Critical Legal Thought - L6173clsbann.gif (4946 bytes)

Professor Katherine Franke
Spring 2011
Mondays & Wednesdays 1:20 - 2:40
Room WJ 104

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.

Students will be evaluated based on class participation, one short paper, and a final open-book take home paper in which they will be expected to articulate their own critical evaluations of the material covered during the semester.

Laptops will not be permitted in this class.

Readings will be available for purchase from the SIPA copy center.

Professor Franke's Coordinates:

Office: Room 627
Office Hours: Wednesdays 3 - 4:30 or by appointment, sign up sheet on my door
Phone: 854-0061
Professor Franke's Assistant: Vina Tran, 854-0167,



Introduction - January 19th

  • DeShaney v. Winnebago County
    Peter Slevin, In Filling Supreme Court Vacancy, Obama Looks for a Jurist With Empathy, Washington Post, May 13, 2009
  • 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 empathy 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 empathy 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 - January 24th

    Reading Questions:

    Legal Positivism - January 26th

    Reading Questions:

    Legal Formalism - January 31st

    Reading Questions:

    Legal Realism

    Oliver Wendell Holmes and the Roots of Legal Realism - February 2nd

  • 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 - February 7th

  • 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:

    Critical Legal Studies - February 9th & 14th

    Return to Norms - Dworkin's Theory of Legal Interpretation For Common Law Courts - February 16th

    Feminist Legal Theory - February 21st & 23rd

     Critical Race Theory - February 28th & March 2nd

  • 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)
  • Law & Society: The Fact/Law Distinction Examined - March 7th

    Hate Speech and the Supreme Court - March 9th

    March 14th & 16th - Spring Break



        March 21st

        March 23rd

        March 28th


        March 30th

        April 4th

    Criminal Law

        April 6th

        April 11th


        April 13th

        April 18th

    How Should Legal Education Adjust to Current Changes in Law Practice?

        April 20th

    Review of Prior Exam Questions  - Sample Questions.pdf   

        April 25th

    FINAL PAPER TOPIC DISTRIBUTED April 25 at 4:00 pm due April 29th at 5:00pm