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Minnesota State University, Mankato
Minnesota State University, Mankato

PS455/555

Page address: http://sbs.mnsu.edu/government/faculty/Slocum/Slocum Syllabi/PS455SYL.html

Political Science 455/555
American Legal Philosophy
Fall 2005
MWF 10:00-10:50
AH 305

Instructor: Dr. Fred Slocum
Office: 204A Morris Hall
Phone: 389-6935
E-mail: frederick.slocum@mnsu.edu
Web site: http://sbs.mnsu.edu/government/faculty/slocum.html
Office Hours: M, W, F 1:00-3:00; T, Th 9:30-11:30; or by appointment

Introduction:

This seminar course, geared especially toward pre-law students, has several major goals.  First, it acquaints students with various traditions, or schools of thinking, in American legal philosophy.  These traditions are not abstract theories of concern only to law professors.  Far from it: these traditions help us understand many important court decisions - rulings that decide policy questions that affect the everyday lives of Americans.  For example, consider the pivotal role played by the Supreme Court on issues such as school desegregation, abortion, school prayer, the death penalty, gay/lesbian rights and affirmative action - to name a few.  Second, and more importantly, the course explores how these legal philosophies are manifested in selected Supreme Court decisions on contentious issues.  To that end, we will read and discuss some actual Supreme Court decisions, and assess critically the legal reasoning employed by the justices.  In the process, we will consider questions relating to the proper nature and purpose of the legal system, such as: To what extent should law and issues of morality be conceived separately from one another?  To what degree is the current legal system equitable, fair, and just?  Is judicial decision-making better guided by a philosophy of 'judicial restraint' or of 'judicial activism'?  In considering questions of this sort, we necessarily will address themes such as the nature of justice, the proper roles of various political actors (especially judges and legislatures) in creating and modifying law, and the views of human nature that underlie various traditions of legal thinking.  Third, this seminar provides an opportunity to examine, reflect upon and refine our conceptions of justice and evaluations of the American legal system.  We will examine and discuss specific legal issues raised by recent court decisions on church-state issues, application of the death penalty, affirmative action, gay/lesbian rights and others.  We aim to assess how well or poorly the American legal system provides justice, how even-handed the legal system in providing justice to all, and how we might reform the legal system to make it better.

For about the first half of the semester, we will examine, discuss and debate the strengths and weaknesses of five major traditions of twentieth-century American legal thought: turn-of-the-century formalism, legal realism, the legal process school, the law and economics movement and critical legal studies.  Later in the semester, we will apply extensively these schools of thought to concrete policy questions and Supreme Court decisions.  Given my personal and professional interest in race relations, we will devote some attention to critical race theory and its implications.  We will also examine related issues concerning the treatment of racial minorities in the American legal system, including police brutality cases, and racial differences in sentencing and application of the death penalty.  We also will consider some of the major court rulings on church-state issues, including school prayer and religious displays in public places.

Assignments and Grading:

There will be midterm and final exams, both of which will consist of essay questions only.  The exams will be in modified take-home format.  One week before the exam, I will hand out a study sheet containing four to seven essay questions that may appear on the exam.  At the exam, you will receive a sheet with two questions of my choice (drawn from the study sheet) that you'll write on.

There will be a short paper (4 to 6 pages for undergraduates, 6-8 pages for graduate students) and a longer paper (8-10 pages for undergraduates, 12-15 pages for graduate students).  The first (short) paper is due in class Wednesday, October 12; the second (long) paper is due in class Monday, November 21.  Both assignments will be handed out separately.  All papers are to be typed (or word-processed) and double-spaced.

Course grades will be determined as follows:

Undergraduate students:

  • Short paper - 15%
  • Midterm exam - 15%
  • Long paper - 25%
  • Class participation - 10%
  • Final exam - 35%

Graduate students:

  • Short paper - 20%
  • Midterm exam - 10%
  • Long paper - 30%
  • Class participation - 20%
  • Final exam - 20%

In this course, grades will not be curved, meaning that you will not be competing against your classmates for a limited number of A's, B's and so on.  Therefore, the grading scale is a straight scale, as follows:

  • A: 90%-100%
  • B: 80%-89.9%
  • C: 70%-79.9%
  • D: 60%-69.9%
  • F: 59.9% or less

Students whose point totals place them very near (within 0.1 point of) the cut point for the next higher letter grade will be evaluated on an individual basis for promotion to the higher grade.  In this evaluation, I will consider factors such as attitude and improvement over the term.

Students with Disabilities:

I would like to hear (early in the semester is much preferred) from students with a documented learning or other disability that might require some modification of seating, testing, or other class arrangements.  I will make every effort to accommodate students with these needs.  If you have any questions, please see me or contact the Disability Services Office (132 Memorial Library, 389-2825).

Policy on Attendance:

This is a seminar class.  To make the discussion and learning experiences most rewarding for all seminar members, regular attendance is essential.  I reserve the right to note attendance at any time.  In borderline grading situations, attendance can become decisive in determining final grades.  If you must miss a class, you are responsible for obtaining notes for the missed session.  Excused absences may be considered on a case-by-case basis in exceptional cases (such as for certain medical reasons), or for significant opportunities, such as attending a professional conference.  Whenever possible, please notify me in advance of an absence, giving a valid reason.

Policy on Late Assignments:

Barring uncontrollable extenuating circumstances (which I must approve before a paper's due date), late assignments will be downgraded one full letter grade (10 percentage points) for each calendar day late (2 letter grades or 20 points for a paper submitted the Monday following a Friday due date).  Computer-related problems (including hard drive or disk crashes) are not an acceptable reason for late papers or extensions.  Don't wait until the last minute to print your papers off!

Policy on Make-Up Examinations and Incomplete Grades:

Exams cannot be made up unless the student provides acceptable, documented reason for missing the exam.  Makeup exam requests have merit to the extent that (1) the circumstance is unavoidable, (2) the reason for missing the exam can be documented, and (3) the instructor is notified well in advance of the exam.  Makeup exams will not necessarily be identical to, and may be more difficult than, the exam given in class.  Early exams will not be given.

The 2004-2005 MSU Undergraduate Bulletin outlines University policy on incomplete grades as follows.  "The grade of 'incomplete' is reserved for special cases and means that, because of extenuating circumstances, the student failed to meet a specific need and an important requirement of the course, but has in other respects done passing work for the semester.  The incomplete must be made up in the next semester in which the student has enrolled, unless other arrangements have been made between the student and instructor who assigned the grade.  If the deficiency is not made up within the specified time, the grade automatically becomes an F or NC" (p. 31).  I will support and enforce this policy fully.

Academic Dishonesty:

A number of activities may be construed as academic dishonesty (cheating).  These include, but are not limited to: copying material from another source (book, manuscript or another student) without proper acknowledgment, using crib sheets during an exam, talking during an exam, or looking at another student's exam.  Any cheating will result in an automatic F in the course.  In papers, if you either quote a source or paraphrase (express an idea drawn from another source in your own words), you must acknowledge your use of that source in an approved citation form (i.e. APA, MLA, Chicago citation style).  Come see me if you have any questions.

Textbooks:

Readings for this course are drawn from one required textbook, one principal manuscript and other sources, most notably Supreme Court cases.  The required textbook and manuscript, respectively, are:

  • Robert L. Hayman, Jr., Nancy Levit and Richard Delgado, Jurisprudence, Classical and Contemporary: From Natural Law to Postmodernism, 2nd edition.  St. Paul, MN: West Group, 2002. (available at the CSU Barnes & Noble bookstore).
  • Gerald B. Wetlaufer, "Systems of Belief in Modern American Law: A View from Century's End."  American University Law Review 49, #1 (October 1999) (distributed in class).

We will read a substantial chunk of Hayman, Levit and Delgado.  We will read almost all of Wetlaufer, except for the material on the legal positivist/analytic tradition.  During the second half of the semester, assigned readings will include Supreme Court cases and other readings outside these two sources.  If not available online, they will be distributed in class or made available on reserve in Memorial Library.  Virtually all court cases, however, are available online, using FindLaw, Law Crawler or similar sources.

Course Calendar and Assignments:

I will make reasonable efforts to follow the schedule of topics below.  However, as time and circumstances dictate, the dates may change somewhat.  Thus, the dates given below should be considered approximate.  I will announce any changes in class.

The schedule below includes reading assignments for the first half of the semester, and some weeks of the second half.  For other weeks during the second half, I will announce reading assignments in class.  Abbreviations used below are as follows: W (Wetlaufer); HLD (Hayman, Levit and Delgado); all numbers are page numbers.

Part I. Traditions in American Legal Thinking.

Week 1 - August 29-September 2: Introductions; overview of American legal traditions.  W, 1-10.

(Monday, September 5: Labor Day holiday - NO CLASS)

Week 2 - September 7-9: Turn-of-the-century formalism.  W, 10-16; HLD, 156-165 and 256-262; Lochner v. New York (1905).

Week 3 - September 12-14: American legal realism.  W, 16-21; HLD, 183-187 (Pound's article) and 209-219; NLRB v. Jones & Laughlin Steel Corporation (1937).

(Friday, September 16: Constitution Day event; class will meet at a place to be announced).

Week 4 - September 19-23: American legal realism (continued); the legal process school.  Brown v. Board of Education (1954); W, 21-34.

Week 5 - September 26-30: The legal process school (continued); the law and economics movement. HLD, 269-283 and 286-295; W, 34-43.

Week 6 - October 3-7: The law and economics movement (continued).  HLD, 299-308, 316-324 and 348-361.

Week 7 - October 10-14: Critical legal studies.  W, 48-59; HLD, 402-412 and 425-434.

(Wednesday, October 12: First paper due)

Week 8 - October 17: Critical legal studies (continued); review.  HLD, 441-458; W, 59-77.

(Wednesday, October 19: Midterm exam)

(Friday, October 21: Fall break - NO CLASS)

Part II. Applications to Selected Cases, Issues and Events.

Week 9 - October 24-28: The U.S. Supreme Court; nomination politics.  Readings TBA.  (Video: TBA)

Week 10 - October 31- November 4: Judicial activism vs. restraint; child custody cases.  Readings TBA.

Week 11 - November 7-11: Church and state issues: The Lemon test and its application.  Stone v. Graham (1980); Wallace v. Jaffree (1985).

Week 12 - November 14-18: Church and state issues: Religion in the public sphere.  Herdahl v. Pontotoc County School District et al. (federal district court case, 1996); Doe vs. Santa Fe Independent School District (2000); skim Van Orden v. Perry and McCreary v. ACLU of Kentucky (both 2005).  (Video: School Prayer: A Community At War)

Week 13 - November 21: Legal philosophy and racial minorities: from Rodney King to Thomas Miller-El. Miller-El v. Dretke (2005); other readings TBA.

(Monday, November 21: Second paper due)

(Wednesday and Friday, November 23 and 25: Holiday - NO CLASS)

Week 14 - November 28-December 2: Critical race theory; jury nullification.  HLD, 613-624 and 650-665.

Week 15 - December 5-9: What constitutes a valid basis for a court ruling?  Case studies involving the death penalty and gay/lesbian rights.  Atkins v. Virginia (2002); Roper v. Simmons (2005); Lawrence v. Texas (2003).

(Wednesday, December 10, 8:00 AM: Final exam)