December 5, 2012

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 11/5 the class first did evaluations. We then started our discussion of personal jurisdiction. We discussed personal jurisdiction by domicile, by service within the state, and by consent of the defendant. We began our discussion of Robey v. Hinners, getting as far as the second issue in the case. We will finish Robey on Friday. The additional assignment for Friday 12/7 is to read through p. 142 of the text.

POS 359 FEDERALISM
In class today, Wednesday 12/5, I distributed one handout, Maine's statute regarding the importation of out-of-state solid waste. We discussed the explicit restrictions in the constitution on state powers, and then the implicit restrictions. We made our way through Philadelphia v. N.J., the Maine statute, and began talking about the ways that Maine tried to respond to that decision. We will begin on Friday with two questions left over at the end of today's class: were the Philadelphia v. N.J. dissenters environmental heroes, and how else could Maine react to that decision, in addition to restricting the size of landfills. The assignment for Friday 12/7 is to read through p. 512 of the text.

POS 359 THE CURRENT SUPREME COURT TERM

In class today, Wednesday 12/5, I distributed one handout, the optional assignment #3, which is reproduced below. We talked about the legal history of gay rights, including criminalization of gay sex, discrimination against gays, and gay marriage. We went over the levels of judicial scrutiny (rational basis, strict scrutiny, etc.) and how the various institutional power relationship questions (federalism, individual rights, separation of powers) are involved in cases like Windsor. We will pick up on Friday with the question of whether the ways of distinguishing Baker v. Nelson logically dictate a different result from the one in that case. The assignment is to continue working on the Jardines paper, due Monday 12/10.

Assignment #3 (OPTIONAL)

SPECIAL INSTRUCTIONS:
IF YOU CHOOSE TO DO THE OPTIONAL ASSIGNMENT, PLEASE NOTIFY ME OF THAT CHOICE THROUGH E-MAIL BY FRIDAY DECEMBER 14TH. IF YOU DON’T E-MAIL, I’LL ASSUME THAT YOU’RE NOT PLANNING ON DOING THE OPTIONAL PAPER.

For this assignment, I would like you to write a paper about the constitutionality of the Federal Defense of Marriage Act (DOMA), as that issue was interpreted by both the majority and the dissenting opinions in the recent Second Circuit decision in Windsor v. United States. You can access that case by going to

http://www.ca2.uscourts.gov/opinions.htm

and then in the dialogue box labeled

“Docket #, Date, Party Name or find decisions that contain:”

enter

Windsor v. United States.

Here is what I would like you to do:

1) Summarize the positions of both the majority and the dissenting opinions. Be specific in you summary. Include every issue and sub-issue dealt with in those opinions, and how the writer reached their conclusion. Use the organizing outline provided in each opinion.

2) How do or would the majority and the dissent demonstrate that their opposite number has it wrong? Be clear about the clash between the different positions taken. Also go over those issues in which there is not a clash because the two opinions see different questions that need to be answered.

3) Finally, give you own view about whether section 3 of DOMA is constitutional. Include your view about the effect of Baker v. Nelson, the correct standard of review, and then the analysis under that standard. Support your answer with specific arguments. You should deal specifically with the issues raised by the side that is opposed to your view of the case. What’s wrong with the positions taken by the other side?


I’m not looking for an introduction to the case -- that is assumed. Just get right to the three sections I’ve requested.


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 slip opinion page numbers and line numbers for Windsor, and just names for any other cases).


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

I believe that the correct standard of review is rational basis review. While the majority opinion settles on intermediate scrutiny (Majority, 34:7), I think that this is not the correct standard of review. Homosexuals may have, in the past, suffered from a great deal of discrimination, but the Supreme Court at that time apparently did not think that homosexuals were a protected minority (Baker v. Nelson). Today, however, there is widespread acceptance of homosexuals and homosexual rights. The fact that a number of states now recognize gay marriage, even through popular vote as in the November 2012 elections, demonstrates that homosexuals are no longer subject to the kind of discrimination that calls for elevated scrutiny.

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. Also e-mail me by that date if you have previously indicated that you plan to do the optional paper, but have changed your mind.

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 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.