March 20, 2012

POS 282--Introduction to American Law
In class today, Tuesday 3/20, I distributed one handout. It contained three Maine statutes, hindering apprehension, crimes defined by statute, and mandated reporting of child abuse. We went over the Mobbley and Holland cases in the text. The assignment for Thursday 3/22 is to read and prepare to discuss through p. 75 of the text.


POS 359-- The Current Supreme Court Term
In class today, Tuesday 3/20, I distributed one handout, Assignment #2 which is copied below. We went over the 2009 FCC v. Fox decision, looking for hints about how some of the Justices might vote on the constitutional issues. The assignment for Thursday 3/22 is to read the January 10, 2012 oral argument in FCC v. Fox.


Assignment #2

For this assignment, I would like you to predict the outcome of the Supreme Court case of FCC v. Fox. In addition, I would also like you to write about how you think the case should come out.

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 and in the 2009 FCC v. Fox decision”. I don’t need any introduction to the case, its facts, the proceedings below, or precedent.

The paper should be a minimum of 3 pages long, and no more than 6 pages. Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Thursday, March 29. If you are unable to attend class on that date, you should e-mail the paper to me by the beginning of that 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 specific assignment regarding the prediction is this: Go Justice-by-Justice and find some indication of how each Justice might vote in this case. Remember that Justice Sotomayor has recused herself in this case. Discuss how the questions asked or the comments made by a Justice in the oral argument may reflect a view of what the outcome should be. Also discuss whether anything written by the Justices in the 2009 FCC v. Fox decision tips their hand in terms of how they view the constitutional questions.

There is a complicated set of questions presented to the Court in this case. For example, there are the two constitutional issues, vagueness under the Fifth Amendment and Free Speech under the First Amendment. There are the questions of whether Pacifica should be overruled, (either because it was wrong from the beginning, or because it’s wrong now because circumstances have changed) and whether it should be limited versus extended. The two networks are in different positions regarding the vagueness of the “indecency” and the imposition of fines. There are many other sub-issues.. Use the FCC reply brief as your guide to those specific sub-issues. Your prediction should be directed not only to the final vote (for or against the FCC), but also rather to the distinct issues and positions raised by the parties

Remember that the Court issues two kinds of things: a Judgment (whether the decision of the Court of Appeals 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.

Your citations to the oral argument transcript should give page and line numbers. I’m not requiring a specific number of citations for each Justice, but each mention of what a Justice says requires a specific transcript reference.

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


Here’s a fictitious example to demonstrate the format that I’m looking for:

Justice Sotomayor raised questions about how much discretion is allowed to the FCC, since every exercise of discretion reduces the notice that the networks might have that their broadcast is proscribed (7:16). Verrilli replied that the FCC needs that discretion, because the context matters (8:3). Sotomayor then said that, as far as she can tell, the context of the ABC broadcast was not something that would alert ABC that its broadcast was “indecent” (8:11). Sotomayor had also written in the 2009 case that she had “grave doubts” that the 2004 FCC policy change was properly explained or was precise enough to explain what is allowed: this leads me to believe that Justice Sotomayor will rule that the FCC’s rule is overly vague, and therefore unconstitutional. I did not find any indication of her views regarding the First Amendment issues.

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 the FCC’s position is correct on the continued validity of Pacifica, how do you answer ABC’s and Fox’s contention that the underpinnings of Pacifica, pervasiveness and accessibility, have been eroded?

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 and 2009 case. 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. Try used 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.