February 15, 2018

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 2/15, we finished our discussion of Glucksberg. After reviewing the "fundamental" rights analysis, we saw how the Court applied the low hurdles ("rational basis" review) to the state's justification for the ban on assisted suicide. We discussed the Souter concurrence, in which he disagreed with Rehnquist about the characterization of the right asserted, but still ruled in favor of the state because of his concern about the separation of powers. I went over three institutional questions frequently confronted by the Court: the rights of the individual versus the power of government; the separation of powers between the three branches; and the separtion of powers between the federal and the state governments. We then looked at the Maynard article, and her description of what it feels like when somebody else makes a decision for you when you believe that you have the right to make for yourself. We discussed the excerpt from Obergefell, in which Kennedy and Roberts disagreed about whether the Court was adhering to Glucksberg. I then gave an introduction to Lawrence v. Texas, contrasting the equal protection theory with the substantive due process theory.
The assignment for Tuesday 2/20 is to read in the text pp. 67-72 (including Lawrence v. Texas).


POS 484 CRIMINAL DUE PROCESS
In class today, Thursday 2/15 we did our prediction for Carpenter based on the oral argument. We went through Justice by Justice and evaluated how the questions asked might reflect the ultimate vote in the case. We considered such subjects as the ability to distinguish the 3rd party doctrine cases, technological change itself as a distinction, the rules about subpoenas, and the existence of a property interest in the CSLI. I came down to a 6-2 vote for Carpenter (not counting Thomas), but with no majority opinion. (The Carpenter votes would be split 4-2 on privacy theory versus property theory. But I would be shocked if the case actually came out this way.)
The assignment for Tuesday 2/20 is to read in the text pp. 479-483 (including Gates).