Law, Jurisprudence, and Social Thought

Fall 2007/Spring 2008 Course Catalog

The information below is taken from the printed catalog the college produces each year. For more up to date information, including links to course websites, faculty homepages, reserve readings, and more, use the 'courses' or semester specific link to your left.

01. The Social Organization of Law. (Also Political Science 18.) Law in the United States is everywhere, ordering the most minute details of daily life while at the same time making life and death judgments. Our law is many things at once--majestic and ordinary, monstrous and merciful, concerned with morality, yet often righteously indifferent to moral argument. Powerful and important in social life, the law remains elusive and mysterious. This power and mystery is reflected in, and made possible by, a complex bureaucratic apparatus which translates words into deeds and rhetorical gestures into social practices.

This course will examine that apparatus. It will describe how the problems and possibilities of social organization shape law as well as how the social organization of law responds to persons of different classes, races and genders. We will attend to the peculiar ways the American legal system deals with human suffering--with examples ranging from the legal treatment of persons living in poverty to the treatment of victims of sexual assault. How is law organized to cope with their pain? How are the actions of persons who inflict injuries on others defined in legal terms? Here we will examine cases on self-defense and capital punishment. Throughout, attention will be given to the practices of police, prosecutors, judges, and those who administer law’s complex bureaucratic apparatus.

Limited to 100 students. First semester. Professor Sarat.

02. The Image of Law in Social and Political Thought. Law haunts the imagination of social and political thinkers. For some, law is a crucial tool for the radical reconstruction of society, an essential component of any utopian project. For others, law is by its very nature conservative, ever wedded to the status quo, a cumbersome and confusing apparatus made necessary by a world of imperfection. This course will attempt to make sense of the diverse and contradictory images of law which inform the work of social and political theorists. We will examine how images of law both lie at the center of, and are constituted by, concepts of personhood, community, legitimacy, and power. Readings include works by (or about) Thoreau, Hobbes, Blackstone, Marx, Freud, and such contemporary thinkers as Shklar, Unger, Hart, and Fish.

Second semester. Professor Kearns.

03. Legal Institutions and Democratic Practice. This course will examine the relationship between legal institutions and democratic practice. How do judicial decisions balance the preferences of the majority and the rights of minorities? Is it possible to reconcile the role that partisan dialogue and commitment play in a democracy with an interest in the neutral administration of law? How does the provisional nature of legislative choice square with the finality of judicial mandate? By focusing on the United States Supreme Court, we will consider various attempts to justify that institution’s power to offer final decisions and binding interpretations of the Constitution that upset majoritarian preferences. We will examine the origins and historical development of the practice of judicial review and consider judicial responses to such critical issues as slavery, the New Deal, and abortion. The evolving contours of Supreme Court doctrine will be analyzed in the light of a continuing effort to articulate a compelling justification for the practice of judicial intervention in the normal operation of a constitutional democracy.

Limited to 50 students. Second semester. Professor Douglas.

04. Law and Political Emergency. This course introduces students to one of the more sustained problems in jurisprudence and legal theory: what happens to a constitutional order when it is faced with extraordinary conditions such as rebellion, war and terrorism. While it is generally agreed that rules, rights and procedures may be temporarily suspended, it is less clear which rights, and who decides on the suspension (the executive alone or in some combination with the legislature, with or without oversight by the courts). While these questions have now become familiar to us--and this course will guide students through the policy shifts and court battles in the United States since 9/11, from the issue of enemy combatants to the use of Guantanamo Bay as a detention center--we will take a more theoretical and historical approach to these questions. Thus we will look at the earliest use of some emergency techniques by the British in the colonies, Lincoln’s suspension of habeas corpus during the Civil War and the notorious Article 48 of the Weimar Constitution, which has often been blamed for facilitating the rise of the Nazis. We will end by examining alternative methods for contending with emergency.

Limited to 50 students. First semester. Professor Hussain.

05. Race, Place, and the Law. (Also Black Studies 71.) Understandings of and conflicts about place are of central significance to the experience and history of race and race relations in America. The shaping and reshaping of places is an important ingredient in the constitution and revision of racial identities: think of "the ghetto," Chinatown, or "Indian Country." Law, in its various manifestations, has been intimately involved in the processes which have shaped geographies of race from the colonial period to the present day: legally mandated racial segregation was intended to impose and maintain both spatial and social distance between members of different races.

The objective of this course is to explore the complex intersections of race, place, and law. Our aim is to gain some understanding of geographies of race "on-the-ground" in real places, and of the role of legal practices - especially legal argument - in efforts to challenge and reinforce these racial geographies. We will ask, for example, how claims about responsibility, community, rationality, equality, justice, and democracy have been used to justify or resist both racial segregation and integration, access and expulsion. In short, we will ask how moral argument and legal discourse have contributed to the formation of the geographies of race that we all inhabit. Much of our attention will be given to a legal-geographic exploration of African-American experiences. But we will also look at how race, place and the law have shaped the distinctive experiences of Native Americans, Hispanic Americans, and Asian Americans.

First semester. Visiting Professor Delaney.

06. Apartheid. The goal of this course will be to understand some of the problems posed for legal studies in the humanities by the emergence of the system of administrative and constitutional law known as apartheid. This system, which was designed to institute "separate development for separate peoples" in South Africa, is widely and rightly regarded to be among the most inhuman régimes of the 20th century. Yet even and especially today, more than a decade after its formal end in South Africa, apartheid’s social, economic, and epistemic conditions of possibility, as well as the place and function of lawyers, legal discourse, and legal scholars in the resistance to it, remains at best vaguely understood.

This course is designed to remedy this gap. Our inquiry will be at once specific and general. Under what economic and political conditions did apartheid come into being? What legal traditions and practices authorized its codification? What academic disciplines and intellectual formations rendered it intelligible and enabled its theorization? What specific arrangement of juridical institutions, practices, and theories together comprised the apartheid state? What was the place and function of law in the critique of and resistance to apartheid? What new and specific problems did apartheid pose for legal theory? Readings will include Richard Abel, Hannah Arendt, Étienne Balibar, Steven Biko, Martin Chanock, Jacques Derrida, A.V. Dicey, John Dugard, Ronald Dworkin, Ruth First, George Frederickson, R. A. Hoernlé, Mahmood Mamdani, Nelson Mandela, Anthony Mathews, Mary Robinson, Albie Sachs, and Helen Suzman.

Limited to 50 students. First semester. Professor Sitze.

07. The Trial. If media coverage is any evidence, it is clear that legal trials capture, and have always captured, the imagination of America. Trials engage us affectively and politically by dramatizing difficult moral and social predicaments and by offering a public forum for debate and judgment. They also "perform" law in highly stylized ways that affect our sense of what law is and does. This course will explore the trial from a number of different angles: as an idea, as a legal practice, and as a modern cultural phenomenon. What does it mean to undergo a "trial"? How do various historical trial forms - trial by ordeal or by oath, for example - compare with our contemporary adversarial form? What cultural and legal trajectories have trials followed in U.S. history? What narrative and structuring roles do trials play in literature and film? How do popular renderings of trials in imaginative texts and the media compare with actual trial practice, and perhaps encourage us to sit in judgment on law itself? In what ways do well-known trials help us to tell a story about what America is, and what kind of story is it?

Limited to 50 students. Omitted 2007-08. Professor Umphrey.

09. Utopia and Dystopia. Law is as central to the genres of utopia and dystopia as the latter are for the legal imagination itself. From Plato’s Republic, Thomas More’s Utopia, and Francis Bacon’s New Atlantis, to Ursula Le Guin’s Dispossessed, law heralds the highest forms of goodness, truth, and beauty of which human communities are capable. In George Orwell’s 1984, Ray Bradbury’s Fahrenheit 451, and Margaret Atwood’s Handmaid’s Tale, meanwhile, law is a metonym for the worst of all forms of madness, terror, subjection, and abjection. By studying a range of cases, films, literary texts, and works of critical theory, this course will pursue two lines of inquiry. In what ways does law figure as a limit-concept in and for the genres of utopia and dystopia? Conversely, how do utopic and dystopic texts provide us with the limit-concepts that enable us to imagine the potentials of law itself?

Limited to 50 students. Omitted 2007-08. Professor Sitze.

10. Introduction to Legal Theory. This course provides an introduction to the primary texts and central problems of modern legal theory. Through close study of the field’s founding and pivotal works, we will weigh various theorists’ approaches to questions that every study, practice, and institution of law eventually encounters. These questions concern law’s very nature or essence; its complicated relations with ethics, morality, and religion; its interpretation and application in courts; and its place and function in the preservation and transformation of political and social order. Readings will include works by John Locke, Thomas Hobbes, Friedrich Nietzsche, Karl Marx, Max Weber, Jeremy Bentham, John Austin, H.L.A. Hart, Lon Fuller, Richard Posner, Ronald Dworkin, and Michel Serres.

Limited to 40 students. Second semester. Professor Sitze.

11. Law, Violence and Forgiveness. In this course, we will approach the problem of forgiveness from a very specific angle. We will want to know how, if at all, forgiveness is related to the specifically legal powers of pardon, clemency, and amnesty. In the first half of this course, we will take up this question by exploring some key junctures in what might be called the "genealogy of forgiveness." We will consider the Athenian amnesty of 403 B.C., Aristotle’s discussion of epieikeia ("equity") in Book V of The Nicomachean Ethics, the various discussions of mercy, repentance, and release in the books of Matthew, Mark, and Luke, Seneca’s rendering of clemency in his letter to Nero, the theme of "grace and nature" in medieval political theology, and the problem of forgiveness in the writing of Friedrich Nietzsche, Hannah Arendt, and Jacques Derrida. In the second half of the course, we will bring our genealogical understanding of forgiveness to bear on its contemporary use and, perhaps, abuse. We will seek to understand how powers of pardon, clemency, and amnesty have been used in situations where law is forced to respond to two very different forms of what might be called “the unforgivable,” namely, civil war and crimes against humanity. In particular, we will study legal documents and essays pertaining to President Abraham Lincoln’s amnesties of 1863 and 1864, West German President Konrad Adenauer’s amnesties of 1949 and 1954, South Africa’s 1993 amnesty agreement and subsequent Truth and Reconciliation Commission, and Algeria’s 1999 Law of Civil Harmony.

First semester. Professor Sitze.

12. Psychoanalysis and Law. This course will provide an introduction to psychoanalysis as a comprehensive theory of law. Although psychoanalysis has not traditionally been considered an integral part of the discipline of legal theory, its insights into the origin and structure of law are at once intriguing and troubling, and its response to the basic question of jurisprudence--"what is law?"--permits us to refer with clarity and precision to an experience of law about which we would otherwise have to remain silent. Freud teaches that law is an institution that at once emerges from and recoils upon our most quotidian and intimate experiences--love and aggression, sublimation and art, language and fantasy, perversion and wit, jealousy and forgetfulness, conscience and paranoia, desire and transgression, gender and sexuality, anxiety and infancy--and he gives us a set of interpretive terms and techniques that help us grasp this teaching. Our inquiry into the psychoanalytic study of the law will be divided into two parts. After studying the account of law offered by Freudian psychoanalysis, we will explore the ways that various scholars have both applied and critiqued psychoanalytic concepts in their understanding of law. In addition to reading Sophocles' Oedipus Rex and Antigone, Freud’s Totem and Taboo and Civilization and Its Discontents, and Lacan’s Seminar VII: The Ethics of Psychoanalysis, we will also read works by such thinkers as Jerome Frank, David Garland, Pierre Legendre, Drucilla Cornell, Patricia Williams, and Judith Butler.

Omitted 2007-08. Professor Sitze.

20. Murder. Murder is the most serious offense against the legal order and is subject to its most punitive responses. It establishes the limits of law’s authority and its capacity to tame violence. Murder is, in addition, a persistent motif in literature and popular culture used to organize narratives of heroism and corruption, good and evil, fate and irrational misfortune. This course considers murder in law, literature and popular culture. It begins by exploring various types of murders (from “ordinary murder” to serial killing and genocide) and compares murder with other killings which law condemns (e.g., euthanasia and assisted suicide) as well as those it tolerates or itself carries out. It asks how, if at all, those who kill are different from those who do not and whether murder should be understood as an act of defiant freedom or simply of moral depravity. In addition, we will analyze the prevalence of murder in American life as well as its various cultural representations. Can such representations ever adequately capture murder, the murderer, and the fear that both arouse? The course will draw on legal cases and jurisprudential writings, murder mysteries, texts such as Macbeth, Poe’s "The Murders on the Rue Morgue," Capote’s In Cold Blood, and Arendt's Eichmann in Jerusalem, and such films as Hitchcock's The Rope, Thelma and Louise, Silence of the Lambs, and Menace to Society. Throughout, we will ask what we can learn about law and culture from the way both imagine, represent and respond to murder

Limited to 100 students. Omitted 2007-08. Professor Sarat.

21. The State and the Accused. This course will examine the unusual and often perplexing means by which the law makes judgments about guilt and innocence. Our inquiry will be framed by the following questions: What gives a court the authority to pass judgment on a person accused of criminal wrongdoing, and what defines the limits of this authority? What ends does the law seek to pursue in bringing an accused to justice? What "process" is due the accused such that the procedures designed to adjudicate guilt are deemed fair? How do these standards differ as we travel from adversarial systems of justice (such as the Anglo-American) to inquisitional systems (e.g., France or Germany)? Finally, how has the process of rapid globalization changed the relationship between the state and the accused and, with it, the idea of criminal justice itself? In answering these questions, our investigations will be broadly comparative, as we consider adversarial, inquisitional, and transnational institutions of criminal justice. We will also closely attend to the differences between law’s response to "common" criminals and extraordinary criminals, such as heads of state, armed combatants, and terrorists.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. First semester. Professor Douglas.

24. Law and Social Relations: Persons, Identities and Groups. One of the foundational analytics governing law's relationship to identity and personhood is the grand trope of public and private. As an historical matter, the public/private divide has demarcated the boundary of law's authority: under a liberal theory of government, law may regulate relations in the public sphere but must leave the private realm in the control of individuals. The stakes associated with this line of demarcation are extremely high: those problems of identity and relation that are considered "public" are problems visible to law and subject to law’s authority; those that are considered private remain below the horizon of law's gaze. Yet definitions of the public and the private are notoriously slippery and inexact, and their contours are inexorably on a train as an African-American, or a license to practice law as a white woman, was to experience a kind of discrimination that the law would refuse to see. In the twentieth century we no longer experience such officially-sanctioned harms but remain conflicted about the extent to which law should address other, more "private" interactions: verbal bigotry, family relations, sex.

This course will trace and explore the modes by which the public/private divide constitutes identities in law by examining the ways law defines the public, and does or does not regulate ostensibly "private" harms. Using both legal and non-legal texts we will map a history of social relations, particularly as they implicated deeply held assumptions about racialized, gendered, and sexualized bodies, and explore the shifting boundary between public and private as it has emerged in public debates over the meaning of equality, privacy, and free speech. To what extent does law's authority remain constituted upon the public/private divide? To what extent are we now witnessing the redefinition, even the virtual elimination, of the private? And with what consequences for our social relations?

Requisite: LJST 10 or consent of the instructor. Limited to 30 students. Omitted 2007-08. Professor Umphrey.

25. Film, Myth, and the Law. The proliferation of law in film and on television has expanded the sphere of legal life itself. Law lives in images which today saturate our culture and have a power all their own, and the moving image provides a domain in which legal power operates independently of law's formal institutions. This course will consider what happens when legal events are re-narrated in film, and examine film’s treatment of legal officials, events, and institutions (e.g., police, lawyers, judges, trials, executions, prisons). Does film open up new possibilities of judgment, model new modes of interpretation, and provide new insights into law's violence? We will discuss ways in which myths about law are reproduced and contested in film. Moreover, attending to the visual dimensions of law's imagined lives, we ask whether law provides a template for film spectatorship, positioning viewers as detectives and as jurors, and whether film, in turn, sponsors a distinctive visual aesthetics of law. Among the films we may consider are Inherit the Wind, Call Northside 777, Judgment at Nuremberg, Rear Window, Silence of the Lambs, A Question of Silence, The Sweet Hereafter, Dead Man Walking, Basic Instinct, and Unforgiven. Throughout we will draw upon film theory and criticism as well as the scholarly literature on law, myth, and film.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 20 students. First semester. Professor Umphrey.

26. Critical Legal Geographies. The spatiality of social life is a fundamental element of human existence, not least through its involvement with power of various sorts. Spatiality is also a significant - and problematic - dimension of law (think of sovereignty, jurisdiction, citizenship). At the same time, law is a significant force through which spatiality is produced, reinforced, contested and transformed. Law literally constitutes social spaces through constitutions, treaties, statutes, contracts, modes of surveillance and policing, and so on. As it does so, it constitutes itself as a force in the world. Law may also be an arena in which other social-spatial conflicts are played out and, provisionally, resolved. The course will consider both the changing spatiality of law (its scope, scale, limits; its vectors and circuits) and the changing legal constitution of other social spaces. This will be done through an engagement with contemporary socio-spatial and legal theories and through a survey of exemplary events and situations. Among the more specific topics we will consider are privacy and property; public space of speech and dissent; migration, displacement and sanctuary; colonialism and occupation. The contexts of our study will not be limited to/by American law but will include examples involving international law, forms of legal pluralism, and other legal-cultural contexts. The course will conclude with an investigation of globalization and the emergence of cyberspace and their posited effects on the very possibility of law as we have come to understand and experience it.

Requisite: LJST 10 or consent of the instructor. Limited to 30 students. Second semester. Visiting Professor Delaney.

27. Law’s Madness. We imagine law to be a system of reason that governs and pacifies a disorderly world. Indeed law derives much of its legitimacy from its relation to reason: it uses reason to justify the imposition of state violence even as it limits its own power, punishing only acts done by reasoning human beings. Any "mistakes" or "disruptions" are understood as unfortunate departures from an ideal rational system. And yet what if one were to reimagine law as constituted as much by its irrationalities as its rationality? To ask that question is to enter the language of psychoanalysis, and the theories proposed by Sigmund Freud to explain human irrationalities. This course, following Freud, theorizes law as emerging out of and actively engaging in repressions of fundamental drives or desires--both its own and those of the legal subjects who come before it. We will map some of the ways in which law understands legal subjectivity in relation to the capacity to reason, and draw upon Freud to put the idea of the "reasonable self" under some pressure. We will also consider the ways in which law's authority may be conjured as an expression of the (sometimes violent) authority of the judge-father, and the limits of that authority as Freud understood them. Finally, we will speculate on the ways in which we make law an object of our own desire, which themselves depend upon the repression of law's violence.

Requisite: LJST 10 or consent of the instructor. Limited to 30 students. Omitted 2007-08. Professor Umphrey.

30. Law, Speech, and the Politics of Freedom. In the United States, the idea of free speech is held to be both a political and moral ideal. The First Amendment makes freedom of speech a centerpiece of liberal democratic values and processes, and thus of American identity itself. But what, precisely, do we mean when we link the ideas of freedom and speech? What kinds of speech, and what kinds of freedom, are implicated in that linkage? Correlatively, what does it mean to "censor"? Drawing upon political philosophy, literary theory, court cases, imaginative writing, and examples from contemporary culture, this course will explore the multiple meanings of "free speech," their legal regulation, and their deployment in American public culture. Why should we value "free"speech? Who do we imagine to be the speaker whose speech is or ought to be free: the man on the soapbox? The political protester? The media conglomerate? The anonymous chat-room inhabitant? What does it mean to say that various kinds of speech may be dangerous, and under what conditions it might be conceivable to shut down or regulate dangerous speech, or conversely to promote "politically correct" speech in either formal or informal ways? How do speech forms (for example, parody, poetry, or reportage) differ, and should some garner more legal protection than others? Can silence be considered a kind of speech?

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 35 students. Second semester. Professor Umphrey.

31. Social Movements and Social Change. This course examines social movements (and related phenomena) as integral elements of legal orders and as significant sources of legal transformations. Through interdisciplinary, cross-cultural, and historical analyses, the course will explore the ways in which non-state actors engage formal legal institutions to shape or reform law, in order to affect the conditions of social life. Of particular interest are not merely desired changes in laws but resultant changes in the culture of law more broadly. The course will draw on a wide range of movements (historical and contemporary; "progressive" and conservative; broad-based and narrowly focused; American and non-American; local, national and global; North and South, activist and bureaucratic from "below" and from "within"; etc.) and study two or three in closer detail. The over-arching objective is to achieve a richer understanding of both the inner workings of "the law" and the dynamic life of law outside of formal institutions.

Requisite: LJST 01 or consent of the instructor. Omitted 2007-08. Visiting Professor Delaney.

34. Law, Crime and Culture. Crime and criminality are the sites where law most directly and forcefully intervenes in everyday life through ritual and spectacle, through the construction of boundaries that include or exclude certain kinds of behavior or types of individuals from the social polity, and through direct physical violence and the containment of bodies. Focusing mainly but not exclusively on the United States, this course will explore, both historically and theoretically, the ways in which crime and criminality have been imagined, enacted, and punished. Drawing heavily on the work of Michel Foucault, we will explore the historical changes, continuities and contradictions visible in various imaginings of the relationship between the state, the criminal, and the public. We will consider the significance of shifting modes of punishment, from a spectacle of pain to incarceration behind the high walls of the penitentiary. We will also examine various theories of criminality and inquire into their cultural assumptions and consequences as they have gained and lost legitimacy over time. Whom do we hold legally or morally responsible for criminal acts? Can criminal activity be explained as product of vice, or an imperfect body, or the social environment? How does popular culture encode various representations of criminality?

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Second semester. Professor Umphrey.

35. Law’s Nature: Humans, the Environment and the Predicament of Law. "Nature" is at once among the most basic of concepts and among the most ambiguous. Law is often called upon to clarify the meaning of nature. In doing so it raises questions about what it means to be human.

This course is organized around three questions. First, what does law as a humanistic discipline say about nature? Second, what can law’s conception of nature tell us about shifting conceptions of humanness? Third, what can we learn by attending to these questions about law’s own situation in the world and its ability to tell us who we are? We will address these questions by starting with the environment (specifically wilderness). We will then expand our view of nature by examining legal engagements with animals (endangered species, animals in scientific experiments, and pets), human bodies (reproductive technologies, involuntary biological alterations, the right to die) and brains (genetic or hormonal bases for criminal defenses). Throughout, we will focus our attention on the themes of knowledge, control and change. We will look, for example, at relationships between legal and scientific forms of knowledge and the problematic role of expert knowledge in adjudicating normative disputes. We will also look at law's response to radical, technologically induced changes in relations between humans and nature, and to arguments in favor of limiting such transformations.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Omitted 2007-08. Visiting Professor Delaney.

36. Tragedy in the Theatre of Law. The tragic dramas of Aeschylus, Euripides, and Sophocles put law into question in fascinating ways. "Tragedy," argues Jean-Pierre Vernant, "is contemporaneous with the City and with its legal system. What tragedy is talking about is the City itself and the problems of law it is encountering." For this reason, Vernant concludes, "the true subject matter of tragedy is social thought and most especially juridical thought in the very process of elaboration. Tragedy poses problems of law, and the question of what justice is." Vernant’s suggestion - that classical tragic drama in effect amounts to a theory of law - is even more intriguing once juxtaposed to the remarks on tragedy in the text that is arguably the inaugural work in the philosophy of law. In Book VII of Plato's Laws, the Athenian considers what answer he would give to a tragic poet who asked him why he and his fellow legislators had decided to ban tragic poets from the city. The Athenian begins with a frank admission: "Respected visitors, we are ourselves authors of a tragedy, and that the finest and best we know how to make. You are poets," the Athenian continues, "and we also are poets in the same style, rival artists and rival actors, and that in the finest of all dramas, one which indeed be produced only by a code of true law."

This course is designed as an inquiry into the relationships between tragedy and law, on the one hand, and theatre and theory, on the other. What does it mean to read classical tragedies as works of legal theory? In what sense, meanwhile, does Plato's Laws lay claim to the generic status of tragedy? What is it about tragedy's nonphilosophical theory of law that Plato's interlocutors find so philosophically objectionable? We will bring these and other questions to bear on Plato's Laws and on key works by Aeschylus, Euripides, and Sophocles. In addition, we will read secondary texts by Danielle Allen, Louis Gernet, René Girard, Nicole Loraux, Friedrich Nietzsche, Jacques Rancière, and Jean-Pierre Vernant.

Limited to 30 students. Second semester. Professor Sitze.

37. Law and the American War in Vietnam. The American war in Vietnam was, among other things, a watershed event in American legal history. Throughout the duration of the war there was vigorous debate about its legality in terms of international law, natural law and constitutional law. The conduct of the war and its relation to the draft and to dissent generated unprecedented public disagreement about such fundamental legal issues as authority, obligation, due process, civil liberties, crime and punishment, and the relationship between law and morality. The war was also the topic or context for a number of trials during which official legal actors endeavored to make formal legal sense of the war and of law's relationship to it. As a historical event, the war may also be examined in light of more contemporary themes such as legal consciousness, law as violence, and governmentality. The course will explore legal aspects of the war both as a historical study and as a case study of law in extreme situations.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Omitted 2007-08. Visiting Professor Delaney.

38. Law and Historical Trauma. Certain events in political history--revolutions, civil wars, transitions from authoritarian or totalitarian regimes to political democracy, or particular moments in the ongoing constitutional life of a nation--seem unusual in the breadth and depth of the break or rupture that they make from tradition, the past, and the ongoing self-understandings of a people. Those events pose a special opportunity and challenge for law. Can law repair the traumatic ruptures associated with revolution, civil war, and recent democratic transitions? In such moments does law provide a reassuring sense of stability that serves to maintain the underlying continuity of history? Or, does it compound the crisis of dramatic historical transformation by insisting on judging the past, bringing the losers to justice, and publicly proclaiming the "crimes" of the old order? What can we learn about law by examining its responses to historical trauma? To address these questions we will first examine the idea of trauma and ask what makes particular events traumatic and others not. Is trauma constitutive of law itself? Is law always born in traumatic moments and, at the same time, continuously preoccupied with responding to its own traumatic origins? We will then proceed comparatively and historically by focusing on a series of case studies including colonial revolution in Algeria, Aboriginal rights cases in Australia, slavery and civil war in the United States, and regime changes in South Africa, Germany, and Argentina. In each we will identify the part played by law and ask what we can learn about the capacities and limits of law both to preserve national memory and, at the same time, to build new social and political practices.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Omitted 2007-08. Professor Hussain.

40. Law, God and Modernity. It is the hallmark of modernity that law is secular and rational, made by humans for their purposes. Modern law relegates the divine to the realm of private belief, while the modern state guarantees the uninterrupted observance of a multiplicity of beliefs. Yet secularism has never been an uncontested position and many philosophers have suggested that the sovereignty of the modern state is itself a worldly duplicate of religious understandings of god's omnipotence. Today the connection of law and the sacred has taken on new urgency with the so-called "return of the religious," most famously with the rise of political Islam but also with Christian movements in the west, and with the transformations of sovereignty through globalization. This course is a historical and cross-cultural examination of the relationship of law, sovereignty, and the sacred. It focuses on a range of topics: the understanding of secularism in general and the American doctrine of the separation of church and state in particular; the legal theory of Islamization; the meaning of orthodoxy, both legal and religious. It examines both the secular uses of the concept of the sacred, and the religious deployment of modern legal concepts. It asks how the proper names of law and god are used to anchor various normative visions.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 30 students. Second semester. Professor Hussain.

41. Interpretation in Law and Literature. (Analytic Seminar) Interpretation lies at the center of much legal and literary activity. Both law and literature are in the business of making sense of texts—statutes, constitutions, poems or stories. Both disciplines confront similar questions regarding the nature of interpretive practice: Should interpretation always be directed to recovering the intent of the author? If we abandon intentionalism as a theory of textual meaning, how do we judge the "excellence" of our interpretations? How can the critic or judge continue to claim to read in an authoritative manner in the face of interpretive plurality? In the last few years, a remarkable dialogue has burgeoned between law and literature as both disciplines have grappled with life in a world in which "there are no facts, only interpretations." This seminar will examine contemporary theories of interpretation as they inform legal and literary understandings. Readings will include works of literature (Hemingway, Kafka, Woolf) and court cases, as well as contributions by theorists of interpretation such as Spinoza, Dilthey, Freud, Geertz, Kermode, Dworkin, and Sontag.

Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Omitted 2007-08. Professor Douglas.

42. When Law Fails. (Analytic Seminar) Well publicized miscarriages of justice today draw public attention to the failures and imperfections of our legal system. All too often, it seems, law fails and becomes a tool of injustice. Yet it may be that law without failure is inconceivable and undesirable. As Chief Justice Rehnquist put it, the quest for perfect justice "would all but paralyze our system for enforcement of the criminal law." In this course we will ask what we can learn about the aspirations and operations of law by examining its failures, its miscarriages of justice.

We will begin by trying to determine what constitutes a miscarriage of justice. One conventional and compelling answer is when an innocent person is convicted and incarcerated. And, indeed, the image of the wrongfully convicted dominates popular culture, policy and advocacy. Is that answer useful for talking about ways in which the law fails or does it impose too narrow a lens? Are miscarriages of justice systemic or symptomatic, or are the problems which lead law to misfire idiosyncratic? Can law fail even when it reliably acquits the innocent and punishes the guilty? Can legal errors ever be "harmless"? What are the legal, cultural, and political meanings of a miscarriage of justice?

To answer these questions we will examine the contemporary innocence movement and the increased use of DNA to uncover law's failures as well as the impact of faulty eyewitness identifications, false confessions, biased juries, the politicization of prosecution, and racial bias in the criminal justice system. We will also examine the secret detention and trial of unlawful enemy combatants in the war on terror and the use of military tribunals. How do we think about miscarriage of justices in situations that openly claim different standards and different goals from the regular criminal justice system. We also will take up the treatment of miscarriages of justice in literature and popular culture.

Throughout, we will seek to identify the theoretical frames that are most productive in illuminating what happens when law fails as well as the broader implications of miscarriages of justice for the ways we think about law.

Requisite LJST 01 or 10 or consent of the instructor. Open to juniors and seniors. Limited to 15 students. Second semester. Professors Hussain and Sarat.

43. Law’s History. (Research Seminar) History is the backbone of the common law, a body of principles developed over time through a slow accretion of decisions constantly engaged with their own historical antecedents, or "precedent." Thus, questions of history are integral to an understanding of the rhetorical and hermeneutic practices involved in the creation of legal doctrine. Paying close attention to legal texts - opinions, treatises, and commentary - we will examine the way legal scholars and jurists since the eighteenth century have used historical materials to construct narratives that can justify their decisions, and how those uses have changed over time.

Yet the problem of history in law extends beyond its justificatory use in legal texts, and will push us to further questions. What, in the context of doctrine-making, is history? Does it include the personal histories detailed at trial? Does it erase the lived experiences of social groups at specific historical moments? How do these "other" histories, embedded in every legal case but often obscured in judicial opinions and treatises, put into question the legal system’s objective epistemological stance toward the very people over whom it presides?

Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Omitted 2007-08. Professor Umphrey.

44. Late Modern Moral Philosophy and Legal Theory. (Analytic Seminar) No one disputes that moral argumentation is central to law's theory and practice. Yet what exactly do we mean when we speak of morality? In this course, we shall take up this question by closely studying what is arguably the paradigmatic text of modern moral philosophy, Kant's Groundwork for the Metaphysics of Morals. After studying the relations between Kant's Groundwork to Kant's more general philosophy of public and international law, we will then study a set of critiques of, and commentaries, on Kant's work. The purpose of this course will be to weigh and consider Kant’s moral law as a point of reference for the critique of law today. Readings will include works by Adorno, Arendt, Butler, Derrida, Freud, Nietzsche, Levinas, Lacan, and Zizek.

Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Omitted 2007-08. Professor Sitze.

47. Global Legality. Traditionally, the idea of law has been associated with the legal system of a nation state, derived from a national constitution and delimited by territorial borders. Yet today, with the complex process called globalization, it is often argued that the prominence of borders, the older sovereign powers of that state, and even the idea of a national law are all in decline. Instead, we have an unprecedented flow of goods, money and people; the increasing regulation of economic and social life by supranational organizations such as the I.M.F. and World Bank; and with the institution of human rights, a new conception of rights and duties that is universal in scope. This class will examine the economic, cultural and, above all, legal dimensions of globalization. We will focus on the history of the League of Nations and the United Nations, the idea and practice of human rights, and the transfer of state powers to international agencies. We will also ask, however, if such processes are as new as they are often made out to be. Taking a larger historical perspective that includes colonialism and imperialism, we will trace older versions of a global legality, of the recurrent dream (or nightmare) of a single order of law and values to govern all of humankind.

Requisite: LJST 10 or consent of the instructor. Limited to 30 students. First semester. Professor Hussain.

49. Law and Love. (Analytic Seminar) At first glance, law and love seem to tend in opposing directions: where law is constituted in rules and regularity, love emerges in contingent, surprising, and ungovernable ways; where law speaks in the language of reason, love's language is of sentiment and affect; where law regulates society through threats of violence, love binds with a magical magnetism. In this seminar, placing materials in law and legal theory alongside theoretical and imaginative work on the subject of love, we invert that premise of opposition in order to look for love's place in law and law's in love. First we will inquire into the ways in which laws regulate love, asking how is love constituted and arranged by those regulations, and on what grounds it escapes them. In that regard we will explore, among other areas, the problematics of passion in criminal law and laws regulating sexuality, marriage, and family. Second we will ask, how does love in its various guises (as, philia, eros, or agape) manifest itself in law and legal theory, and indeed partly constitute law itself? Here we will explore, for example, sovereign exercises of mercy, the role of equity in legal adjudication, and the means that bind legal subjects together in social contract theory. Finally, we will explore an analogy drawn by WH Auden, asking how law is like love, and by extension love like law. How does attending to love's role in law, and law's in love, shift our imaginings of both?

Requisite: LJST 10 or consent of the instructor. Open to juniors and seniors. Limited to 15 students. First semester. Professor Umphrey.

50. Twentieth-Century American Legal Theory. (Analytic Seminar) The discipline of legal theory has the task of making law meaningful to itself. But there is a variety of competing legal theories that can make law meaningful in divergent ways. By what measure are we to assess their adequacy? Is internal coherence the best standard or should legal theory strive to accord with the extra-legal world? Then too, the institutions and practices of law are components of social reality and, therefore, as amenable to sociological or cultural analysis as any other component. Here again, many different kinds of sense can be made of law depending upon how "the social" is itself theorized. This course engages the theme of law and the problems of social reality by way of a three-step approach. The first part of the course presents an overview of the main lines of twentieth-century American legal thought. We begin with a study of legal formalism and the challenges posed to it by legal realism and its various successor theories. One focus of debate between formalism and its rivals is how much social realism should be brought to bear on legal analysis. Another question is: what kind of social realism should be brought to bear on the analysis of law. The second segment of the course provides a survey of some of the candidates. These include the Law and Society Movement, neo-Marxism and Critical Legal Studies. In the final segment we look at how these theoretical issues are given expression in connection with more practical contexts such as poverty law, labor law or criminal law.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. Omitted 2007-08. Visiting Professor Delaney.

51. Before the Law: Reading Kafka. (Analytic Seminar) Since its introduction into the English language in 1947, the adjective "Kafkaesque" has become a commonplace in legal scholarship and lawyerly rhetoric. Kafka's name now serves as a synonym for one of law's outermost limits, designating an experience where law’s language and logic have become incomprehensible, its relation to justice and morality severed, yet where, despite all of this, its force remains in effect. But while the popularization of "the Kafkaesque" might give the impression that Kafka's lessons have been learned, it should also cause us to wonder whether the opposite is not closer to the truth: that is, whether the conspicuous appropriation of Kafka in and by legal discourse has not also had the effect of muting Kafka's more troubling lessons about the nature of law itself. How exactly, then, did Kafka understand law? Under what conditions did he arrive at that understanding? And what relation to law’s language, morality, and force are implied in Kafka's unique style of writing? In this course, we will take up these questions and more, approaching Kafka not as an author whose literary works just happen to touch upon law as merely one among many themes, but as a student of law whose lessons about law’s relation to life, language, time, and desire could have been expressed only through the invention of a new style of writing.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. Omitted 2007-08. Professor Sitze.

56. Representing and Judging the Holocaust. (Research Seminar) This seminar will address some of the foundational questions posed by radical evil to the legal imagination. How have jurists attempted to understand the causes and logic of genocide, and the motives of its perpetrators? Is it possible to "do justice" to such extreme crimes? Is it possible to grasp the complexities of history in the context of criminal trial? What are the special challenges and responsibilities facing those who struggle to submit traumatic history to legal judgment? We will consider these questions by focusing specifically on a range of legal responses to the crimes of the Holocaust. Our examination will be broadly interdisciplinary, as we compare the efforts of jurists to master the problems of representation and judgment posed by extreme crimes with those of historians, social theorists, and artists. Readings will include original material from the Nuremberg, Eichmann, and Irving trials, and works by, among others, Hannah Arendt, Zygmunt Bauman, Christopher Browning, Primo Levi, and Art Spiegelman.

Requisite: LJST 10 or consent of the instructor. Limited to 15 students. Second semester. Professor Douglas.

57. Property, Liberty and Law. (Research Seminar) What we call property is enormously important in establishing the nature of a legal regime. Moreover, an exploration of property offers a window on how a culture sees itself. Examining how property notions are used and modified in practice can also provide critical insights into many aspects of social history and contemporary social reality.

We will begin our discussion of property by treating it as an open-ended cluster of commonplace and more specialized notions (e.g., owner, gift, lease, estate) used to understand and shape the world. We will look at how the relation of property to such values as privacy, security, citizenship and justice has been understood in political and legal theory and how different conceptions of these relations have entered into constitutional debates. We will also study the relationship of property and the self (How might one’s relation to property enter into conceptions of self? Do we "own" ourselves? Our bodies or likenesses? Our thoughts?), property and everyday life (How are conceptions of property used to understand home, work and community?) and property and culture, (Do our conceptions of property influence understandings of cultural differences between ourselves and others? Does it make sense to claim ownership over one's ancestors?). In sum, this course will raise questions about how property shapes our understandings of liberty, personhood, agency and power.

Requisite: LJST 01 or 10 or consent of the instructor. Limited to 15 students. First semester. Visiting Professor Delaney.

74. Norms, Rights, and Social Justice: Feminists, Disability Rights Activists and the Poor at the Boundaries of the Law. (Also Political Science 74.) See Political Science 74.

Limited to 15 students. First semester. Professor Bumiller.

77, 78. Senior Departmental Honors. Independent work under the guidance of a tutor assigned by the Department. Open to senior LJST majors who wish to pursue a self-defined project in reading and writing and to work under the close supervision of a faculty member. Admission is by consent of the Department.

97, 98. Special Topics. Independent Reading Courses. Reading in an area selected by the student and approved in advance by a member of the Department.

Related Courses

History of Anthropological Theory. See Anthropology 23.

Second semester. Professor Gewertz.

Economic Anthropology and Social Theory. See Anthropology 43.

Second semester. Professor Goheen.

Science and the Courts. See Colloquium 25.

Omitted 2007-08. Visiting Professor Lezaun.

The Politics of the New Genetics. See Colloquium 34.

Second semester. Visiting Professor Lezaun.

Law and Economics. See Economics 66.

First semester. Professor Nicholson.

"The Linguistic Turn": Language, Literature and Philosophy. See English 54.

Omitted 2007-08. Professor Parker.

Topics in African History. See History 92.

Limited to 20 students. First semester. Professor Redding.

Normative Ethics. See Philosophy 34.

Requisite: One course in philosophy or consent of the instructor. Second semester. Professor Shah.

What Is Morality About? See Philosophy 38.

One course in Philosophy or consent of the instructor. Omitted 2007-08. Professor Shah.

Modern Classics in Political Philosophy. See Political Science 28.

First semester. Professor Mehta.

The American Constitution I: The Structure of Rights. See Political Science 41.

First semester. Professor Arkes.

The American Constitution II: Federalism, Privacy, and the "Equal Protection of the Laws." See Political Science 42.

Omitted 2007-08. Professor Arkes.

Punishment, Politics and Culture. See Political Science 60.

First semester. Professor Sarat.

Psychology and the Law. See Psychology 63.

First semester. Professor Hart.

Ancient Israel. See Religion 21.

First semester. Professor Niditch.

Reading the Rabbis. See Religion 41.

First semester. Professor Niditch.

Foundations of Sociological Theory. See Sociology 15.

First semester. Professor Himmelstein.

Gender Labor. See Women’s and Gender Studies 24.

Second semester. Professors Barale and Olver.

 

Clark House