October 11, 2018

POS 384 CIVIL LIBERTIES
In class today, Thursday 10/11, I distributed one handout, assignment #1, which is reproduced below. We went over the requirements of the assignment. I also went over the upcoming schedule for the next few weeks. On Tuesday 10/16 we will have an in-class exercise of practice questions for Exam #1. We will have Exam #1 on Tuesday 10/23. Assignment #1 will be due Thursday 10/25.
We went over the remaining Masterpiece opinions, including reviewing Kagan, and discussing Gorsuch, Thomas, and Ginsburg. Our discussion was focused on the question for Assignment #1, whether reaching a different result for Phillips and the Jack bakers is inherently inconsistent and therefore explained only as an expression of hostility to Phillips' religion.
Then we began our discussion of free speech by going over the definition of "free" and "speech", including the concepts of prior restraints, the Alien and Sedition Acts, and symbolic speech. We began our discussion of draft-burning and the O'Brien case, which is where we'll start on Tuesday.

The assignment for Tuesday 10/16 is to review the pages already assigned in the text (224-233) and to read in addition pp. 221-224. Also review Thomas' concurrence in Masterpiece.

POS 384 Assignment #1 due Thursday, October 25th

Congratulations! President Trump has summoned you to Trump Tower, and offered you the position of Legal Analyst. This newly created position objectively analyzes up-coming cases in accordance with existing precedent. This is all in the service of improving the legal quality of the President’s tweets.

Your first assignment is to do an analysis of the current case brought by the Colorado baker Jack Phillips against the Colorado Civil Rights Commission (CCRC). The case was discussed in the Washington Post article by Amy Wang that I distributed to the class on September 25th. Autumn Scardina wanted a cake to celebrate, in part, the anniversary of the date that she had come out as transgender. Phillips refused to bake such a cake because “it would have celebrated messages contrary to his religious belief that sex — the status of being male or female — is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed”. The CCRC ruled that there was probable cause that Phillips had discriminated against Scardina on the basis of gender identity (and assume that gender identity is a protected class under the Colorado anti-discrimination statute).

As you know, the Supreme Court in its Masterpiece Cakeshop opinion did not ultimately rule on whether Phillips could refuse to bake the wedding cake for the same-sex couple. Rather, the Court ruled that the consideration of Phillips’ claim had been tainted by hostility to his religious beliefs.

Assume that in the current transgender case, the members of the CCRC say nothing about “despicable rhetoric”, nor anything about leaving his religion beliefs out of his business practices, or anything like that. The only possible expression of hostility to Phillips' religious views would be in different outcomes for Phillips and Mr. Jack (yes, Mr. Jack's back).

Assume that Phillips would testify that he would bake other cakes for a transgender person, just as long as they didn’t convey a message of celebration of being transgender. He will also testify that he would bake the identical pink and blue cake under different circumstances (say for a male and female twins).

Assume also Mr. Jack goes to the same three bakers that he went to previously, and asks them to bake cakes bearing the message “Changing genders is a sin unto the Lord”. Assume that the three bakers refuse to bake cakes with such a message (for anyone), and that the CCRC rules in favor of the Jack bakers, but rules against Phillips. Assume that the three bakers would testify that they would bake other cakes for Mr. Jack, just as long as the cakes didn’t convey a message of demeaning someone who is transgender.

The question for you to address is whether the CCRC can have different outcomes for the Phillips case and the Jack cases, or do different outcomes inherently represent impermissible hostility to Phillips’ religious convictions? As the Alliance Defending Freedom (representing Phillips) puts it: “[I]t seems like some in the state government are hellbent on punishing Jack for living according to his faith. If that isn’t hostility, what is?”

What do you have to work with? There are the five opinions from Masterpiece: the Kennedy opinion unadorned (which now represents only the view of Roberts); the Kagan concurrence; the Gorsuch concurrence; the Thomas concurrence; and the Ginsburg dissent. They all had something to say about the analysis of hostility without the comments of the Commissioners. You are not giving your own opinion, but analyzing those five Supreme Court opinions.

The paper should have five sections tracking the five opinions. I expect the sections to be about a half page long or so, so a total of around three pages for the assignment.

Use no other cases, and do no outside research. This assignment is totally based on what’s in the Masterpiece opinions.

The President wants a very particular format: a few sentences explaining what each Masterpiece opinion had to say about how the case comes out without the comments of the Commissioners, and then a few sentences explaining whether the transgender case is different from the wedding cake case. If so moved, you may suggest a succinct tweet to the President.

Don’t give any introduction to the paper, or history of the case, etc. Just get right to the analysis. No fluff.

Be specific as possible. Make your language as clear and simple as possible. Remember your audience. Use your own words as much as possible. Quote only in snippets and only where the exact words of an opinion are important. If you quote or are otherwise taking your analysis from a specific paragraph, give the paragraph number, as in "Ginsburg at ¶7".

The assignment will be graded on both the structure and the content of your analysis. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.

Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion. I would expect the paper to be in the neighborhood of three pages long.

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

I am the only person with whom you can discuss, question, clarify, etc. any aspect of this assignment.

The work should be entirely your own, with no collaboration or plagiarism. Do not show your paper to anyone. Do not look at anyone else’s paper. Do not troll the internet for other people’s analysis. The idea is to think it out for yourself. See the syllabus regarding plagiarism and collaboration.

The assignment is due at the beginning of class on Thursday 10/25. If you cannot be in class on that day, you should still e-mail me your assignment by the beginning of the class. If you do that, you will not have any grade deducted from your grade for the paper. If you do not, you should still contact me as soon as possible to see what options are available to you. See the Syllabus for the class rules regarding late papers.



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





POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 10/11, I distributed two handouts, Assignment #1, which is reproduced below, and the case you'll be briefing, Paffhausen v. Balano. We went over the requirements of the assignment. I also went over the upcoming schedule for the next few weeks. On Tuesday 10/16 we will have an in-class exercise of practice questions for Exam #1. We will have Exam #1 on Tuesday 10/23. Assignment #1 will be due Thursday 10/25.
We then finished Katko v. Briney. We looked at the punitive damages issue, and how the failure to timely raise it cost the Brineys the opportunity to make their case. We went over the views of the dissent. We then went back and looked at the authority relied on by the court. We discussed primary authority v. secondary authority.
We began our discussion of Suggs v. Norris. We discussed the basic public policy issue, and how the court resolved it. We looked again at the authority relied on by the court. We went through the case brief of the case as far as the prior proceedings. We will pick there at that point on Tuesday. Also, I plan to distribute to the class the Maine criminal statute regarding the use of force in defense of property and premises.
The assignment for Tuesday 10/16 is to review Suggs, and begin work on your Paffhausen case brief, due 10/25.

Assignment due Thursday, October 25, 2018

The assignment (graded) is to do a Case Brief of the case of Paffhausen v. Balano, 1998 ME 47, 708 A.2d 269 (also distributed to the class today).

Follow the format from the Sample Briefs that I’ve distributed, including this: after giving the winner’s facts, give the loser’s facts with a parenthetical phrase that starts “even though...”.

For example (from Speelman): Under the 14th Amendment requirement of due process, is sending a notice addressed to the residence of the tenant reasonably calculated to reach her when the sender knew at the time that it sent the notice that the tenant was in jail, and she therefore would not receive the notice sent to her residence (even though addressing the notice to the place of residence is under most circumstances reasonably calculated to reach the tenant)?

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. That depends largely on what you identify as "facts" of the case.

What are “facts”? Facts are not the story of the case. They are not the rules that govern a case. They are not the legal arguments of the parties. They are not the legal conclusions of the Court. “Facts” are the circumstances that the Court looks at in order to decide the legal question.

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.

Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not troll the internet to find other commentary of the case. The work needs to be entirely your own. I am the only person with whom you can discuss, question, clarify, etc. any aspect of this assignment.

If you cannot be in class on Thursday 10/25, 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.

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.