October 18, 2011

POS 282--Introduction to American Law
In class today, Tuesday 10/18, I began by letting the class know that we will have Test #1 on Tuesday 10/25. The test will be open-book and open-note. On Thursday 10/20 I will go over some sample questions. We then finished our discussion of the Glucksberg case, tracing the process by which the Court decided that the asserted right was not "fundamental". We then went to Lawrence v. Texas, and looked at the process there in terms of defining the right and deciding whether it was fundamental. We left off with the question of how Justice Kennedy analyzed the "legitimate" state interest involved. We will pick up with that question on Thursday, as well as going over the previously assigned case of Connecticut v. Doe (p.44) The assignment for Thursday 10/20 is to review Lawrence and Doe.

POS 359--The Current Supreme Court Term
In class today, Tuesday 10/18, I distributed Assignment #1, which is reproduced below, and which is due Thursday, October 27. After going over that assignment, we went into a discussion of the oral argument in Florence, comparing the position taken by Goldstein at oral argument with the positions taken in the Florence brief. I also went over an additional case, Atwater v. City of Lago Vista (2001) in which the Court upheld the constitutionality of an arrest of a woman for a seatbelt violation. The assignment for Thursday 10/20 is to read the brief of respondent Essex County, again comparing the positions taken in the brief with those taken at oral argument.

Assignment #1
Good news! In order to foster a more youthful outlook at the Supreme Court, Congress has increased the membership of the Court to ten, and you, because of your outstanding dedication to The Law, have been chosen to be that 10th Justice.
Your first job as a new Justice is to write the Court’s opinion in the Florence v. Board case.
Your opinion is not a prediction of the votes; don’t worry about the other Justices, just concentrate on reaching and justifying the decision that you think makes the most sense. Where you cite to the oral argument, you’re looking to the response of the lawyers rather than the viewpoint expressed by the other Justices.

Since this will be your first Supreme Court opinion, here are some guidelines for writing that I want you to observe:
• You should deal specifically with the issues raised by the party that is opposed to your view of the case. What’s wrong with the argument raised by the losers, both in their brief and in the oral argument?
• You should have at least two specific references to each party’s position in the briefs (two for Florence and two for Essex County) , with specific reference to the page number of the argument.
• You should have at least three specific references to the oral argument. Your citations to the oral argument transcript should give page and line numbers.
• You should deal specifically with how Bell is to be interpreted in light of the present case.
• You should deal with other sub-issues as you locate them in the briefing and the oral argument.

You should use primarily your own words, quoting only in snippets when the particular words of an exchange or a brief are crucial.

Because of the particular factual situations raised by this case, it would be helpful for us to use a common vocabulary. Please use these terms with these meanings:
Visual strip search: observing the naked body of the arrestee, with no particular cavity focus.
Visual cavity search: close observation of the body cavity, with the arrestee opening his mouth, etc.
Squat and cough: just like it sounds.
Cavity search: digital search by the jailers of body cavities.
Here’s a fictitious example to demonstrate the format that I’m looking for:

This Court rejects Florence’s position that the reasonableness of the visual cavity search depends on the proximity of the jailer to the arrestee. While his brief argues that the state has no constitutional right to conduct a visual cavity search absent probable cause (Florence Brief, p. 47), at oral argument he conceded that such routine practices do not require probable cause at all, and that the only constitutional question is the proximity of the jailer to the arrestee (17:6). We refuse to establish such a yard-stick test as a principle of our constitution.

The paper should be a minimum of 3 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 October 27. 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.

The paper will not be graded on whether I agree with your analysis of how the case should be decided, but rather by how well you identify specific sub-issues, evaluate them, and support your position. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. Try using an outline. I encourage you to use the UM writing center to help with your English.

The work should be entirely your own, with no collaboration, and no plagiarism.

As I write this assignment, the Supreme Court has not yet decided this case; naturally, I hope they don’t decide it before October 27, because that would really complicate the process of evaluating your analysis. But, if they do decide the case before then, I will post a modification to the assignment on the blog, as well as e-mail you through the MaineStreet portal. Be sure to check the blog (even if you don’t miss any classes) to see if the other Justices on the Court have written their views before receiving the benefit of your view.