POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/26, I handed back the Betton case briefs, and also handed out the Betton Comment Key. I made a few comments about the grading of the case briefs. We then started exploring the question of retroactivity. We went over why Miranda applied to the Butler case at all, even though the interrogation in Butler took place well before the Supreme Court decided Miranda. I discussed Johnson v. New Jersey, the 1966 Supreme Court case that decided the question of the retroactive application of Miranda. We went over Dempsey, and how the Montana Supreme Court made their own rule regarding retroactivity. Once we finished retroactivity, and we went over Strunk and the lack of precedent, I gave an introduction to our next subject of conflict of law rules. We discussed the relationship between personal jurisdiction, subject matter jurisdiction, and conflict of law rules.
The assignment for Tuesday 12/3 is to read in the text pp. 113-116 (Hubbard v. Greeson) and pp. 144-146 (Land v. Yamaha).
Have a good Thanksgiving break.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/26, we admired the technique of Detective Keegan in securing admissible confessions in all of these cases. We began by going over the Jones case, discussing "custody", consideration of age, and voluntariness. We then turned to Nightingale. We got up through the plurality and the Kennedy positions in terms of "Miranda in the middle", and we'll pick up next week with how the Maine Supreme Court decided what the holding of Seibert really was.
The assignment for Tuesday 12/3 is to review Nightingale, and review the previous assignment in the textbook. In addition, read the rest of Chapter 8 in the text, through p. 345 of the text.
Have a good Thanksgiving break.
Tuesday, November 26, 2019
Thursday, November 21, 2019
November 21, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/21, I collected the Betton case briefs, and also distributed my version of the brief. We went over the Betton case, including possible strategies for the defense on remand. We then went over the Butler case and the issue of dictum. I reviewed three types of dictum that we've encountered this semester. I then discussed the 1971 case of Harris v. New York in which the Supreme Court confronted the same question as in Butler.
The assignment for Tuesday 11/26 is to read in the text through p. 113, including Dempsey and Strunk.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 11/21, I distributed one handout, the Maine Supreme Court opinion in State v. Nightingale, 2012 ME 132. We then began our study of the 3 Maine cases assigned for today, Prescott, Bragg, and Jones. We got through Prescott and Bragg, but not to Jones. So we will begin class on Tuesday with Jones, and then go on to the textbook assignment (below) and to Nightingale.
The assignment for Tuesday 11/26 is to review Jones, read in the text pp. 317-340, including Moran v. Burbine and Rhode Island v. Innis, and also today's handout, Nightingale.
In class today, Thursday 11/21, I collected the Betton case briefs, and also distributed my version of the brief. We went over the Betton case, including possible strategies for the defense on remand. We then went over the Butler case and the issue of dictum. I reviewed three types of dictum that we've encountered this semester. I then discussed the 1971 case of Harris v. New York in which the Supreme Court confronted the same question as in Butler.
The assignment for Tuesday 11/26 is to read in the text through p. 113, including Dempsey and Strunk.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 11/21, I distributed one handout, the Maine Supreme Court opinion in State v. Nightingale, 2012 ME 132. We then began our study of the 3 Maine cases assigned for today, Prescott, Bragg, and Jones. We got through Prescott and Bragg, but not to Jones. So we will begin class on Tuesday with Jones, and then go on to the textbook assignment (below) and to Nightingale.
The assignment for Tuesday 11/26 is to review Jones, read in the text pp. 317-340, including Moran v. Burbine and Rhode Island v. Innis, and also today's handout, Nightingale.
Tuesday, November 19, 2019
November 19, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/19, we first went over some aspects of the Betton case brief due at the beginning of class on Thursday. We then discussed NFIB v. Sebelius from the textbook. I went over a little history of the limitations on Congressional power (no "police power"), and how the interstate commerce power has sometimes had a narrow, and sometimes, a broad, interpretation from the Supreme Court. I gave a little background to the confusing votes in the case, and how the individual mandate was eventually upheld, not under the interstate commerce power, but under Congress' taxing power. I then talked to the class about the current case of Texas v. U.S. in which the U.S. District Court struck down the entirety of the Affordable Care Act, as the individual mandate had lost its mooring to the Congressional taxing power. That case is currently awaiting decision by the 5th Circuit Court of Appeals. We also talked about the concept of dictum, and saw how that concept came into play in NFIB v. Sebelius.
The assignment for Thursday 11/21 is to finish up the Betton case briefs, due at the beginning of Thursday's class. Also read in the text through p. 107, including State v. Butler,
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/19, I distributed 3 handouts: the Maine Supreme Court opinions in State v. Prescott 2012 ME 96, State v. Bragg, 2012 ME 102, and State v. Jones, 2012 ME 126 (2012 was a very good year for Miranda cases in Maine). I began by discussing the Maine case of State v. Rees, 2000 ME 55, in which the Maine Supreme Court elected not to follow Colorado v. Connnelly. We then went through the elements of the Miranda opinion. In terms of what it means to be in custody, we looked at Berkemer v. McCarty at p. 310 of the text. Finally we discussed the majority and dissenting opinions in J.D.B. and the juvenile suspect.
The assignment for Thursday 11/21 is to read today's three handouts. (If you weren't in class, you can access the cases most easily by going to Google Scholar, selecting "case law" and "select courts", select the Maine Supreme Judicial Court, and type the citation into the search dialog box.)
In class today, Tuesday 11/19, we first went over some aspects of the Betton case brief due at the beginning of class on Thursday. We then discussed NFIB v. Sebelius from the textbook. I went over a little history of the limitations on Congressional power (no "police power"), and how the interstate commerce power has sometimes had a narrow, and sometimes, a broad, interpretation from the Supreme Court. I gave a little background to the confusing votes in the case, and how the individual mandate was eventually upheld, not under the interstate commerce power, but under Congress' taxing power. I then talked to the class about the current case of Texas v. U.S. in which the U.S. District Court struck down the entirety of the Affordable Care Act, as the individual mandate had lost its mooring to the Congressional taxing power. That case is currently awaiting decision by the 5th Circuit Court of Appeals. We also talked about the concept of dictum, and saw how that concept came into play in NFIB v. Sebelius.
The assignment for Thursday 11/21 is to finish up the Betton case briefs, due at the beginning of Thursday's class. Also read in the text through p. 107, including State v. Butler,
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/19, I distributed 3 handouts: the Maine Supreme Court opinions in State v. Prescott 2012 ME 96, State v. Bragg, 2012 ME 102, and State v. Jones, 2012 ME 126 (2012 was a very good year for Miranda cases in Maine). I began by discussing the Maine case of State v. Rees, 2000 ME 55, in which the Maine Supreme Court elected not to follow Colorado v. Connnelly. We then went through the elements of the Miranda opinion. In terms of what it means to be in custody, we looked at Berkemer v. McCarty at p. 310 of the text. Finally we discussed the majority and dissenting opinions in J.D.B. and the juvenile suspect.
The assignment for Thursday 11/21 is to read today's three handouts. (If you weren't in class, you can access the cases most easily by going to Google Scholar, selecting "case law" and "select courts", select the Maine Supreme Judicial Court, and type the citation into the search dialog box.)
Thursday, November 14, 2019
November 14, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/14, we spent most of the class period clarifying aspects of the Betton case brief due next Thursday. We worked through all of the segments of the brief up to the Issues, Facts, and Holding. I also specified that if you are unable to come to class when the brief is due next Thursday, and you need to submit your brief to me by email, I want you to attach it as a pdf or a Word document, and not in Google docs.
We also went over the 2 bases of federal trial court jurisdiction (federal question and diversity) by way of explaining why Betton was eligible to be heard in the federal court system.
The assignment for Tuesday 11/19 is to continue work on your Betton case brief (due at the beginning of class on 11/21) and to review the textbook through NFIB v. Sebelius, previously assigned.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 11/14, we began with a little more inquiry into qualified immunity. We talked about the handout of recent Circuit Court cases that granted qualified immunity to police, even though there was a determination that the police had in fact used excessive force. I also discussed the recent case of Betton v. Belue, in which the 4th Circuit found both excessive force, and that the prohibition on the use of such force in those circumstances was clearly established. I also discussed the two bases of federal trial court jurisdiction, federal question and diversity. We then moved onto confessions. We walked through the 5 protections of the 5th Amendment, and then came back to the protection of against being compelled to be a witness against yourself in a criminal case. We saw how the interpretation of that protection was not limited to the actual text of the 5th Amendment, but was also not unlimited. We saw in Connelly how the exercise of free will was not the test for what is compelled, and we saw in Schmerber how simply forcing a suspect to give up incriminating evidence was also not the test.
The assignment for Tuesday 11/19 is to read in the text through p. 317, including Miranda and J.D.B.
In class today, Thursday 11/14, we spent most of the class period clarifying aspects of the Betton case brief due next Thursday. We worked through all of the segments of the brief up to the Issues, Facts, and Holding. I also specified that if you are unable to come to class when the brief is due next Thursday, and you need to submit your brief to me by email, I want you to attach it as a pdf or a Word document, and not in Google docs.
We also went over the 2 bases of federal trial court jurisdiction (federal question and diversity) by way of explaining why Betton was eligible to be heard in the federal court system.
The assignment for Tuesday 11/19 is to continue work on your Betton case brief (due at the beginning of class on 11/21) and to review the textbook through NFIB v. Sebelius, previously assigned.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 11/14, we began with a little more inquiry into qualified immunity. We talked about the handout of recent Circuit Court cases that granted qualified immunity to police, even though there was a determination that the police had in fact used excessive force. I also discussed the recent case of Betton v. Belue, in which the 4th Circuit found both excessive force, and that the prohibition on the use of such force in those circumstances was clearly established. I also discussed the two bases of federal trial court jurisdiction, federal question and diversity. We then moved onto confessions. We walked through the 5 protections of the 5th Amendment, and then came back to the protection of against being compelled to be a witness against yourself in a criminal case. We saw how the interpretation of that protection was not limited to the actual text of the 5th Amendment, but was also not unlimited. We saw in Connelly how the exercise of free will was not the test for what is compelled, and we saw in Schmerber how simply forcing a suspect to give up incriminating evidence was also not the test.
The assignment for Tuesday 11/19 is to read in the text through p. 317, including Miranda and J.D.B.
Tuesday, November 12, 2019
November 12, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/12, I distributed 4 handouts: Assignment #2 (reproduced below)); the case you'll be briefing, Betton v. Belue; a newspaper article about the Betton case; and and a magazine article about a recent call for recusal of two Supreme Court Justices. We went over the requirements of Assignment #2, which we'll be discussing in class at more length on Thursday 11/14. We then went back to Caperton. We went over the successive layers of definitions involved in this situation: what is "due process"; what is a substantial risk of bias; what is a disproportional contribution? I then talked to the class about the case of Williams v. Pennsylvania, a more recent Supreme Court case that raised the question of recusal in the context of a former prosecutor in a case now serving as a judge. We looked at today's handout about the 2 Supreme Court Justices who met with a person whose organization had submitted an amicus brief in a pending Supreme Court case. Finally I went over the case of Overseers of the Bar v. Warren, a Maine Supreme Court case on the ethical responsibilities of Maine lawyers to turn in a colleague who is acting illegally.
The assignment for Thursday 11/14 is to begin work on your Betton case brief, read today's handouts, and review NFIB v. Sebelius, previously assigned.
Assignment due Thursday, November 21, 2019
The assignment (graded) is to do a Case Brief of the case of Betton v. Belue, ___F.3d___ (4th Cir., 2019) (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.
For this brief, include both the winner’s facts (“..., when...”) and 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 11/24, 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 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/12, I returned the Mitchell outlines, as well as my comment key to those outlines. We then reviewed the exclusionary rule regarding good faith compliance with binding appellate authority. We compared that with the qualified immunity question of whether a rule of police use of force is clearly established. We went through the Court's opinion in Kisela, as well as Sotomayor's dissent. We saw how their view of previous cases was the mirror image of each other, in terms of which cases were right on point, and which cases were different. We also saw how Sotomayor was willing to look at precedent from other circuits which were more closely aligned with the facts of this case.
The assignment for Thursday 11/14 is to review what has already been assigned in Chapter 8 (p. 283-294), and to read in addition through p. 301 (including Schmerber).
In class today, Tuesday 11/12, I distributed 4 handouts: Assignment #2 (reproduced below)); the case you'll be briefing, Betton v. Belue; a newspaper article about the Betton case; and and a magazine article about a recent call for recusal of two Supreme Court Justices. We went over the requirements of Assignment #2, which we'll be discussing in class at more length on Thursday 11/14. We then went back to Caperton. We went over the successive layers of definitions involved in this situation: what is "due process"; what is a substantial risk of bias; what is a disproportional contribution? I then talked to the class about the case of Williams v. Pennsylvania, a more recent Supreme Court case that raised the question of recusal in the context of a former prosecutor in a case now serving as a judge. We looked at today's handout about the 2 Supreme Court Justices who met with a person whose organization had submitted an amicus brief in a pending Supreme Court case. Finally I went over the case of Overseers of the Bar v. Warren, a Maine Supreme Court case on the ethical responsibilities of Maine lawyers to turn in a colleague who is acting illegally.
The assignment for Thursday 11/14 is to begin work on your Betton case brief, read today's handouts, and review NFIB v. Sebelius, previously assigned.
Assignment due Thursday, November 21, 2019
The assignment (graded) is to do a Case Brief of the case of Betton v. Belue, ___F.3d___ (4th Cir., 2019) (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.
For this brief, include both the winner’s facts (“..., when...”) and 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 11/24, 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 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/12, I returned the Mitchell outlines, as well as my comment key to those outlines. We then reviewed the exclusionary rule regarding good faith compliance with binding appellate authority. We compared that with the qualified immunity question of whether a rule of police use of force is clearly established. We went through the Court's opinion in Kisela, as well as Sotomayor's dissent. We saw how their view of previous cases was the mirror image of each other, in terms of which cases were right on point, and which cases were different. We also saw how Sotomayor was willing to look at precedent from other circuits which were more closely aligned with the facts of this case.
The assignment for Thursday 11/14 is to review what has already been assigned in Chapter 8 (p. 283-294), and to read in addition through p. 301 (including Schmerber).
Thursday, November 7, 2019
November 7, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/7, I first let the class know of my plan to distribute the next case brief assignment on Tuesday 11/12, with a planned due date of Thursday 11/21. We then finished our discussion of Glassford, looking at both substantive and procedural unconscionability, and severability. I then talked to the class about a 2018 SCOTUS case, Epic Systems v. Lewis, in which the Court 5-4 ruled on how the provisions of the 1925 Federal Arbitration Act interacted with the 1935 National Labor Relations Act. Then we began our discussion of Caperton v. Massey Coal. We had gotten as far as the background to the case, and looked at the standard used by Justice Benjamin for his refusal to recuse. We looked at the Tumey case, and will begin next Tuesday by comparing the standard used by Benjamin with the standard in Tumey.
The assignment for Tuesday 11/12 is to review Caperton, and to read in addition through p. 98 of the text,including NFIB v. Sebelius.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 11/7, I collected the Mitchell outlines, and we went over them. I also distributed my version of the outline. I plan to grade them this weekend and return them on Tuesday.
We then went back to Davis. I explained how the majority and the dissent had different views on the relationship between retroactivity analysis and the exclusion of evidence. We also discussed how the Davis view of the good faith exception to suppression expanded on previous incarnations of the good faith exception. We began our discussion of qualified immunity and the Kisela case. We will pick up on Tuesday with the majority's decision about which issue to address, the existence of a constitutional violation, or the existence of qualified immunity, and how the dissent viewed the same question.
The assignment for Tuesday 11/12 is to review Kisela, and review Tuesday's handout on recent Court of Appeals qualified immunity cases, and to read in the textbook pp. 283-294, including Connelly.
In class today, Thursday 11/7, I first let the class know of my plan to distribute the next case brief assignment on Tuesday 11/12, with a planned due date of Thursday 11/21. We then finished our discussion of Glassford, looking at both substantive and procedural unconscionability, and severability. I then talked to the class about a 2018 SCOTUS case, Epic Systems v. Lewis, in which the Court 5-4 ruled on how the provisions of the 1925 Federal Arbitration Act interacted with the 1935 National Labor Relations Act. Then we began our discussion of Caperton v. Massey Coal. We had gotten as far as the background to the case, and looked at the standard used by Justice Benjamin for his refusal to recuse. We looked at the Tumey case, and will begin next Tuesday by comparing the standard used by Benjamin with the standard in Tumey.
The assignment for Tuesday 11/12 is to review Caperton, and to read in addition through p. 98 of the text,including NFIB v. Sebelius.
POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 11/7, I collected the Mitchell outlines, and we went over them. I also distributed my version of the outline. I plan to grade them this weekend and return them on Tuesday.
We then went back to Davis. I explained how the majority and the dissent had different views on the relationship between retroactivity analysis and the exclusion of evidence. We also discussed how the Davis view of the good faith exception to suppression expanded on previous incarnations of the good faith exception. We began our discussion of qualified immunity and the Kisela case. We will pick up on Tuesday with the majority's decision about which issue to address, the existence of a constitutional violation, or the existence of qualified immunity, and how the dissent viewed the same question.
The assignment for Tuesday 11/12 is to review Kisela, and review Tuesday's handout on recent Court of Appeals qualified immunity cases, and to read in the textbook pp. 283-294, including Connelly.
Tuesday, November 5, 2019
November 5, 2019
POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/5, we first finished going through the Maine statutes involving the duty to report. We then turned to Lawrence v. Texas. We discussed how Kennedy dealt with the question of whether to treat the case as a due process or as an equal protection issue. We looked at how he analyzed the issue in terms of fundamental rights (high hurdles) versus non-fundamental rights (low hurdles). We also discussed the question of whether the majority can criminalize conduct simply because the majority feels that the conduct is wrong. I also talked about O'Connor's concurrence in the case, and the dissent. Then we began our discussion of Glassford. We talked about arbitration clauses in general, and the provisions of this arbitration clause in particular. We went over the prior proceedings, and we'll pick up on Thursday with the Court's analysis.
The assignment for Thursday 11/7 is first to review Glassford. Brief the issues in the case (not handed in or graded). In addition, read to the end of Chapter 2, including Caperton v. Massey coal.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/5, I distributed one handout, a list of recent Court of Appeals cases involving qualified immunity for law enforcement. I began by reminding the class of the Mitchell outline due Thursday. In terms of length of the outline/summaries, I said that my total paper was 3 pages. I discussed how Sotomayor's dissent in Mitchell may require more than one paragraph in explanation of her views. I then talked about the 2018 Maine Supreme Court case of State v. Lemeunier-Fitzgerald, in which the Court split 4-3 over the question of whether Maine's implied consent law (distributed last week) in fact counted as constitutionally sufficient consent to a blood draw, or whether it was instead too coercive to constitute real consent.
We then turned to a new topic of enforcement of the 4th Amendment. We talked about two possible methods of enforcement, exclusion of unconstitutionally seized evidence, and civil suits against the officers who violate the constitutional rules. I went over a case from the textbook that I had not assigned, Utah v. Strieff (p.400) in which the Court found that an intervening factor (an outstanding warrant) meant that the evidence that was seized through an unconstitutional stop should still be admitted as evidence. We then talked about the good faith exception to the exclusionary rule. I discussed Leon and Evans, two case that were included in today's assignment. I talked about who exactly was the party that made the error in those cases. Then we went through the Herring case, discussing the levels of culpability (intent, recklessness, etc.) and how Herring expanded the exceptions to the exclusionary rule. We began our discussion of Davis v. U.S., and saw how it fit within the good faith exception to the exclusionary rule. We will pick up on Thursday with how the retroactive application of Arizona v. Gant was viewed by both the majority and the dissent.
The assignment for Thursday 11/7 is to finish up your Mitchell v. Wisconsin outlines, due at the beginning of class on 11/7. Review Davis, read today's handout, and read in the text p. 432-440, including Kisela v. Hughes.
In class today, Tuesday 11/5, we first finished going through the Maine statutes involving the duty to report. We then turned to Lawrence v. Texas. We discussed how Kennedy dealt with the question of whether to treat the case as a due process or as an equal protection issue. We looked at how he analyzed the issue in terms of fundamental rights (high hurdles) versus non-fundamental rights (low hurdles). We also discussed the question of whether the majority can criminalize conduct simply because the majority feels that the conduct is wrong. I also talked about O'Connor's concurrence in the case, and the dissent. Then we began our discussion of Glassford. We talked about arbitration clauses in general, and the provisions of this arbitration clause in particular. We went over the prior proceedings, and we'll pick up on Thursday with the Court's analysis.
The assignment for Thursday 11/7 is first to review Glassford. Brief the issues in the case (not handed in or graded). In addition, read to the end of Chapter 2, including Caperton v. Massey coal.
POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/5, I distributed one handout, a list of recent Court of Appeals cases involving qualified immunity for law enforcement. I began by reminding the class of the Mitchell outline due Thursday. In terms of length of the outline/summaries, I said that my total paper was 3 pages. I discussed how Sotomayor's dissent in Mitchell may require more than one paragraph in explanation of her views. I then talked about the 2018 Maine Supreme Court case of State v. Lemeunier-Fitzgerald, in which the Court split 4-3 over the question of whether Maine's implied consent law (distributed last week) in fact counted as constitutionally sufficient consent to a blood draw, or whether it was instead too coercive to constitute real consent.
We then turned to a new topic of enforcement of the 4th Amendment. We talked about two possible methods of enforcement, exclusion of unconstitutionally seized evidence, and civil suits against the officers who violate the constitutional rules. I went over a case from the textbook that I had not assigned, Utah v. Strieff (p.400) in which the Court found that an intervening factor (an outstanding warrant) meant that the evidence that was seized through an unconstitutional stop should still be admitted as evidence. We then talked about the good faith exception to the exclusionary rule. I discussed Leon and Evans, two case that were included in today's assignment. I talked about who exactly was the party that made the error in those cases. Then we went through the Herring case, discussing the levels of culpability (intent, recklessness, etc.) and how Herring expanded the exceptions to the exclusionary rule. We began our discussion of Davis v. U.S., and saw how it fit within the good faith exception to the exclusionary rule. We will pick up on Thursday with how the retroactive application of Arizona v. Gant was viewed by both the majority and the dissent.
The assignment for Thursday 11/7 is to finish up your Mitchell v. Wisconsin outlines, due at the beginning of class on 11/7. Review Davis, read today's handout, and read in the text p. 432-440, including Kisela v. Hughes.
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