November 8, 2018

POS 384 CIVIL LIBERTIES
In class today, Thursday 11/8, we began by finishing our discussion of Alvarez. I talked about Google's decision to pull ads from Crisis Pregnancy Centers because they were misleading, and about the local ordinances in San Francisco and Oakland that outlawed certain Crisis Pregnancy Center ads as deceptive advertising, and how both of those situations were different from the issue in NIFLA. We then moved on to Thomas' opinion in NIFLA. We looked at the outline that Thomas provided, and we put labels (questions, or questions and answers) on those parts. We also added some sub-elements to Thomas' structure, and talked about how to know when to add sub-elements.

I did make two modifications to the Breyer Assignment:
1) The assignment asked for questions (but no answer) for Roman Numerals, and questions and answers for all other elements of the outline. I changed that to be questions (but no answer) for any part of the outline that is further broken down, where those sub-elements together provide the answer to the bigger question. In other words, there is nowhere in the outline that you need to repeat an answer. For example, if the question for Thomas' I A is "What are the statute's notice requirements for both licensed and unlicensed facilities?", you don't need to answer that question right in "A" if you are going to add sub-elements to "A" (dividing it into (1)licensed and (2)unlicensed facilities) and answering the questions in those added elements.
2) If you add sub-elements to the opinion's structure, put those added elements in parentheses in your outline.
We got as far as Thomas' ¶23, which is where we'll pick up next Tuesday.

We also discussed the procedural posture of this case. It reached the Supreme Court still in the stage of a preliminary injunction. We went over Temporary Restraining Orders and Preliminary injunctions, and how this case is really about the likelihood of success.

The assignment for Tuesday 11/13 is to review Thomas' NIFLA opinion, and to continue work on your outline of the Breyer's dissent, due at the beginning of Thursday's class, 11/15.



POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Thursday 11/8, I distributed two handouts, Assignment #2 (reproduced below) and the case you'll be briefing, Klein v. Oregon BOLI. We went over the assignment, and the particular rules regarding it: its prior proceeding are administrative (not in court) and I have edited out many of the original issues raised in the case. (The assignment gives instructions for how to deal with these.) We then finished our discussion of Lawrence v. Texas. We saw how Kennedy looked as if he was doing a "fundamental rights" analysis, and then switched to a "legitimate interest" test. We discussed the nature of substantive due process claims as claims that there are choices by the individual that the majority may not take away from the individual. We saw how Kennedy characterized that right here as the right to form an intimate personal relationship, not just the right to choose how to have sex.
We then began our discussion of Glassford v. BrickKicker. We talked about why businesses may want arbitration rather than a court process, including the question of class actions in court versus individual arbitration in arbitration clauses. We will continue with the exact issues in Glassford next Tuesday.

The assignment for Tuesday 11/13 is to review Glassford, and to begin work on your Klein case brief.

Assignment due Tuesday, November 20, 2018

The assignment (graded) is to do a Case Brief of the edited version of Klein v. Oregon Bureau of Labor and Industries, 410 P.3d 1051 (Oregon Ct. of App., 2017) (also distributed to the class today). I have edited out much of the original case, leaving only two issues: Free Exercise of Religion and Commissioner’s Failure to Recuse Himself. Because of this editing, you in your case brief should likewise confine yourself to those two issues, including for the “set-up” portions of the brief such as Prior Proceedings and Contentions on Appeal. Also, because this is an appeal from an administrative agency, treat the agency’s decision as the prior proceeding.

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.

For this brief, include only the winner’s facts (“..., when...”) and not the loser’s facts (“..., even though...”)

Follow the format from the Sample Briefs that I’ve distributed. For this assignment, do not include the loser’s facts (the “even though” portion of the facts).

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 Tuesday 11/20, 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.

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 discuss your case brief with anyone but me. To the extent that we discuss this case in class, do not share that discussion with others, even if they have missed class. Do no outside research. Do not troll the internet. Just work from the handout itself. See the syllabus regarding plagiarism and collaboration.