and Respondent's Briefs in Madison v. Alabama, and the previous Supreme Court case of Panetti v. Quarterman. We went back to the Timbs case. We discussed three ways of dealing with precedent: following, overruling, or distinguishing. We discussed how Timbs wants Austin followed, while Indiana can go with with overruling or distinguishing. We went over the three hurdles for Timbs to win (incorporation; "fine"; "excessive") and how much of the oral argument concerned the "excessive" definition, even though that issue had not been the one on which cert. was granted. We saw in the oral argument why that might have been the case: the reluctance to either open the door to an abyss (no definition of "excessive" makes sense) or to a brick wall (in rem forfeiture will never be excessive). That concludes our study of Timbs.
The assignment for Tuesday 2/19 is to read today's three handouts in Madison v. Alabama. If you are not sated, you can go on to listen to oral argument, though it's not formally assigned until next week.
In class today, Thursday 2/14, I distributed 2 handouts: the Maine assisted suicide statute, and an excerpt from the same-sex marriage case, Obergefell v. Hodges. We began class by going over Brittany Maynard's article regarding her right to make the decision to die on her own terms. We then started working our way through the Glucksberg case brief, getting up to the doctors' argument that the issue has already been decided by prior cases. That's where we'll pick up next week. We saw how the Court went about defining the "right" that's being examined, and how to decide if that right is "fundamental". Along the way, we also went over the difference between a "panel" decision of the Court of Appeals, versus an "en banc" opinion.
The assignment for Tuesday 2/19 is to continue work on the Glucksberg case brief, and to read today's two handouts.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 2/14, I first collected the Gamble papers, and we went over them a little by discussing the first question of the assignment. I distributed three handouts for our next case: Petitioner's and Respondent's Briefs in Madison v. Alabama, and the previous Supreme Court case of Panetti v. Quarterman. We went back to the Timbs case. We discussed three ways of dealing with precedent: following, overruling, or distinguishing. We discussed how Timbs wants Austin followed, while Indiana can go with with overruling or distinguishing. We went over the three hurdles for Timbs to win (incorporation; "fine"; "excessive") and how much of the oral argument concerned the "excessive" definition, even though that issue had not been the one on which cert. was granted. We saw in the oral argument why that might have been the case: the reluctance to either open the door to an abyss (no definition of "excessive" makes sense) or to a brick wall (in rem forfeiture will never be excessive). That concludes our study of Timbs.
The assignment for Tuesday 2/19 is to read today's three handouts in Madison v. Alabama. If you are not sated, you can go on to listen to oral argument, though it's not formally assigned until next week.
Tuesday, February 12, 2019
February 12, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/12, I distributed one handout, an article about assisted suicide. I began class by covering a 2016 Supreme Court decision, Montgomery v. Louisiana, that took up the question of the retroactive application of the Miller decision. We looked at both the majority and the dissenting opinions in Montgomery, as well as the votes in the case. We talked about the substantive/procedural divide in terms of retroactive application, as well as the Court's power to say what exactly they had previously decided in Miller. We then looked at the Maine sentencing statute that I had handed out last week, and we went over statutory citation form. We then went through the concept of due process, the history of the 14th Amendment, substantive due process, and the relationship between the 5th Amendment Due Process Clause versus the 14th Amendment Due Process Clause.
The assignment for Thursday 2/14 is to read today's handout, and to finish work on your version of the Glucksberg case brief (not handed in or graded).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/12, I first reminded the class of the Gamble paper due at the beginning of class on Thursday. We then took a deeper dive into the Timbs excessive fines case. We went through the three issues on which Timbs has to eventually prevail in order to win: incorporation; "fines"; and "excessive". We looked at incorporation and its history, including a review of the podcast on Privileges or Immunities, and the logical problem of using 14th Amendment Due Process to incorporate the Bill of Rights (since the 5th Amendment Due Process Clause could not have encompassed all of the other Bill of Rights protections). We then looked at whether in rem forfeitures are a "fine". I went over two earlier cases: Austin v. U.S. and U.S. v. Bajakajian. We went over how Bajakaian might be read to undermine Austin, and why that's important to Indiana's case. We also talked about how the existence (or non-existence) of an innocent owner exception can be used to help decide whether a forfeiture is "punishment".
The assignment for Thursday 2/14 is to finish your Gamble paper, and to review the briefs and the oral argument in Timbs.
In class today, Tuesday 2/12, I distributed one handout, an article about assisted suicide. I began class by covering a 2016 Supreme Court decision, Montgomery v. Louisiana, that took up the question of the retroactive application of the Miller decision. We looked at both the majority and the dissenting opinions in Montgomery, as well as the votes in the case. We talked about the substantive/procedural divide in terms of retroactive application, as well as the Court's power to say what exactly they had previously decided in Miller. We then looked at the Maine sentencing statute that I had handed out last week, and we went over statutory citation form. We then went through the concept of due process, the history of the 14th Amendment, substantive due process, and the relationship between the 5th Amendment Due Process Clause versus the 14th Amendment Due Process Clause.
The assignment for Thursday 2/14 is to read today's handout, and to finish work on your version of the Glucksberg case brief (not handed in or graded).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/12, I first reminded the class of the Gamble paper due at the beginning of class on Thursday. We then took a deeper dive into the Timbs excessive fines case. We went through the three issues on which Timbs has to eventually prevail in order to win: incorporation; "fines"; and "excessive". We looked at incorporation and its history, including a review of the podcast on Privileges or Immunities, and the logical problem of using 14th Amendment Due Process to incorporate the Bill of Rights (since the 5th Amendment Due Process Clause could not have encompassed all of the other Bill of Rights protections). We then looked at whether in rem forfeitures are a "fine". I went over two earlier cases: Austin v. U.S. and U.S. v. Bajakajian. We went over how Bajakaian might be read to undermine Austin, and why that's important to Indiana's case. We also talked about how the existence (or non-existence) of an innocent owner exception can be used to help decide whether a forfeiture is "punishment".
The assignment for Thursday 2/14 is to finish your Gamble paper, and to review the briefs and the oral argument in Timbs.
Thursday, February 7, 2019
February 7, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/7, I distributed three handouts: my version of the Miller case brief, an excerpt from the Maine sentencing statutes, and a recent commentary by the ACLU about the due process rights involved in university investigation of campus sexual assault and harassment. We first finished going through the Miller case brief. I then talked about four juvenile sentencing cases prior to Miller: Thompson v. Oklahoma; Sanford v. Kentucky; Roper v. Simmons; and Graham v. Florida. We went over the votes in those cases, as well as the votes in Miller. Along the way, I discussed the difference between a concurrence in the judgment versus a concurrence in the opinion. We went over Breyer's concurrence, as well as the Roberts and Thomas dissents. I will pick up on Tuesday with Montgomery v. Louisiana, the 2016 U.S. Supreme Court case that addressed the question of the retroactive application of Miller, and the scope of the Miller holding.
The assignment for Tuesday 2/12 is to read today's handouts, and to read in the text through p. 34. Do a practice case brief of Glucksberg (not handed in or graded).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 2/7, we first talked about the Institute for Justice podcast on the Privileges or Immunities Clause. We talked about incorporation of the Bill of Rights through the Privileges or Immunities Clause, as well as other, unenumerated rights such as the right to travel, make contracts or have an occupation. I took an informal poll of the class regarding the interest in another current Institute for Justice case about the right of a state to limit its alcohol sellers to long-time in-state residents. We then began our discussion of the Timbs case. I went over the briefs in terms of sympathy for the drug dealer/ bereaved son; dictum from prior Supreme Court cases; in rem as either a "fine" or not a "fine"; and the test for incorporation. I talked a little about the Austin case, which I will go through in more detail next week.
The assignment for Tuesday 2/12 is to 1) continue work on your Gamble paper, due next Thursday; 2)review the Timbs' briefs, and then 3)listen to the Timbs oral argument at
https://www.oyez.org/cases/2018/17-1091
Remember to bring with you to class some form (paper or otherwise) of the transcript of the oral argument.
In class today, Thursday 2/7, I distributed three handouts: my version of the Miller case brief, an excerpt from the Maine sentencing statutes, and a recent commentary by the ACLU about the due process rights involved in university investigation of campus sexual assault and harassment. We first finished going through the Miller case brief. I then talked about four juvenile sentencing cases prior to Miller: Thompson v. Oklahoma; Sanford v. Kentucky; Roper v. Simmons; and Graham v. Florida. We went over the votes in those cases, as well as the votes in Miller. Along the way, I discussed the difference between a concurrence in the judgment versus a concurrence in the opinion. We went over Breyer's concurrence, as well as the Roberts and Thomas dissents. I will pick up on Tuesday with Montgomery v. Louisiana, the 2016 U.S. Supreme Court case that addressed the question of the retroactive application of Miller, and the scope of the Miller holding.
The assignment for Tuesday 2/12 is to read today's handouts, and to read in the text through p. 34. Do a practice case brief of Glucksberg (not handed in or graded).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 2/7, we first talked about the Institute for Justice podcast on the Privileges or Immunities Clause. We talked about incorporation of the Bill of Rights through the Privileges or Immunities Clause, as well as other, unenumerated rights such as the right to travel, make contracts or have an occupation. I took an informal poll of the class regarding the interest in another current Institute for Justice case about the right of a state to limit its alcohol sellers to long-time in-state residents. We then began our discussion of the Timbs case. I went over the briefs in terms of sympathy for the drug dealer/ bereaved son; dictum from prior Supreme Court cases; in rem as either a "fine" or not a "fine"; and the test for incorporation. I talked a little about the Austin case, which I will go through in more detail next week.
The assignment for Tuesday 2/12 is to 1) continue work on your Gamble paper, due next Thursday; 2)review the Timbs' briefs, and then 3)listen to the Timbs oral argument at
https://www.oyez.org/cases/2018/17-1091
Remember to bring with you to class some form (paper or otherwise) of the transcript of the oral argument.
Tuesday, February 5, 2019
February 5, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/5, we began by going over the introductory section of the textbook (pp. 1-15). We discussed the 5 jurisprudential approaches and the 4 objectives of the law. I went over the definition of "common law" that we will be using in our class ("judge-made law in the absence of enacted law"). We went over the echo of the courts of equity still reflected in the ability of the Maine Superior Courts (as opposed to the Maine District Courts) to have broad power to grant equitable relief. We then began our discussion of Miller. We went through the case brief down to the formulation of the "issue", in which we got through the segments of "under what law" and "the legal question". We left off at the "facts", which is where we'll pick up on Thursday.
The assignment for Thursday 2/7 is to continue refining your Miller case brief (not handed in or graded), and review and read through p.23.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/5, I distributed 3 handouts: Assignment #1 (reproduced below); and the Petitioner's and Respondent's Briefs in Timbs v. Indiana.
We went over the requirements of the assignment. We then discussed several additional aspects of the Gamble oral argument: the split on the Court regarding whether original meaning is the only correct way to define the terms of the constitution; the consequences of using original meaning; and the responsibility (or lack thereof) of the Court to get the constitutional meaning right, even if it was wrong in the past. We then had a chance to both predict the outcome of the case, and to briefly discuss what we think the correct result should be.
We will pick up on Thursday with the Timbs case, starting with the Institute for Justice podcast on Privileges or Immunities, and then moving to the briefs that I distributed today.
Assignment #1 due Thursday, February 14th
One of the things we’ve been looking at in Gamble v. U.S. is the interplay between the briefs of the parties and the oral argument, This assignment asks you to trace specific examples of arguments in Petitioner’s (Gamble’s) Brief to specific sections of the oral argument.
Below are 5 arguments from the Gamble Brief. For each one
a) give a short statement of the point that Gamble is making;
b) give a short statement of the reply to that point that the Respondent (U.S.) makes;
c) find two Justices in the oral argument that ask a question or express a concern that is related to the argument from the Gamble brief, and briefly explain the point that each Justice is making. Cite to the page and line of the beginning of the Justice’s question as [page]:[line], e.g.: “21:13” for page 21 beginning at line 13.
1. I(C)(2) (“In the same vein...”)
2. II (This one is a general argument: stare decisis generally should not be an obstacle to getting rid of the dual sovereign exception)
3. II(B) (“Stare decisis loses its force...”)
4. II(D) (“The separate-sovereigns exception...”)
5. II(E) (“Finally, no reliance interests...”)
Here is an example of the format that I’m looking for, with I(C)(1) (“Fear and abhorrence...) as the argument prompt. (I’m making up some of the oral argument):
a) Gamble is saying that prohibiting successive prosecutions is exactly the point of the Double Jeopardy Clause. The purpose of the bar is to prevent the unfairness of prosecutors getting two bites at the apple, and that letting two prosecutors each get one bite is just as unfair as one prosecutor getting two bites.
b) The U.S. replies that it is not inherently “unfair” to have separate sovereigns protecting their own separate interests. Any particular cases of unfairness can be dealt with by policymakers, not as a flat, all-encompassing, invariable constitutional decree.
c) At 21:13, Sotomayor asks Chaiten why the dual-sovereign exception is unfair, since the prosecutors represent two separate governments. What’s unfair about that, she asks. The point of this question is to undermine Chaiten’s basic argument about the inherent unfairness of a second prosecution. While allowing the same prosecutor to take a second bite is unfair, she suggests that there's n othing wrong as long as the government is a different one.
At 50:3 Ginsburg asks Feigin why this very prosecution of Gamble is not unfair. In this routine case, why should a federal prosecutor get another shot at Gamble, and an additional punishment after Gamble’s already been convicted by the state. The point of this question is to attack Feigin’s position that there’s no unfairness here. Ginsburg says that it looks like being put twice in jeopardy for the same crime from the perspective of the defendant Gamble.
The paper should have five sections tracking the five arguments, labeled as in the example. I expect the sections to be about a third to a half page long or so, so a total of around 2 or 3 pages for the assignment.
Do no outside research. This assignment is totally based on what’s in the handouts of the briefs, and the oral argument itself.
Don’t give any introduction to the paper, or history of the case, etc. Just get right to the analysis. No fluff.
Be as specific as possible. Make your language as clear and simple as possible. Use your own words.
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
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 2/14. 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.
The assignment for Thursday 2/7 is to begin work on Assignment #1, and to read the Timbs briefs distributed today. Also listen to the Institute for JUstice podcast found at
https://ij.org/sc_long_podcast/all-but-redacted-the-privileges-or-immunities-clause/
In class today, Tuesday 2/5, we began by going over the introductory section of the textbook (pp. 1-15). We discussed the 5 jurisprudential approaches and the 4 objectives of the law. I went over the definition of "common law" that we will be using in our class ("judge-made law in the absence of enacted law"). We went over the echo of the courts of equity still reflected in the ability of the Maine Superior Courts (as opposed to the Maine District Courts) to have broad power to grant equitable relief. We then began our discussion of Miller. We went through the case brief down to the formulation of the "issue", in which we got through the segments of "under what law" and "the legal question". We left off at the "facts", which is where we'll pick up on Thursday.
The assignment for Thursday 2/7 is to continue refining your Miller case brief (not handed in or graded), and review and read through p.23.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/5, I distributed 3 handouts: Assignment #1 (reproduced below); and the Petitioner's and Respondent's Briefs in Timbs v. Indiana.
We went over the requirements of the assignment. We then discussed several additional aspects of the Gamble oral argument: the split on the Court regarding whether original meaning is the only correct way to define the terms of the constitution; the consequences of using original meaning; and the responsibility (or lack thereof) of the Court to get the constitutional meaning right, even if it was wrong in the past. We then had a chance to both predict the outcome of the case, and to briefly discuss what we think the correct result should be.
We will pick up on Thursday with the Timbs case, starting with the Institute for Justice podcast on Privileges or Immunities, and then moving to the briefs that I distributed today.
Assignment #1 due Thursday, February 14th
One of the things we’ve been looking at in Gamble v. U.S. is the interplay between the briefs of the parties and the oral argument, This assignment asks you to trace specific examples of arguments in Petitioner’s (Gamble’s) Brief to specific sections of the oral argument.
Below are 5 arguments from the Gamble Brief. For each one
a) give a short statement of the point that Gamble is making;
b) give a short statement of the reply to that point that the Respondent (U.S.) makes;
c) find two Justices in the oral argument that ask a question or express a concern that is related to the argument from the Gamble brief, and briefly explain the point that each Justice is making. Cite to the page and line of the beginning of the Justice’s question as [page]:[line], e.g.: “21:13” for page 21 beginning at line 13.
1. I(C)(2) (“In the same vein...”)
2. II (This one is a general argument: stare decisis generally should not be an obstacle to getting rid of the dual sovereign exception)
3. II(B) (“Stare decisis loses its force...”)
4. II(D) (“The separate-sovereigns exception...”)
5. II(E) (“Finally, no reliance interests...”)
Here is an example of the format that I’m looking for, with I(C)(1) (“Fear and abhorrence...) as the argument prompt. (I’m making up some of the oral argument):
a) Gamble is saying that prohibiting successive prosecutions is exactly the point of the Double Jeopardy Clause. The purpose of the bar is to prevent the unfairness of prosecutors getting two bites at the apple, and that letting two prosecutors each get one bite is just as unfair as one prosecutor getting two bites.
b) The U.S. replies that it is not inherently “unfair” to have separate sovereigns protecting their own separate interests. Any particular cases of unfairness can be dealt with by policymakers, not as a flat, all-encompassing, invariable constitutional decree.
c) At 21:13, Sotomayor asks Chaiten why the dual-sovereign exception is unfair, since the prosecutors represent two separate governments. What’s unfair about that, she asks. The point of this question is to undermine Chaiten’s basic argument about the inherent unfairness of a second prosecution. While allowing the same prosecutor to take a second bite is unfair, she suggests that there's n othing wrong as long as the government is a different one.
At 50:3 Ginsburg asks Feigin why this very prosecution of Gamble is not unfair. In this routine case, why should a federal prosecutor get another shot at Gamble, and an additional punishment after Gamble’s already been convicted by the state. The point of this question is to attack Feigin’s position that there’s no unfairness here. Ginsburg says that it looks like being put twice in jeopardy for the same crime from the perspective of the defendant Gamble.
The paper should have five sections tracking the five arguments, labeled as in the example. I expect the sections to be about a third to a half page long or so, so a total of around 2 or 3 pages for the assignment.
Do no outside research. This assignment is totally based on what’s in the handouts of the briefs, and the oral argument itself.
Don’t give any introduction to the paper, or history of the case, etc. Just get right to the analysis. No fluff.
Be as specific as possible. Make your language as clear and simple as possible. Use your own words.
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
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 2/14. 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.
The assignment for Thursday 2/7 is to begin work on Assignment #1, and to read the Timbs briefs distributed today. Also listen to the Institute for JUstice podcast found at
https://ij.org/sc_long_podcast/all-but-redacted-the-privileges-or-immunities-clause/
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