The Judicial Process

                                                              Political Science 340

                                                                       Fall 2006

 

Sean F. Evans                                                                          Ed Bryant

Office:  PAC A-38                                                                   Waldrop Hall

Phone:  (731) 661-5237                                                           (731) 424-6211

E-mail:  sevans@uu.edu                                                            bryante@waldrophall.com

 

“Law is politics.”  – Vladimir Lenin

 

“The Constitution is what the judges say it is.”  – Chief Justice Charles Evans Hughes

 

“So the problem is not whether judges make law, but when and how, and how much.”  – Justice Felix Frankfurter to Justice Hugo Black

 

What is law?  What is the difference between law and politics?  What is the relationship between law and morals and law and norms?  What is or should be the role of courts in society?  To what extent should judges be involved in establishing social policy?  What are the limits of the courts in promoting social change?  What is the goal of the judicial system?  Each of these questions has an empirical and normative aspect that needs to be considered.  The goal of this class is to examine both the empirical and normative to gain a greater understanding of the practical and theoretical implications of legal decision making and politics. 

We begin with an introduction to the major philosophies of law.  Through original writings of major scholars, we will examine the nature of law, the differences between natural and positive law, and critiques of the modern legal tradition from both conservative (law and economics) and liberal perspectives (critical legal studies and feminism).  After examining the big picture, we will look at how the judicial system works in practice by looking at the individual actors and their goals and constraints and relate this to our understanding of what the legal system should be.  In this section, we will discuss the roles of major legal actors such as police, lawyers, judges, and juries while also examining why people use the courts to resolve their differences.  Finally, we will examine the ability of the courts to make social policy.  Almost 200 years ago, Alexis de Tocqueville claimed that every political issue eventually becomes a legal matter.  This section examines the ability of the courts to promote social change and the limits on the courts to make policy. 

 

Course Requirements

 

            This course will be taught as a critical thinking course and run as a seminar.  As a critical thinking course, we expect you to apply, analyze, evaluate, and synthesize information.  Most of you are good at remembering the facts and comprehending what they mean.  However, this class is also designed to help you use that information in a meaningful way so that you can be a successful lawyer, businessperson, citizen, etc.  In this class, you will learn to apply the information you have to new situations.  You will learn to analyze information to see patterns, recognize hidden meanings, and organize material.  You will learn to synthesize information by relating knowledge from different areas, generalizing from given facts, and using old ideas to create new ones.  Finally, you will lean to evaluate information by discriminating between ideas, assessing the value of theories and arguments, and make reasonable choices.  This may be difficult at first but the skills you learn you will use for years.  This class may also be a bit unsettling because there are no definite right or wrong answers, just well-argued ones.  As potential future lawyers, you will need to understand both sides of an argument so you can ably defend your client by understanding the strengths and weaknesses of both arguments. 

Finally, we will conduct this class in a seminar fashion.  Instead of lecturing, we will act as facilitators as we discuss the issues and readings as equals.  We may ask a question and then have you answer it.  In this case, different students may have different answers so we will discuss the strengths and weaknesses of different answers.  Or perhaps, something struck a student in the reading and s/he wants to discuss that.  This requires you to come prepared to integrate readings and address larger issues. 

 

Readings.  You are required to purchase four books that are all available in the bookstore. Due to the expense of some of these books (my apologies), you may want to try to buy them on-line.  In addition, I will place many readings on reserve in the library.  The required books are: 

 

Adams, David M.  2005.  Philosophical Problems in Law, 4th ed.  Belmont, CA:  Wadsworth. 

 

Carp, Robert A., Ronald Stidham, and Kenneth L. Manning.  2004.  Judicial Process in America, 6th ed. Washington, D.C.:  CQ Press.

 

Rosenberg, Gerald.  1991.  The Hollow Hope.  Chicago:  University of Chicago Press. 

 

Slotnick, Elliot E.  2005.  Judicial Politics: Readings from Judicature, 3rd ed. Washington, D.C.: CQ Press.

 

Grading.  Your grade for this course will come from three exams, a research paper, and your participation in class.  Since this is a 300 level course, all exams are essay.  The expectation is that you can analyze and communicate your ideas and this is one of the best means of evaluating these skills.  Each exam is worth 20% of your grade.  If you have questions or concerns about your grade, we are more than happy to sit down and discuss the test and make suggestions for improving over the remainder of the semester. We do not engage in point grubbing. Finally as with all my classes, if you make substantial improvement over the course of the semester, we are willing to forget the earlier grades and reward you based on your performance at the end of the semester. 

 

Research paper.  This course requires a 20-25 page research paper on a legal area of interest. You may want to see how psychological profilers interact with detectives, what corporate lawyers do, whether the Bush v Gore decision harmed the legitimacy of the Supreme Court, if religious people are more likely to obey the law, do boot camps reduce crime rates of juveniles, etc.  By a research paper though, I do not mean a paper where you read a lot of books and articles and draw your own conclusions.  Rather, you will write an empirical paper that proves its points through the use of data whether survey, interview, participant observation, statistics, or something else.  This paper will require a literature review, a theory or hypothesis that you will test, a research design that explains how you will prove or disprove your hypothesis, and the results of your tests. Once again, more information about the paper will be provided as the semester progresses.  Students must receive approval for their paper topic by September 25.  The paper is worth 30% of your grade. 

 

Participation.  In addition to these papers, participation is required.  In fact, your daily participation is essential to understanding the material and contributing to class discussions.  Please do not feel inhibited about speaking.  The best means of my determining how well you understand the material is through your discussion.  Moreover, an important component of this participation is active feedback.  If there are any suggestions that would help you understand the material more fully, please let me know. 

In assessing participation, students who attend class but do not participate earn a D.  Those who show they read but show a superficial understanding receive a C.  Those who read and show they understand the material in discussions receive a B for participation and those who excel by showing a thorough understanding of readings and an ability to connect concepts across lectures, readings, and discussions receive an A for participation.   Moreover, when and/or if I curve test or final grades, I reserve the right to withhold the curve from students who never attend class.  Participation is worth 10% of your grade.

 

Cheating.  Don’t do it.  Anyone caught cheating will receive an F for the course and be referred to the proper authorities for university review and punishment. 

 

Students with Special Needs.  If any special accommodations need to be made, please request these and provide the appropriate documentation to the instructors by the second week of class. 

 

Extracurricular.  Students are expected to attend any special political events this semester including Pre-Law Society meetings. We will also attend a trial in October or November. We are also trying to arrange meetings with judges, attorneys, and others and this might necessitate meetings on non-Mondays.  If so, we will give you as much lead time as we can so you can plan accordingly.

 

A Final Note.  We retain the right and prerogative to modify this syllabus in accordance with the needs of the students. 


                                                                    Class Outline

 

Sept. 4 Labor Day – no class

 

Sept. 11 What is law? How do we study it? What are the philosophical foundations for law?

Adams, Ch. 1A-1C

 

Sept. 18 Theories of the Judicial Process

Adams, Ch. 1C-1E

 

Sept. 25 Can we enforce morality? And Discuss Research Papers

Adams, Ch. 2B

Epstein “Studying Law and Courts” on reserve 

 

Oct. 2 First Exam and Judicial Organization

Carp et al, chs 2-4

 

Oct. 9 Judicial Selection and Confirmation

Carp et al, chs. 5-7

Slotnick, “Judges: Judicial Selection Systems and Their Consequences” and “Courts, Congress, and the Presidency”

 

Oct. 16 Crime and Punishment 

Adams, Ch. 4

Slotnick, “Trial Courts”

 

Oct. 23 Criminal and Civil Trials

Carp et al, chs. 9-11

 

Oct. 30 Attorneys and Juries

Slotnick, “Lawyers and Legal Practices” and “Juries”

 

Nov. 6 Second Exam and the Courts in American Politics

Slotnick, “The American Constitutional System and the Role of the Supreme Court”

 

Nov. 13 Judicial Decision Making

Carp et al, chs. 12-13 

Slotnick, “Internal Court Processes and Decisions on the Merits”

 

Nov. 20 Can Courts Make Public Policy?

Rosenberg, The Hollow Hope

 

Nov. 27 Court and Should Courts Make Public Policy? 

Rosenberg, The Hollow Hope

Slotnick, “Public Opinion and the Media”

Carp et al, ch. 14

 

Dec. 4 Judicial Independence and Present papers

Slotnick, “Judicial Policy Making and Judicial Independence”

Papers Due

 

Dec. 13 Final Exam and Present Papers