Critical Legal Thought - L6173

Professor Katherine Franke
Spring 2009
Mondays & Wednesdays 1:10-2:30
Room JG 107

The concepts "public law" and "private law," as well the notions of "canon," "field" and "foundational curriculum," all rest on a set of unstated premises for their integrity. Certain legal concepts, forms of reasoning, and values are privileged, while others are marginalized and devalued, if not ignored. Critical Legal Thought will introduce second-semester, first-year law students to a range of critical approaches to law with the goal of giving them tools for testing legal arguments, assertions of legal pedigree, and the underlying normative premises that often make certain legal outcomes seem just, if not inevitable. Further, the constitutive courses of the first-year curriculum will be critically examined.

The first weeks of the semester will examine the underlying structure of "regular law," including the work done by legal positivists, and formalists. From there we will cover critical approaches to the assertion of law's objectivity and rationality. Beginning with Legal Realism and it's progeny Critical Legal Studies, readings will cover Feminist and Critical Race critiques of law's aspiration to objectivity and neutrality. We will then move to examine the foundational curriculum - Torts, Contracts, Criminal Law, Property, and Civil Procedure.

Rather than one final examination at the end of the semester, students will write two papers of approximately ten pages each in which they will be expected to articulate their own critical evaluations of the material covered. The papers will be due on March 13^th and April 30^th. Questions on which you will write will be distributed one week in advance.

Professor Franke's Coordinates:

Office: Room 627
Office Hours: Tuesdays 2-3:30
Phone: 854-0061
E-Mail: kfranke@law.columbia.edu
Professor Franke's Assistant: Rachel Jones, 854-7594, rachel.jones@law.columbia.edu

Syllabus

DeShaney v. Winnebago County

As you read the DeShaney case I want you to be thinking about the following questions:
 

How does Justice Rehnquist see the role of the judge in a hard case?  Do Justices Brennan and Blackmun have different accounts?

What role should sympathy play in the project of finding a just result?  How does the sympathy that a judge might use to inform his or her decision-making relate to the fiction of the "reasonable person"?

Shouldn't legal reasoning be characterized by objectivity, neutrality, predictability and determinacy?  If so, how can sympathy and emotion figure in legal adjudication?

Is finding a just result necessarily the same thing as finding whether or not the plaintiff has a right under the Constitution in this case?  That is to say, is there some daylight between the concept of law and the concept of justice?

What does Justice Blackmun mean when he accuses the majority of the Court of "sterile formalism"?

Should law have a grounding in morality?  Is this what Justice Blackmun means when says that law should have a moral ambition on p. 1012?

Law's Relation to Morality 1.14

• Lord Patrick Devlin, The Enforcement of Morals (1965)
• H.L.A. Hart, "Immorality and Treason," The Listener (1959)
• Excerpt from Jacobellis v. State of Ohio
• Excerpt from Bowers v. Hardwick
• Excerpt from Lawrence v. Texas

Reading Questions:

• When you say: "It is the law that X" - what does putting "It is the law that" in front of X add to the proposition?  Does it, and if so how does it, give you additional reasons for doing X?  How do those who ground the nature of law in morality answer this question?
• How does a natural law approach to legal rules help answer the question: "why ought one obey the law?"
• For natural law theorists, what does it mean for something to be an immoral law?  Or an unjust law?
• What is the relationship between moral validity and legal validity?
• What is the relation of law to morality in the excerpt from Bowers v. Hardwick?
• How does the Supreme Court's approach change in Lawrence v. Texas?  How does Justice Kennedy affect that change?

January 19 - No Class Martin Luther King Day

• Summary of John Austin's Legal Positivism
• H.L.A. Hart, The Concept of Law (1961)
• Riggs v. Palmer, 22 N.E. 188 (NY 1889)

Reading Questions:

• How well does Austin's "command theory" of law describe a legal system such as ours in the U.S.?
• How does Hart frame the weaknesses of Austin's command theory of law?
• Is Hart's concept of law best characterized as an analytic theory of law (a theory in the abstract that offers a generalizable account of what law is in a top down fashion) or as a kind of descriptive sociology (a theory of law the is more bottom up in the sense that offers a coherent description of the social facts of law and would speak to existing and varied social phenomena, accommodate social realities, and 'fit the facts')?
• Does the court in Riggs v. Palmer apply the law to the facts in a manner that accords with Hart's account of law?
• Is Riggs hard or easy case for Hart?

• Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in Scalia, A Matter of Interpretation (1997)
• David Sosa, The Unintentional Fallacy, 86 Cal. L.Rev. 919 (1998)
• Edwards v. Canada

Reading Questions:

• How does Justice Scalia think courts should treat hard cases? What would he consider to be a hard case? How does his view differ from Sosa's view of hard cases?
• What does Justice Scalia see as the source of legitimacy for the law? Why does he attach so much importance to what he terms the "objective intent" of legislators and what does he mean by that phrase?
• How is Sosa's view of legislative intent different from Scalia's?
• What does Scalia see as the role of judges in the legal system? Is Sosa's argument at odds with Scalia's theory about the relationship between judges and democratic institutions?
• What did the Supreme Court of Canada see as its role in the Persons Case, and what method of judicial adjudication did it adopt? Was this any different from the method of adjudication used by the Privy Council on appeal, and if so, how was it different?
• Which elements of the Persons Case reflect textualism? Originalism? Purposivism?
   

Oliver Wendell Holmes and the Roots of Legal Realism 1.28

Oliver Wendell Holmes, Book Review, 14 Am. L. Rev. 234 (1880)

Oliver Wendell Holmes, The Path of the Law (1897)

Lochner v. New York (1905) (Holmes, J., dissenting)

The Legal Realists 2.2

Karl N. Llewellyn, A Realistic Jurisprudence --The Next Step, 30 Colum. L. Rev. 431 (1930)

Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935)

David B. Wilkins, Legal Realism for Lawyers, 104 Harv. L.Rev. 468 (1990)

M. Witmark & Sons v. Fred Fisher Music Co., 125 F2d 949, 954-956 (2d Cir. 1942) (Frank, J., dissenting)

Reading Questions:

• Holmes wrote that "general propositions cannot decide concrete cases" - how do the realists take this insight further than did Holmes?
• How do the Legal Realists formulate and then defend the idea that legal rules are radically indeterminate?
• How would you formulate a "realist" skepticism about the value of any general or abstract theory of law?
• Are they able to avoid the slippery slope to an "anything goes" theory of adjudication?
• If the realists reject rules as a fundamental value in legal reasoning, what do they substitute in their place?  That is, what do they value?
• Wilkins discusses the challenges of realist insights to the problem of legal ethics.  How does realism similarly pose problems for legal education?
• How does Cohen use the idea of a corporation to express indeterminacy of language?
• How does Cohen attack the traditional ideas of objectivity, neutrality, and determinacy?
• What does he offer as a solution to the problems he sees in legal fictions?
• Do you agree that judges disregard or lack insight into the human affairs behind their decisions?
• Does Cohen's critique apply only to things that are difficult to "thingify" or to other concepts we might of think as more concrete?
• What do the Realists see as being gained by focusing on human affairs/human behavior?
• Does drawing the focus away from legal fictions and towards human behavior cure the problems of indeterminacy?
• How does the distinction between real rules and paper rules illuminate the critique of Realists?

 Reconciling Positivism and Natural Law 2.4

• Robert Cover, Justice Accused (1975)
• Miller v. McQuerry, 17 F.Cas. 335 (1853)
• Joseph William Singer, Normative Methods for Lawyers

• Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984)
• Derrick A Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L.Rev. 518 (1980)

• Paul Carrington, Of Law and the River, 34 J. Legal. Educ. 222 (1984)
• Robert W. Gordon, Letter to Paul Carrington, 35 J. Legal Educ. 1 (1985)
• Richard Michael Fischl, The Question That Killed Critical Legal Studies, 17 L. & Soc. Inq. 779 (1992)

Feminist Legal Theory 2.16, 2.18

• Martha Fineman, Gender and Law: Feminist Legal Theory's Role in the New Legal Realism, 2005 Wisc.L. Rev. 405
• Patricia Williams, On Being The Object of Property

• Catharine A. MacKinnon, Sex Equality: On Difference and Dominance
• Katherine Franke, What's Wrong with Sexual Harassment?, 49 Stan.L.Rev. 691 (1997)
• Cheesecake Factory Workers Detail Harassment Claims, Arizona Republic, Dec. 1, 2008

Angela Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan.L.Rev. 581 (1990)

Rogers v. American Airlines, 527 F.Supp. 229 (S.D.N.Y. 1981)

• Derrick Bell, Racial Realism
• Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations

REVIEW FOR FIRST PAPER 3.2

FIRST PAPER TOPIC DISTRIBUTED 3.4 (Due 3.13)

• Paul D. Carrington, Hail! Langdell!, 20 Law & Soc. Inquiry 691 (1995)
• Laura Kalman, To Hell with Langdell! 20 Law & Soc. Inquiry 771 (1995)

• Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1993)
• Ernest J. Weinrib, Can Law Survive Legal Education?, 60 Vand. L. Rev. 401 (2007)

THE MODERN LAW SCHOOL & CURRICULAR/GRADING REFORM 3.11

• A History of the School of Law, Columbia University (1955) 
• Readings on reforms to law school grading
• Barbara Aronstein Black, Something to Remember, Something to Celebrate: Women at Columbia Law School, 102 Colum.L.Rev. 1451 (2002) - optional

March 16 and March 18 - Spring Break

• Trial Record of Palsgraf v. Long Island Railway Co.
• John T. Noonan, Persons and Masks of the Law (2002 ed.) chapter 4
• Richard A. Posner, Cardozo: A Study in Reputation (1990) chapter 3

• Margaret Jane Radin, Compensation and Commensurability, 43 Duke L.J. 56 (1993)
• Eric A. Posner & Cass R. Sunstein, Dollars and Death, 72 U. Chi. L. Rev. 537 (2005)

• Martha Chamallas & Linda Kerber, Women, Mothers and the Law of Frights: A History, 88 Mich.L.Rev. 814 (1990)
• Alderson v. Bonner, 132 P.3d 1261 (Idaho App. 2006)

• Jay M. Feinman, Promissory Estoppel and Judicial Method, 97 Harv. L. Rev. 678 (1984)

• Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 Am Soc. Rev. 55 (1963)
• Sally Falk Moore, Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study, 7 Law & Soc. Rev. 719 (1973)

• Robert Cover, Violence and the Word, 95 Yale L.J. 1601 (1986)

• Peggy C. Davis, Law As Microaggression, 98 Yale L. J. 1559 (1989)
• McClesky v. Kemp, 481 U.S. 277 (1987)

• George Washington's Last Will and Testament www.pbs.org/georgewashington/milestones/free_slaves_read.html
• Letter from Abigail Adams to Mrs. Richard Cranch, Dec. 21, 1800 (handwritten and typed)
  Alice Curtis Desmond, Martha Washington: Our First Lady pp. 297-98 (1943)
• Cheryl Harris, Whiteness as Property, 106 Harv.L.Rev. 1709 (1993)

• Thomas W. Merrill & Henry E. Smith, The Property/Contract Interface, 101 Colum. L. Rev. 773 (2001)
• Patricia J. Williams, The Pain of Word Bondage, in The Alchemy of Race and Rights (1991)

SECOND PAPER TOPIC DISTRIBUTED 4.23 (Due 4.30) - sample final paper questions