November 9, 2012

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Friday 11/9, we continued our study of the Raich case. We basically got through the majority opinion. On Monday 11/12 we will finish up with Justice O'Connor's dissent, and with the subsequent history of the case. We'll then move on to the Butler case, previously assigned. The additional reading for Monday 11/12 is to read pp. 112 - 114 of the text, the Hubbard case. Remember that Exam #2 will be on Friday 11/16.

POS 359 FEDERALISM
In class today, Friday 11/9, I went over the planned schedule for Paper #2. I plan to distribute the assignment on Monday 11/12, and it will be due on Monday 11/19. We then started our discussion of the Roberts' NFIB Commerce Clause opinion. We looked at how it fit into the test developed in Lopez and Morrison (with the emphasis this time on the word "activity" of the test "economic activity"); how Roberts constructed his argument that "creation" and "regulation" must be two separate powers under the constitution; the argument that, if Congress has this power, then there is no limit to Congressional power; and how these arguments have a long pedigree in the Commerce Clause cases. We also talked about how the argument that no government has the power to make us eat our vegetables really derives from substantive due process, rather than the Commerce clause. We also looked at the new refined test of Congressional power, whether the person is currently engaged in economic activity. The assignment for Monday 11/12 is to read and prepare to discuss Ginsburg's Commerce clause argument, pp. 12-31 of the Ginsburg slip opinion.

POS 359 THE CURRENT SUPREME COURT TERM
In class today, Friday 11/9, I distributed one handout, an article describing how Americans' expectation of privacy has sunk so low that one third of us are willing to undergo a cavity search in order to board an airplane. We then traced the history of the interpretation of the 4th Amendment, seeing how it has evolved from concentrating on the presence or absence of a physical intrusion into a protected space, to the concept of a reasonable expectation of privacy, and how even that test did not seem to be the focus of the Florida Supreme Court in the Jardines case. We looked at the distinction drawn by the Florida Court between private detached houses versus apartments. We then began looking at the three previous U.S. Supreme Court cases involving dog sniffs that the Florida Court distinguished. We also talked about the different levels of police suspicion, from probable cause to reasonable suspicion to a hunch to a dragnet. We will continue on Monday with the discussion of the majority decision in the Florida Supreme Court, both as to whether there was a "search" at all, and, if there was, whether that search needed to be supported by probable cause.