December 10, 2012

POS 282 INTRODUCTION TO AMERICAN LAW

In class today, Monday 12/10, we started with a review of the requirements of federal court jurisdiction, both federal question jurisdiction and diversity jurisdiction. We then went through Kopp and Gebbia, exploring why a party might want to be in a particular court system (state or federal), and the rules that allow diversity jurisdiction and removal jurisdiction. We also talked about legal strategies, and the choices that lawyers need to consider before they bring a case. We started our discussion of Gilmore, setting up the parties, cause of action, and which court system the plaintiff wanted to be in. We will continue with Gilmore on Wednesday, and also discuss the previously assigned Dorsey v. Gregg on p. 161. The additional assignment for Wednesday 12/12/12 is to read and prepare to discuss through p.166 (the Clement case).


POS 359 FEDERALISM
In class today, Monday 12/10, I distributed two handouts: Assignment#3 (reproduced below) and a roundup in the eight Chapter 7 cases that we have and will study of the votes by liberal and conservative Justices. We went over those two handouts. We finished our discussion of West Lynn Creamery, going over the concurring and dissenting opinions. We began our discussion of Pacific Gas and Electric, getting as far as the general preemption argument by PG&E against the California moratorium. We will pick up with PG&E's three specific preemption arguments on Wedesday. The assignment for Wednesday 12/12/12 is to begin work on Assignment#3 (due 12/19) and to begin reading the three additional preemption cases that make up part of the assignment: Medtronic (p.537), Geier (p.546), and Wyeth (p.554).


Assignment #3
For this assignment, I would like you to write a paper about the meaning of “liberal” and “conservative” values regarding federalism in the modern Supreme Court era (post 1937). In our first two papers the questions were about the powers of the federal government, and we saw that the liberal Justices generally favored a more expansive view of the federal power, while the conservatives on the Court were more ready to impose limits on that power. We also saw the liberals more ready to defer to the judgments and policy choices of Congress, and to reject the imposition of categorical tests that excluded some areas of regulation from Congressional power. As an example, in NFIB, Ginsburg interpreted the Commerce Clause and the Necessary and Proper Clause more broadly than did Roberts, argued that deference was due to Congress’ determination, and rejected the distinction between activity versus inactivity.

In the final portion of this federalism class we’ve looked at how the federal power limits the reach of state power, both by the dormant commerce clause (when Congress has not acted), and by preemption (when Congress or federal agencies have acted). While the dormant commerce clause cases follow somewhat the pattern of conservative Justices disfavoring the idea of broad federal power, that pattern seems somewhat to be reversed in the preemption cases. In those cases, the liberals often (but not always) favor the preservation of states rights and remedies at the expense of federal power, while the conservatives often (but not always) favor preemption by federal legislation, and the rejection of state remedies. The broad subject of the third paper is to discuss whether there really are “liberal” and “conservative” values in terms of federalism, and, if so, whether other considerations outweigh federalism questions at times.

Specifically, I would like you to address these topics:

1) Give at least three examples from our readings from Chapter 7 of the text in which the liberals (or at least some of them) have not wanted to limit state remedies or regulation, while the conservatives have wanted to limit them. By “liberals” for the cases we’ve looked at, I mean all the current Democratic presidential nominees (Ginsburg, Breyer, Kagan, and Sotomayor) as well as these Republican presidential appointees who might not have turned out as expected: Blackmun, Stevens, and Souter. Explain the basic issue in each case you’ve chosen, how it pitted federal versus state power, and specify how the vote reflects the pattern that I’ve asked for.

2) For each of your examples, explain as best you can whether it is the principles of federalism that separate liberal versus conservative viewpoints, or whether there is some other consideration that seems more important to the Justices. You might look, for example, at the line-up of the parties in our cases. (In our commerce clause and necessary and proper cases, the line-up was usually the federal government versus a party that was being regulated by Congress. In the dormant commerce clause cases, the line-up was usually the state government versus the party that was being regulated by that state government. How do the parties line up in the preemption cases, and is there any significance to the lineup?) Is deference to Congress a vital factor? Or is the avoidance of categorical labels? Or does something else entirely explain the line-up?

3) Finally, using three examples (which can be, but need not necessarily be, the same as the three cases you’ve discussed above) give your own view about whether the ideal government would support federal or state power in the three specific examples you’ve chosen. For this section, you can, but don’t have to, include the articles we read about such things as fracking and wind power. Should there be exclusive federal regulation, exclusive state regulation, a combination of both, or no regulation at all. Support your answer with specific arguments.

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 or article page numbers).

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. Brevity should be seen as an asset, not a liability. It will be due by noon on Wednesday December 19th. You should e-mail the paper to me by that time. I will acknowledge receipt of papers--if you don’t get an acknowledgment, that means that I didn’t get the paper.

The paper will be graded on how well you follow the requirements of the assignment. 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.


POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 12/10, I collected the Jardines papers, and we spent the class period going over various views of what the issues were and how those issues should get resolved. I also distributed one handout, the list of questions presented in the two gay marriage cases in which the Supreme Court granted cert on Friday. On Wednesday we will continue our discussion of those gay marriage cases. Remember that I would like to be notified by Friday 12/14 if you are planning on writing the optional third paper.