February 5 2014

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Wednesday 2/5, I distributed two handouts: Assignment #1 (copied below), due Friday 2/14, and the case to brief, State v. Johndro. If you were not in class, you can get the case by going to the Msine Supreme Court Opinion site (http://www.courts.state.me.us/opinions_orders/supreme/publishedopinions.shtml); from "Previous Years' Opinions" select 2013; from December 2013 select State of Maine v. Johndro, 2013 ME 106 (December 5, 2013).
In class today, we first discussed Justice Souter's concurrence in Glucksberg, looking at it both as an individual rights question and then as deference to the legislature question. We then began our discussion of Perdomo. We went over the case brief up through the first issue that the Court dealt with, the question of objective v. subjective beliefs. Along the way we discussed the mechanism of jury instructions, the meaning of objective v. subjective standards, and the concept of mandatory v. persuasive authority. We will pick up on Friday with the remaining issue in Perdomo, and then I'll discuss the rules that are being applied in the assignment case, Johndro. The assignment for Friday 2/7 is to review Perdomo and your brief of it, and then to read Johndro.

Assignment due Friday February 14, 2014

The assignment (graded) is to do a Case Brief of the case of State v, Johndro, 2013 ME 106, _____ A.3d____.

Brief all of the issues that you determine that the Court ruled on. Remember that the purpose of the brief is to be useful. Check your holdings to make sure that they give the most useful rules possible. Mere conclusory facts just tell us who won and who lost, but not what circumstances determine the winner and loser.

Follow the format from the Sample Briefs that I’ve distributed. Note especially that, after the “Issue” is composed, the “Facts” and “Holding” are copied and pasted. Everything that you put into the Fact section should appear exactly in your Issue and Holding sections as well. Your Issue and Holding sections should be identical to each other, except that the issue is a question, and the Holding is the answer to that question. Your briefs will be evaluated on the format, as well as the specific content.

Please make two copies of your brief, one to hand in at the beginning of class, and the other for you to have during class for our discussion.

You may e-mail me if you have specific questions about the brief. The more time that I have to answer your questions, the more likely it is that I can be helpful.

If you cannot be in class on Friday 2/14, you should still e-mail me your brief by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the brief. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.

Remember to work by yourselves; do not collaborate.

IMPORTANT: If you e-mail your brief to me, I will reply to confirm that I have received your assignment. If I do not reply, then I have not received the assignment.



POS 384 CIVIL LIBERTIES
In class today, Wednesday 2/5, I first went over some aspects of the Whitney case (p. 210) that the text did not highlight. I discussed the remoteness of the prohibited act from the harm (the bad act here was not overthrowing the government, or advocating that result, but being a member of a group that advocated it). We talked about the beginnings of a constitutional test that differentiated the power of government to abridge speech based on what the content or viewpoint of the speech was. We talked about different levels of justification produced by the legislature to justify its restrictions on speech, and the level to which the Court should defer to the judgment of the legislature. And finally we talked about the effect on the remoteness or immediacy of the bad result as a determining factor in whether the restriction on speech was constitutional. We then turned to the discussion of the preferred freedoms doctrine (p. 212) and the famous footnote from the Carolene Products case. We then discussed Vinson's opinion in Dennis. We will pick up with the Learned Hand test of the majority, and then the concurring and dissenting opinions in Dennis on Friday. The assignment for Friday 2/7 is to read through p. 225 of the text.


POS 359 THE CURRENT SUPREME COURT TERM
In class today, Wednesday 2/5, we began by going over the state and federal funeral picketing statutes, and discussing how they might apply to the situation of "counseling". That discussion was sparked by one case that was mentioned in oral argument, Snyder v. Phelps. I then went through other cases from the oral argument: Boos v. Barry; Jews for Jesus; Madsen; Schenck; Heffernon; and Frisby, and we talked about their similarities and differences from McCullen. The assignment for Friday 2/7 is to continue work on your McCullen assignment, due Monday 2/10.