November 5, 2019

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 11/5, we first finished going through the Maine statutes involving the duty to report. We then turned to Lawrence v. Texas. We discussed how Kennedy dealt with the question of whether to treat the case as a due process or as an equal protection issue. We looked at how he analyzed the issue in terms of fundamental rights (high hurdles) versus non-fundamental rights (low hurdles). We also discussed the question of whether the majority can criminalize conduct simply because the majority feels that the conduct is wrong. I also talked about O'Connor's concurrence in the case, and the dissent. Then we began our discussion of Glassford. We talked about arbitration clauses in general, and the provisions of this arbitration clause in particular. We went over the prior proceedings, and we'll pick up on Thursday with the Court's analysis.
The assignment for Thursday 11/7 is first to review Glassford. Brief the issues in the case (not handed in or graded). In addition, read to the end of Chapter 2, including Caperton v. Massey coal.




POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 11/5, I distributed one handout, a list of recent Court of Appeals cases involving qualified immunity for law enforcement. I began by reminding the class of the Mitchell outline due Thursday. In terms of length of the outline/summaries, I said that my total paper was 3 pages. I discussed how Sotomayor's dissent in Mitchell may require more than one paragraph in explanation of her views. I then talked about the 2018 Maine Supreme Court case of State v. Lemeunier-Fitzgerald, in which the Court split 4-3 over the question of whether Maine's implied consent law (distributed last week) in fact counted as constitutionally sufficient consent to a blood draw, or whether it was instead too coercive to constitute real consent.
We then turned to a new topic of enforcement of the 4th Amendment. We talked about two possible methods of enforcement, exclusion of unconstitutionally seized evidence, and civil suits against the officers who violate the constitutional rules. I went over a case from the textbook that I had not assigned, Utah v. Strieff (p.400) in which the Court found that an intervening factor (an outstanding warrant) meant that the evidence that was seized through an unconstitutional stop should still be admitted as evidence. We then talked about the good faith exception to the exclusionary rule. I discussed Leon and Evans, two case that were included in today's assignment. I talked about who exactly was the party that made the error in those cases. Then we went through the Herring case, discussing the levels of culpability (intent, recklessness, etc.) and how Herring expanded the exceptions to the exclusionary rule. We began our discussion of Davis v. U.S., and saw how it fit within the good faith exception to the exclusionary rule. We will pick up on Thursday with how the retroactive application of Arizona v. Gant was viewed by both the majority and the dissent.
The assignment for Thursday 11/7 is to finish up your Mitchell v. Wisconsin outlines, due at the beginning of class on 11/7. Review Davis, read today's handout, and read in the text p. 432-440, including Kisela v. Hughes.