January 27, 2011

POS 359--The Current Supreme Court Term 2011
In class today, Thursday 1/27, I distributed one handout, the assignment that is reproduced below. We talked about that assignment, and then about some vocabulary in the Hustler v. Falwell case that may not have been familiar. We discussed the Hustler case, and then went back and continued our look into the Snyder oral argument. Here's the assignment that's due next Thursday 2/3:

Assignment #1

For this assignment, I would like you to trace how the argument of the parties as developed in their legal briefs in Snyder v. Phelps was reflected in the oral argument that was held in the case, and what kind of reception that argument received. I had previously assigned the three briefs of the parties: Snyder’s Brief [S-B] and Reply Brief [S-RB], and the Brief of Phelps (P-B].)

I want you to pick three specific points on which the two parties disagreed in their briefing, and which were the subjects of at least some questioning during the oral argument. At least one of the points should be a point of law (e.g. is this “conduct”, as opposed to “speech”), and at least one should be a question about how a prior case should be either followed, distinguished or extended by the Court.

For each of the three points:
1) identify the position of each side’s argument in the briefing, giving specific page references to that brief;
2) identify where that position was presented in questioning by the Justices during the oral argument, giving specific page and line references to that portion of argument and showing how the Justices involved in the questioning reacted to those positions taken by the parties;
3) discuss what the questions by the Justices seem to indicate about the Justices’ view regarding which side has the better argument in that particular clash between the parties.

Here’s one sample (fictitious) point to demonstrate the format that I’m looking for:

The first point I’ll discuss will be the question of the treatment of Hustler v. Falwell, 485 U.S. 46 (1988).
1) Snyder had argued in his brief that the Hustler case is distinguishable from his case, because that case stands only for the proposition that “parody” is protected by the First Amendment, and the funeral demonstration and the “epic” were not a parody at all, but serious commentary, that was meant by WBC to be taken seriously (S-B, p.31). Furthermore, he argued, there was a specific disclaimer in the magazine that alerted readers to the fact that this “ad” was a parody. (S-B p. 32). Phelps answered that Hustler cannot be distinguished, and should be followed, because that case dealt with the morality of certain conduct, and the signs of the WBC and their epic were also making a point about the morality of our country (P-B, p.4). Snyder replied that Hustler is still different, because the reasoning of that case was that the Court must look to the underlying motivation of the speaker in deciding whether the First Amendment bars the claim, and the motivation of Hustler magazine (poking fun) was far different from the motivation of the WBC (condemning to hell) (S-RB, p.14).
2) At oral argument Justice Thomas asked Summers why Hustler should not apply to this case, since in both cases the state tort action was dependent on a jury finding of the outrageousness of the defendant’s conduct, and that standard was too vague to be acceptable under the First Amendment (37:17). Summers replied that outrageousness was too vague a standard for parody, but not too vague a standard for funerals (37:21) Summers said that a jury is fully capable of judging the outrageousness of conduct at a funeral, regardless of the content of the message (38:3). Justice Thomas then asked whether this case really was about conduct, as opposed to speech, but then other Justices interrupted, and the argument went to other issues (38:15).
3) Justice Thomas’s question, and his comment responding to Summers (“Is that really what we said in Hustler?”) (38:2) indicate that Thomas is skeptical of Summers’ position, and that Thomas is thinking that Hustler should indeed be followed in this case, and that the First Amendment will bar the IIED claim here as it did in that case.

The paper should be a minimum of 2 pages long, and no more than 5 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday February 3. The paper needs no introduction (“I found Snyder v. Phelps to be an interesting and important case…”). Just launch right into the points that you’ve chosen.

If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of class. 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. In terms of timeliness, any attachment that I cannot open will not be considered received; so the safest course is to copy and paste the paper into your e-mail as well as to attach it.

You papers will be graded on how well you support your position by reference to the briefs and the oral argument. 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.

You are not allowed to collaborate with other students. The work should be entirely your own. The only sources you should be consulting are the briefs and the oral argument, and prior cases. See the syllabus regarding plagiarism.



POS 282--Introduction to American Law
In class today, Thursday 1/27, I distributed one handout, the Maine criminal statutes regarding the right to use force in defense of premises and property. We began the class with a discussion of the Lyman v.Huber brief, going over the way to structure the issues and the facts of that case. We then turned to the Katko case, and finished discussing the authority upon which the court relied, its reasoning, the relevance of giving a warning,and the dissenting opinion. Finally we turned to the handout about Maine law. The first thing we did was go over citation form for Maine statutes. We then began looking over how Maine deals with the use of force in defending home and property. The assignment for Tuesday 2/1 is to complete the Lyman case brief that was assigned on Tuesday. Also, read over and prepare to discuss the Maine statute that I distributed today.