Lawyers and Legal Systems and their Social Context

Transcription

1 Lawyers and Legal Systems and their Social Context Law 581D Spring :10-6:00 P.M., Room 405 Professor Jason Trumpbour Office hours: In lieu of regular office hours, I am available by telephone anytime at or by at jtrumpbour@comcast.net. If you would like to meet with me in person, please contact me and we will make arrangements. I. Course Description A. Overview In contrast to a course in jurisprudence, this course takes a decidedly empirical approach to understanding the nature of law, lawyers and legal systems. Readings in comparative law, history, anthropology and other social sciences will match theory with hard data. This course is also designed to help aspiring lawyers understand the nature of their profession as a social phenomenon. Students are invited to consider the nature of their activities within that system and society at large. Law students often ask themselves questions such as who am I, why am I here in law school and what is the point of it all. Students will be offered some paths toward answering these questions. Whether you are having an existential crisis or just want some perspective, this course is for you. Do legal systems shape societies or are they merely a reflection of them? Are there certain traits, tendencies and stages of development that all legal systems have in common? Is law really an objectively distinguishable attribute of social organization or is it just another form of mythology which helps us make sense of the world around us? What about lawyers? In no other legal system, including other common law jurisdictions, do lawyers play as great a role as they do in the United States. Why is this so and is it a good thing? Lawyers help clients achieve desired outcomes by structuring the legality of transactions, but do they also structure the morality of them as well? Does the lawyer centered, adversarial method of trial produce the most efficient and/or most just outcomes? You are invited to critically examine much of what we assume or take for granted about our legal system and explore some intriguing alternative views.

2 Page 2 of 8 B. Required Material There are six required books for the course: $ Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (1983). $ Henry Sumner Maine, Ancient Law (reprint 2000) (1866). NB: This book is available online at: $ Brian Z. Tamanaha, A General Jurisprudence of Law and Society (2001) $ Guyora Binder and Robert Weisberg, Literary Criticisms of the Law, (2000). $ Robert A. Kagan, Adversarial Legalism: The American Way of Law (2001). $ Leo Katz, Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law (1996). There is also a course pack containing the following articles $ S.F.C. Milsom, Reason in the Development of the Common Law, 81 L.Q. Rev. 496 (1965), also reprinted in S.F.C. Milsom, Studies in the History of the Common Law (1985). $ Alan Watson, Ancient Law and Modern Understanding 1-19 (1998). The course pack is available at the circulation desk in the library. Finally, the following article is available from the HeinOnline service to which the library subscribes: $ Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 477 (1897). I may distribute other materials throughout the semester. 2

3 Page 3 of 8 C. Grading The graded aspects of the course and their relative weights are as follows: There is no exam. Short papers Short papers 24% Longer paper 37% Class participation 39% Each week you will be expected to turn in a one page (single spaced) critique of that weeks reading focusing on some aspect of it that you find interesting and which you would like to discuss further in class. Alternatively or in addition, you may use this space to offer a tentative answer the question of the week. These papers are not meant to be busy work, but are simply a device to make sure that you are not only keeping up with the reading, but, more importantly, also understanding it as well. A good way to be a more active reader is to read with a mind toward summarizing what you are reading afterward and that is what these papers are intended to help you do. They will also be seeds for our discussions in class. The papers will be graded according to the following criteria. As there are 12 weeks with reading assigned, each paper can earn a maximum of 2 points. You get 1 points for simply turning the paper in. A paper that is in any way thoughtful will receive full credit. Even if you are unable to make it to class for some extraordinary reason (see the class participation section below) you are still expected to submit your paper to me prior to class time. Doing so via is fine. Longer paper Students will also be required to do a longer paper (seven pages, double spaced). This paper will be meant to synthesize some or all of the material studied over the course of the semester. The assignment will be to answer the questions what is law and what is the essential nature of the role performed by lawyers in society? Further details will be given separately. The paper will be due in class July 13. Class participation Class participation is not only desirable, but is critical to the success of the course. Accordingly, you are expected to attend class regularly. Excessive absence may result in a lower grade. Please talk to me if you need to miss more than one or two classes. You are also expected to participate meaningfully in class discussions by not only offering viewpoints, but also by asking questions and even challenging whatever I am telling you. In order to do these things effectively, you must also keep up with the reading. Remember also that, as this course is 3

4 Page 4 of 8 a dialogue, any particular insights or expertise you can provide from your own backgrounds, academic or otherwise, are not only welcome, but useful. II. Syllabus January 12 Law from an anthropological standpoint Local Knowledge, Chapter 8 Is law a distinct field of knowledge or is it part of a larger belief system? January 19 January 26 Martin Luther King, Jr. Holiday No Class Law as a science Ancient law, Chapters I-III Does law progress universally through predictable stages? February 2 The evolution of law Ancient law, Chapters IV-V 4

5 Page 5 of 8 February 9 What are the origins of law? Socio-legal theory A General Jurisprudence of Law and Society, Chapters 1-5 How do people know what law is? February 16 Socio-legal theory A General Jurisprudence of Law and Society, Chapters 6-8 What is the definition of law? February 23 Topics: Law as literature Literary Criticisms of the Law, pages Questions of the week: How are law and literature similar as fields of knowledge and in the approaches they use to explore their respective fields. What can they learn from each other? 5

6 Page 6 of 8 March 2 Cultural criticisms of the law Literary Criticisms of the Law, pages Questions of the week: Is cultural criticism instructive in evaluating law and legal institutions? What are the criteria by which cultural criticism would judge them? March 9 -Lawyers and judges as agents of legal change -The tyranny of legal experts Readings: -Reason in the Development of the Common Law -The Path of the Law -Uses and Abuses of Law in History March 16 Which actors in the legal system are most responsible for legal development and evolution? Is it the lawyers? Is it the judges? How about legal academics? Spring Break No Class 6

7 Page 7 of 8 March 23 Is the adversarial system really the best? Readings: Adversarial Legalism, Chapters 1-3 Is the American legal system a light unto nations or is it a cautionary tale? March 28 The pursuit of justice: is more sometimes less? Adversarial Legalism, Chapters 4-7 Questions of the week: Can a commitment to perfect justice result in injustice? Is it inevitably self defeating? April 6 Lawyers as morality engineers Ill-Gotten Gains, pages 1-73 Do lawyers structure the morality as well as the legality of transactions? 7

8 Page 8 of 8 April 13 Lawyers as morality engineers continued Ill-Gotten Gains, pages Are the efforts of lawyers in helping clients find deontological forms for consequentialist behavior a good or bad thing? April 20 Review and bringing everything together Readings: None $What is law? $What is the essential nature of the role performed by lawyers in society? 8