The Judicial Process
Political Science 340
Sean F. Evans
Office: PAC A-38
Phone: (731) 661-5237
“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.
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, I will act as a facilitator as we discuss the issues and readings as equals. I 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.
Neubauer, David W. and Stephen S. Meinhold. 2010. Judicial Process: Law, Courts, and Politics in the United States, 5th ed. Washington, D.C.: CQ Press.
Rosenberg, Gerald. 1991. The Hollow Hope, 2nd ed. Chicago: University of Chicago 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, I am more than happy to sit down and discuss the test and make suggestions for improving over the remainder of the semester. I do not engage in point grubbing. Finally as with all my classes, if you make substantial improvement over the course of the semester, I am willing to forget the earlier grades and reward you based on your performance at the end of the semester.
Research paper. Each student will write a 10-15 page research paper that analyzes a legal problem or issue. Please get the instructors permission by the end of February for your topic. The paper is worth 30% of your grade. In writing your paper, please write in a clear and organized fashion. Be sure to include a thesis, topic sentences, introduction, conclusion, etc. While this is not a grammar course, an integral part of communication is good grammar. As such, I will stop reading any paper that has not been spell checked or grammar checked (it is usually easy to tell) and assign that paper an F. Since the simulation paper requires some outside research, proper citations are required and rules against plagiarism are enforced.
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 do not attend regularly will receive a 0. Those who attend class but do not participate earn a 40 in participation. Those who show they read but show a superficial understanding receive a 60. Those who read and show they understand the material in discussions receive a minimum of 80 for participation and those who excel by showing a thorough understanding of readings and an ability to connect concepts across lectures, readings, and discussions may receive a 100 for participation. Please see this as the difference between letter grades. 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.
Communication Devices. Please turn off all cell phones and other portable electronic devices while in my class. Your life is not so important that you need to answer the phone or text your friend immediately. If found using any such device, I reserve the right to answer the phone and/or read your text message to the class. Moreover, I will confiscate your communication device until the next class meeting. Therefore, if you have an emergency necessitating having the communication device on, please let me know before the class.
Audio/Video Recording: No audio or video recording of classroom activity is permitted without my prior approval. This prohibition includes cellphone camera functions, laptop audio or video functions, and all other digital or analog recording equipment.
Lap top computers: Students are welcome to use lap top computers in my class as long as they are not a distraction to the user or others (e.g., noise, email, internet use not connected to the course, playing games) and it does not create a hazard to others (e.g., extension cord in the aisle).
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.
Continuity of Instruction: In the event that this course is no longer able to meet face-to-face, students should first immediate check their email account for instructions. If there are no instructions there, please check your cell phone.
Syllabus: I retain the right and prerogative to modify this syllabus in accordance with the needs of the students.
Feb. 3 Intro
Feb. 5 What is law? How do we study it?
Adams, Ch. 1B
Feb. 8 Natural v Positive Law
Adams, Ch. 1C
Feb. 10 Natural v Positive Law
Adams, Ch. 1C
Feb. 12 Legal Realism and Critical Legal Studies
Adams, pp. 83-111
Feb. 15 Law as Interpretation
Adams, pp. 111-119
Feb. 17 Law and Economics
Adams, pp. 125-34
Feb. 19 Feminist and Critical Race Theory
Adams, pp. 134-148
Feb. 22 Can we enforce morality?
Adams, Ch. 2B
Feb. 24 Catch-up and review
Feb. 26 First Exam
March 1Legal Systems
NM, ch. 2
March 3 Federal Courts
NM, ch. 3
March 5 State Courts
NM, ch. 4
March 8 Lawyers
NM, ch. 5
March 10 Lawyers speak to class
March 12 Judicial Selection and Appointment
NM, ch. 6
March 15 Judge speak to class
March 17 What is a crime?
Adams, Ch. 4A-B
March 19 Policing
March 22 Criminal cases
NM, ch. 8
March 24 Criminal Trials
NM, ch. 9
March 26 Punishment and Responsibility
Adams, Ch. 4C-D
March 29-April 2 Spring Break
April 5 Civil Trials
NM, ch. 10
April 7 Civil Trials
NM, ch. 11
April 9 No class
April 12 Trials and Juries
NM, ch. 12
April 14 Attend trial (this is a floating date)
April 16 Second Midterm
April 19 Appellate Process
NM, ch. 13
April 21Deciding to Decide
NM, ch. 14
April 23 Judicial Decision Making
NM, ch. 15
April 26 Mobilizing the Law
NM, ch. 7
April 28 Can Courts Make Public Policy?
Horowitz, The Courts and Social Policy, ch. 2 on reserve
April 30 Dynamic and Constrained Courts
Rosenberg, Intro. and Ch. 1
May 3 Dynamic and Constrained Courts
Rosenberg, Intro. and Ch. 1
May 5 Courts and Civil Rights
Rosenberg, Part 1
May 7 Courts and Abortion
Rosenberg, Part 2
May 10 Environment, Reapportionment, and Criminal Law
Rosenberg, Part 3
May 12 Same Sex Marriage
Rosenberg, Part 4
May 14 Catch-up and review
May 17 11am Final Exam