March 19, 2009

POS 359--The Current Supreme Court Term
In class today, Thursday 3/19, I distributed and we went over Assignment #2, which is due Tuesday 3/31. That assignment is reproduced below. Note that the assignment also includes a change to the syllabus regarding grading, as the third paper is made optional. We discussed the Amicus Brief of the Conference of Chief Justices. I also talked about two non-Supreme Court cases, one regarding the constitutionality of parts of the Patriot Act, in which the oral argument will be shown on c-span this Saturday night at 7:00, and the other dealing with an attempt to revive the Privileges and Immunities clause of the 14th Amendment in the context of the Second Amendment right to keep and bear arms. The assignment for Tuesday 3/24 is to begin work on the Caperton assignment.

For this assignment, I would like you to predict the outcome of the Supreme Court case of Caperton v. Massey Coal Company, Supreme Court Docket # 08-22. In addition, I would also like you to write about how you think the case should come out.

The paper should be a minimum of 3 pages long, and no more than 10 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Tuesday March 31. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. (If your computer uses the newer doc.x format, please copy and paste the paper into the e-mail, rather than attaching it). I will acknowledge receipt of any e-mailed papers--if you don’t get an acknowledgment, that means that I didn’t get the paper. See the syllabus for more information, or if you do not have the paper done on time.

1) The first step in preparation for the prediction is to read the transcript of the oral argument of the case, which was heard by the Supreme Court on March 3, 2009. The transcript was previously assigned as reading.

2) The second step is to read briefs of the parties, as well as the Amicus Brief of the Conference of Chief Justices in Support of Neither Party (also previously assigned). (See the blog --www.goldmanmaine.blogspot.com--for directions to these materials if you have not previously accessed them).

The specific assignment regarding the prediction is this: To the extent possible, go Justice-by-Justice and find some indication of how each Justice might vote in this case.

The only important source of those indications will be the questions raised at oral argument. Your citations to the oral argument transcript should give page and line numbers.

The predictive portion of 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”.

Your prediction should be directed not only to the final vote (for or against Caperton), but rather to the distinct issues and positions raised by the parties. An important part of the assignment is for you to identify those issues. For this, you will need to refer to the arguments raised by the parties in their briefs, as well as the assigned Amicus Brief. When you refer to the briefs, cite them by page number. The issues include, but are not limited to, questions such as whether “probability of bias” is the correct legal standard for campaign contribution cases; if it is the correct standard, whether the Justices will decide how the standard is defined, or will just announce a standard and let others decide how to define it; if the Justices do go into the definition, will they accept the factors laid out by Olson in the Petitioner’s brief (such as the amount of money, whether it is given during the pendency of an active case, etc.); and how they will deal with the specific problems raised in the Respondent’s brief about the many practical hurdles involved in creating such a constitutional standard. Your prediction should also reflect, to the extent possible, a Justice’s preference for jurisprudential considerations such as the need for a clear rule (as opposed to a case-by-case analysis).

For your own thoughts about how the case should be decided, deal specifically with the issues raised by the party that is opposed to your view of the case. For example, if you think that Caperton’s position is correct, how do you answer Massey’s objections to the many practical problems in crafting a constitutional standard.

You 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 with reference to the assigned briefs. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I encourage you to use the UM writing center to help with your English.

For this paper, I have decided not to allow you to collaborate with other students. The work should be entirely your own. See the syllabus regarding plagiarism.


Change in the syllabus:

The syllabus had said that grading in this class would consist of three homework assignments, each counting as 30% of the final grade, as well as 10% based on class participation and attendance. As discussed in class, I have decided to modify this scheme as follows: the third assignment is now optional. If you choose to complete a third assignment, the syllabus plan is unchanged. If you choose not to complete a third assignment, each of the two graded assignments will be worth 40% of the final grade, and 20% of the grade will be based on class participation and attendance.



CMJ 375--Mass Media Law
In class today, Thursday 3/19, I spent most of the class going over the case of Veilleux v. NBC. we went through the various causes of action, and why the First Circuit did or did not allow the jury verdict for each one to stand. We also went over the case of Hustler v. Falwell from the casebook, and how that case affected the Veilleux case. The assignment for Tuesday 3/24 is to read in the text pp. 223-228, and to read in the casebook the case of Miller v. NBC (p. 124) and Houchins v. KQED (p. 127).