February 5, 2019

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 2/5, we began by going over the introductory section of the textbook (pp. 1-15). We discussed the 5 jurisprudential approaches and the 4 objectives of the law. I went over the definition of "common law" that we will be using in our class ("judge-made law in the absence of enacted law"). We went over the echo of the courts of equity still reflected in the ability of the Maine Superior Courts (as opposed to the Maine District Courts) to have broad power to grant equitable relief. We then began our discussion of Miller. We went through the case brief down to the formulation of the "issue", in which we got through the segments of "under what law" and "the legal question". We left off at the "facts", which is where we'll pick up on Thursday.
The assignment for Thursday 2/7 is to continue refining your Miller case brief (not handed in or graded), and review and read through p.23.


POS 359 THE CURRENT SUPREME COURT TERM
In class today, Tuesday 2/5, I distributed 3 handouts: Assignment #1 (reproduced below); and the Petitioner's and Respondent's Briefs in Timbs v. Indiana.
We went over the requirements of the assignment. We then discussed several additional aspects of the Gamble oral argument: the split on the Court regarding whether original meaning is the only correct way to define the terms of the constitution; the consequences of using original meaning; and the responsibility (or lack thereof) of the Court to get the constitutional meaning right, even if it was wrong in the past. We then had a chance to both predict the outcome of the case, and to briefly discuss what we think the correct result should be.
We will pick up on Thursday with the Timbs case, starting with the Institute for Justice podcast on Privileges or Immunities, and then moving to the briefs that I distributed today.

Assignment #1 due Thursday, February 14th

One of the things we’ve been looking at in Gamble v. U.S. is the interplay between the briefs of the parties and the oral argument, This assignment asks you to trace specific examples of arguments in Petitioner’s (Gamble’s) Brief to specific sections of the oral argument.

Below are 5 arguments from the Gamble Brief. For each one
a) give a short statement of the point that Gamble is making;
b) give a short statement of the reply to that point that the Respondent (U.S.) makes;
c) find two Justices in the oral argument that ask a question or express a concern that is related to the argument from the Gamble brief, and briefly explain the point that each Justice is making. Cite to the page and line of the beginning of the Justice’s question as [page]:[line], e.g.: “21:13” for page 21 beginning at line 13.

1. I(C)(2) (“In the same vein...”)
2. II (This one is a general argument: stare decisis generally should not be an obstacle to getting rid of the dual sovereign exception)
3. II(B) (“Stare decisis loses its force...”)
4. II(D) (“The separate-sovereigns exception...”)
5. II(E) (“Finally, no reliance interests...”)

Here is an example of the format that I’m looking for, with I(C)(1) (“Fear and abhorrence...) as the argument prompt. (I’m making up some of the oral argument):

a) Gamble is saying that prohibiting successive prosecutions is exactly the point of the Double Jeopardy Clause. The purpose of the bar is to prevent the unfairness of prosecutors getting two bites at the apple, and that letting two prosecutors each get one bite is just as unfair as one prosecutor getting two bites.
b) The U.S. replies that it is not inherently “unfair” to have separate sovereigns protecting their own separate interests. Any particular cases of unfairness can be dealt with by policymakers, not as a flat, all-encompassing, invariable constitutional decree.
c) At 21:13, Sotomayor asks Chaiten why the dual-sovereign exception is unfair, since the prosecutors represent two separate governments. What’s unfair about that, she asks. The point of this question is to undermine Chaiten’s basic argument about the inherent unfairness of a second prosecution. While allowing the same prosecutor to take a second bite is unfair, she suggests that there's n othing wrong as long as the government is a different one.
At 50:3 Ginsburg asks Feigin why this very prosecution of Gamble is not unfair. In this routine case, why should a federal prosecutor get another shot at Gamble, and an additional punishment after Gamble’s already been convicted by the state. The point of this question is to attack Feigin’s position that there’s no unfairness here. Ginsburg says that it looks like being put twice in jeopardy for the same crime from the perspective of the defendant Gamble.


The paper should have five sections tracking the five arguments, labeled as in the example. I expect the sections to be about a third to a half page long or so, so a total of around 2 or 3 pages for the assignment.

Do no outside research. This assignment is totally based on what’s in the handouts of the briefs, and the oral argument itself.

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

Be as specific as possible. Make your language as clear and simple as possible. Use your own words.

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

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 2/14. 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.


The assignment for Thursday 2/7 is to begin work on Assignment #1, and to read the Timbs briefs distributed today. Also listen to the Institute for JUstice podcast found at
https://ij.org/sc_long_podcast/all-but-redacted-the-privileges-or-immunities-clause/