WellesleyCollege________________

Political Science 215
Courts, Law andPolitics

M, W&Th 11:10-12:20
Spring 2008
Instructor: Tom Burke
Office: Pendleton East 234
Phone: 283-2441
Email: tburke@wellesley.edu
Drop-In Hours: M 3-5, W 4-5, and by appointment

This course has two purposes. At the most basic level, it is an introduction to fundamental elements of the American legal system--legal reasoning, the legal process, courts, judges, juries, law school and the legal profession. We will read about all these aspects of the legal system, and we will study them directly through "field trips" to local courtrooms and interviews with judges, cops, lawyers and law students.

At a more theoretical level, this course will examine the complex relationship between law and politics. We will be asking some of the big questions about law that continue to befuddle legal scholars. How is legal reasoning different from other forms of analysis? Do judges, juries and cops make decisions based on "the law" or on their political beliefs? Under what conditions it possible--or desirable--to use law to change society?

Two overarching themes structure the course.

First is the issue of the legitimacy of law. Law is a form of power that can take away people's property, their standing in communities and even their lives. What is it about a legal decision that makes it worthy of respect, particularly among those whom the decision harms? How can legal actors (judges, juries, police officers) convince communities that they are acting as legally, and not simply exercising power to further their own ends? In short, what makes "the rule of law" different from "the rule of the powerful"?

Second is the problem of the mobilization of law. We will learn that mostly the law is not enforced; it is the exceptional case in which some actor presses a legal claim. So how and why does "law on the books" sometimes get turned into "law on the streets"? What social structures affect the mobilization of law? Under what conditions does the law get mobilized? In whose interest?

Of course we won't definitively answer all these questions, but I hope that by the end of the semester we will have better answers than we do at the beginning.

Requirements

The fundamental requirement of the course is that you come to class prepared to participate. On some days I will lecture, but on most days there will be simulations, small group projects and discussions. A class is a social enterprise, and you are letting down your classmates when you arrive unprepared and thus unable to teach the rest of us what you have learned. That is why so much of your grade (20%) depends on participation.

This will be a challenging class for shy students. The course requires you to hit the streets and interview people as part of your research. It also requires you to discuss your research and your point of view about the readings in class. If you are shy, I urge you to use this course to help you become more effective in presenting yourself and your ideas. I find that when shy students get the courage to speak up, they often have better, more well-thought out ideas than those students who talk all the time. As for the interviewing, while it may seem daunting at first, I think you will find that it is a fun way to do research, and a great skill to learn. Indeed, if through this course you learn how to go out into the world and ask total strangers for help, you will have gained an ability that will be useful to you throughout your life. (Life often rewards the bold, and especially those who are bold in forging social connections.)

This course has an unusual feature: You get to choose what work you will do in the class and how you will be graded. You have two options:

• Plan A is the "Team Player" option. It requires you work on a team research paper, but allows you to skip the final exam and write only one graded field report. Students who choose this option will be graded based on class participation (20%), the midterm (25%), a field report (20%) and the research paper (35%).
  

• Plan B is the "Lone Ranger" option for those students who don't want to do the team research paper. If you choose this option you will have to write an extra field report and take the final exam. Students who choose this option will be graded based on class participation (20%), the midterm (20%), two field reports (20% each) and a final exam (20%).

As you can see, all students are required to participate actively in class, to take the midterm, and to write at least one graded field report. (An ungraded field report is also required as a preliminary to the graded field reports.) You will be asked to choose between Plan A and Plan B in the second week of the semester. To help you choose, here is a brief description of the elements of the course:

Participation. You will be evaluated on the basis of your participation in class discussions, simulations and small-group exercises and some "mini-assignments" connected to class activities.

Midterm. This will be an open-book exam based on major themes in the course that you will take on FirstClass.

Field Reports. Field reports are 5-7 page mini-papers in which you draw from direct observation or interviews to discuss some aspect of the legal system. Because few students have had experience with this format, the first field report will be an ungraded "warm-up." For this field report you will visit a local courtroom to observe what is going on and report your observations. The report will be reviewed in class by your fellow students meeting in small groups. For the graded field reports, you can choose from among several assignments in which you write about: 1) an interview with a juror or a practicing trial lawyer about the jury system; 2) your observations from a "ride-along" with a police officer on patrol; or 3) an interview with a law school student about her experiences in law school. You may also design your own field report in which you report on observations you have made in some legal setting or an interview with some legal actor. Students have written field reports based on interviews with judges, prisoners, and lawyers in different settings. (You might, for instance, want to write on women in the legal profession based on interviews with several women lawyers.) Please see me in advance to approve this. Approval will require the identification of some academic literature that bears on your subject; after all, the purpose of this assignment is always to think through the ways in which your field experiences either support or undermine academic theories about various legal actors and settings.

Research Paper. Students will team up in pairs to tell the story of a legal dispute that has been researched through interviews. Students can write the 15-25 page paper separately or together.

Final Exam. This will be an open-book exam based on major themes in the second half of the course.

Grading Policies

I adhere to Wellesley's official grading policy, which is that A's are reserved for "students who meet with conspicuous excellence every demand that can fairly be made by the course." In practice this means that to receive an A or A- you must not merely meet all my expectations for satisfactory performance but exceed them. Satisfactory completion of all required elements of an assignment will entitle you to a B+. Needless to say this is not necessarily the policy of all professors, so if you are worried most about preserving a high grade point average you may want to consider other courses. Be warned: In several respects, this is an unusually demanding 200-level social science course. (It's also a lot of fun, and has the additional virtue of helping you to think more creatively about what you want to do in your post-Wellesley life.)

I am happy to read drafts of your work, but please submit your draft at least a week in advance of the due date, otherwise I cannot guarantee that I will have time to read them.

Late assignments will be penalized by one-third grade per day (for instance from a B+ to a B), except in the case of dire emergency. Extensions may, however, be granted if requested reasonably in advance of the due date. (Yes, "reasonable" is a fudge word, but it only goes so far: There is, for example, no situation I can conceive of aside from an emergency in which 48 hours would be "reasonable." So feel free to ask for an extension, but don't count on one, especially close to the deadline.)

Drop-In Hours and Electronic Communication

Drop-in hours are normally held at my office (234 Pendleton) Mondays from 3-5 and Wednesdays from 4-5. If these times are no convenient I will often be available for meetings after class. The drop-in hours are your chance to ask questions, talk about your ideas and plans, and explore class material in greater depth. Don't feel shy about using them, this is time I've reserved for you. Also, if you show up and I'm babbling with another student, please knock on the door and tell me you're there--it's not rude, it's useful for me because I may otherwise consume the whole hour with the student in front of me.

I also answer questions via email, and I try to be reasonably quick to respond. Keep in mind, though, that I occasionally sever the electronic umbilical cord--over weekends and holidays I'm often out of email range. (Not a bad strategy, by the way, if you want to retain your sanity.)

The course has a FirstClass conference, on which I will post course-related material, answer questions, and lead discussions about any topic you wish. The conference features an "Ask the Professor" subconference and I prefer that you ask course-related questions on this medium rather than by an email to me, since the questions you ask (and the answers I provide) will likely be of interest to the other students in the course.

Course Materials

Five books are required for the course: Lief Carter and Thomas Burke's Reason in Law (updated 7th edition--not the one with the abstract head), William Muir's Police: Streetcorner Politicians, Gerald Stern's Buffalo Creek Disaster, James Abramson's We The Jury and Richard Kahlenberg's Broken Contract. In addition there are a bunch of articles available on e-reserve.

This schedule is preliminary and subject to revision. We may take days off for outside speakers, videos, field trips, or field research. Although I usually stick fairly close to the schedule, I reserve the right to veer off if I think it pedagogically useful. If you are one of those students who most values sticking to schedules, perhaps you should consider another course!

I. Legal Reasoning

January 31	What is Legal Reasoning? Carter, Reason in Law, xii (Cardozo quotation), 1-35
February 4	The Common Law Carter, Reason in Law, 36-67 Study Guide #2
February 6	Field Research Day
February 7	Statutory Interpretation Carter, Reason in Law, 68-91 Study Guide #3
February 11	Constitutional Interpretation Carter, Reason in Law, 106-133 Scalia, "Originalism: The Lesser Evil" Balkin, "Alive and Kicking" (Research paper assignment handed out. Lone Rangers declare themselves, Team Players find partners and sign up for first meeting on research paper) Study Guide #4
February 13	Constitutional Interpretation II Carter, Reason in Law, 106-133 Scalia, "Originalism: The Lesser Evil" Balkin, "Alive and Kicking"
February 14	Meeting of Research Partners/Field Day First Field Report due February 18 at 10 p.m.
February 20	Legal Reasoning and Politics Randy Barnes, "Against Realism" (available on FirstClass Conference) Carter, Reason in Law, 134-155 & 163-187 Study Guide #5
February 21	Legal Reasoning: The Case of the Adulterers Carter, Reason in Law, 155-157

February 25

Judicial Decisionmaking: The Legal Model vs. The Attitudinal Model Spaeth, "The Attitudinal Model" Rosen, "The Agonizer" Toobin, "The Nine" Study Guide #6

II. Legal Decisionmakers

February 27	In-class analysis of field reports (Graded Field Report Assignments discussed)
February 28	The Structure of the U.S. Judicial System (Team players sign up for second meeting on research paper)
March 3	Judicial Selection: Legal vs. Attitudinal vs. Representativeness (Cross-Sectional) Models Hazard and Taruffo, "The Federal and State Court Systems," and "Political Appointment of Judges" Goldman, "The Senate and Judicial Nominations" (Recommended: Skim The New Politics of Judicial Elections 2006) Study Guide #7 Midterm available on FirstClass March 6-13
March 5	In-Class Video on The Supreme Court Tocqueville, "The Jury Considered as a Political Institution" Study Guide #8
March 6	Introduction to Juries--Video on Jury System Abramson, We The Jury, 1-55 Study Guide #8
March 10	Jury Nullification Abramson, We The Jury, 57-95 Kennedy, "Reasonable v. Unreasonable Doubt" Butler, "Black Jurors: Right to Acquit" Harper's, "Fear of a Black Jury"
March 13	Jury Selection Abramson, We The Jury, 99-176 Minow, "Stripped Down Like a Runner or Enriched by Experience?"
March 17	Juries: Pro and Con Levine, We The Jury, 177-205, 243-250 Lind, "Jury Dismissed" Langbein, "Money Talks, Clients Walk"
March 19 & 20	Field Research Days Jury Field Note Due March 20 at 10 p.m.

III. Legal Process

March 31	Policing Klockars, "Selective Enforcement" Muir, Police, 1-36 Study Guide #9
April 2	Policing Muir, Police, 36-60 Research Paper 3-Page Progress Memo Due
April 3	Policing Muir, Police, 61-100
April 7	Policing Muir, Police, 100-188 Goldberg, "The Color of Suspicion"
April 9	Policing and the Criminal Process Muir, Police, 189-225 The Criminal Process (handout)

April 10	The Criminal Process II Muir, Police, 225-268
April 14	Civil Process: The Buffalo Creek Case Stern, Buffalo Creek Disaster, 1-97 Study Guide #10

April 16	Courts and Social Justice Stern, Buffalo Creek Disaster, 101-200
April 17	Courts and Social Justice II Stern, Buffalo Creek Disaster, 200-303
April 22	Courts and Social Change Galanter, "Why the Haves Come Out Ahead" Silbey and Ewick, "Common Knowledge and Ideological Critique: The Significance of Knowing that the Haves Come Out Ahead" Study Guide #9 Police Field Report due at 10 p.m.
April 23	Field Research/Field Trip Day
April 24	Courts and Social Change: The Case of Abortion Rosenberg, "The Real World of Constitutional Rights" Hitt, "Who Will Do Abortions Here?" Recommended: Rosenberg, "Substituting Symbol for Substance"

V. Law School, Lawyers and The Legal Profession

April 28 & 30	Lawyers and Law School: "Difference" Critiques Kahlenberg, Broken Contract, 3-48 Guinier, "Becoming Gentlemen" Montoya, "Un/masking the Self While Un/braiding Latina Stories"
May 1	Lawyers and Law School: Kahlenberg v. Kennedy Kahlenberg, Broken Contract, 49-118, 134-155, 159-166, 204-234 (skim), 235-8 Kennedy, "Legal Education as Training for Hierarchy" Campos, "Jurismania"
May 5	Law School and the Legal Profession Krieger, "Professionalism and Law School" (supplemental materials on the legal profession)
May 7	The (Changing) Structure of the Legal Profession Law School Field Report due
	Final Exam available on FirstClass May 12-19 Research Paper Due May 19

• Tom Burke tburke@wellesley.edu
• Political Science Dept.
• Wellesley College
• Date Created: June 24, 1998
• Last Modified: January 27, 2008
• Expires: June 1, 2008