February 5, 2015

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/5, I distributed one handout, my version of the Lawrence v. Texas case brief. I went through a flow chart of how the Supreme Court has dealt with substantive due process claims, including both the high hurdles (if the asserted right is "fundamental") and the low hurdles (if not fundamental). We finished our discussion of Glucksberg, going through both the majority decision and Souter's concurrence. We talked about the difference between a concurrence in the judgment (Souter's concurrence) versus a concurrence in the opinion. We also talked about the treatment of precedent: following, distinguishing, or overruling it. We talked about three institutional conflicts, the government versus the individual, the federal power versus the state power, and the separation of powers between the three branches of government, all as involved in Souter's concurrence. We then went on to begin our discussion of Lawrence v. Texas. We went through the case brief as far as the prior proceedings. We discussed Bowers v. Hardwick, and we went over Kennedy's reasons for treating this as a due process claim rather than an equal protection claim. We will pick up with Kennedy's flowchart next time we discuss Lawrence. But on Tuesday 2/10 we will have a guest speaker in class, our distinguished alum, former Maine Attorney General Jim Tierney. I suspect that it will be the best class of the semester--don't miss it (and please be on time to class). The assignment then for Thursday 2/12 is to review Lawrence (previously assigned) and figure out how to do a case brief of it in the format I've given you.


POS 383 AMERICAN CONSTITUTIONAL LAW
In class today, Thursday 2/5, I distributed one handout, my version of an outline of N.Y. v. U.S. We first finished up our discussion of McCulloch v. Maryland, and located the only point in Maryland's argument where Marshall did not say "no" to Maryland's contention (instead, he said that it doesn't matter). We talked about Marshall's use of dictum. We then discussed the Dred Scott decision. We looked at the rules for federal court jurisdiction, and how Taney found that the federal courts did not have jurisdiction over Scott's complaint for freedom. Taney then took his own turn at dictum regarding the power of Congress to make "free state" rules in the Missouri Compromise law, and found his answer in the word "the". (We also talked about how this same word was the basis of part of the Court of Appeals recent ruling in the recess appointments case, Noel Canning v. NLRB). We briefly discussed the dissenting opinion in the Dred Scott case, and then discussied the swinging of the 10th Amendment pendulum in the years up to N.Y. v. U.S. We began our discussion of that case, talking about the federal statutory scheme, and O'Connor's discussion of the relationship between the powers of Article I and the limitation of the 10th Amendment. We will pick up at that point next Tuesday. The additional assignment for Tuesday 2/10 is to prepare (write out for yourselves, although not handed in or graded) an outline of the dissenting opinion in N.Y. v. U.S.