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Legal History Courses

Constitutional Law and Civil Liberties

  • Administrative Law - We live in an administrative state, populated by thousands of governmental bodies that collectively exercise pervasive authority over the entire economy and the lives of every American. Unlike courts, which enjoy explicit constitutional independence, administrative agencies constitute a constitutionally ambiguous "fourth branch of government." Also unlike courts, most agencies have authority to wield a wide variety of regulatory powers other than adjudication, including rulemaking, licensing, advice-giving, and prosecution. "Administrative law" is the body of constitutional, statutory, Executive, and "common law" principles that constrain and thereby seek to legitimate the exercise of these powers. This course will be a critical examination of these principles. Topics include: the place of agencies in our tripartite structure of government, the choice between rulemaking and adjudication as devices for making policy, procedural requirements for the exercise of various administrative powers, and judicial review of administrative decisions.
  • Advanced Regulatory Law and Policy - The Advanced Regulatory Law and Policy seminar provides a unique educational opportunity for anyone interested in contemporary developments in regulatory law and policy across a variety of issue areas. Throughout the term, seminar participants follow regulatory developments in real time as well as encounter some of the most up-to-date research on regulatory issues. The primary work of the seminar centers around the production of RegBlog, a daily online source of writing about regulatory news, analysis, and opinion. The format of weekly seminars varies, ranging from early lectures on the regulatory process to in-depth discussions of contemporary regulatory issues, and from critique of peer writing samples to analysis of current research articles. Enrollment in the Advanced Regulatory Law and Policy seminar is subject to permission of the instructor. Participants in Advanced Regulatory Law and Policy meet at the same time and location as participants in the Regulatory Law and Policy Seminar. The advanced seminar participants will take a leadership role in producing RegBlog, both preparing their own writing assignments, providing oral presentations about regulatory or writing issues, and conducting a peer editing process overseen by Professor Coglianese. This seminar meets weekly throughout the year, and students in the advanced seminar are expected to enroll in both terms. Starting in 2013-2014, prior enrollment in one or more terms of the Regulatory Law and Policy seminar will be a prerequisite for enrollment in the advanced seminar.
  • Church and State - This course explores the tensions, common interests and political ramifications of religious faith and religious activity in an ostensibly secular society. The course will focus on constitutional issues, including the establishment and free exercises clauses of the federal constitution, and state and federal statutes such as the Religious Land Use and Institutionalized Persons Act. It will also address questions of broad social applicability, including but not limited to compulsory flag salutes, school prayer, religious accommodation for employees, polygamy and same-sex marriage, drugs, ritual slaughter of animals, and government funding of religious freedom in the United States, as well as the development of constitutional doctrine and caselaw. There will be an in-class, open book exam.
  • Comparative Constitutional Law - The field of comparative constitutional law has exploded in the past decade, with many countries experiencing dramatic changes in constitutional governance, and with a sudden growth in the transnational sharing of constitutional ideas. This course will provide an introduction to those developments, and will examine some of the leading constitutional systems of the modern world. The course will be divided into three parts. We shall begin with an historical overview, examining the emergence of modern constitutionalism in the American and French revolutions. Part Two will consider the structural features of the constitutions of several influential states: France, Germany, the UK, with side-glances to South Africa, Japan, Israel, Canada, and India. We shall compare the structure and organization of the state; the nature of courts and of judicial review; the question of federalism; the scope of the legislative power; the “rigidity” of the constitution, and the problem of amendment; and the relationship of the constitution to international law. Part Three will be devoted to questions of individual rights: the protection of racial and religious minorities (e.g. the “head-scarf debate” in France); the prohibition or toleration of hate speech; the question (e.g. in India or South Africa) of “group rights”; the constitutional obligation of the state to provide its citizens with so-called “positive” rights (e.g. to welfare, to employment, to education). In the course of examining these topics, we shall also look at the debate on “global constitutionalism” that has emerged in the past decade, and consider its implications for American constitutional law.
  • Conflict of Laws - A study of the resolution of cases connected to more than one jurisdiction: when different jurisdictions (states or nations) have adopted different substantive rules of law, which should govern? Major topics will include the more significant historical approaches (vested rights and interest analysis); the Second Restatement; the role of the U.S. Constitution in interstate conflicts; international conflicts; and domestic relations.
  • Congress, the Constitution & the Supreme Court - This seminar will examine selected topics of contemporary significance involving Congress’s constitutional relationship to the Supreme Court. It will first address the Senate’s “advice and consent” function in the appointment of Justices—what it entails, how it should be discharged without intruding upon the Court’s independence, and so forth. The seminar will then address, among other topics, the role of congressional fact finding in constitutional adjudication; judicial review and Congress’s powers under Article I (especially its commerce clause); Court-imposed limits on Congress’s enforcement powers under the civil rights amendments; proposed legislation governing the recusal of Justices; congressional control over the Court’s appellate jurisdiction; and legislation requiring the televising of the Court’s proceedings.
  • Constitution Outside of the Courts - In February 2009, Stephen Reinhardt became the first federal judge to rule that section 7 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 (2009), violates the Fifth Amendment’s Due Process Clause. Section 7 defines marriage for purposes of interpreting federal laws, regulations, rules, or agency interpretations to include only heterosexual unions. Remarkably, Judge Reinhardt made this ruling not on behalf of the United States Court of Appeals for the Ninth Circuit, but as the chairman of the Ninth Circuit’s Standing Committee on Federal Public Defenders. In other words, Reinhardt was acting as an administrator, not as a judge. On what, if any, basis can an administrator like Reinhardt legitimately interpret the Constitution differently than the courts? In recent years, legal scholars have shown a vigorous interest in the constitutional interpretations of non-court actors. One branch of this scholarship examines “popular constitutionalism”: how non-court actors, including social movements, Congress, and the President affect judicial doctrine. For many scholars such influence is desirable because it enhances the democratic legitimacy of courts’ constitutional holdings. Another branch of this scholarship analyzes “departmentalism”: the authority of non-court actors, most prominently Congress and the President, to interpret the Constitution differently than the Supreme Court. This course will survey the legal historical and theoretical work on extra-court constitutionalism. Central questions the course will address include: On what bases can government officials—members of Congress, administrators like Reinhardt, and the President—legitimately interpret the Constitution in ways that differ from the courts? If none, how should these officials approach the often gaping interpretive spaces they find between courts’ decisions and the practical applications these officials face? How should courts consider the interpretations of noncourt actors when fashioning constitutional law?
  • Constitutional Change - Over the course of its more than two-hundred year existence, the United States Constitution has been formally amended twenty-seven times with the most significant changes occurring within the first eighty-five years after the original document’s ratification. Despite the relative infrequency of such formal amendments, most scholars agree that our current constitutional regime differs greatly from the regime envisioned by the generation that framed and ratified the original document and that much of this change cannot be explained as the product of formal Article V amendments alone. This seminar will explore how and why constitutional understandings change over time and the legitimacy of constitutional change that occurs outside the mechanisms formally prescribed by Article V. The first part of the course will focus on issues relating to the Article V amendment process, including the potential limitations of Article V as an exclusive mechanism for constitutional change. The second part will focus on the role of the courts, with a particular emphasis on the debate between “originalist” and “living constitutionalist” theories of constitutional interpretation. The third and final part of the course will focus on the role of elected officials and social movements in achieving constitutional change, either through the Article V amendment process or through alternative means. Grading will be based on class attendance and participation (20%), written discussion questions based on the assigned reading (10%) and a final paper (70%).
  • Constitutional Law - A study of basic issues of federal constitutional law. Major topics will be: the role of courts in the interpretation of enforcement of the U.S. Constitution; the scope of federal legislative powers under the Constitution; federalism limitations placed on the powers of state and local governments; individual civil, political, and human rights under the U.S. Constitution, with the primary emphasis on the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
  • Constitutional Litigation - The United States Constitution purports to restrain the actions of state and federal governments. When these restraints are transgressed, the injured parties and their representatives look to the federal courts for remedies. This course considers the legal doctrines that shape the courts' readiness to provide those remedies and the ways in which doctrines are likely to manifest themselves in the course of litigation. Topics include: the availability of damage actions, sovereign and official immunities, jurisdictional problems, abstention, Younger v. Harris and its emanations, standing and issues of institutional litigation. The format is Socratic. Exam will be a takeaway open-book essay.
  • Constitutional Theory - Be advised: The title I tentatively (and prematurely) selected for this seminar – “The Supreme Court and American Democracy” – turns out to be ill-chosen and somewhat misleading. This is a seminar in Constitutional Theory, not (primarily at least) in Supreme Court case law or (primarily at least) political theory and practice. It is a modified version of the seminar I have been teaching for a number of years under the title “Constitutional Theorizing.” It will have three principal segments. The first – entitled “Originalism: Its Prophets, Critics, and Would-Be Hijackers” – is the most intensely controversial battleground among academic constitutionalists, though it has rarely been either decisive or divisive in Supreme Court cases. The second segment will be devoted to a number of the leading non-originalist theorists of constitutional interpretation, including Ronald Dworkin, Cass Sunstein, Richard Posner, John Ely, and others. The third segment is tentatively entitled “The State Legislatures and the Transformation (Destruction?) of American Democracy.” This segment comes closest to the otherwise misleading title of the seminar as a whole. Here we will examine the political and constitutional implications of the impending efforts of state legislatures to replace the current winner-take-all method of allocating electoral votes in Presidential elections with a system that allocates each state’s electors on the basis of (gerrymandered) congressional districts. Students will be given the option of writing a regular term paper (of 20 or 25 pages) due at the end of the course or four shorter (5-10 page) reaction papers at tri-weekly intervals along the way. (Everyone used to choose the latter option but in recent years seem to be leaning to the former.)
  • Criminal Procedure: Prosecution & Adjudication - Traditional criminal procedure courses share two features: First, they treat criminal procedure as a subset of constitutional law. This means that they focus on doctrine and case law, in particular the decisions of the Supreme Court and how the Warren Court expanded defendants’ rights while the Burger and Rehnquist Courts have stayed or reversed this trend. Second, traditional courses focus on jury trials. This course will not be a traditional criminal procedure course. As a former federal prosecutor, my own view is that law schools focus too much on Supreme Court doctrine, ignoring variations among states and how police, prosecutors, and judges implement these rules in the real world. I also think that we should move beyond our obsession with jury trials, which today account for only 4-5% of felony adjudications. The real action today is in charging, plea bargaining, and sentencing, and this course will pay much more attention to these topics. This lecture course will survey post-arrest criminal procedure. Topics will include the right to counsel, charging, double jeopardy, joinder, discovery,guilty pleas, sentencing, and appeals. Time permitting, there will also be selective coverage of jury trials and habeas corpus / collateral review. The final exam will be an eight-hour, open-book exam that students must take on a set date, with two issue-spotting essay questions. For each question, students will receive documents such as a police report, an indictment, and a guilty plea or sentencing transcript and will have to write an appellate brief or a habeas petition / opposition challenging or defending a conviction. The instructor will also take class participation into account in grading and will probably offer an optional oral midterm exam that would count only if it raised a student's final grade. The textbook for this course will be the same one (Miller & Wright, Criminal Procedures 4th ed.) used in the Criminal Procedure: Investigation class. The instructor expects prompt and consistent class attendance. Students must add this class by the first class session, though they may drop the class in the first two weeks but not thereafter, absent exceptional circumstances. This course will not overlap with Constitutional Criminal Procedure (now called Criminal Procedure: Investigation), which covers searches and seizures, Miranda warnings, etc., so those who have taken that course should feel free to take this one as well (and that class is NOT a prerequisite for this one). This course will, however, overlap with the Advanced Criminal Procedure course, so students may not take both. Students may not use laptop computers in this class, except during exam review sessions. Students should focus on listening and responding to the professor and one another instead of trying to transcribe every word spoken in class.
  • Current Issues in Civil Rights Litigation - This course responds to the Carnegie Foundation’s critique of traditional legal education by integrating the teaching of doctrine and skills. Students learn the basic constitutional and 42 U.S.C. Section 1983 statutory doctrines necessary to litigate the most common current constitutional claims, those arising under the 4th, 8th, and 14th Amendments to the Constitution. To help students explore the roles of attorneys in shaping and applying legal doctrine, this course is structured around a series of realistic law practice simulations. Unlike most constitutional law courses, this course focuses on doctrinal development in the federal circuits by exposing students to circuit court decisions, as well as to model jury instructions, appellate oral arguments, appellate briefs, pleadings, expert reports, and other practical materials.
  • Democracy, Judicial Law-Making and Constitutional Law - “Democracy is the worst form of government except all the others that have been tried,” Winston Churchill wryly remarked. Maybe, but is democracy good enough? Students who are interested in judicial clerkships or careers as judges, government advisers, law professors, or politicians may find this course especially useful. We will explore whether democratic decision-making alone is good enough to establish the legitimacy of the law. If not, we will assess to what extent democracy should be constrained by constitutional law and non-constitutional moral values such as fairness and reasonableness. We will then address if democracy, constitutional law constraints, and/or other moral constraints make law legitimate…or legitimate enough to justify allowing each person to have a gun or consigning people to life in prison or even death. Coupled with these issues, the course analyzes the two vastly different mechanisms the United States uses to make law: democratically-elected legislatures and the seemingly undemocratic judiciary. In addition to precedent and constitutional law, the judiciary makes the common law by appealing to moral values such as maximizing welfare or the reasonable person standard rather than ascertaining the will of the people. We will discuss whether judicial appeal to moral values to make the common law can be reconciled with democracy. Readings consist of important legal cases and articles in legal and political theory. Class attendance is important to success in the course. Students will conclude the course by producing a paper.
  • Disability Law - This course surveys the significant laws that protect the civil rights of people with disabilities, with a primary focus on the Americans With Disabilities Act of 1990, the Rehabilitation Act of 1973 and the cases that interpret them. The Individuals With Disabilities in Education Act and the Fair Housing Act Amendments of 1988 will also be addressed in lesser detail. In addition to discussing the doctrine that governs disability discrimination in the United States, the course will also explore the reasons why the disability laws have diverged from traditional Title VII doctrine and the benefits and limitations of the model of discrimination that is encompassed in the disability discrimination laws. Individual class sessions will also address some of the specific obstacles to full equality that exist in the disability context, including our country’s limited social welfare framework and sovereign immunity concerns.
  • Election Law - This class will focus upon the constitutional and election law issues raised by the nomination and election of the President of the United States. We will read relevant cases on the nomination process; portions of a variety of articles and books on the electoral college and how it functioned in 1800, 1824, 1876 and 2000; the issues of succession when a President is assassinated, dies or is disabled; and the grounds for impeachment. We will analyze election administration and how our state-driven electoral process skews national elections; the vagaries of the two-party system; the role of money; and alternatives to the electoral college. A paper of approximately 15 pages is required.
  • Family Law - This course provides an introduction to the legal regulation of families. Topics include state protection of and restrictions on the creation of families (procreation, marriage, and; adoption); rights and obligations imposed on married couples; regulation of the parent and child relationship; and the various incidents of divorce, including property distribution, spousal support, child custody, and child support. We will discuss controversial, cutting-edge legal and policy issues, including legal problems facing same-sex couples and other “nontraditional” families; transracial adoption; and reproduction assisting technologies, such as in vitro fertilization, egg and embryo freezing, and surrogacy.
  • Federal Courts - This course examines the functions, powers and responsibilities of the federal courts, and considers their relationships with state governments and with the executive and legislative branches of the federal government. Topics covered will include justiciability; congressional authority over, and statutory and judge-made limits on, federal jurisdiction; Supreme Court review of state court judgments; federal common law; advanced topics in federal question jurisdiction; suits challenging state and federal government action, and immunities asserted in such suits; and federal habeas corpus. There will be an in-class, open-book essay exam.
  • Federal Indian Law - This course will explore selected theoretical and doctrinal aspects of the field known as federal Indian law. We will study the historical, conceptual and legal roots of tribal sovereignty; the development of federal doctrines concerning the powers of tribal governments; and the current state of federal law concerning tribal legislative, executive and judicial authority. Attention will be given to the division of authority among tribal, federal, and state governments, as well as to questions concerning possible tensions between governmental powers and individual rights. We will consider a number of current issues, which may include land claims; gaming; family law; economic development; religious and cultural rights; and natural resources. The course is open both to Penn Law students and to students enrolled in other Schools at Penn; students who are not enrolled in the Law School will be strongly encouraged to take the course on a “pass/fail” basis if permitted by their home Schools or departments.
  • First Amendment in the 21st Century - The First Amendment's guarantees of freedom of speech, press and assembly occupied a central place in the Supreme Court's docket during the second half of the twentieth century. As the century closed, the"information age" brought new urgency to some elements of the discussion, and began to transform others. This seminar will examine the development of the federal doctrines protecting freedom of expression, and the ways in which these doctrines are likely to occupy the courts in the next decade. Discussion will include problems of incitement and threats, compelled speech, anonymity, libel, obscenity, emotionally abusive speech, intellectual property, privacy, access to public fora and media structure. Students will be expected to prepare a research paper on an issue of free expression, and to present their findings in class.
  • Guantanamo Litigation - The course examines the history of the litigations filed by the detainees at Guantanamo Bay and, in doing so, explores the principal legal issues involved, including the applicability of law-of-war principles to the current struggle against international terrorism, the reach of constitutional protections to aliens beyond our boarders, the importance of habeas corpus as a check on executive detention and on the authority of the political branches in general, and the inter-play between habeas corpus and the individual protections in the Bill of Rights. The course will also examine certain practical issues of lawyering, including the importance of thinking strategically and creatively, the role lawyers can play in the legislative process and the use of the press to affect decisions. The class will be taught in a participatory format relying on the Socratic Method. At least one and perhaps two writing assignments will be required.
  • Immigration Law - This course explores immigration policy and provides a comprehensive overview of the legal framework that regulates the admission and deportation of aliens in the United States. The course begins with a brief review of the history of immigration in the United States, a discussion of the morality of immigration restrictions, an analysis of the economic effects of immigration, and an examination of the constitutional basis for the federal government's power over immigration matters. The course then covers the existing categories of visas, the statutory provisions that can trigger exclusion or deportation, the issue of unauthorized immigration, and the constitutional law regarding restrictions on immigrant access to public benefits. The course explores the constitutional rights of aliens and the corresponding limits to the federal immigration power, including those arising from the First Amendment and from the Due Process Clause.
  • Intellectual Property & National Econ Value Creation - This course will explore the legal structure of intellectual property laws in the United States and select foreign countries and the effect of these laws on the countries national economic development. In this process, we will explore the nature of the correlation between different types of intellectual property laws and national economic development. We will also discuss the quantification of the economic value of different types of intellectual property laws. Lastly, we will engage in a discussion as to whether intellectual property laws can be effective tools for social engineering.
  • International Human Rights - This course provides an overview of the contemporary international human rights regime. The course includes discussion of conceptual and political foundations of human rights law; controversial topics in human rights law, such as humanitarian intervention, universal jurisdiction, and the death penalty; international, regional, and national mechanisms for the making, interpretation, implementation, and enforcement of human rights law, including civil, criminal, and non-legal methods of redress; and challenges to human rights enforcement and strategies for promoting protection of human rights. Grades are based on class participation (20%) and the final examination (80%).
  • Intro to Jurisprudence - The first half of the course will provide an introduction to the main currents of thought about the nature and function of law. It will consider, among other things, the classic problem of the source of law’s authority, exploring whether an unjust law is still a law, and whether law does or ought to bear a close relation to morality. Should Nazi officials or East German border guards be punished if they were “just following orders”? What about the judges who enforced the implementation of such laws? Do the conclusions we would reach in the foregoing contexts apply to the conduct of Americans in dealing with suspected terrorists or other detainees? We will consider the divergent answers to these questions suggested by the work of J.L. Austin, H.L.A. Hart, Ronald Dworkin, Joseph Raz, and others. After addressing these traditional jurisprudential inquiries, we will turn to a more recent philosophical inquiries in philosophy of law. What is the justification for punishment and how do the various debates in this area play out in specific controversial cases? Is torture ever permissible, whether as part of a scheme of punishment or as part of a system of law enforcement? Is targeted killing a permissible part of just war theory? What should be our stance to government officials who violate the law? As we shall see, each one of these applied topics divides into deontologial theorists, on the one hand, and utilitarian, or economic, theorists on the other. We will raise the question of whether these two theories exhaust the possible moves one might make on these various topics, or whether other approaches, such as a contractarian approach, are viable options. The course will require a final, take home exam, as well as attendance, preparation and participation in discussion. The latter will count towards roughly 10% of students’ grades. This is a 1L elective course and 1Ls will receive priority in enrollment.
  • Juvenile Justice Seminar - How are juvenile offenders treated differently from adult offenders? To what extent should they be? These questions provide the focus for examining how the state treats the "aberrant" behavior of children. Students will be introduced to the legal, social, and historical underpinnings of the juvenile justice system in the United States beginning with founding of the juvenile court in 1899 and then-held assumptions about the nature of childhood. We will examine how in the late twentieth century the juvenile court has undergone both ideological and institutional change from its original form. These shifts in theory will be outlined with specific attention to several U.S. Supreme Court decisions that have significantly affected juvenile court, as well as psychological and social science data that have a continuing impact on juvenile court practice and jurisdiction. Throughout the course, students are invited to consider and imagine a future role for the juvenile court as it goes forward. Each class will be co-taught by two adjunct professors who are practitioners in the filed of children's law with particular emphasis in juvenile justice. During the last five classes, weekly reading assignments will be developed by student led teams, who will work with the professors in advance to select appropriate topics, relevant caselaw or other materials, as well as appropriate videos. Student teams will be responsible for leading class discussion on their designated topic. Each student is expected to complete a paper of approximately 10-15 pages in length, on an aspect of the juvenile justice system, as well as short reaction papers and legislative drafting exercises throughout the course. The topic of the paper must be approved by one of the course instructors. Students wishing to satisfy the law school's writing requirement must notify one of the instructors by the fourth week of class.
  • Law and the Holocaust - This course draws together the fields of comparative law, constitutional law, criminal law and procedure, jurisprudence, conflicts of laws, international law, human rights and legal history, and then superimposes them on the history of the Holocaust, to examine the Nazi philosophy of law, emanating from the egregious racial ideology, and how it was used to pervert Germany’s legal system in order to discriminate against, ostracize, dehumanize, and ultimately eliminate, certain classes of people; and then, to study the role of international law in rectifying the damage by bringing perpetrators to justice and constructing a legal system designed to prevent a repetition. The course considers the following topics: 1.) The Holocaust: “Lawful Barbarism”. Overview of the Holocaust, by way of background, and the ways in which it was “anchored” in law. 2.) The Ideology That Made It Possible. Nazi theories of race and the nature and role of the State, and the legal system as an instrument of both. 3.) The Nazi Legal System In Action. Laws passed to give effect to the theories of race, and the role of the judges in interpreting and applying those laws. 4.) Jurisprudential Issues. Parts 2 and 3 above will form the foundation for an exploration of the role of morality in a system of law, through a consideration of academic writings and judicial reflection. An example of the former is the celebrated Hart-Fuller debate, in the pages of the Harvard Law Review; and an example of the latter is the controversial Bernstein litigation, in which the Courts grappled with the effect to be accorded in the US to expropriations of property by the Nazi regime. 5.) Measure For Measure: The Response Of The International Legal System. Consideration of the whole system of international human rights of the post-World War II era, revolving around five major pillars, each of which is a measure-for-measure reaction to the Holocaust: the Universal Declaration of Human Rights; the Genocide Convention; articulation of the two most egregious crimes in the international legal lexicon, Crimes against Humanity and Genocide; the creation of an international forum for bringing perpetrators to justice, namely the Nuremberg Trials; and the United Nations system. 6.) Lessons For The 21st Century. At each point, the perversion of Germany’s legal system will be the launching pad for extraction and consideration of critical lessons for contemporary democracies, as well as for the system of international law as a whole. Teaching in the course revolves around special materials prepared and edited by Professor Reicher. These consist of both primary documents as well as secondary writings. All this is supplemented by video excerpts of original archival footage, documentaries and movies, illustrating a range of themes dealt with in the course. These include: film of the actual Nuremberg Laws being read out; footage of a Nazi criminal court in action: scenes of the Nuremberg and Eichmann Trials; a re-enactment of the Wannsee Conference; a biography of Dr. Josef Mengele, excerpts from Leni Riefenstahl’s classic propaganda film, “Triumph of the Will,” and cross-examination scenes from Stanley Kramer’s classic movie, Judgment at Nuremberg.
  • Law in American Life - Someone once said, “a page of history is worth a volume of logic.” (not just anyone; it was Oliver Wendell Holmes, Jr., in New York Trust Co. v. Eisner (1921)) This course is designed to explore pages of history that might otherwise escape the logician. And at a time when so many fraught legal issues are argued with reference to history, it is more important than ever for students to understand legal history, and how to use it. By integrating primary sources with historical context, the course will explore the ways that legal change has affected life across American history. The course will be conducted primarily in lecture format, and will include readings in primary as well as secondary sources. Topics include (but are not limited to) topics such as blasphemy, witchcraft, mobs, revolution, slavery, immigration, electioneering, incarceration and other inherently interesting and legally important areas of inquiry. In the end, the central aim of this course is to acquaint students with a rich sense of the ways that law has operated to liberate as well as constrain Americans. A 3-day take-away exam at the end of the semester limited to 3,000 words will answer a distinct question that will be targeted to individual students’ interests and arranged between the professor and each student in the class, and will be designed to focus on that student’s interests but also draw on the work of the entire semester. A limited number of students wishing to write a research paper may do so if they clear the topic in advance with the professor. All paper topics must be finalized no later than January 31, and papers will be limited to no more than 3,500 words including notes.
  • Legal Responses to Inequality - This course will study legal material as expressiomg and supporting differing concepts of equality and its role as a social value, rather than as simply part of a course of doctrinal development or a system of analytical reasoning. Its premise is that differences in those concepts are often not recognized, and the contestability and bases of one's approach to equality issues are often not acknowledged. Substantively, the course will include aspects of legal regulation affecting the status of racial, religious and ethnic "minorities," women, gay and lesbian people, and people perceived as disabled, as well as the distribution of wealth and income. It will do this in part by examining "antidiscrimination," "equal protection," or "poverty" law, but will focus also on issues of equality implicit in such mainstream first-year subjects as Procedure and Contracts. This is a 1L elective course and 1Ls will receive priority in enrollment. The course materials will be posted on line prior to the beginning of classes.
  • Legislation - This course examines issues relating to the enactment, application and interpretation of legislation, primarily at the federal level. The course will introduce students to the basic contours of Congressional lawmaking practice, theoretical models of the legislative process, the application and interpretation of statutes by the executive branch, and numerous aspects of judicial statutory interpretation. Students will explore and critique the different methods and canons that courts apply in construing statutes and consider issues such as the appropriate degree of deference to administrative interpretations, judicial use of legislative history in construction, and interaction between the courts and Congress. The basic text will be the Eskridge, Frickey & Garrett casebook, but students will also read selected legal and/or political science articles presenting current theories of legislative process and interpretation, and review examples of current cases and statutory debates. Grades will be based on an examination at the end of the semester. This is a 1L elective course and 1Ls will receive priority in enrollment.
  • Marriage: History & the Law - Historically, little about marriage has remained constant. Legal, cultural, political, economic, and demographic changes have transformed marriage as both a public and a private institution. But marriage remains central in structuring Americans’ private legal relationships and public benefits, intimacy and citizenship. This seminar examines continuity and change in the legal institution of marriage during the second half of the twentieth century. We will study attempts to abolish or reform marriage, to expand access to marriage, to defend various conceptions of marriage, to develop alternatives to marriage, and to make marital status less relevant. Course requirements include weekly response papers, a presentation, and a substantial research paper.
  • Mental Health Law - This course will cover the theoretical, doctrinal and practical issues in mental health law, with special reference to the criminal context. It will also be of interest to students interested in bioethics, health law, family law, and torts.
  • Originalism Debate and the Constitution - For roughly the past thirty years, a great deal of public, academic and judicial discussion of constitutional decision-making has focused on the proper role of originalism in constitutional interpretation. The goal of this seminar is to provide students with a deeper understanding of the originalism debate and its significance to modern constitutional law and politics. Topics covered will include: (1) the historical background of the modern originalism debate, (2) the relationship between originalism, constitutionalism and judicial role, (3) alternatives to originalism, such as common-law, moral, pragmatic and democratic-based theories of judicial review, (4) criticisms and defenses of originalism as an approach to interpretation, (5) methodological debates within originalism regarding the proper object of originalist interpretation (e.g., original intent versus original understanding or meaning) and the permissibility of allowing non-originalist considerations such as stare decisis to influence decision-making, and (6) the role of politics in the originalism debate and the originalism debate’s influence on constitutional politics.
  • Parents, Children and the State - This course is designed to examine the allocation of power between children, parents, and the government both within and outside of the family unit. Rather than providing a survey of family law, this course focuses upon primarily poverty law issues that arise from public institutions designed to promote social welfare and to protect and nurture young people and their families. Students should enter the course with a basic understanding of Constitutional law, along with a desire to explore social welfare through a variety of mediums. This course focuses upon the child welfare system. We begin with the foundational cases that establish both the legal rights and liabilities of parents. We will also examine recent federal legislation regarding termination of parental rights and touch upon adoption policy as it intersects with the foster care system. In exploring the dependency and child welfare systems, we will consider the role that race and class play in abuse and neglect cases and work to define the appropriate parameters of state intervention into the daily lives of families. Finally, we will examine the unique challenges that face counsel for children and parents.
  • Political Philosophy of the Constitution - This seminar will examine the political philosophy of the framers of the Constitution. We shall read some of the works of the Whig political tradition in England (and in particular the essays of Hume) then study selected constitutional writings of the principal Framers, in particular Madison’s Notes of the Constitutional Convention, The Federalist and the writings of James Wilson. The aim will be both to understand the philosophical arguments relied upon by the Framers, and to examine their sources within the wider intellectual history of the eighteenth century.
  • Privacy and Data Protection - This lecture and discussion course explores the role of the law in the regulation of privacy, personal autonomy and access to personal data. Part I of the course examines the origins of state common law privacy law and its subsequent growth. We will consider recent uses of the four common law invasion of privacy torts recognized in most states and by the American Law Institute’s Restatement of (Second) of Torts. Part II takes on the voluminous privacy jurisprudence spawned by the Bill of Rights-- most importantly, the First and Fourth Amendments’ jurisprudence of associational, physical, and informational privacy. What are the values at stake in constitutional privacy controversies; are they the same values at issue in the common law and in discussions of social networking, web-based commerce, cloud computing and government surveillance? Part III explores the federal privacy statutes, a dynamic source of privacy and data protection law. It surveys nearly a dozen federal privacy statutes, covering government record management; health, education, and financial data; video rentals; communications; the internet; and government surveillance. Course evaluation will be based on the final exam. Class attendance is mandatory for all students.
  • Public International Law - This course introduces students to the legal rules and institutions that govern the international political system. The course provides a formal introduction to international law and emphasizes the relationships between law and politics in the behavior of states, institutions, and individuals in world politics. International law is both more relevant and more interesting today than ever before. From the war against terror to the war in Iraq; from the challenges of free trade to the dangers of environmental destruction; from prisoners in Guantanamo Bay to former heads of state appearing in court, international law has a direct bearing on many of the key issues in international affairs. This course examines how international law is created, how it operates, and what effect it has on these and other issues in contemporary international relations. The course begins with an introduction to the nature and structure of the international legal system. Topics include: the subjects and forms of international law, the key institutional actors, the theoretical background to the international legal system, and the relationships between international law and international relations. The second part of the course turns to substantive legal issues. Topics include: international economic law and the debates surrounding the WTO; international criminal law and the International Criminal Court; the protection of human rights; the use of force and the invasions of Kosovo and Iraq; the proliferation of weapons of mass destruction and the future of the United Nations. Additional topics may be added or substituted if international events and student interest so warrant. This is a 1L elective course and 1Ls will have a max of 80 seats (of 110) in the course.
  • Race and the Law in US History - Race and racially based legal rules have been central to American history. This course will examine the interaction between social, cultural, and political constructions of race and legal norms over four centuries. Topics will include the creation of racial ideology in early America; race and the Constitution; antebellum trials of racial determination; the private and public law of slavery; Reconstruction and anti-miscegenation legislation; race and immigration (including Chinese Exclusion, legal constructions of whiteness, Japanese internment, and the category “illegal aliens”); law and civil rights; and affirmative action. Course readings will encompass scholarly articles and monographs; primary sources; and cases.
  • Race, Education and the Law - The seminar will focus on the intersection of race, law and access to systems of education in the United States. United States Supreme Court decisions addressing segregation and voluntary integration, case law from throughout the country and related legislation and policies that impact opportunities at the elementary, secondary, and post-secondary education levels will be examined. Class scholars will engage in significant and critical discourse about educational equity movements of the past and present, the role of government agencies, desegregation and integration, reformation of school systems and operations, the benefits and limits of the law as a vehicle for change, and the challenges faced by advocates. Course readings will be interdisciplinary.
  • Regulatory Law and Policy - This seminar provides a unique educational opportunity for anyone interested in contemporary developments in regulatory law and policy across a variety of issue areas. Throughout the term, seminar participants follow regulatory developments in real time as well as encounter some of the most up-to-date research on regulatory issues. The primary work of the seminar centers around the production of RegBlog, a daily on-line source of writing about regulatory news, analysis, and opinion. The format of weekly seminars varies, ranging from early lectures on the regulatory process to in-depth discussions of contemporary regulatory issues, and from critique of peer writing samples to analysis of current research articles. Seminar participants complete short weekly writing assignments which may be selected for posting on RegBlog through a peer editing process overseen by Professor Coglianese. Participants have the opportunity to focus their work on the regulatory law and policy issues that interest them the most. This seminar meets weekly throughout the year, and students may enroll for the Fall Term, Spring Term, or both terms. The seminar is open to students from outside the law school by permission. Starting in 2013-2014, prior enrollment in one or more terms of the Regulatory Law and Policy seminar will be considered a prerequisite for enrollment in the Advanced Regulatory Law and Policy seminar.
  • Sports Law - This course will focus on many topics in the law of sports. General areas to be covered will include contracts, antitrust, labor, arbitration, constitutional law and amateur athletics. Special attention will be given to antitrust litigation in the National Football League, collective bargaining in professional sports, television issues, franchise movement, Title IX, amateur sports, and the changing concepts of amateurism. It will be helpful if students have taken Antitrust or Labor Law. There will be a takeaway exam.
  • Supreme Court Clinic - Yearlong - Supreme Court Clinic Professors S. Bibas, N. Gordon, and S. Kinnaird Yearlong: Fall 2012 and Spring 2013, 4 credits per semester, MWTh 1-2:50 p.m. Strongly recommended though not required: Supreme Court Practice and Process seminar, LAW 947-001, 3 credits, Fall 2012 Clinic enrollment limited to twelve students This year-long clinic will give students intensive, hands-on experience litigating cases before the Supreme Court of the United States. It is distinct from the Supreme Court Practice and Process seminar, LAW 947-001, which introduces students to the law, politics, and lawyering of the Supreme Court as an institution through a wide array of cases, briefs, and visiting speakers. The clinic, in contrast, will focus on the practical side of identifying and litigating real pending cases. In conjunction with the instructors and Supreme Court lawyers at a major Washington law firm, students will research and identify promising cases for Supreme Court review and take part in strategy sessions and conference calls, learning first-hand the tactical considerations that shape litigating positions and stances. They will then research and write first drafts of certiorari petitions, sections of merits briefs for the parties, and briefs amicus curiae at the certiorari and merits stages. Through intensive research, writing, editing, and rewriting, students will hone their legal-writing skills. Students will travel to Washington D.C. several times each semester to meet with experienced litigators and watch moot courts and oral arguments in the cases on which they have worked. Students must be prepared to commit an average of twelve to fifteen hours per week to the clinic throughout the entire academic year, though the load will probably be lighter right around the final examinations period. Students ordinarily may not drop or add this course without the instructor's permission. Attendance is required and will factor into students' grades. The clinic will meet on average twice a week--more when the clinic is busy and less when there are few deadlines approaching. Much communication and instruction will happen by email, in small-group meetings, and in conference calls. Classes will be not lectures but seminar-style discussions and teamwork on group projects.
  • Supreme Court Practice and Process - Decisions of the Supreme Court are thought simply to reflect the Justices' views of the merits of the legal issues before the Court. But the results often are heavily influenced by the particulars of the process that leads up to the decision. This seminar will study the Supreme Court primarily from the point of view of the advocacy process that precedes and influences the Court’s decisions, but we will also look into selected aspects of the Court’s internal decisionmaking process. The course will examine the nature of effective advocacy before the Court and the ways in which advocates’ strategies may (or may not) influence the Court at each stage of a case – the petition for certiorari and brief in opposition; merits briefs by petitioner and respondent; and oral argument. The course will consider the influence of amici at each stage as well as the special role of the Solicitor General's office. The course will also examine some aspects of the Court’s process that do not relate to advocacy, such as the role of law clerks, the nature and extent of collegial decisionmaking at the Court, and the confirmation process for new Justices. Materials will include actual petitions, briefs, and oral arguments from recent and pending Supreme Court cases, as well as secondary sources. The course will include consideration of one or more cases currently before the Court, with a trip to the Court to hear an oral argument if feasible. Course sessions will include guest lectures by experienced Supreme Court advocates and others involved with Supreme Court litigation. Course requirements: to be determined, but will include drafting one or more documents based on filings in actual Supreme Court cases, and possibly an analysis of an oral argument.
  • Supreme Court: Great Cases - Class discussion will, for the most part, focus on selected cases which, over the Supreme Court's two centuries, have seemed to define (for better or worse) the Court's perception, and implementation, of its appropriate role in the governance of the United States. In addition to participating actively in class discussions, each member of the seminar will prepare a relatively brief (in the twenty-five to thirty page range, not more) term paper. As predicate for the term paper, an oral report (with an outline circulated in advance) will tell fellow seminar members about your subject. The term paper might address (1) the impact (or, possibly, the lack thereof) on the Court's work of a reasonably prominent judge, lawyer, professor, or political figure, or (2) an examination of themes given short shrift (or no shrift at all) in the cases assigned for class discussion. The seminar sessions will be in my chambers at the U.S. Courthouse, not at the Law School.
  • Technology and Policy - This course will explore the various legal regimes that apply to the Internet. Topics will include FCC regulation of the Internet, network neutrality, voice over Internet protocol, backbone regulation, pornography, municipal broadband and the digital divide, ICANN, the Digital Millennium Copyright Act, cybersquatting, the use of trademarks in domain names, file sharing, regulation of search engines, and privacy.
  • Topics in Defamation - This course is meant to be an introduction to the basics of the law of defamation, and to current areas of controversy as the law continues to develop and new media emerge. A prior class dealing with First Amendment issues would be helpful, but is neither required nor necessary.

Perspectives on the Law

  • Advanced Legal Research - Advanced Legal Research. 2 sem. hr. George and Greenlee. QIII. Spring. This course is designed to permit students to master the legal research skills they started exploring in the first year legal writing course. An emphasis will be placed on problem analysis and efficient research strategies, including the ability to take full advantage of all the options the various online sources offer. Topics covered include administrative materials, legislative history, specialized subject resources, the use of indices and controlled vocabularies, and electronic resources beyond Westlaw and Lexis. The course will also explore business-related sources and databases such as Bloomberg. The course is strongly recommended for anyone wanting to strengthen his or her skills with legal research for whatever reason, including serving as a Legal Writing Instructor or as an editor journal or preparing for employment during the summer or after graduation. A substantial portion of the class will be spent with research problems in class. Students will have one or two brief team projects outside of class and will complete a 20-25 page pathfinder or hypothetical problem on a topic of their choice. A pathfinder is a bibliographic/legal essay recommending a research strategy on a particular topic and will permit you to explore all the resources in depth on a topic of your own interest. The alternative to the pathfinder is a hypothetical problem such as researching the business and legal issues related to opening a particular business, ranging from exploring the business market to identifying the applicable laws and necessary legal documents. The pathfinder or hypothetical problem will be due approximately one month after the last class.
  • American Trials - This course will examine prominent trials of the 20th century that influenced and were influenced by our culture. The course will be interdisciplinary. We will read and view actual trial materials as well as literature, journalism, history, and films that grew out of the trials. The goal is to discuss the ways in which the lawyers molded the stories they told to fit the time, politically and socially, and how the trial itself then affected society and was depicted in various media. The reading for the course will be heavy but enjoyable, and films may be screened outside the normal class time. Consistent class preparation, participation, and attendance are required. Students will write six reflection papers and give one presentation on a trial they choose. Five of the papers will be short (3-4 pages), and one will be longer (6-10 pages). Students are encouraged to collaborate on the presentation with one or more partners. With the permission of the instructor, a 20-page seminar paper may be written in lieu of three of the papers to fulfill the senior writing requirement. Drop/add will end on Friday, January 14 at 4:00 p.m.
  • Animal Law and Ethics - This seminar course will focus both on fundamental legal and ethical questions, including human duties toward animals and whether conceiving of rights for animals is appropriate, as well as on an understanding of the current legal and administrative rules regulating the relationship between humans and animals. All viewpoints are welcome. We will discuss the varying viewpoints expressed by animal advocates, generally falling into the category of either "animal welfare" or "animal rights" positions. We will discuss the fact that nonhuman animals are considered property under the law and currently have no legal rights, per se, and only limited legal "protections." Discussion of animal rights will necessarily entail an examination of the sources and characteristics of fundamental rights, why animals have historically been denied them, and whether legal rights are appropriately limited to humans. Further, we will discuss whether, if any such rights were recognized, what nonhuman animals should be entitled to them and, if so, to which legal rights they should be entitled. The class will also consider such issues as establishing standing to bring suits on behalf of animals, constitutional issues raised in animal protection cases and an analysis of the law and policy behind the protections afforded (or not afforded) animals under various federal and state laws. We will examine the content and enforcement of state anticruelty laws, the Endangered Species Act, the Federal Animal Welfare Act and accompanying regulations. The seminar will also include environmental issues as they relate to animals including habitat protection, invasive species conflicts and the environmental effects of food animal production. We will have guest speakers for several sessions. In the past, these speakers have included including litigators and legislative advocates from the Humane Society of the United States and public interest law firms, a prosecutor who specializes in animal fighting, and leading legal scholars on animal ethics. Two papers will be submitted in lieu of a final exam. There may also be a group project or presentation to make things more interesting. As this course is intended, in part, as an opportunity to engage in an open dialogue on the potential for developments in this nascent area of law, attendance and participation in class discussion is crucial and laptops are not permitted.
  • Approaches to Islamic Law - This course aims to introduce students to the study of Islamic law, the all-embracing sacred law of Islam. In this course we will attempt to consider many different facets of the historical, doctrinal, institutional and social complexity of Islamic law. In addition, the various approaches that have been taken to the study of these aspects of Islamic law will be analyzed. The focus will be mostly, though not exclusively, on classical Islamic law. Specific topics covered include the beginnings of legal thought in Islam, various areas of Islamic positive law (substantive law), public and private legal institutions, Islamic legal theory, and issues in the contemporary development and application of Islamic law.
  • Bok Course: Executive Compensation Before and After the Crisis - What do the German Mannesmann CEO Klaus Esser and Mickey Mouse have in common? The hostile takeover of the Mannesmann AG by Vodafone in 2000 marked a turning point in the German corporate governance model. The ensuing Mannesmann case before German courts and the long-lasting Disney litigation in the US shall serve as the point of departure for the comparative study of the un¬derlying systems of executive compensation. It will shed some light on the contrast between the respective corporate governance systems and the need for comparative research. Ever since the recent global financial crisis corporate governance reform is on the political agenda again and executive compensation in particular has been the subject of fierce academic and public debate because of the potential contribution of top managers’ incentives to the upheaval. Executive pay will therefore serve as an exemplary field of study in comparative corporate governance throughout this course. This course examines recent trends in comparative corporate governance and explores fundamental differences of executive compensation in different corporate governance systems. To this purpose, this course begins with a contextual overview of ‘systems’ of corporate governance, which material is then applied in the following sessions on the topic of executive compensation. Therefore, the course will analyze the historical and theoretical context of executive pay, looking at the recent academic discus¬sion about the bargaining situation for management contracts. Furthermore, the implications for executive pay levels and its structure will be studied. At the same time, the course will focus on the interplay of governance tech¬niques, reviewing relevant corporate law in the US, the UK, Germany and possibly other jurisdictions as well as the various pieces of EU legislation in this field, and discuss the effectiveness of government regulation of executive compensation. The approach taken is both functional and comparative. The course seeks to situate these solutions in the underlying concepts and assumptions of the chosen systems, as these often provide an explanation for divergences. The class will mainly focus on listed companies. The course assumes students have some knowledge of the basic structure of corporate laws (regardless of jurisdiction). As this class meets for three weeks (10/22 - 11/9) students. The 2 week add/drop period does not apply.
  • Bok Course: The Making of European Law - This course examines the structure and process of lawmaking in the contemporary European Union. We will begin by comparing the multilevel European governance structure with traditional federalist models, particularly the U.S. We will then focus on contract law as a particularly effective case study of European lawmaking in action. We will examine the evolving combination of hard law, soft law, and privately-made law that governs contracting in the EU, and how these bodies of law emerge from legislation, the courts, and private standard setting bodies designing standard contract forms, all acting both at the European level and within the individual states. Topics to be explored include (1) allocation between the EU and the member states of the competence to legislate in the field of contract and consumer law following enactment of the Lisbon Treaty; (2) choosing between hard and soft law, and between legislation and private law making; (3) the relationship between legislation and the European Court of Justice in making contract law; (4) coordination between EU legislation, Member State implementation .
  • China & International Human Rights Law - China officially accepts the existence of universal international human rights norms and has acceded to many of the major international legal instruments governing human rights, has signed others and has participated extensively in the United Nations Human Rights Council and other components of the international human rights regime. Yet, the People’s Republic’s human rights record faces serious, extensive and multifaceted criticisms from Chinese sources, international human rights NGOs and foreign states, including the United States State Department’s annual China Human Rights Report. China’s responses (both official and unofficial) have ranged widely, from disputing over the facts, to debating the content, priority and interpretation of applicable human rights norms, to arguing about internationally legally permissible means for promoting or protecting human rights, to critiquing the record of governments that criticize China. This seminar will address and examine these issues through a brief review of Chinese approaches to human rights in the pre-1990s period and a much more extensive consideration of relatively contemporary primary sources, Chinese and foreign reports, and Chinese and foreign scholarship. Although the course emphasizes themes and patterns in Chinese approaches to international human rights, selected issues and areas of human rights and law in China will receive more in-depth attention, partly from several guest speakers expert in subfields of Chinese human rights. The principal requirement for the course is a final paper on a topic concerning China and international human rights law. Class participation also counts in grading, including through service on panels that will focus on particular weeks and topics. To accommodate guest speakers, it may on rare occasion be necessary to schedule a "make up" session outside the usual class period. These will be scheduled to minimize conflicts.
  • Chinese Law - Since the late 1970s, Chinese laws and legal institutions have developed rapidly, if unevenly, amid—and in response to—China’s rapid economic transformation and deepening integration the outside world, and the social and political challenges and consequences that this “reform” and “opening” have produced. This course focuses on the post-1978 Reform Era, with primary attention to recent and current developments and with some consideration of the pre-Reform Era. The course focuses on key areas of Chinese law that are analogous to major areas of American law, including criminal law (and other means of social control), contracts (and other means for promoting and structuring economic relationships), property rights (and their relationship to economic change and their political consequences), torts (and torts’ relationship to public safety and health-related regulation), constitutional and administrative law (and other issues of law and public accountability), and the role of courts (including in handling civil disputes). Throughout, political, economic and social contexts are emphasized. Significant portions of the course will be co-taught with Visiting Professors Fu Hualing (University of Hong Kong) and Wang Xixin (Peking University). Cross-registrants from other schools welcome. The exam will be open-book, essay. It will be take-home with a length limit. Class participation (depending on the size of the class, possibly partly in the form of panels for specific weeks and topics) will count toward the final grade.
  • Church and State - This course explores the tensions, common interests and political ramifications of religious faith and religious activity in an ostensibly secular society. The course will focus on constitutional issues, including the establishment and free exercises clauses of the federal constitution, and state and federal statutes such as the Religious Land Use and Institutionalized Persons Act. It will also address questions of broad social applicability, including but not limited to compulsory flag salutes, school prayer, religious accommodation for employees, polygamy and same-sex marriage, drugs, ritual slaughter of animals, and government funding of religious freedom in the United States, as well as the development of constitutional doctrine and caselaw. There will be an in-class, open book exam.
  • Client Leverage & Law Firm Management - This seminar will focus on an gaining understanding of the business aspects of the practice of law, with a specific concentration on client demands, client service, fee structures, compensation models, professional development initiatives and the professional skills it takes to succeed within a law firm structure. Through the proposed readings, class discussions, and problem solving exercises, students will focus on their communication, entrepreneurial, and creative problem solving skills, which are vital to success as practicing professionals. Upon completion of the course, students will have a better understanding of the management challenges that face law firm leaders and the different roles within the law firm organizational dynamic. Students will also walk away with a more acute understanding of, and having practiced, the professionalism skills necessary to excel in a law firm structure. Students will be evaluated and graded at the end of the course through a problem solving exercise, which will require a proposed solution to a problem based on one of the topics covered. In addition to drafting a written response to the problem, students will also make an oral presentation to the group.
  • Comparative Constitutional Law - The field of comparative constitutional law has exploded in the past decade, with many countries experiencing dramatic changes in constitutional governance, and with a sudden growth in the transnational sharing of constitutional ideas. This course will provide an introduction to those developments, and will examine some of the leading constitutional systems of the modern world. The course will be divided into three parts. We shall begin with an historical overview, examining the emergence of modern constitutionalism in the American and French revolutions. Part Two will consider the structural features of the constitutions of several influential states: France, Germany, the UK, with side-glances to South Africa, Japan, Israel, Canada, and India. We shall compare the structure and organization of the state; the nature of courts and of judicial review; the question of federalism; the scope of the legislative power; the “rigidity” of the constitution, and the problem of amendment; and the relationship of the constitution to international law. Part Three will be devoted to questions of individual rights: the protection of racial and religious minorities (e.g. the “head-scarf debate” in France); the prohibition or toleration of hate speech; the question (e.g. in India or South Africa) of “group rights”; the constitutional obligation of the state to provide its citizens with so-called “positive” rights (e.g. to welfare, to employment, to education). In the course of examining these topics, we shall also look at the debate on “global constitutionalism” that has emerged in the past decade, and consider its implications for American constitutional law.
  • Congress, the Constitution & the Supreme Court - This seminar will examine selected topics of contemporary significance involving Congress’s constitutional relationship to the Supreme Court. It will first address the Senate’s “advice and consent” function in the appointment of Justices—what it entails, how it should be discharged without intruding upon the Court’s independence, and so forth. The seminar will then address, among other topics, the role of congressional fact finding in constitutional adjudication; judicial review and Congress’s powers under Article I (especially its commerce clause); Court-imposed limits on Congress’s enforcement powers under the civil rights amendments; proposed legislation governing the recusal of Justices; congressional control over the Court’s appellate jurisdiction; and legislation requiring the televising of the Court’s proceedings.
  • Constitution Outside of the Courts - In February 2009, Stephen Reinhardt became the first federal judge to rule that section 7 of the Defense of Marriage Act (DOMA), 1 U.S.C. § 7 (2009), violates the Fifth Amendment’s Due Process Clause. Section 7 defines marriage for purposes of interpreting federal laws, regulations, rules, or agency interpretations to include only heterosexual unions. Remarkably, Judge Reinhardt made this ruling not on behalf of the United States Court of Appeals for the Ninth Circuit, but as the chairman of the Ninth Circuit’s Standing Committee on Federal Public Defenders. In other words, Reinhardt was acting as an administrator, not as a judge. On what, if any, basis can an administrator like Reinhardt legitimately interpret the Constitution differently than the courts? In recent years, legal scholars have shown a vigorous interest in the constitutional interpretations of non-court actors. One branch of this scholarship examines “popular constitutionalism”: how non-court actors, including social movements, Congress, and the President affect judicial doctrine. For many scholars such influence is desirable because it enhances the democratic legitimacy of courts’ constitutional holdings. Another branch of this scholarship analyzes “departmentalism”: the authority of non-court actors, most prominently Congress and the President, to interpret the Constitution differently than the Supreme Court. This course will survey the legal historical and theoretical work on extra-court constitutionalism. Central questions the course will address include: On what bases can government officials—members of Congress, administrators like Reinhardt, and the President—legitimately interpret the Constitution in ways that differ from the courts? If none, how should these officials approach the often gaping interpretive spaces they find between courts’ decisions and the practical applications these officials face? How should courts consider the interpretations of noncourt actors when fashioning constitutional law?
  • Contemporary Theories of Distributive Justice - Our central concern in this seminar will be with the range and diversity of modern theories of distributive justice. Students will be expected to attend class regularly and be prepared to discuss the readings. We will begin with an overview of John Rawls’’ landmark theory of justice, and consider some powerful criticisms that have been offered of Rawls’’ view. We will then examine a number of different contemporary versions of distributive justice, including egalitarianism, prioritarianism, libertarianism, and luck-egalitarianism. In the course of this examination we will read work by, among others, Derek Parfit, Amartya Sen, Ronald Dworkin, Robert Nozick, G.A. Cohen, Elizabeth Anderson and Samuel Scheffler. Finally, we will read excerpts from Cohen’’s book Self-Ownership, Freedom and Equality, in which Cohen offers an internal critique of Nozick's version of libertarianism.
  • Crimmigration - This seminar will focus on the historical and current relationship between criminal and immigration law. We will focus on specific grounds of deportation and inadmissibility related to criminal conduct, case law, and statutory analysis relating to these provisions of the Immigration and Nationality Act. We will analyze the laws, policies, and constitutionality of retroactive application of the immigration statutes and mandatory detention of non-citizens convicted of crimes. We will also consider the effect that prior Sixth Amendment case law and legislative acts have had on criminal lawyers’ obligation to advise immigrants of the consequences of their pleas and what effect, if any, Padilla v. Kentucky has had on the right to effective assistance of counsel. We will discuss current federal, state and local governmental immigration policies, including immigration raids, local enforcement and cooperation with the Department of Homeland Security and local ordinances aimed at businesses and employers. Throughout the seminar, we will discuss issues of race, national origin, and ethnicity and its relationship, if any, to the increased use of the criminal justice system to enforce immigration law on the basis of national security and public safety. The seminar will include class discussion, lectures, simulations, and outside speakers. Attendance, preparation and class participation are essential. Grade will be based on contribution to class discussion, short response papers and in-class presentation.
  • Democracy, Judicial Law-Making and Constitutional Law - “Democracy is the worst form of government except all the others that have been tried,” Winston Churchill wryly remarked. Maybe, but is democracy good enough? Students who are interested in judicial clerkships or careers as judges, government advisers, law professors, or politicians may find this course especially useful. We will explore whether democratic decision-making alone is good enough to establish the legitimacy of the law. If not, we will assess to what extent democracy should be constrained by constitutional law and non-constitutional moral values such as fairness and reasonableness. We will then address if democracy, constitutional law constraints, and/or other moral constraints make law legitimate…or legitimate enough to justify allowing each person to have a gun or consigning people to life in prison or even death. Coupled with these issues, the course analyzes the two vastly different mechanisms the United States uses to make law: democratically-elected legislatures and the seemingly undemocratic judiciary. In addition to precedent and constitutional law, the judiciary makes the common law by appealing to moral values such as maximizing welfare or the reasonable person standard rather than ascertaining the will of the people. We will discuss whether judicial appeal to moral values to make the common law can be reconciled with democracy. Readings consist of important legal cases and articles in legal and political theory. Class attendance is important to success in the course. Students will conclude the course by producing a paper.
  • Directed Reading Seminar - 2-credit, pass/fail independent “directed reading” seminar on cross-disciplinary research at the intersection of law, religion, and science, please read on. The seminar will study the concept of the survival of the human species, and within it, the law of human survival. The core text of the course will be a book manuscript written by Bill Draper, who will attend and will facilitate discussion. We will use the manuscript as a starting point for ideas to be explored in class. Professors Howard Lesnick and David Skeel will provide oversight for the course. What is the concept of human survival? It is rooted in the global environmental crisis. In short, there is a combination of too much population, too much consumption, and too much pollution for the human species to last long given our current trajectory. The course will consider aspects of economics, science, religion, and law in relation to a longer-term future for the species. We will first address the following “pre-legal” factors: 1) the connections between risk and extinction, and the relationship between property rights and life rights in neo-classical economics; 2) the scientific concept of collapse, which sees the lives of billions as a potential casualty in this century; 3) the concept of extinction, and the psychology of denial, including their connections with religion, particularly Christianity; and 4) the costs of survival, based on computer-generated scenarios and the teachings of psychology and philosophy. We then will look directly at questions of law and policy, including: 1) the rights, duties, and structures of international law, in light of the global nature of the problem; 2) the compatibility of religion with the survival of the species, the significance of Western Christian notions of dominion, and other connections between religion and the environment (and between religion and population growth); and 3) actual and potential conflicts between survival and law as it exists today, with issues arising concerning the U.S. Constitution, contracts, corporate law, health law, and torts.
  • Education Law - The Education Law seminar will offer a broad overview of the field of education law and policy while allowing students significant time to delve into specific cutting-edge issues that are shaping the field today. The goals of the course will be threefold: 1. to provide students with background knowledge and a broad survey of the field; 2. to create a space for deep exploration and discussion of key issues in the national education debate today; and 3. to develop students’ understanding of the opportunities that exist for future scholarly work and/or career positions in this area. The course will involve case reading as well as scholarly articles, policy briefs and media sources. Expert guest lecturers will be invited to lead and join the discussion on a periodic basis and students will participate in hands-on simulations and projects during class-time. Students will be expected to complete a minimum number of analytical response papers to the weekly reading throughout the semester and the final assessment will be a take-home exam.
  • Family Law - This course provides an introduction to the legal regulation of families. Topics include state protection of and restrictions on the creation of families (procreation, marriage, and; adoption); rights and obligations imposed on married couples; regulation of the parent and child relationship; and the various incidents of divorce, including property distribution, spousal support, child custody, and child support. We will discuss controversial, cutting-edge legal and policy issues, including legal problems facing same-sex couples and other “nontraditional” families; transracial adoption; and reproduction assisting technologies, such as in vitro fertilization, egg and embryo freezing, and surrogacy.
  • Fiction Writing About the Law - Lawyers are paid to tell their clients’ stories. Being a good storyteller—understanding pace, characterization and narrative structure—is in some ways as important as understanding procedure or substantive law. One can gain legal knowledge from books, but storytelling takes practice. The first aim of this class, then, is to hone storytelling skills, to learn how to present a compelling narrative. But fiction teaches us more than just technique. A good story or novel challenges our sense of the world and of our part in it. What is it to be human? What makes people love or cease to love? What causes people to step over society’s limits, to step outside the law? Why do people invoke the law against others, and why do people dread and fear that law will be used against them? What is the meaning of this omnipresent human construct, and why does something that at its base is imaginary take on such a terrifying force in society? The second aim of this course is to expose students to the fictional answers offered by some published writers and, more important, to offer them a chance to think about and express their own conclusions about life. Third, knowledge of fiction—how it achieves its effects, what it aims for, how it succeeds or fails—is an important piece of general knowledge. It is my hope that this course will add to your enjoyment of reading novels and stories and so deepen the general education that is very important to lawyers if they are to fulfill their traditional role as members of a learned profession.
  • Foundations of International Law - This course aims to investigate international law’s foundations and underlying normative structure. We will consider such topics as whether groups such as human rights organizations ought to have standing under international law; whether international law ought to apply to sub and super-national bodies such as militia groups, internal regions, and multi-national corporations; whether international law provides a legitimate constraint on the self-interested behavior of states or is just “politics by other means”; the role of human rights in the justification of international law; the conditions under which the international use of force may be justified; and other related issues. While many law students are exposed to questions from “general” jurisprudence (the basic “what is law?” question), and many will be exposed to “special” jurisprudential issues in specific areas such as tort theory or criminal law theory, there has traditionally been much less focus on foundational issues relating specifically to international law. This course seeks to remedy this deficiency. To this end we will consider both contemporary and classic sources dealing with these issues. There are no formal prerequisites for this course but some background in reading philosophical texts or international law will be useful. The course requires participation, especially being ready to discuss the assigned readings, a short presentation, and a seminar paper of roughly 25 pages. The textbooks are available at the PENN BOOK CENTER, across Sansom Street from the School. NOTE: This is NOT the University (Barnes & Noble) Bookstore.
  • Freedom & Responsibility Seminar - The seminar will read two important new books that address problems of responsibility. Attendance, preparation and consistent participation are required. A paper limited to 15 pages on any related topic the student chooses is required. A longer paper can also satisfy the senior writing requirement.
  • GRS: Private Law, Nation-building & Economic Growth - This Global Research Seminar will examine the connection between different areas of private law (i.e., the law governing private interactions between citizens) and a nation’s realization of its social and economic objectives, through a comparative study of the private law of India. The course will focus on understanding the private law of India using some of the methods, techniques, and approaches used in the study of private law areas in the U.S. The seminar will approach the study of Indian private law from a comparative perspective, and examine how distinct areas of private law developed differently in the U.S. and India after they were transplanted to both countries from England. In carrying out the comparison, our focus will be on understanding how Indian courts and law-makers use private law as a mechanism of achieving certain policy goals, and what this means for the traditional divide between private and public law. The areas of Indian private law that we will discuss in this class will include: (i) tort law, (ii) contract law, (iii) the law of property, (iv) the law relating to private remedies, (v) the law of corporations, (vi) intellectual property law, and (vii) antitrust law. There are no pre-requisites for enrolling in the seminar. No prior knowledge of Indian law or of the substantive areas that we will discuss is needed. Over Spring Break in 2013, the class will undertake a 7-day field visit to India. In India, we will visit New Delhi, and meet with Indian lawyers, judges, legislators, regulators, and scholars to observe how some of the private law areas discussed in class, actually work in practice. The field trip is a mandatory part of this class, and students unable to commit to the trip over Spring break should not enroll. This class is open to 2L, 3L , and LL.M students. In order to be considered for the seminar, students must submit a short personal statement (of no more than 1,000 words) describing their reasons for wanting to take this class and their interest in the topic.
  • Global Antitrust - Modern antitrust law is becoming increasingly global. Cartels in one nation affect supply in others. As the parallel cases against Microsoft in the U.S. and the EU demonstrate, antitrust authorities can take widely divergent views of the permissibility of unilateral action. Mergers between large corporations must typically get approval in both the United States and in Europe. Countries are increasingly entering into agreements about the enforcement of competition laws. Thus, businesspeople, lawyers, and lawmakers can no longer content themselves with understanding only the antitrust and competition law of their home country. This course will examine EC competition law cases and decisions within an analytical framework strongly based on economic theory. Scheduled topics include horizontal restraints, monopolization, vertical restraints, proof of anticompetitive agreement, mergers, and international enforcement. The introductory course on antitrust is a prerequisite.
  • Human Rights Lawyering in the 21st Century - This seminar will introduce students to human rights lawyering in the present day, grounded in the historical development of human rights law and contemporary case studies. The seminar will also look at the role critical theory has played and continues to play in shaping the development of human rights. In addition to examining the law and theory underlying human rights movements and advocacy, the seminar will provide students the opportunity to critically examine the practice of human rights law through simulated and actual human rights research and advocacy projects. Students will engage in research, writing and strategic planning, and the drafting of advocacy documents, and will have the opportunity to work in collaboration with different partner organizations in doing so. There are no prerequisites, though an introductory course in international law would be beneficial. Class participation is mandatory. In lieu of mid-term or final examination, students will complete a final project of their selection, with supervision and guidance provided by the professor and fellow classmates.
  • IP & Corporate Lawyering - This course acclimates students to the perspective of intellectual property as a business asset and teaches how to use the law and lawyering skills to achieve business objectives. The course is particularly suited for students who plan to become corporate transactional lawyers and seek a deeper understanding of laws applicable to key assets of most businesses, as well as for students who plan to become intellectual property specialists and seek a broader understanding of the context in which they will practice their specialty. Underscoring the core corporate lawyering principle that lawyers must know their clients’ businesses to represent clients most effectively, the course explores the strategic utilization of intellectual property laws in an organization’s business objectives. For example, we will examine when and how corporations use trademarks, copyright, trade secrets and patents to advance and protect their products and services in the marketplace. Examples include the business assessment underlying an enterprise’s decisions regarding its trademark strategy, when to pursue patent protection versus trade secret protection, and how to navigate the ever-changing legal terrain that surrounds many new technologies. Students will have the opportunity to prepare and present strategy recommendations and relevant intellectual property filings for business case studies and hypothetical scenarios. Students must complete a final group project and write an end of semester paper. An introductory intellectual property course is a prerequisite.
  • Intellectual Property & National Econ Value Creation - This course will explore the legal structure of intellectual property laws in the United States and select foreign countries and the effect of these laws on the countries national economic development. In this process, we will explore the nature of the correlation between different types of intellectual property laws and national economic development. We will also discuss the quantification of the economic value of different types of intellectual property laws. Lastly, we will engage in a discussion as to whether intellectual property laws can be effective tools for social engineering.
  • Intention & the Law - In this seminar we will explore the role of intention in the law. We will discuss the relevance of intention to culpability, responsibility and legal liability in different parts of the law. Areas of the law we will study from this angle include contracts, torts, criminal law, corporate law, employment law and constitutional law. Students will present a short paper in an assigned week and submit a final paper on an approved topic on the last day of class.
  • International Communication: Power & Flow - This class deals with basic questions about the relationship of the state to the flow of words and images within its boundaries. We start with a discussion of two somewhat competing paradigms--the paradigm of free expression and the paradigm (somewhat difficult to articulate) of national identity, conflict management, and sovereignty. We will discuss what I'm calling the 'institutional foundations' of the various starting points. I'll outline a more descriptive way of approaching the issues of power and flow, relying in part on my model of a 'market for loyalties. We will be interested in how systems and influences affect distribution of images and messages (some version of power), and how those images and messages impact public opinion with implications for stability, democratic growth or other political forms (some version of flow). This class deals with ways of comparing media systems and with the relationship between such systems and technological and political developments. A central issue in the class--relating to institutional foundations and overall theories of speech--has to do with the efforts of one state to affect the media space or flow of images in another. Much of the class then relates to modes of applying or observing the working of these competing forces to shape allegiances. We will take advantage of various events in the life of the Center for Global Communication Studies, visitors to the Center, and possible projects and adjust the syllabus accordingly.
  • International Human Rights - This course provides an overview of the contemporary international human rights regime. The course includes discussion of conceptual and political foundations of human rights law; controversial topics in human rights law, such as humanitarian intervention, universal jurisdiction, and the death penalty; international, regional, and national mechanisms for the making, interpretation, implementation, and enforcement of human rights law, including civil, criminal, and non-legal methods of redress; and challenges to human rights enforcement and strategies for promoting protection of human rights. Grades are based on class participation (20%) and the final examination (80%).
  • Intro to IP Law and Policy - Can you trademark red shoe soles? Can you really get a patent on a rectangular cell phone shape? Do artists and musicians need over a century of copyright protection for their works? These are questions that Congress and the courts have addressed in recent years and we will, too. Touching on most areas of commercial and artistic activity, Intellectual Property Law and Policy is increasingly becoming an essential component of a modern legal education. In the course students will be introduced to a broad overview of copyright, patent, trademark and trade secret law. The focus is on learning some of the seminal cases in each area, while also considering the policy implications of the law as it stands. The course is a 1L elective, but students from all years are encouraged to enroll.
  • Intro to Jurisprudence - The first half of the course will provide an introduction to the main currents of thought about the nature and function of law. It will consider, among other things, the classic problem of the source of law’s authority, exploring whether an unjust law is still a law, and whether law does or ought to bear a close relation to morality. Should Nazi officials or East German border guards be punished if they were “just following orders”? What about the judges who enforced the implementation of such laws? Do the conclusions we would reach in the foregoing contexts apply to the conduct of Americans in dealing with suspected terrorists or other detainees? We will consider the divergent answers to these questions suggested by the work of J.L. Austin, H.L.A. Hart, Ronald Dworkin, Joseph Raz, and others. After addressing these traditional jurisprudential inquiries, we will turn to a more recent philosophical inquiries in philosophy of law. What is the justification for punishment and how do the various debates in this area play out in specific controversial cases? Is torture ever permissible, whether as part of a scheme of punishment or as part of a system of law enforcement? Is targeted killing a permissible part of just war theory? What should be our stance to government officials who violate the law? As we shall see, each one of these applied topics divides into deontologial theorists, on the one hand, and utilitarian, or economic, theorists on the other. We will raise the question of whether these two theories exhaust the possible moves one might make on these various topics, or whether other approaches, such as a contractarian approach, are viable options. The course will require a final, take home exam, as well as attendance, preparation and participation in discussion. The latter will count towards roughly 10% of students’ grades. This is a 1L elective course and 1Ls will receive priority in enrollment.
  • Intro to Trial Advocacy - What is trial work really all about? What does it mean to be a trial lawyer? This introductory course will provide an overview of the litigation process. Topics will include new case analysis, investigation, evidence gathering, deposition preparation and taking, trial preparation, jury selection, opening statements, closing arguments, direct examination and cross-examination. For four class sessions, we will mock try a case with all students participating in some manner. This course may be taken along with, instead of, after or before the full year trial advocacy course (in other words, taking one doesn't preclude taking the other). Attendance and class participation are mandatory. Class work will count toward each student's grade within the guidelines recognized by the law school.
  • Jewish Law: The Rabbinic Idea of Law - Jewish Law: The Rabbinic Idea of Law - In Judaism, law is ever present. At the practical level, it instructs a Jew how to rise in the morning, behave throughout the day, and retire at night. But the Jewish conception of law is far broader than “rules to guide behavior,” “things that happen in court,” “rules imposed by the state,” or even “rules mandated by God.” Though Jewish law embraces each of these categories, it simultaneously serves as one of the primary vehicles through which rabbinic thinkers have expressed their ideas about life’s greatest questions, including the nature of God, love, justice, morality, and community. This course will explore how in the rabbinic tradition, issues articulated by other cultures in terms of law, philosophy, ethics, politics, and theology are addressed through discussion of the detailed categories of the legal regime. To further our understanding of the unique role that legal texts, legal ideas, and fidelity to the law play within rabbinic Judaism, this course will engage in case studies that will focus on (i) the structure of rabbinic legal discourse; (ii) its centrality in organizing Jewish life and thought; (iii) the consequences, for good and ill, of framing important social questions in legal terms; and (iv) the dialectical relationship between, on the one hand, the practicable and regulatory aspects of halakhah and, on the other hand, its reflective and expressive dimensions. The course will meet every other week during the fall Semester. Grading will be based on written homework assignments (40%), class participation (40 %) and a 10 page reflection paper at the conclusion of the course (20%). Additionally, attendance at both Gruss lectures in the spring Semester (dates TBA) will be required. There will be no final in this course.
  • Juvenile Justice Seminar - How are juvenile offenders treated differently from adult offenders? To what extent should they be? These questions provide the focus for examining how the state treats the "aberrant" behavior of children. Students will be introduced to the legal, social, and historical underpinnings of the juvenile justice system in the United States beginning with founding of the juvenile court in 1899 and then-held assumptions about the nature of childhood. We will examine how in the late twentieth century the juvenile court has undergone both ideological and institutional change from its original form. These shifts in theory will be outlined with specific attention to several U.S. Supreme Court decisions that have significantly affected juvenile court, as well as psychological and social science data that have a continuing impact on juvenile court practice and jurisdiction. Throughout the course, students are invited to consider and imagine a future role for the juvenile court as it goes forward. Each class will be co-taught by two adjunct professors who are practitioners in the filed of children's law with particular emphasis in juvenile justice. During the last five classes, weekly reading assignments will be developed by student led teams, who will work with the professors in advance to select appropriate topics, relevant caselaw or other materials, as well as appropriate videos. Student teams will be responsible for leading class discussion on their designated topic. Each student is expected to complete a paper of approximately 10-15 pages in length, on an aspect of the juvenile justice system, as well as short reaction papers and legislative drafting exercises throughout the course. The topic of the paper must be approved by one of the course instructors. Students wishing to satisfy the law school's writing requirement must notify one of the instructors by the fourth week of class.
  • LLM Legal Research and Writing - U.S. Legal Research and Writing combines learning about US legal resources and materials and how to research them with the ability to present an analysis of the research results in written document. The Legal Research portion of the course will explore the various primary sources of law in the US system and the secondary sources which provide analysis of that law. Research will be conducted through a variety of online sources enabling the student to develop a critical analysis of those online tools. The Legal Writing portion of the course covers basic legal analysis, synthesis and writing. You will be learning the basic skills of U.S. lawyering, including writing predictive analyses, communicating effectively and efficiently, using legal authority to support any issue, and following the basic rules and standards of professional conduct.
  • Law and Economics - This class will cover the basics of microeconomics as they apply to the study of law. Areas covered will include torts, contracts, property, IP, criminal law, health law, insurance, business law, antitrust, and some public law topics. The course will focus on how law affects incentives and, ultimately, individual behavior. We will also discuss available empirical evidence regarding the link between law and behavior. No prior training in economics is required. 1Ls will be evaluated on the basis of an open-book takeaway exam, while other students may write a paper instead. This is a 1L elective course and 1Ls will receive priority in enrollment.
  • Law and Literature - This course will explore the connections between law and literature, concentrating on images of law and lawyers in fiction. We will examine how literature can challenge our assumptions about the law, providing a critical distance and alternative language for thinking about such issues as the meaning of justice and obedience to law. We will also consider how literature can familiarize us with perspectives and experiences sometimes missing from standard legal texts, the lessons literature teaches about the roles and lives of lawyers, and how lawyers can use the language and devices of storytelling in their own work. The reading for the course will be heavy (but enjoyable) and will include novels, short stories, articles, and essays. The class may also view films outside the normal class time. Consistent class participation and attendance are required. Students will write 8 reflection papers. Most of these will be brief (2-3 pages), but two will be longer (5-6 pages). With the permission of the instructor, a 20-page seminar paper may be written in lieu of four of the papers to fulfill the senior writing requirement. Students will also work with a partner to prepare discussion questions for one of the classes. Drop/add for this seminar will end on Friday, January 13. If you are on the waitlist and hope to add the class, please attend the first session unless you have a direct conflict.
  • Law and Morality of War - This seminar offers an in-depth examination of recent debates in just war theory, as well as a series of readings designed to test this theory in application to the dilemmas of modern warfare. On the moral side, we will consider different arguments for the permissibility of killing or inflicting injury in war, examining the limitations each theory would impose on conduct in war. We will seek to compare the justification for violence in war with the justification for violence in domestic law enforcement. Having explored the theory of just war, we will then consider the law of war, and seek to evaluate its basic tenets against the background of the best theory of its morality. We will then consider several important dilemmas of modern warfare as they arise in the war on terror. What are the limits of permissible methods of interrogation? What techniques constitute torture, and what is the morality of its use in dire circumstances? To what extent is the practice of targeted killing permissible? What is the extent of the duty to attempt to capture suspected terrorists before targeting them? Is it morally and legally permissible to engage in targeted killing by way of aerial drones? Is it permissible to engage non-military contractors for the sake of conducting such operations? Finally, we will consider whether government actors or those assisting government operations who violate basic rules of war should be held criminally liable for their actions, and if so, what the extent of their liability should be. Course Requirements: One seminar paper, 20 – 25 pages in length and several short written assignments (1-2 pages) throughout the semester commenting on key readings or on papers of guest speakers. Grade for the course will be based on the seminar paper (80%) and on class participation (20%, including short written assignments). Undergraduates must obtain permission of instructor to register.
  • Law and the Holocaust - This course draws together the fields of comparative law, constitutional law, criminal law and procedure, jurisprudence, conflicts of laws, international law, human rights and legal history, and then superimposes them on the history of the Holocaust, to examine the Nazi philosophy of law, emanating from the egregious racial ideology, and how it was used to pervert Germany’s legal system in order to discriminate against, ostracize, dehumanize, and ultimately eliminate, certain classes of people; and then, to study the role of international law in rectifying the damage by bringing perpetrators to justice and constructing a legal system designed to prevent a repetition. The course considers the following topics: 1.) The Holocaust: “Lawful Barbarism”. Overview of the Holocaust, by way of background, and the ways in which it was “anchored” in law. 2.) The Ideology That Made It Possible. Nazi theories of race and the nature and role of the State, and the legal system as an instrument of both. 3.) The Nazi Legal System In Action. Laws passed to give effect to the theories of race, and the role of the judges in interpreting and applying those laws. 4.) Jurisprudential Issues. Parts 2 and 3 above will form the foundation for an exploration of the role of morality in a system of law, through a consideration of academic writings and judicial reflection. An example of the former is the celebrated Hart-Fuller debate, in the pages of the Harvard Law Review; and an example of the latter is the controversial Bernstein litigation, in which the Courts grappled with the effect to be accorded in the US to expropriations of property by the Nazi regime. 5.) Measure For Measure: The Response Of The International Legal System. Consideration of the whole system of international human rights of the post-World War II era, revolving around five major pillars, each of which is a measure-for-measure reaction to the Holocaust: the Universal Declaration of Human Rights; the Genocide Convention; articulation of the two most egregious crimes in the international legal lexicon, Crimes against Humanity and Genocide; the creation of an international forum for bringing perpetrators to justice, namely the Nuremberg Trials; and the United Nations system. 6.) Lessons For The 21st Century. At each point, the perversion of Germany’s legal system will be the launching pad for extraction and consideration of critical lessons for contemporary democracies, as well as for the system of international law as a whole. Teaching in the course revolves around special materials prepared and edited by Professor Reicher. These consist of both primary documents as well as secondary writings. All this is supplemented by video excerpts of original archival footage, documentaries and movies, illustrating a range of themes dealt with in the course. These include: film of the actual Nuremberg Laws being read out; footage of a Nazi criminal court in action: scenes of the Nuremberg and Eichmann Trials; a re-enactment of the Wannsee Conference; a biography of Dr. Josef Mengele, excerpts from Leni Riefenstahl’s classic propaganda film, “Triumph of the Will,” and cross-examination scenes from Stanley Kramer’s classic movie, Judgment at Nuremberg.
  • Law in American Life - Someone once said, “a page of history is worth a volume of logic.” (not just anyone; it was Oliver Wendell Holmes, Jr., in New York Trust Co. v. Eisner (1921)) This course is designed to explore pages of history that might otherwise escape the logician. And at a time when so many fraught legal issues are argued with reference to history, it is more important than ever for students to understand legal history, and how to use it. By integrating primary sources with historical context, the course will explore the ways that legal change has affected life across American history. The course will be conducted primarily in lecture format, and will include readings in primary as well as secondary sources. Topics include (but are not limited to) topics such as blasphemy, witchcraft, mobs, revolution, slavery, immigration, electioneering, incarceration and other inherently interesting and legally important areas of inquiry. In the end, the central aim of this course is to acquaint students with a rich sense of the ways that law has operated to liberate as well as constrain Americans. A 3-day take-away exam at the end of the semester limited to 3,000 words will answer a distinct question that will be targeted to individual students’ interests and arranged between the professor and each student in the class, and will be designed to focus on that student’s interests but also draw on the work of the entire semester. A limited number of students wishing to write a research paper may do so if they clear the topic in advance with the professor. All paper topics must be finalized no later than January 31, and papers will be limited to no more than 3,500 words including notes.
  • Law, Economics and Psychology - This seminar will provide students with an opportunity to learn about cutting-edge research in law, economics, and psychology through presentations by some of the leading scholars in the fields. In preparation for the outside speaker sessions, students write short (two to three page) critiques of the author's paper. Final grades will be based on the critiques and seminar participation, including a group presentation. Some background in economics or psychology is helpful.
  • Lawyering in the Public Interest Seminar - This seminar explores major lawyering themes that confront public interest lawyers in diverse practice areas and settings. It is designed to integrate theory and academic analysis with practice themes emerging from students' public interest work experiences during law school. Students will closely examine the unique challenges posed by community lawyering; the efficacy of competing service delivery models; the impact of scarcity of resources and high volume practice upon the practitioner; the empowerment of the disadvantaged and powerless through law and education; litigation and non-litigation strategies; legal and non-legal restrictions on the work of public interest lawyers; professional responsibility issues; the role of the private practitioner in the delivery of legal services to the poor; and current themes and timely issues relating to access to justice and public interest practice. Requirements include mandatory attendance, class participation, oral presentations, and completion of a seminar paper. Students will write seminar papers on topics selected with the approval of the instructors. Paper topics may, but need not, relate directly to the particular issues discussed in class. The paper is expected to be of publishable quality and may, with additional development and instructor permission, be used to satisfy the senior writing requirement. The final several weeks of the seminar will include oral presentations by students on their papers. There will be no final examination. Enrollment is limited. If the seminar is oversubscribed, preference will be given to Public Interest Scholars and Sparer Fellows who register timely for the course.
  • Legal History - Someone once said, “a page of history is worth a volume of logic.” (Ok, it wasn’t just anyone; it was Oliver Wendell Holmes, Jr., in New York Trust Co. v. Eisner (1921)) This course is designed to explore pages of history that might otherwise escape the logician. And at a time when so many fraught legal issues are argued with reference to history, it is more important than ever for students to understand legal history, and how to use it. By integrating primary sources with historical context, the course will explore the ways that legal change has affected life in colonial and national America. The course will be conducted primarily in lecture format, and will include readings in primary as well as secondary sources. Topics include (but are not limited to) topics such as blasphemy, witchcraft, mobs, revolution, slavery, filibustering, treason, migration, piracy, electioneering, and other inherently interesting and legally important areas of inquiry. In the end, the central aim of this course is to acquaint students with a rich sense of the ways that law has operated to liberate as well as constrain Americans. A 3-day take-away exam at the end of the semester limited to 3,500 words will answer a question that will be arranged between the professor and each student in the class, designed to focus on that student’s interests but also draw on the work of the entire semester. This is a 1L elective course and 1Ls will receive priority in enrollment.
  • Legal Responses to Inequality - This course will study legal material as expressiomg and supporting differing concepts of equality and its role as a social value, rather than as simply part of a course of doctrinal development or a system of analytical reasoning. Its premise is that differences in those concepts are often not recognized, and the contestability and bases of one's approach to equality issues are often not acknowledged. Substantively, the course will include aspects of legal regulation affecting the status of racial, religious and ethnic "minorities," women, gay and lesbian people, and people perceived as disabled, as well as the distribution of wealth and income. It will do this in part by examining "antidiscrimination," "equal protection," or "poverty" law, but will focus also on issues of equality implicit in such mainstream first-year subjects as Procedure and Contracts. This is a 1L elective course and 1Ls will receive priority in enrollment. The course materials will be posted on line prior to the beginning of classes.
  • Litigation for Social Change Seminar - This course will examine the use of litigation as a tool to effect social change. We will look at the unique nature of the American legal system that makes this possible. We will review the use of class actions and other vehicles that have been successfully employed. We will consider the consequences of the use of litigation. There will be a takeaway exam.
  • Marriage: History & the Law - Historically, little about marriage has remained constant. Legal, cultural, political, economic, and demographic changes have transformed marriage as both a public and a private institution. But marriage remains central in structuring Americans’ private legal relationships and public benefits, intimacy and citizenship. This seminar examines continuity and change in the legal institution of marriage during the second half of the twentieth century. We will study attempts to abolish or reform marriage, to expand access to marriage, to defend various conceptions of marriage, to develop alternatives to marriage, and to make marital status less relevant. Course requirements include weekly response papers, a presentation, and a substantial research paper.
  • Mental Health Law - This course will cover the theoretical, doctrinal and practical issues in mental health law, with special reference to the criminal context. It will also be of interest to students interested in bioethics, health law, family law, and torts.
  • Political Philosophy of the Constitution - This seminar will examine the political philosophy of the framers of the Constitution. We shall read some of the works of the Whig political tradition in England (and in particular the essays of Hume) then study selected constitutional writings of the principal Framers, in particular Madison’s Notes of the Constitutional Convention, The Federalist and the writings of James Wilson. The aim will be both to understand the philosophical arguments relied upon by the Framers, and to examine their sources within the wider intellectual history of the eighteenth century.
  • Practice of Law - What’s it really like to practice law? This course examines the “how to,” such as how to interview and work with an individual or corporate client; how to get, keep, and lose your clients; how to get, keep and lose your job; how to deal with a difficult judge or a difficult opposing counsel; how to make a presentation; how to use graphics, video and power point; how to resolve a dispute by mediation, arbitration or trial; issues in billing by the hour or billing by the result; small firm versus big firm life; plaintiff versus defense life; and how to achieve professional satisfaction. This course is not about legal doctrine; it is about the practice of law. Class attendance is required. Grading is based on a closed book, two hour exam plus class participation.
  • Privacy and Data Protection - This lecture and discussion course explores the role of the law in the regulation of privacy, personal autonomy and access to personal data. Part I of the course examines the origins of state common law privacy law and its subsequent growth. We will consider recent uses of the four common law invasion of privacy torts recognized in most states and by the American Law Institute’s Restatement of (Second) of Torts. Part II takes on the voluminous privacy jurisprudence spawned by the Bill of Rights-- most importantly, the First and Fourth Amendments’ jurisprudence of associational, physical, and informational privacy. What are the values at stake in constitutional privacy controversies; are they the same values at issue in the common law and in discussions of social networking, web-based commerce, cloud computing and government surveillance? Part III explores the federal privacy statutes, a dynamic source of privacy and data protection law. It surveys nearly a dozen federal privacy statutes, covering government record management; health, education, and financial data; video rentals; communications; the internet; and government surveillance. Course evaluation will be based on the final exam. Class attendance is mandatory for all students.
  • Problems in Law and Morality - The seminar takes up a variety of puzzling features of law that one runs into again and again, almost regardless of what area of law one is considering. Why is the law so either/or? (In other words, why are legal judgments generally guilty/not guilty, liable/not liable, contract/no contract, slander/no slander etc., when reality seems so much more continuous?) Why does consent count for so little even when there are no obvious problems with force, fraud, incompetence, or unequal bargaining power to worry about? (In other words, why does the assumption of risk so often fail, and why are there so many victimless crimes on our books?) Why is the law so full of loopholes that everybody is aware of and which could readily be plugged? Why do legal rules so often seem to reward wrongdoers? Why do people exercising their legal and moral rights so often end up in conflict? Shouldn't valid rights mesh more harmoniously with each other? Along the way, various subsidiary issues will also be considered: why are some things property and not others, why it may not be meaningful to speak of harm to future generations, why we consider it worse to no longer be alive in 2008, than not yet to be alive in 2008, why it is okay to do what would otherwise be wrong just because you happen to be a lawyer, judge, government official or other kind of special functionary. Readings will consist of portions of various books and articles.
  • Proofs in Math, Philosophy and Law - Proofs are vital to many parts of life. They arise typically in formal logic, mathematics, the testing of medication, and convincing a jury. How do you prove that the earth is essentially a sphere (in particular, not flat)? In reality, proofs arise anywhere one attempts to convince others. However, the nature of what constitutes a proof varies wildly depending on the situation -- and on whom you are attempting to convince. Convincing your math teacher or a judge is entirely different from convincing your mother or a jury. The course will present diverse views of proof. On occasion there may be guest lecturers. The heart of this course is to achieve some real understanding of proofs in many parts of life. The emphasis will be on legal, mathematical and physical insight and ideas, not complicated formulas. This course is being offered as part of Penn’s “Year of the Proof,” and will be co-taught with Profs. Weinstein (Philosophy) and Kazdan (Mathematics); it is aimed at a broad audience, though some modest familiarity with philosophical or mathematical reasoning would be helpful.
  • Property Theory Seminar - The objective of this Seminar is to expose students to the various theoretical issues that are central to the structure and functioning of property as an institution. Each week, the readings will focus on one or more theories that purport to explain and justify the institution of property--including Lockean labor theory, personhood theories, economic theories, and rights-based theories. In the process, we will also examine how each of these theories succeeds/fails at explaining certain central features of property law such as the numerus clausus principle, the trespass/nuisance divide, the forms of ownership, the trust, and equity. Students enrolled in the Seminar will also have the opportunity to participate in a day long symposium being organized by the faculty in association with the law review, on the topic of Property Theory. The symposium participants will include several leading theorists of property and students will have an opportunity to read, discuss, and comment on their draft papers so as to learn about the process of developing a piece of theoretical scholarship. Each student will be required to help lead class discussions during one class session. Additionally, every student enrolled in the seminar must complete a research paper that satisfies the law school’s senior writing requirement.
  • Psychological Analysis of Legal Decision-Making - In this course, we will look at the psychology of judgments and decisions in the context of legal decision-making. This line of inquiry, sometimes called "behavioral law and economics," attempts to challenge some assumptions of law and economics with empirical observations from experimental research. We will consider some of the following questions: What factors drive decisions about whether and how much to punish wrong-doers? How do moral and social norms interact with legal rules to affect behavior? How do cognitive biases affect the ability to bargain efficiently for the allocation of goods? We will read articles from psychologists, experimental economists, and legal scholars.
  • Public Health Law & Policy - This seminar will examine a number of urgent issues at the intersection of law and public health, particularly those that involve a conflict between the rights of individuals and the well-being of the community. Rather than being wedded to a particular field of legal doctrine, we will use a case study approach to analyze US and international conflicts over (and regulation of) tobacco, junk food, pandemics/vaccines, natural and nuclear disasters, and HIV/AIDS, among others. Several distinguished guests will be invited to speak to the class, and students will have the opportunity to research, write, and present original research.
  • Public International Law - This course introduces students to the legal rules and institutions that govern the international political system. The course provides a formal introduction to international law and emphasizes the relationships between law and politics in the behavior of states, institutions, and individuals in world politics. International law is both more relevant and more interesting today than ever before. From the war against terror to the war in Iraq; from the challenges of free trade to the dangers of environmental destruction; from prisoners in Guantanamo Bay to former heads of state appearing in court, international law has a direct bearing on many of the key issues in international affairs. This course examines how international law is created, how it operates, and what effect it has on these and other issues in contemporary international relations. The course begins with an introduction to the nature and structure of the international legal system. Topics include: the subjects and forms of international law, the key institutional actors, the theoretical background to the international legal system, and the relationships between international law and international relations. The second part of the course turns to substantive legal issues. Topics include: international economic law and the debates surrounding the WTO; international criminal law and the International Criminal Court; the protection of human rights; the use of force and the invasions of Kosovo and Iraq; the proliferation of weapons of mass destruction and the future of the United Nations. Additional topics may be added or substituted if international events and student interest so warrant. This is a 1L elective course and 1Ls will have a max of 80 seats (of 110) in the course.
  • Race and the Law in US History - Race and racially based legal rules have been central to American history. This course will examine the interaction between social, cultural, and political constructions of race and legal norms over four centuries. Topics will include the creation of racial ideology in early America; race and the Constitution; antebellum trials of racial determination; the private and public law of slavery; Reconstruction and anti-miscegenation legislation; race and immigration (including Chinese Exclusion, legal constructions of whiteness, Japanese internment, and the category “illegal aliens”); law and civil rights; and affirmative action. Course readings will encompass scholarly articles and monographs; primary sources; and cases.
  • Religion, Law and Lawyering - This course examines moral issues in public and private life from a religious perspective, without tying the investigation to any particular tradition of revelation. It is premised on the observation that the ways in which many of us think about questions of moral and legal obligation, and about our own intended careers, are related to our religious or spiritual outlook. Its aim is to read, think, and talk about contested moral questions with colleagues united only in their belief that the questions and their connection to religion are worth pondering, and in their (perhaps tentative) willingness to bring something of themselves into our discussions. This is NOT a course on the law of the First Amendment, although it may affect our understanding of some of the controversies that have arisen there We will consider questions like these: - Where do moral imperatives come from, and how do the answers found in religion and in law affect one another? - What are the implications of religiously-grounded values for our thinking about moral obligations and disputed issues of public policy? - What are the differences (and similarities) between religious and secular sources of moral norms? - Can religion's importance to our legal thinking, and its oft-found grounding in (differing) claims of revelation, be honored in a manner that honors too our commitment to pluralism and freedom of conscience? - Can we integrate our religious commitments with our choices of, and within, our work lives? Course requirements are regular attendance, conscientious engagement with the readings, and informed participation in discussions. The coursebook, Howard Lesnick, Religion and Legal Thought and Practice (Cambridge 2010), is available (in addition to all the usual ways) at the Penn Book Center, across Sansom Street from the School. (This is NOT the University Bookstore).
  • Remedies - Most law school courses revolve around the standards for legal liability: when one is liable for breach of contract, or for a tort, or for violation of some constitutional or regulatory standard. This course is about the consequences of civil liability for litigants who have been wronged or who are about to suffer wrong. We will assume that the defendant's actual or threatened conduct is impermissible, and ask what a court can do about that conduct. Topics will include damages measurement, injunctive and preliminary relief, specific performance, declaratory judgments, restitution, criminal and civil contempt, punitive remedies, and complex equitable remedies in institutional and civil rights litigation.
  • Risk Regulation - Society faces a range of risks, from both natural sources and economic activities. A core challenge for society’s major institutions – governments, businesses, non-profits – is to understand these risks and learn to manage them effectively and efficiently. This seminar will focus on how society deals with risks, ranging from, on the one end of the spectrum, voluntary action by business to, on the other end, strict rules imposed by government on the private sector – with many variants in between. These risk management responses also include the design of institutions to identify, monitor, and provide information about risks. Understanding what makes for effective institutional responses to risk is especially challenging, for it calls for not just an understanding of institutions themselves -- e.g., law and business -- but also an understanding of how these institutions interact with and affect the risks they are supposed to reduce or mitigate. This seminar will meet on alternating Tuesday afternoons throughout the entire 2010-2011 academic year. One seminar meeting each month will feature a guest speaker presenting new scholarship or policy analysis related to risk regulation. The other sessions will provide general background on risk regulation, further consideration of the specific topics covered by the guest speakers, and discussion of research papers seminar participants will be expected to complete by the end of the spring term.
  • Supreme Court Practice and Process - Decisions of the Supreme Court are thought simply to reflect the Justices' views of the merits of the legal issues before the Court. But the results often are heavily influenced by the particulars of the process that leads up to the decision. This seminar will study the Supreme Court primarily from the point of view of the advocacy process that precedes and influences the Court’s decisions, but we will also look into selected aspects of the Court’s internal decisionmaking process. The course will examine the nature of effective advocacy before the Court and the ways in which advocates’ strategies may (or may not) influence the Court at each stage of a case – the petition for certiorari and brief in opposition; merits briefs by petitioner and respondent; and oral argument. The course will consider the influence of amici at each stage as well as the special role of the Solicitor General's office. The course will also examine some aspects of the Court’s process that do not relate to advocacy, such as the role of law clerks, the nature and extent of collegial decisionmaking at the Court, and the confirmation process for new Justices. Materials will include actual petitions, briefs, and oral arguments from recent and pending Supreme Court cases, as well as secondary sources. The course will include consideration of one or more cases currently before the Court, with a trip to the Court to hear an oral argument if feasible. Course sessions will include guest lectures by experienced Supreme Court advocates and others involved with Supreme Court litigation. Course requirements: to be determined, but will include drafting one or more documents based on filings in actual Supreme Court cases, and possibly an analysis of an oral argument.
  • Terrorism and International Law - The campaign by numerous states and international organizations against Al Qaeda and other non-state terrorist actors raises several critical questions for international law. This seminar provides an introduction to several of the most important debates. Topics covered include: the definition of terrorism; multilateral counter-terrorism treaties; the role of the UN in global counter-terrorism; the use of military force against terrorist organizations and the states that support them; the detention and treatment of suspected terrorists; the prosecution of suspected terrorists in various fora; and the rendition of suspected terrorists outside normal law enforcement channels. In the process, we examine aspects of the law of armed conflict, human rights law, the law of international organizations, and international criminal law. Grades are based on class participation (30%) and the seminar writing requirement (70%). Students may fulfill the seminar writing requirement with either: (1) four 5-page response papers to the weekly readings; or (2) a 20-page paper on a topic related to the course materials.
  • Trial Advocacy - What is trial work really all about? What does it mean to be a trial lawyer? This introductory course will provide an overview of the litigation process. Topics will include new case analysis, investigation, evidence gathering, deposition preparation and taking, trial preparation, jury selection, opening statements, closing arguments, direct examination and cross-examination. For four class sessions, we will mock try a case with all students participating in some manner. This course may be taken along with, instead of, after or before the full year trial advocacy course (in other words, taking one doesn't preclude taking the other). Attendance and class participation are mandatory. Class work will count toward each student's grade within the guidelines recognized by the law school.
  • U.S. Legal Research - The course provides an introduction to U.S. legal resources and research.
  • Visual Legal Advocacy - Visual Legal Advocacy will introduce students to the art of making short nonfiction advocacy films on behalf of actual individual clients and/or groups devoted to the advancement of the cause of social justice. Instruction will track the steps in the production of a nonfiction or documentary film, starting with pre-production planning (including writing treatments and shooting scripts, budgeting, and scheduling), going on to the rudiments of production (including introductions to camera, lighting, and sound equipment), and concluding with post-production (including making paper edits and an introduction to editing). Participants will be divided into several working groups that will be responsible for the production of a short piece of visual legal advocacy, most likely a video clemency petition made on behalf of a formerly incarcerated person whose employment opportunities are limited by her/his criminal record or a victim impact statement made on behalf of a person harmed or injured by Philadelphia's gun violence.
  • Writing About the Law - Lawyers are paid to tell their clients’ stories. Being a good storyteller—understanding pace, characterization and narrative structure—is in some ways as important as understanding procedure or substantive law. One can gain legal knowledge from books, but storytelling takes practice. The first aim of this class, then, is to hone storytelling skills, to learn how to present a compelling narrative. But fiction teaches us more than just technique. A good story or novel challenges our sense of the world and of our part in it. What is it to be human? What makes people love or cease to love? What causes people to step over society’s limits, to step outside the law? Why do people invoke the law against others, and why do people dread and fear that law will be used against them? What is the meaning of this omnipresent human construct, and why does something that at its base is imaginary take on such a terrifying force in society? The second aim of this course is to expose students to the fictional answers offered by some published writers and, more important, to offer them a chance to think about and express their own conclusions about life. Third, knowledge of fiction—how it achieves its effects, what it aims for, how it succeeds or fails—is an important piece of general knowledge. It is my hope that this course will add to your enjoyment of reading novels and stories and so deepen the general education that is very important to lawyers if they are to fulfill their traditional role as members of a learned profession. English fluency is a requirement for this course. You need not be a native speaker, but the skills the course seeks to develop require a mastery of English grammar as a base on which to build.
  • - In this seminar course, entitled Political Authority and Political Obligation, we will be examining, from a philosophical perspective, the related questions of whether and under what circumstances the state possesses the legitimate moral authority to govern, and whether and under what circumstances citizens possess a general moral obligation to obey the law. Theorists often treat these two questions as though they are theoretically interchangeable, but, as we shall see, there are good reasons to doubt that this is so. We will begin with Robert Paul Wolff’s famous anarchist thesis that the state never has legitimate moral authority to govern, and, relatedly, that citizens never have a general obligation to obey the law. We will then examine a number of well-known theories that claim to show that, under certain circumstances, the state is capable of possessing at least partial moral authority to govern. We will look at, inter alia, A. John Simmons’ version of the so-called principle of fair play, Joseph Raz’s so-called service conception of authority, John Finnis “natural law” theory of political authority, Jeremy Waldron’s version of John Rawls’ theory of the duty to support just institutions, David Estlund’s theory of democratic political authority, Ronald Dworkin’s theory of associative obligations, and various versions of consent theory. In addition to examining these specific theories, we will also inquire into the more abstract set of conditions that any theory of legitimate political authority or legitimate political obligation must meet if it is to have any chance of being successful, either in whole or in part. In this regard, the work of Leslie Green and David Copp, among others, will prove particularly helpful.