February 3, 2014

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Monday 2/3, I distributed one handout, my version of the Gluckberg case brief. We went over that case brief, covering the appeal to precedent, and the list of legitimate governmental interests. Along the way, we also went over the levels of burdens of persuasion (preponderance, clear and convincing, and beyond a reasonable doubt). We will begin Wednesday with a brief discussion of what Justice Souter's view of the case was. The assignment for Wednesday 2/5 is read and prepare a practice brief for yourself of U.S. v. Perdomo-Espana, p. 265 of the text.


POS 384 CIVIL LIBERTIES
In class today, Monday 2/3, we covered the Gitlow case. We discussed the incorporation by the 14th Amendment of the Free Speech guarantee, both by the majority and by Holmes, and went over the language of Prudential Insurance v. Cheek. We also discussed the role of "clear and present danger" as seen by both the majority and dissent, and the level of deference by the Court to the judgment of the legislature. I will begin on Wednesday with a discussion of Whitney, which was referenced but not featured in the text. The assignment for Wednesday 2/5 is to read through p. 222 of the text.


POS 359 THE CURRENT SUPREME COURT TERM
In class today, Monday 2/3, I distributed two handouts, Assignment #1, which is reproduced below, and the Maine and federal statutes concerning picketing at funerals. We went over the assignment, and then finished going over the replies made by the state in its briefing. I did modify the assignment in class by asking, for the oral argument, that you identify where your page numbers are located on the page(top right or bottom center). We began talking about the case that were discussed at oral argument, starting with Snyder v. Phelps. We looked at the Maine statute regarding funeral protests, and will pick up on Wednesday with the federal statute. The assignment for Wednesday 2/5 is to begin work on Assignment #1, and to review the oral argument.

This assignment has two parts:
I.
For the first part of this assignment, I would like you to trace how the argument of the parties as developed in their legal briefs in McCullen v. Coakley was reflected in the oral argument that was held in the case, and what kind of reception that argument received. I had previously assigned the two briefs of the parties: Petitioner’s Brief (Pet.) and Respondent’s Brief (Res.).

I want you to discuss two specific points on which the two parties disagreed in their briefing, and which were the subjects of extensive questioning during the oral argument. The two subjects are:

A) is the 35 foot zone viewpoint neutral?
B) is the 35 foot zone narrowly tailored, in reference to the specific question of whether existing laws make the no-entry zone unnecessary?

For each of the two points:
1) identify and explain the position of each side’s argument in the briefing, giving specific page references to that brief;
2) identify where that issue was presented in questioning by two of the Justices during the oral argument, giving specific page and line references to where that specific portion of argument is found and summarize what point each of those two Justices involved in the questioning were trying to make, and how the lawyer responded to those questions by the Justices;
3) discuss what the questions by those Justices seem to indicate about that Justices’ view regarding which side has the better argument in that particular clash between the parties. (Use different Justices for each of the two points, for a total of four Justices)

Here’s one (very abbreviated, fictitious sample) point to demonstrate the format that I’m looking for:
FOLLOW THIS NUMBERING AND CITATION FORMAT.

A. Viewpoint Neutrality
1. Petitioner argued that the Massachusetts statute was not viewpoint neutral because the statute states implied that only pro-choice advocates can be in the zone. (Pet. 25). Respondent replied that there was no violation of viewpoint neutrality, because the statute forbade “unwelcome” comments, and made no judgment about which comments would be “unwelcome”. (Res. 18)
2. Justice Thomas asked Rienzi whether the analysis would be any different if the statute allowed consensual conversations, rather than forbidding unwelcome ones (14:6). Thomas was making the point that the outcome would be the same in either case, and would therefore be consistent with Hill. Rienzi replied that there would be a difference, because the police need evidence of a violation before they can move in, and the different phrasing would lead to different presumptions on the part of the police about the point at which they can perceive a violation (16:17).
Justice Roberts asked Miller...Roberts’ point was that ...
3. By the question asked by Thomas, it appears that he thinks Hill controls this case, and that the statute is permissible. His question indicates that, to him, the difference between this case and Hill is merely one of a change of phrase.
By the question asked by Roberts...

II.
For the second part of the assignment, I want you to predict from the oral argument how the case will come out. To the extent possible go through the seven Justices who asked questions, and venture an educated guess how they will vote, based on their questions. Thomas and Roberts asked no questions (the usual for Thomas; very unusual for Roberts) so leave them out. For the seven others, try to characterize their questions as hostile or friendly to some determinative issue, and base your prediction on that. Here’s a sample:

Justice Thomas asked Miller if she really believed that the speech allowed to employees, but denied to others, was merely “incidental” to their job. (17:9). His skepticism of that defense suggests that he will find that the statute is not narrowly tailored, and therefore not a valid time, place, and manner restriction.


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, but I am looking for enough explanation to demonstrate that you have grasped the thrust of the argument, and the point of the questioning and response. It will be due at the beginning of the class on Monday February 10. The paper needs no introduction (“I found McCullen v. Coakley to be an interesting and important case…”). Just launch right into the assignment.

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. See the syllabus for more information, or if you do not have the paper done on time.

You papers will be graded on how well you respond to the questions asked, and how well you support your position by reference to the briefs and the oral argument. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I encourage you to use the UM writing center to help with your English.

You are not allowed to collaborate with other students. The work should be entirely your own. The only sources you should be consulting are the briefs and the oral argument, and prior cases. If you have questions, ask me. See the syllabus regarding plagiarism.