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Overview
The course is designed to survey a
wide variety of perspectives on the law and the legal process, including
natural law, positivism, legal realism, legal process, law and economics,
public choice, critical legal studies, feminism, and critical race theory.
Important questions include: 1.
Concept of law
– What is the nature of law? Is it created by legislative acts? By judicial
decisions? Or does it exist “out there,” to be found by judges
and other legal actors? 2.
Rule of law –
What does it mean to say that ours is a “government of laws not of
men”? What are the key elements of the rule of law? 3.
Autonomy of law –
To what degree is law autonomous? What is its relation to politics? Morality?
Custom? In what way does legal reasoning differ from political reasoning?
From moral reasoning? 4.
Comparative institutional competence – What are the
appropriate roles of the legislature, the courts and the executive in the
legal process? What types of decisions should each of them make? What are
their comparative strengths and weaknesses as decisionmakers?
What types of factors may each take into account in their decisionmaking
process? 5.
Judicial decisionmaking –
Is judicial decision-making objective? Is there a right answer in every case?
To the extent that legal rules do not provide determinate legal answers, how
should judges decide cases? In what respects does judicial decisionmaking
differ from legislation? How does the discretion of a court differ from the
discretion of legislators? What is “discretion”? Are there any
criteria for evaluating whether a court has exercised discretion
appropriately? The course will take an historical
approach, focusing on 20th century American perspectives. The
readings are, in large part, original writings (in mostly chronological
order) by important figures associated with the various “schools”
of 20th century jurisprudence. The rationale for a course like
this was articulated by Hart & Sachs in the preface to their renowned
course materials on the legal process. The objective is a better
understanding of law generally rather than of any particular field of law.
The reasons for approaching the study of law [in this manner are as follows]:
1. Knowledge about law, it seems,
is easier to acquire and retain, and more readily accessible for effective
use, if it can be related to a coherent and intelligible view of the legal
system as a whole and its characteristic modes of functioning. . . * *
* * 3. Many of the troublesome and
most frequently recurring difficulties in the law are not difficulties of the
law of contracts, or torts, or property, or civil procedure, or
constitutional law, or of any other of the conventional fields of substantive
or procedural law… They pose problems and implicate concepts which
appear and reappear in every field of substantive law and in every process of
decision – judicial, legislative, administrative and private. Henry M. Hart, Jr. & Albert M.
Sachs, The Legal Process cxxxvii-cxxxviii (Eskridge
& Frickey, eds,
1994). Required Texts
The primary text will be: Robert Hayman, Nancy
Levit & Richard Delgado, Jurisprudence:
Classical and Contemporary: From Natural Law to Postmodernism (2d ed.
2002) (“Casebook”) In addition, we will read
substantial parts of two legal “classics” that are for sale at
the bookstore:
Finally, there will be a set of
Supplemental Readings, which you should purchase through my assistant, Shawn
Lanphere, in Rusk Hall Room 318. Assignments and
Class Policies
Reaction papers Students will be required to
complete seven “reaction” papers (3-5 pages long) during the
course of the semester. Each week I
will distribute questions for the following week’s readings. If you decide to write a paper on this
question, you should submit your paper the following Monday by 2:30 PM. You need to complete seven of the twelve
paper assignments (there will not be any paper assignment for Weeks 1, 2 and
11 on the syllabus). You may choose
which weeks to do papers and which to skip, so long as you complete seven
papers total. Papers should be based
on the class readings rather than on any outside materials. Please submit your paper on the LexisNexis
Web Course Discussion Board. Advanced Writing Requirement Option If you wish to satisfy the
Advanced Writing Requirement, you may write a 30-40 page paper in lieu of the
seven reaction papers. Your paper
should compare and contrast at least three of the perspectives we will be
studying with respect to a particular issue (e.g., the nature of judicial
discretion, the relation of law and morality, the rule of law). I will pass out a list of suggested paper
topics during the second week of class, and you will need to make a
preliminary selection at that time of your topic and the perspectives you
plan to discuss. For each of the
perspectives that you choose, you should submit a 5 page draft during the
week when we discuss that perspective in class. In addition, a preliminary draft of the
overall paper will be due on the last day of class (April 24), and the final
draft on Monday, May 7. Class Discussion Class time will consist of a
modest amount of lecture and substantial discussion. I expect you to attend
class on a regular basis and to participate actively in the discussions. If
you are unable to attend class on a particular day, please let me know in
advance. To encourage you to pay attention and to take part in the discussion,
use of computers will not be allowed during class. Grading
The final grades will be based as follows: Weekly papers: 75% There will not be any final exam. Grades will be lowered by one full
grade (A to B, A- to B-) for each paper that a student fails to complete
below the seven required papers. Students failing to submit five papers will
receive a failing grade. Provisional Class Schedule (as of January 5, 2007)
Week
One: Introduction (January 10)
Week
Two: Introduction (cont) (January 17)
Week Three: Natural law and positivism (January 22 and 24)
Week Four: Legal Formalism / Oliver Wendell Holmes (January 29 and 31)
Week
Five: Benjamin Cardozo (February 5 and 7)
Week Six: Legal Realism (February
12 and 14)
Week
Seven: Legal Process (February 19 and 21, and makeup class to be scheduled)
Week
Eight: H.L.A. Hart (February 26 and 28)
Week Nine: Hart and Dworkin
(March 5 and 7)
Week
Ten: Law and Economics (March 19 and 21)
Week
Eleven: Law and Economics (cont) (March 26; no class on March
28)
Week
Twelve: Public Choice Theory (April 2 and 4)
November
Thirteen: Critical Legal Studies (April 9 and 11)
November
Fourteen: Feminist Legal Theories (April 16 and 18)
November
Fifteen: Critical Race Theory (April 23 and 24)
Contact Information
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