POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/30, the class first decided that our exam next Tuesday 5/7 will be from 8:00 until 9:15. If you are missing any handouts, email with your requests by 8:00 pm on Monday 5/6. I also reminded the class to fill out the online class evaluations.
We then turned to conflict of law rules. In Hubbard v. Greeson, we discussed the difference in Illinois versus Indiana law; which state (applying its own conflict of law rules) would apply Illinois law; ans how it all went wrong when the Indiana Supreme Court changed its rules. In Land v. Yamaha, we saw how the federal court was required to apply the Indiana Hubbard v. Greeson conflict of law rule, and how that basically ended the case against Yamaha. Along the way, we discussed Statutes of Repose versus Statutes of Limitation, and also the two bases of federal trial court jurisdiction. Finally, I went over the Maine 1995 Supreme Court decision in Collins v. Trius, which involved the choice between applying Canadian versus Maine law.
The assignment for Thursday 5/2 is to read in the text through p. 129 of the text, including Finstuen v. Crutcher (full faith and credit) and Cheap Escape v. Haddox (subject matter jurisdiction).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/30, the class took Exam #2. I will return and go over that exam on Thursday.
The assignment for Thursday 5/2 is to show up for class, and to make sure that you have filled out the online class evaluation.
Tuesday, April 30, 2019
Thursday, April 25, 2019
April 25, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/25, I reminded the class about completing the on-line evaluations of the class. We began by discussing the Butler case. I went over three types of dictum that we've encountered, and I also discussed the 1971 U.S. Supreme Court case of Harris v. N.Y. We then discussed the question of retroactivity and the Dempsey case. We reviewed Montgomery v. Louisiana, and I also discussed the 1966 case of Johnson v. N.J. We went over the two primary federal models of retroactive application, and saw how Montana was free to make its own choice, and how it chose neither of the federal models. Finally we discussed the Strunk case, and what a court does in the absence of precedent.
The assignment for Tuesday 4/30 is to read through p. 115 of the text (including Hubbard v. Greeson) and to read on addition pp. 144-146 (including Land v. Yamaha).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/25, I reminded the class about completing the on-line evaluations of the class. We finished going through the census briefs, completing the blow-by-blow of Commerce punches and NY counter-punches. We then got to spend a short time with the oral argument that was assigned. We saw how Ginsburg was able to get an admission from Francisco that the reason for getting rid of the citizenship question in 1960 was to improve accuracy. We also saw how Roberts weighed in on the standing issue.
On Tuesday 4/30 we will have Exam #2. If you are missing any handouts, email me with your requests by 8:00 pm on Monday 4/29. Remember that, if you are using a computer, you may not connect to the internet or do any other activity that someone using paper is not able to do.
In class today, Thursday 4/25, I reminded the class about completing the on-line evaluations of the class. We began by discussing the Butler case. I went over three types of dictum that we've encountered, and I also discussed the 1971 U.S. Supreme Court case of Harris v. N.Y. We then discussed the question of retroactivity and the Dempsey case. We reviewed Montgomery v. Louisiana, and I also discussed the 1966 case of Johnson v. N.J. We went over the two primary federal models of retroactive application, and saw how Montana was free to make its own choice, and how it chose neither of the federal models. Finally we discussed the Strunk case, and what a court does in the absence of precedent.
The assignment for Tuesday 4/30 is to read through p. 115 of the text (including Hubbard v. Greeson) and to read on addition pp. 144-146 (including Land v. Yamaha).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/25, I reminded the class about completing the on-line evaluations of the class. We finished going through the census briefs, completing the blow-by-blow of Commerce punches and NY counter-punches. We then got to spend a short time with the oral argument that was assigned. We saw how Ginsburg was able to get an admission from Francisco that the reason for getting rid of the citizenship question in 1960 was to improve accuracy. We also saw how Roberts weighed in on the standing issue.
On Tuesday 4/30 we will have Exam #2. If you are missing any handouts, email me with your requests by 8:00 pm on Monday 4/29. Remember that, if you are using a computer, you may not connect to the internet or do any other activity that someone using paper is not able to do.
Tuesday, April 23, 2019
April 23, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/23, I first reminded students to fill out the on-line evaluations for the class. We went through the NFIB v. Sebelius case, discussing dictum, and Roberts' view of text, definitions, precedent, and the federal government's arguments. We also discussed the Ginsburg dissent, and the "joint dissent". We discussed the police power, federal supremacy and the delivery of internet sales of cigarette sales, the 9th and 10th Amendments, and ex post facto laws (regarding sex offender registries). We will pick upon Thursday with the Butler case and dictum.
The assignment for Thursday 4/25 is review what was previously assigned in the text through p.109 (including Butler and Dempsey), and to read in addition through p.113 (including Strunk).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/23, I handed back the Rucho papers, and discussed some aspects of the grading of those papers.I reminded students to fill out the on-line evaluations for the class. We then started going through the briefs in the Census case. We matched the argument made in the Commerce brief with the answer made in the N.Y. brief. We got through the "arbitrary and capricious" portion of the Commerce brief, and will pick up on Thursday with Part I(E) of the Commerce brief, whether adding the citizenship question violates the 1976 Census Act. Along the way, I went over the 2016 Supreme Court decision in Evenwel v. Abbott, which held that a state was allowed to use total population as a basis for redistricting, rather than the count of citizens of voting age.
The assignment for Thursday 4/25 is to review the three Commerce v. N.Y. handouts from last week, as well as reading the transcript of today's oral argument in Commerce v. N.Y.
In class today, Tuesday 4/23, I first reminded students to fill out the on-line evaluations for the class. We went through the NFIB v. Sebelius case, discussing dictum, and Roberts' view of text, definitions, precedent, and the federal government's arguments. We also discussed the Ginsburg dissent, and the "joint dissent". We discussed the police power, federal supremacy and the delivery of internet sales of cigarette sales, the 9th and 10th Amendments, and ex post facto laws (regarding sex offender registries). We will pick upon Thursday with the Butler case and dictum.
The assignment for Thursday 4/25 is review what was previously assigned in the text through p.109 (including Butler and Dempsey), and to read in addition through p.113 (including Strunk).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/23, I handed back the Rucho papers, and discussed some aspects of the grading of those papers.I reminded students to fill out the on-line evaluations for the class. We then started going through the briefs in the Census case. We matched the argument made in the Commerce brief with the answer made in the N.Y. brief. We got through the "arbitrary and capricious" portion of the Commerce brief, and will pick up on Thursday with Part I(E) of the Commerce brief, whether adding the citizenship question violates the 1976 Census Act. Along the way, I went over the 2016 Supreme Court decision in Evenwel v. Abbott, which held that a state was allowed to use total population as a basis for redistricting, rather than the count of citizens of voting age.
The assignment for Thursday 4/25 is to review the three Commerce v. N.Y. handouts from last week, as well as reading the transcript of today's oral argument in Commerce v. N.Y.
Thursday, April 18, 2019
April 18, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/18, we began by going over the Caperton case. We looked at the tests for recusal proposed by Justice Benjamin, and then how the Court had a different test for when recusal was mandatory. Having created a test, the Court then defined what the test required in the circumstances of this case. Having defined the circumstances, the Court then applied that definition to the actual facts of the this case. I then went over a 2016 U.S. Supreme Court case, Williams v. Pennsylvania, in which the Court had to decide what circumstances required recusal of a justice of the state supreme court when that justice had previously been the District Attorney in the prosecution of the same defendant now appearing before the state supreme court. We then moved on to Chapter 3 of the text, and began our discussion of NFIB v. Sebelius. We went over how Congress (unlike the state legislatures) needs a particular grant of power in order to legislate in an area, and how the Court, although rejecting the interstate commerce clause as that grant, did agree that the taxing power worked as the source of the power. (We also discussed recent developments about the repeal of the tax.) We will pick up next Tuesday with the analysis of why the interstate commerce clause was rejected, as well as look at the dissents from that part of the opinion.
The assignment for Tuesday 4/23 is to review NFIB v. Sebelius, and to read in addition through p. 109 of the text (including Butler and Dempsey).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/18, I first collected the Rucho papers. I hope that I'll be able to grade them this weekend, and to return them on Tuesday. For Rucho, we discussed what the Court is likely to do with the case, as well as what the class thought that it should do.
I then distributed three handouts from the census case, Dept. of Commerce v. N.Y.: the Commerce brief, the N.Y. brief, and the Commerce Reply brief. I went over the layout of that that case.
The assignment for Tuesday 4/23 is to read the 3 handouts from today. The oral argument in the case is scheduled for the morning of Tuesday 4/23.
In class today, Thursday 4/18, we began by going over the Caperton case. We looked at the tests for recusal proposed by Justice Benjamin, and then how the Court had a different test for when recusal was mandatory. Having created a test, the Court then defined what the test required in the circumstances of this case. Having defined the circumstances, the Court then applied that definition to the actual facts of the this case. I then went over a 2016 U.S. Supreme Court case, Williams v. Pennsylvania, in which the Court had to decide what circumstances required recusal of a justice of the state supreme court when that justice had previously been the District Attorney in the prosecution of the same defendant now appearing before the state supreme court. We then moved on to Chapter 3 of the text, and began our discussion of NFIB v. Sebelius. We went over how Congress (unlike the state legislatures) needs a particular grant of power in order to legislate in an area, and how the Court, although rejecting the interstate commerce clause as that grant, did agree that the taxing power worked as the source of the power. (We also discussed recent developments about the repeal of the tax.) We will pick up next Tuesday with the analysis of why the interstate commerce clause was rejected, as well as look at the dissents from that part of the opinion.
The assignment for Tuesday 4/23 is to review NFIB v. Sebelius, and to read in addition through p. 109 of the text (including Butler and Dempsey).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/18, I first collected the Rucho papers. I hope that I'll be able to grade them this weekend, and to return them on Tuesday. For Rucho, we discussed what the Court is likely to do with the case, as well as what the class thought that it should do.
I then distributed three handouts from the census case, Dept. of Commerce v. N.Y.: the Commerce brief, the N.Y. brief, and the Commerce Reply brief. I went over the layout of that that case.
The assignment for Tuesday 4/23 is to read the 3 handouts from today. The oral argument in the case is scheduled for the morning of Tuesday 4/23.
Tuesday, April 16, 2019
April 16, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/16, I passed back the Pagnani case briefs, as well as distributing my version of the case brief, and the Comment Key to my comments on your case briefs. After a few comments on the case brief, we went over Glassford v.BrickKicker. Among the subjects we covered were arbitration clauses and exculpatory clauses, substantive and procedural unconscionability, and severability. I then talked about a recent U.S. Supreme Court case, Epic Systems v. Lewis, in which the Court dealt with different interpretations of the Federal Arbitration Act and its relationship to the National Labor Relations Act.
The assignment for Thursday 4/18 is to read through p. 96 of the text,including both Caperton v. Massey Coal (p. 79) and NFIB v. Sebelius (p. 93).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/16, we first decided that exam #2 will be on Tuesday 4/30. I also clarified that the final paragraph of the paper really asks only for clumps of Justices that would join together, rather than actual majorities, concurrences and dissents, as there are only 8 Justices that you're considering, and even within those eight, you're only looking at the two interactions that you've included. I tried to clarify several case references in the Rucho oral argument that you might want to know about. We reviewed the case of the Arizona Legislature v. Arizona Redistricting Commission. In terms of the burden-shifting (e.g. 40:14) I went over the 1977 case of Mt Healthy v. Doyle. And in terms of picking numbers out of a hat, as Breyer suggests at 19:10, I went over the 2014 case of NLRB v. Noel Canning, in which Breyer picked numbers out of a hat in order to define when a "recess" of the Senate was long enough in order to allow a Presidential recess appointment.
The assignment for Thursday 4/18 is to finish work on your Rucho paper, due at the beginning of class on Thursday 4/18.
In class today, Tuesday 4/16, I passed back the Pagnani case briefs, as well as distributing my version of the case brief, and the Comment Key to my comments on your case briefs. After a few comments on the case brief, we went over Glassford v.BrickKicker. Among the subjects we covered were arbitration clauses and exculpatory clauses, substantive and procedural unconscionability, and severability. I then talked about a recent U.S. Supreme Court case, Epic Systems v. Lewis, in which the Court dealt with different interpretations of the Federal Arbitration Act and its relationship to the National Labor Relations Act.
The assignment for Thursday 4/18 is to read through p. 96 of the text,including both Caperton v. Massey Coal (p. 79) and NFIB v. Sebelius (p. 93).
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/16, we first decided that exam #2 will be on Tuesday 4/30. I also clarified that the final paragraph of the paper really asks only for clumps of Justices that would join together, rather than actual majorities, concurrences and dissents, as there are only 8 Justices that you're considering, and even within those eight, you're only looking at the two interactions that you've included. I tried to clarify several case references in the Rucho oral argument that you might want to know about. We reviewed the case of the Arizona Legislature v. Arizona Redistricting Commission. In terms of the burden-shifting (e.g. 40:14) I went over the 1977 case of Mt Healthy v. Doyle. And in terms of picking numbers out of a hat, as Breyer suggests at 19:10, I went over the 2014 case of NLRB v. Noel Canning, in which Breyer picked numbers out of a hat in order to define when a "recess" of the Senate was long enough in order to allow a Presidential recess appointment.
The assignment for Thursday 4/18 is to finish work on your Rucho paper, due at the beginning of class on Thursday 4/18.
Thursday, April 11, 2019
April 11, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/11, I collected the Pagnani case briefs. I plan to grade them this weekend and to return them on Tuesday, as well as to distribute my own version of the Pagnani case brief. We went over the particulars of that case and case brief, concentrating on the three variables of the search incident to an arrest matrix: status of the arrest; timing of the arrest and of the search; and area of the search.
The assignment for Tuesday 4/16 is to review Glassford v. BrickKicker, previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/11, I distributed one handout, an additional excerpt from Gorsuch's opinion in Bucklew. We went over the Bucklew handouts, and discussed in detail how Gorsuch's opinion appears to hollow out the Baze test, while not disturbing its shell.
We then turned to Rucho and partisan gerrymandering. I went over the right of appeal in redistricting cases, as opposed to petitions for cert. We went over the first of the 3 issues presented, standing. I went over Gill v. Whitford from last term, in which the challengers lost for lack of standing. We then went to justiciability. I went over Baker v. Carr, Davis v. Bandemer, and Vieth v. Jubelirer. We discussed the two basic tests of justiciability: commitment to another branch, and manageable standards. We talked about the efficiency gap, and generating thousands of potential maps that adhere to neutral principles of redistricting.
The assignment for Tuesday 4/16 is to continue working on your Rucho papers, due next Thursday. Review the briefs that I distributed on Tuesday, and keep listening to the Rucho oral argument.
In class today, Thursday 4/11, I collected the Pagnani case briefs. I plan to grade them this weekend and to return them on Tuesday, as well as to distribute my own version of the Pagnani case brief. We went over the particulars of that case and case brief, concentrating on the three variables of the search incident to an arrest matrix: status of the arrest; timing of the arrest and of the search; and area of the search.
The assignment for Tuesday 4/16 is to review Glassford v. BrickKicker, previously assigned.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/11, I distributed one handout, an additional excerpt from Gorsuch's opinion in Bucklew. We went over the Bucklew handouts, and discussed in detail how Gorsuch's opinion appears to hollow out the Baze test, while not disturbing its shell.
We then turned to Rucho and partisan gerrymandering. I went over the right of appeal in redistricting cases, as opposed to petitions for cert. We went over the first of the 3 issues presented, standing. I went over Gill v. Whitford from last term, in which the challengers lost for lack of standing. We then went to justiciability. I went over Baker v. Carr, Davis v. Bandemer, and Vieth v. Jubelirer. We discussed the two basic tests of justiciability: commitment to another branch, and manageable standards. We talked about the efficiency gap, and generating thousands of potential maps that adhere to neutral principles of redistricting.
The assignment for Tuesday 4/16 is to continue working on your Rucho papers, due next Thursday. Review the briefs that I distributed on Tuesday, and keep listening to the Rucho oral argument.
Tuesday, April 9, 2019
April 9, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/9, we first went over some questions about the Pagnani case brief. We went over the number of issues presented in the case, and also some of the specific differences between the majority and the dissent. Then we went through Lawrence v. Texas. We looked at the fundamental rights/ non-fundamental rights flow chart, and saw how the Court did something surprising. We looked at the characterization of the right, both as Bowers had defined it in 1986, and how the Lawrence Court disagreed with that characterization. I gave the Supreme Court votes in the case, and we went over the differences between a due process challenge versus an equal protection challenge.
The assignment for Thursday 4/11 is to finish you Pagnani briefs, due at the beginning of Thursday's class, and to read in the textbook through p. 77, including Glassford v. BrickKicker.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/9, I distributed three handouts: Assignment #2 (reproduced below); and the Appellant and Appellee briefs in one of the Court's current gerrymandering cases, Rucho v. Common Cause. We first went over the requirements of the assignment. We talked about what the constitution has to say about redistricting (not much, except for the number of seats in the House that each state gets). We talked about packing and cracking in drawing districts to squeeze out the most seats possible. We talked about the North Carolina Republican boast that they got exactly what they re-districted for, 10 House seats out of 13 in a fairly closely divided state, and that there was, in their opinion, absolutely nothing unconstitutional about that. We went over how Maine has avoided much of the redistricting swings, as well as the U.S. Supreme Court decision in Arizona Legislature v. Arizona Redistricting Commission. We also discussed the neutral criteria of contiguity, compactness, geography, and incumbency.
We then turned back to American Legion and the question of standing raised by Gorsuch, We discussed taxpayer standing, Flast v. Cohen, and how Flast was limited by later cases that said that there's a crucial difference between standing to challenge government spending versus government credits.
We will pick up on Thursday with the Bucklew handout, and then dive into the world of partisan gerrymandering.
The assignment for Thursday 4/11 is to review the Bucklew handout, and read today's handouts.
Assignment #2 due Thursday, April 18th
For this assignment, I would like you to predict the outcome of the Supreme Court case of Rucho v. Common Cause. Your prediction should be based solely on the oral argument in the case (not on other insight you've learned about the Justices over the course of the semester). To understand the oral argument, though, you will need to also understand the briefs of the parties, that I’ve distributed today as well.
The specific assignment regarding the prediction is this: Go Justice-by-Justice and find some indication of how each Justice might vote in this case. (Skip over Justice Thomas, who asked no questions). Discuss the Justices in the order of their seniority: Roberts, Ginsburg, Breyer, Alito, Sotomayor. Kagan, Gorsuch, and Kavanaugh. Pick two distinct interactions per Justice, regarding two different issues if possible.
Discuss how the questions asked or the comments made by a Justice may reflect a view of what the outcome should be. Remember that the Court issues two kinds of things: a Judgment (whether the decision of the three judge District Court is affirmed or reversed); and an Opinion (the reasoning used to get to the result), Justices may agree on a result (a judgment) without agreeing on an opinion. I’m looking for both the result and the reasoning. So your prediction should be directed not only to the final vote (for or against the state or the challengers), but also rather to the distinct issues and positions raised by the parties.
An important part of the assignment is for you to identify those issues. Some examples (not an exhaustive list) of issues are: whether justiciability is an open question, or has already been settled; whether the branches of government other than the federal courts are entrusted to fix any partisan gerrymandering problem, and are capable of doing so; whether the federal courts will be swamped with cases if they take on partisan gerrymandering; whether it’s possible to identify and target only the extreme outliers of extreme gerrymander; and whether it’s possible to identify a discernible standard by which to judge the redistricting other than proportional representation.
Here’s a fictitious example to demonstrate the format that I’m looking for:
Justice Thomas asked Bondurant whether the founders wrote anything that indicates that they considered partisan gerrymandering to be an issue to be decided by the courts (40:14). This exchange indicates that Thomas thinks that the original meaning of the constitution was to leave the question of redistricting up to the state legislatures, or alternatively, to Congress, with no role for the courts. Justice Thomas later asked Riggs why the League of Women Voters would even have standing in the case, because the League has not shown that it has members in all of the 13 Congressional Districts of North Carolina. (63:11). I predict therefore that Thomas will first declare that the plaintiffs have no standing to bring the case, and in the alternative, that the case is not justiciable by the federal courts because this issue has been committed by the constitution to the state legislatures, or to Congress.
Your citations to the oral argument transcript should give page and line numbers. I should be able to quickly see exactly where you are getting your interactions from. Use the transcript from the supremecourt.gov website.
After you finish your eight paragraphs for the eight Justices, end with a final (ninth) paragraph, totaling up and summarizing how you think the case will come out, including your prediction of the specific grounds on which each of the eight Justices will rule, including concurrences and dissents. For this ninth paragraph, limit your discussion to the two interactions that you wrote about in the first eight paragraphs. You don't have to repeat page and line citations in this ninth paragraph, as you've previously included them.
You should use primarily your own words, quoting only in snippets when the particular words of an exchange are crucial.
This paper is not intended as a discourse on the history of the case, or a synopsis of the case, or a full legal analysis of the issues in the case--it is intended to be “I think that this Justice will vote this way because of these indications that I find in the oral argument”. I don’t need any introduction to the case, its facts, the proceedings below, or precedent.
The paper should be 2-3 pages long. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday April 18. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of that class. 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.
Your papers will not be graded on the accuracy of the predictions, but rather on how well you support your position by reference to the oral argument. The paper will also not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you support your position. 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.
Do no outside research. This assignment is totally based on what’s in the handouts of the briefs, and the oral argument itself.
Be specific as possible. Make your language as clear and simple as possible. Use your own words.
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. Even if a classmate has missed a class in which we discuss the paper, do not share the class discussion with the absent classmate The idea is to think it out for yourself. See the syllabus regarding plagiarism and collaboration.
In class today, Tuesday 4/9, we first went over some questions about the Pagnani case brief. We went over the number of issues presented in the case, and also some of the specific differences between the majority and the dissent. Then we went through Lawrence v. Texas. We looked at the fundamental rights/ non-fundamental rights flow chart, and saw how the Court did something surprising. We looked at the characterization of the right, both as Bowers had defined it in 1986, and how the Lawrence Court disagreed with that characterization. I gave the Supreme Court votes in the case, and we went over the differences between a due process challenge versus an equal protection challenge.
The assignment for Thursday 4/11 is to finish you Pagnani briefs, due at the beginning of Thursday's class, and to read in the textbook through p. 77, including Glassford v. BrickKicker.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/9, I distributed three handouts: Assignment #2 (reproduced below); and the Appellant and Appellee briefs in one of the Court's current gerrymandering cases, Rucho v. Common Cause. We first went over the requirements of the assignment. We talked about what the constitution has to say about redistricting (not much, except for the number of seats in the House that each state gets). We talked about packing and cracking in drawing districts to squeeze out the most seats possible. We talked about the North Carolina Republican boast that they got exactly what they re-districted for, 10 House seats out of 13 in a fairly closely divided state, and that there was, in their opinion, absolutely nothing unconstitutional about that. We went over how Maine has avoided much of the redistricting swings, as well as the U.S. Supreme Court decision in Arizona Legislature v. Arizona Redistricting Commission. We also discussed the neutral criteria of contiguity, compactness, geography, and incumbency.
We then turned back to American Legion and the question of standing raised by Gorsuch, We discussed taxpayer standing, Flast v. Cohen, and how Flast was limited by later cases that said that there's a crucial difference between standing to challenge government spending versus government credits.
We will pick up on Thursday with the Bucklew handout, and then dive into the world of partisan gerrymandering.
The assignment for Thursday 4/11 is to review the Bucklew handout, and read today's handouts.
Assignment #2 due Thursday, April 18th
For this assignment, I would like you to predict the outcome of the Supreme Court case of Rucho v. Common Cause. Your prediction should be based solely on the oral argument in the case (not on other insight you've learned about the Justices over the course of the semester). To understand the oral argument, though, you will need to also understand the briefs of the parties, that I’ve distributed today as well.
The specific assignment regarding the prediction is this: Go Justice-by-Justice and find some indication of how each Justice might vote in this case. (Skip over Justice Thomas, who asked no questions). Discuss the Justices in the order of their seniority: Roberts, Ginsburg, Breyer, Alito, Sotomayor. Kagan, Gorsuch, and Kavanaugh. Pick two distinct interactions per Justice, regarding two different issues if possible.
Discuss how the questions asked or the comments made by a Justice may reflect a view of what the outcome should be. Remember that the Court issues two kinds of things: a Judgment (whether the decision of the three judge District Court is affirmed or reversed); and an Opinion (the reasoning used to get to the result), Justices may agree on a result (a judgment) without agreeing on an opinion. I’m looking for both the result and the reasoning. So your prediction should be directed not only to the final vote (for or against the state or the challengers), but also rather to the distinct issues and positions raised by the parties.
An important part of the assignment is for you to identify those issues. Some examples (not an exhaustive list) of issues are: whether justiciability is an open question, or has already been settled; whether the branches of government other than the federal courts are entrusted to fix any partisan gerrymandering problem, and are capable of doing so; whether the federal courts will be swamped with cases if they take on partisan gerrymandering; whether it’s possible to identify and target only the extreme outliers of extreme gerrymander; and whether it’s possible to identify a discernible standard by which to judge the redistricting other than proportional representation.
Here’s a fictitious example to demonstrate the format that I’m looking for:
Justice Thomas asked Bondurant whether the founders wrote anything that indicates that they considered partisan gerrymandering to be an issue to be decided by the courts (40:14). This exchange indicates that Thomas thinks that the original meaning of the constitution was to leave the question of redistricting up to the state legislatures, or alternatively, to Congress, with no role for the courts. Justice Thomas later asked Riggs why the League of Women Voters would even have standing in the case, because the League has not shown that it has members in all of the 13 Congressional Districts of North Carolina. (63:11). I predict therefore that Thomas will first declare that the plaintiffs have no standing to bring the case, and in the alternative, that the case is not justiciable by the federal courts because this issue has been committed by the constitution to the state legislatures, or to Congress.
Your citations to the oral argument transcript should give page and line numbers. I should be able to quickly see exactly where you are getting your interactions from. Use the transcript from the supremecourt.gov website.
After you finish your eight paragraphs for the eight Justices, end with a final (ninth) paragraph, totaling up and summarizing how you think the case will come out, including your prediction of the specific grounds on which each of the eight Justices will rule, including concurrences and dissents. For this ninth paragraph, limit your discussion to the two interactions that you wrote about in the first eight paragraphs. You don't have to repeat page and line citations in this ninth paragraph, as you've previously included them.
You should use primarily your own words, quoting only in snippets when the particular words of an exchange are crucial.
This paper is not intended as a discourse on the history of the case, or a synopsis of the case, or a full legal analysis of the issues in the case--it is intended to be “I think that this Justice will vote this way because of these indications that I find in the oral argument”. I don’t need any introduction to the case, its facts, the proceedings below, or precedent.
The paper should be 2-3 pages long. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday April 18. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of that class. 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.
Your papers will not be graded on the accuracy of the predictions, but rather on how well you support your position by reference to the oral argument. The paper will also not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you support your position. 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.
Do no outside research. This assignment is totally based on what’s in the handouts of the briefs, and the oral argument itself.
Be specific as possible. Make your language as clear and simple as possible. Use your own words.
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. Even if a classmate has missed a class in which we discuss the paper, do not share the class discussion with the absent classmate The idea is to think it out for yourself. See the syllabus regarding plagiarism and collaboration.
Thursday, April 4, 2019
April 4, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 4/4, I first clarified that, for the Pagnani case brief, do not include (in the Issues, Facts, and Holding portion) ¶25 (Search of the Vehicle). Do include Search of the Vehicle in other segments, such as Prior Proceedings, Appellant's Contentions, etc. Do include the dissent's footnotes 6 and 7 in your paragraph explaining the view of the dissent.
We then finished our discussion of Mobbley by going over the (un)persuasive authority, and the dissent's view about effectuating legislative intent. We also discussed how the case might be defended, now that it's headed for trial. We then went over the Holland Florida Supreme Court case. Finally, we looked at the statutory handout from Tuesday, going over Maine law regarding Ms. Mobbley's situation, as well as Maine common law crimes, and the Maine situations in which there is a duty to report, as well as the federal misprision statute.
The assignment for Tuesday 4/9 is to review Lawrence v. Texas (through p. 72 of the text) and to work on your Pagnani case brief, due 4/11.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/4, I distributed one handout, excerpts from three method-of-execution cases: Baze, Gossip, and Monday's opinion in Bucklew. I introduced those cases, and explained how Thomas' vision of the 8th Amendment (never before a majority opinion) may have prevailed this week.
We then turned back to the American Legion case. We first reviewed the outline of the Maryland Commission (Katyal) Brief. Then we discussed the American Legion (Carvin) position, which aimed at a much larger victory. We looked at the Justices' response to Carvin during the oral argument. We went through the American Humanist Association (Miller) Brief, including a somewhat confusing trip through the outline of her argument. And we looked at the response that her argument got during oral argument. The remaining issue that I wanted to look at is the standing issue brought up by Gorsuch. We'll start with that question on Tuesday.
The assignment for Tuesday 4/9 is to read today's handout, focusing on the question of whether the Court in Bucklew has changed the test for what is Cruel and Unusual.
In class today, Thursday 4/4, I first clarified that, for the Pagnani case brief, do not include (in the Issues, Facts, and Holding portion) ¶25 (Search of the Vehicle). Do include Search of the Vehicle in other segments, such as Prior Proceedings, Appellant's Contentions, etc. Do include the dissent's footnotes 6 and 7 in your paragraph explaining the view of the dissent.
We then finished our discussion of Mobbley by going over the (un)persuasive authority, and the dissent's view about effectuating legislative intent. We also discussed how the case might be defended, now that it's headed for trial. We then went over the Holland Florida Supreme Court case. Finally, we looked at the statutory handout from Tuesday, going over Maine law regarding Ms. Mobbley's situation, as well as Maine common law crimes, and the Maine situations in which there is a duty to report, as well as the federal misprision statute.
The assignment for Tuesday 4/9 is to review Lawrence v. Texas (through p. 72 of the text) and to work on your Pagnani case brief, due 4/11.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Thursday 4/4, I distributed one handout, excerpts from three method-of-execution cases: Baze, Gossip, and Monday's opinion in Bucklew. I introduced those cases, and explained how Thomas' vision of the 8th Amendment (never before a majority opinion) may have prevailed this week.
We then turned back to the American Legion case. We first reviewed the outline of the Maryland Commission (Katyal) Brief. Then we discussed the American Legion (Carvin) position, which aimed at a much larger victory. We looked at the Justices' response to Carvin during the oral argument. We went through the American Humanist Association (Miller) Brief, including a somewhat confusing trip through the outline of her argument. And we looked at the response that her argument got during oral argument. The remaining issue that I wanted to look at is the standing issue brought up by Gorsuch. We'll start with that question on Tuesday.
The assignment for Tuesday 4/9 is to read today's handout, focusing on the question of whether the Court in Bucklew has changed the test for what is Cruel and Unusual.
Tuesday, April 2, 2019
April 2, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/2, I distributed 3 handouts: Maine statutes about Hindering Apprehension, etc.; Assignment #2 (reproduced below); and the case you'll be briefing, State v. Pagnani (2018 ME 129). We went over the requirements of the assignment. We then finished out discussion of Gregg v. Georgia, going through all of the questions asked by the Stewart plurality opinion, and then also going through Brennan's dissent and Marshall's dissent. We then discussed the State v. Mobbley majority opinion. We ran out of time before we talked about the Mobbley dissent, so that's where we'll pick up on Thursday.
The assignment for Thursday 4/4 is to review the Mobbley dissent, read in the text through p. 72 (including both Holland v. Florida and Lawrence v. Texas), look at today's Maine statutory handout, and read over the Pagnani case that you'll be briefing for nest Thursday.
Assignment due Thursday, April 11, 2019
The assignment (graded) is to do a Case Brief of the case of State v. Pagnani, 2018 ME 129, 193 A.3d 823 (also distributed to the class today).
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I’ve distributed. For this assignment, include the loser’s facts (the “even though” portion of the facts, using that phrase, and put into a parenthetical).
In addition, add a paragraph at the end of the brief simply explaining (no specialized format) the view of the dissenting Justices regarding the search of the jacket.
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 4/11, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/2, I distributed one handout, the Supreme Court's grant of a stay in Murphy v. Collier. We talked in detail about the different outcomes in the Dunn case (no Muslim Imam in execution chamber) and Murphy (Buddhist spiritual advisor in execution chamber). We talked about Kavanaugh's asterisk about timing in Murphy, and why there was only one asterisk about the issue that, on its face, was the crucial determinant in Dunn. We discussed how the Establishment clause has been on the wane since Lemon, while the Free Exercise Clause has been on the ascent since Employment Division v. Smith. We talked about the relationship between the Establishment Clause and the Free Exercise clause, and how Establishment talks about whether the government is allowed to aid religion, and the recent Free Exercise cases have been about government being forced to aid religion on the same basis as it aids other organizations. We then returned to American Legion v. Am. Humanist Assoc. We went over how Maryland said that they would win even if Lemon were used as the test. But that was a fallback position for them, as they preferred a test of tradition, as one alternative. We will pick up on Thursday with the other test that Maryland prefers to Lemon, and then look at the oral argument to see what the American Legion thinks the test should be.
The assignment for Thursday 4/4 is to review the briefs and the oral argument in American Legion.
In class today, Tuesday 4/2, I distributed 3 handouts: Maine statutes about Hindering Apprehension, etc.; Assignment #2 (reproduced below); and the case you'll be briefing, State v. Pagnani (2018 ME 129). We went over the requirements of the assignment. We then finished out discussion of Gregg v. Georgia, going through all of the questions asked by the Stewart plurality opinion, and then also going through Brennan's dissent and Marshall's dissent. We then discussed the State v. Mobbley majority opinion. We ran out of time before we talked about the Mobbley dissent, so that's where we'll pick up on Thursday.
The assignment for Thursday 4/4 is to review the Mobbley dissent, read in the text through p. 72 (including both Holland v. Florida and Lawrence v. Texas), look at today's Maine statutory handout, and read over the Pagnani case that you'll be briefing for nest Thursday.
Assignment due Thursday, April 11, 2019
The assignment (graded) is to do a Case Brief of the case of State v. Pagnani, 2018 ME 129, 193 A.3d 823 (also distributed to the class today).
Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.
Follow the format from the Sample Briefs that I’ve distributed. For this assignment, include the loser’s facts (the “even though” portion of the facts, using that phrase, and put into a parenthetical).
In addition, add a paragraph at the end of the brief simply explaining (no specialized format) the view of the dissenting Justices regarding the search of the jacket.
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 4/11, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.
Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.
IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.
POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 4/2, I distributed one handout, the Supreme Court's grant of a stay in Murphy v. Collier. We talked in detail about the different outcomes in the Dunn case (no Muslim Imam in execution chamber) and Murphy (Buddhist spiritual advisor in execution chamber). We talked about Kavanaugh's asterisk about timing in Murphy, and why there was only one asterisk about the issue that, on its face, was the crucial determinant in Dunn. We discussed how the Establishment clause has been on the wane since Lemon, while the Free Exercise Clause has been on the ascent since Employment Division v. Smith. We talked about the relationship between the Establishment Clause and the Free Exercise clause, and how Establishment talks about whether the government is allowed to aid religion, and the recent Free Exercise cases have been about government being forced to aid religion on the same basis as it aids other organizations. We then returned to American Legion v. Am. Humanist Assoc. We went over how Maryland said that they would win even if Lemon were used as the test. But that was a fallback position for them, as they preferred a test of tradition, as one alternative. We will pick up on Thursday with the other test that Maryland prefers to Lemon, and then look at the oral argument to see what the American Legion thinks the test should be.
The assignment for Thursday 4/4 is to review the briefs and the oral argument in American Legion.
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