THE SOCIAL ORGANIZATION OF LAW - Syllabus

Submitted by Theresa A. Laizer on Wednesday, 6/15/2011, at 9:45 AM

THE SOCIAL ORGANIZATION OF LAW

Law, Jurisprudence & Social Thought 101 (Political Science 218)

Fall 2011

Austin Sarat

Clark 101

adsarat@amherst.edu

Law seems to be everywhere, ordering the most minute details of daily life while at the same time making life and death judgments. Law can be and is many things at once--majestic and ordinary, monstrous and merciful, concerned with morality and yet often righteously indifferent to moral argument. It is thus central and important in social life and, at the same time, elusive and mysterious. What law is and can be, as well as the nature of law's presence in society, is, however, more than a matter of moral maxims, philosophical aspirations, or adroitness in manipulating legal texts. Law's power and mystery is reflected in, and made possible by, its institutional arrangements and social organization.

Law is a complex and often cumbersome apparatus which makes itself present in concrete and visible ways. For this apparatus to work it must be able to translate words into deeds and rhetorical gestures into social practices. Yet law's social organization does more than translate, it makes its own ``law'' and, in so doing, insures that law speaks with many voices. The problems and possibilities of social organization mark the limits of law's capacity to make its many values work in the world, and they define the realities of legal justice. Thus legal thought is haunted by the specter of an impenetrable and unresponsive bureaucratic apparatus, or of an apparatus out of control. To understand the way that the specter works in legal thought as well as the nature of law's social organization we will examine the practices of police, lawyers, judges and those who administer law's complex bureaucratic apparatus. THE SOCIAL ORGANIZATION OF LAW is a course in applied legal theory, a course more concerned with law's everyday practices than with its abstract promises.

The following books, marked with a (P) on the syllabus, are available at the Amherst Books:

George Fletcher, A Crime of Self Defense: Bernhard Goetz and The Law on Trial

John Austin, The Province of Jurisprudence Determined

Gresham Sykes, The Society of Captives: A Study of a Maximum Security Prison

Austin Sarat, Mercy on Trial: What it Means to Stop an Execution

All other readings are available on line through the CMS Course Listings for our course.

There are several films included in this course. Those films are also available on line and should be viewed prior to the class in which they will be discussed.

 Syllabus

 I.        WHEN LAW FAILS

 People v. Ceballos 526 P.2d 241

A.    Violent Acts/Legal Responses: What Constitutes Law’s Failure?

FILM: The Accused

Rusk v. State, 406 A2d 624 (1979)

Director of Public Prosecutions v. Morgan, 2 All E.R. 347 (1975), 347-361           

B.    The Limits of Legal Protection

Franz Kafka, "Before the Law" in The Trial, 1982

Riss v. City of New York, 240 N.E.2d 860 (1968)

Sorichetti v. City of New York, 492 N.Y.S.2d 591 (1985)

DeShaney v. Winnebago, 87-154 (1989)

Pinder v. Johnson, 54 F 3d 1169 (1995)

C.      Deadly Consequences: Private Justice, Revenge or Self-Defense?

FILM: Adam's Rib

George Fletcher, A Crime of Self Defense: Bernhard Goetz & The Law on Trial (P)

Jahnke v. State, 682 P.2d 991 (1984), 991-997, 1004-1044

State v. Hundley, 236 Kan. 461 (1985)

People v. Aris, 215 Cal. App. 3d 1178 (1989)

Jody Armour, “Race Ipsa Loquitur: Of Reasonsable Racists, Intelligent Bayesians, and  Involuntary Negrophobes,” Stanford Law Review (1994), Vol. 46;781

D.      Responding to Law’s Failure: Toward a New Understanding of Rights

Tracey Meares and Dan Kahan, “When Rights Are Wrong,” Boston Review (1999), 4-8

Alan Dershowitz, “Rights and Interests,” Boston Review (1999), 10

Carol Steiker, “More Wrong Than Rights,” Boston Review (1999), 11-13

II.      WHAT IS LAW?: DEFINITIONAL DEBATES AND REAL WORLD CONSEQUENCES

A.      On the Contested Nature  of Law’s Relationship to Morality

John Austin, The Province of Jurisprudence Determined, 18-37, 106-163, 164-183, 211-216 (P)

Walker v. Birmingham, 388 US 307 (1967)

HLA Hart, “Positivism and the Separation of Law and Morals,” 71 Harvard Law Review (1958), 593-629

 B.    Interpretive Practices: Making Sense of Legal Texts

Antonin Scalia, A Matter of Interpretation, 37-47

Riggs v. Palmer, 22 NE 188 (1888)

Ronald Dworkin, Taking Rights Seriously, 1-45

David Souter, “Commencement Address,” Harvard University (May 27, 2010)

John Noonan, Persons and Masks of the Law, chapter 1 and chapter 4

Dahlia Lithwick, “Once More, Without Feeling: The GOP's Misguided and Confused Campaign Against Judicial Empathy,” Slate (May 11, 2009)

 C.     Law’s Violence

Robert Cover, "Violence and the Word," 95 Yale Law Journal (1986)

III.     THE SOCIAL ORGANIZATION OF LAW AND THE PROBLEM OF ORGANIZING LAW'S VIOLENCE

  A.    Policing and the Policing of Police

1.  The Police and Their Environment

FILM: Serpico

Jerome Skolnick, Justice Without Trial, pp. 1-17, 42-67

Heather MacDonald, “The Myth of Racial Profiling,” City Journal (Spring 2001)

James Forman, Jr., “Arrested Development: The Conservative Case Against Racial Profiling,” The New Republic (September 16, 2001)

2.  Controlling Police Conduct-I: Coercing Confessions 

a. The Court’s Commands

 Miranda v. Arizona, 384 US 436-491, 526-545 (1965)

 Brewer v. Williams, 97 S.Ct. 1232-1243, 1248-1259 (1977)

b. Miranda in Retreat

New York v. Quarles, 467 US 649-660, 674-690 (1984)

Chavez v. Martinez, US Supreme Court, No. 01-1444 (2003)

Berghuis v. Thompkins, US Supreme Court No., 08-1470 (2010)

c. Can Courts Control Police Practices?

Richard Leo, "Miranda's Revenge: Police Interrogation as a Confidence Game," 30 Law & Society Review (1996), 259-288

Peter Brooks, “The Truth About Confessions,” New York Times (September 1, 2002)

3. Controlling Police Conduct: II: Lethal Force

Tennessee v. Garner, 105 S.Ct. 1694 (1985)

Scott v. Harris, United States Supreme Court No. 05-1631 (2007)

(read Scalia and Stevens opinions)

See video at http://video.google.com/videoplay?docid=2920973987216904078#

IV.       THE PLEASURES AND PROBLEMS PUNISHMENT

A.     Justifications for and Limits on Punishment

Herbert Morris, "Persons and Punishment," in Human Rights, pp. 111-134

 Graham v. Florida, US Supreme Court, No. 08-7412 (2010)

(read Kennedy and Thomas opinions)

B.     The Social Organization of Imprisonment: Life on the Inside

 FILM: SHAWSHANK REDEMPTION

Gresham Sykes, Society of Captives: A Study of a Maximum Security Prison, Introduction and pp. 1-134 (P)

Loic Wacquant, “Deadly Symbiosis: Rethinking Race and Imprisonment in 21st Century America,” 27 Boston Review (2002)

Lorna Rhodes, Total Confinement: Madness and Reason in the Maximum Security Prison, pp. 21-60 

C.     What Happens When Law Fails?

United States v. Bailey, 444 US 394 (1979)                                                           

V.      DEALING IN DEATH: AT THE LIMITS OF LAW

FILM: Twelve Angry Men

A.     The Problem of Discretion I: When the State Takes Life

Furman v. Georgia, 408 US 238-314, 375-405 (1972)

Gregg v. Georgia, 428 US 153-169, 187-207 (1976)

Alex Kotlowitz, “In The Face of Death” New York Times Sunday Magazine (July 6, 2003)

Dahlia Lithwick, “The Crying Game: Should We Decide Capital Punishment with Our Hearts or Our Heads?” (December 2, 2004)

McCleskey v. Kemp, 107 S.Ct. 1756 (1987)

B.     The Problem of Discretion II: When the State Spares Life

George Ryan, “I Must Act” (January 11, 2003)

Austin Sarat, Mercy On Trial: What It Means to Stop an Execution (P)

C.       Is/Should There Be a Future for Capital Punishment?: Overcoming Law’s Social Organization

Callins v. Collins, 62 USLW 3546 (2-22-94)

 

Taking Notes