November 12, 2012

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 11/12, we began by going over O'Connor's dissent in Raich. I then discussed that same case on remand to the Ninth Circuit, Raich v. Gonzales, in which the Court ruled on the substantive due process claim left unanswered in the Supreme Court opinion. We went on to the Butler case, and the concept of dictum. I also discussed the later case of Harris v. N.Y., in which the Supreme Court ruled on the issue discussed in Butler. I also discussed the question of retroactive v. prospective application of court decisions, using the recent U.S. Supreme Court oral argument in Chaidez v. U.S. as an example of how the Supreme Court decides whether a new decision applies only to new cases, versus applying to older cases that were already concluded before that new decision. We will continue with the previously assigned Hubbard case on Wednesday. The additional assignment for Wednesday 11/14 is to read and prepare to discuss Land v. Yamaha, p. 146 of the text. Remember that we will have test #2 on Friday 11/16.

POS 359 FEDERALISM
In class today, Monday 11/12, I distributed one handout, Assignment #2, which is copied below. We also then talked about life after the Commerce Clause. The class chose to spend the rest of the semester studying a variety of federalism issues (rather than burrowing deeply into one additional federalism issue). We then started our study of Ginsburg's NFIB opinion. I briefly went over (the unassigned) Part I of her opinion, and then we began outlining Part II of her opinion. We got up to p. 21 of that opinion, which is where we'll pick up on Wednesday. The additional preparation for Wednesday 11/14 is to finish an outline of Ginsburg's opinion, and then to go back to Roberts' opinion and look at the footnotes in which he addresses Ginsburg's views.

Assignment #2

For this assignment, I would like you to write a paper about the interpretation of the Commerce clause made in NFIB using three of the U.S. Supreme Court decisions we have studied: Wickard, Lopez (and Morrison, as applicable), and Raich.

Specifically, I would like you to address these topics:

1) Both Roberts and Ginsburg say in NFIB says that he or she is being faithful to the existing Commerce clause precedents of Wickard, Lopez, and Raich. Summarize the positions of Roberts and Ginsburg in NFIB, specifically discussing how those prior cases support (or at least don’t hurt) their respective positions.

2) How do or would Roberts and Ginsburg demonstrate that their opposite number has it wrong? Include Roberts’ footnotes 3-6, and Ginsburg’s footnotes 5,6,7, and 9.

3) Finally, give you own view about whether the Commerce clause either does or does not support the asserted Congressional power to create the individual mandate. Support your answer with specific arguments.

I’m not looking for an introduction to the cases, or summaries of them—all of that is assumed. Just get right to the analysis.

The writing should be your own words. I don’t want long quotations dropped into the paper. Any quotations that you use should just be snippets. When you do quote or otherwise make specific reference, be sure to provide a citation (use text page numbers for Wickard, Lopez, and Raich, and slip opinion page numbers for NFIB).

Your papers will not be graded on which view of the issues you take, but rather on 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. I like short clear sentences better than long complicated ones. I like correct grammar.

The paper should be a minimum of 3 pages long, and no more than 5 pages (double spaced). Brevity should be seen as an asset, not a liability. It will be due at the beginning of the class on Monday, November 19. 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. If you do not have the paper done on time, be in touch with me right away.

The work should be entirely your own; no collaboration with other students is allowed. See also the syllabus regarding plagiarism or collaboration.


POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 11/12, I first clarified a few questions about the optional third assignment. The Jardines (our dog sniff case) paper is mandatory. If you choose to do the optional third paper, all three grades will be counted. We then continued our discussion of the Florida Supreme Court decision. We went through the U.S. Supreme Court precedents used by the Jardines Court, and got up to the discussion of how those precedents should be applied to the facts of the Jardines case. The assignment for Wednesday 11/14 is to read and be prepared to discuss the remainder of the Florida decision, including the concurring opinion and the dissent.