Law B551 Comparative Legal Reasoning

Transcription

1 University of Washington, School of Law Seattle, WA Law B551 Legal Reasoning Fall Quarter 2017, s, 1:30-3:20 pm, s, 1:30-2:20 pm William H. Gates Hall #212 Professor Dongsheng Zang William H. Gates Hall #427 Tel: (206) COURSE DESCRIPTION This seminar serves two purposes: (a) It is an introduction to law students from civil law traditions the basic concepts and analytical frameworks in the United States. The learning objective is to provide these students conceptual and analytical tools to enable them to read cases more effectively. (b) For domestic students, the seminar aims to provide a unique opportunity to look at American way of thinking and reasoning from foreign eye through interactions with international students. The learning objective is to develop understanding of American legal reasoning from comparative perspective. The seminar explains the following fundamental concepts hidden in cases: doctrine, policy, the rule/standard distinction, principle, legislative intent, textualism, and canon of construction. These concepts are discussed and grouped in broader conceptual frameworks such as formalism, American Legal Realism, the Legal Process school, Critical Legal Studies, Critical Race Theory, Feminist Critical Theory, neo-formalism and its critiques. These broader conceptual frameworks are introduced in historical sequence and contexts, which will require students to learn and read opinions by some of the most influential judges in American legal history: Chief Justice John Marshall, Justice Oliver Wendell Holmes, Jr., Judge Jerome Frank, Justice Antonin Scalia, and Judge Robert A. Katzmann. Throughout the seminar, students will be asked to read different parts of a classic article on legal reasoning, namely, Edward H. Levi, An Introduction to Legal Reasoning, 15 University of Chicago Law Review 501 (Spring 1948, No.3). The seminar meets twice a week: on s during the two-hour session, we will read a series of cases and relevant literature following the historical development of law in the United States; on s, during the one-hour session, students and participants are invited to do presentations for the purpose of comparing American law with law and practices in their home countries. REQUIREMENTS AND GRADING Final grade for each student includes two components: (a) class participation/presentation and writing assignments (75%) and (b) a final research paper (25%). Students are strongly encouraged to participate actively in class discussion. In order to achieve this goal, each student is expected to carefully read through the materials before the class. If you have questions, doubts, challenges, or desire further relevant facts or data beyond the reading materials, please do not hesitate to bring them to the class! While I have chosen the reading materials carefully 1 P a g e

2 and many of the authors are great scholars, your task in the classroom is not to worship or simply succumb to authority. During the seminar, you are expected to do some research and submit writing assignments. Typically, a writing assignment is expected to be typed by a computer, double-spaced; its length is often within one or two pages unless otherwise specified by instructors. You can submit all writing assignments via Canvas ( Please follow specific instructions regarding deadlines and other issues. COURSE MATERIALS For the purpose of this seminar, no textbook is required. All reading materials will be posted on the Law School website called Canvas ( and no purchase of any other materials is required for this seminar. Please contact Ms. Ellen J. Monteith ( montee@uw.edu, or phone: ) for assistance. OFFICE HOURS William H. Gates Hall #427, s 2:30 5:30 pm or by appointment. COURSE SCHEDULE This course schedule is based on UW s official Academic Calendar (web link). Autumn Quarter 2017 September 15 (Friday) September September 18 () September 25 () November 10 (Friday) November December 6 () December 9-15 Graduate Programs Orientation FLS/1L Orientation Transfer Orientation Instruction Starts Veterans Day Holiday Thanksgiving Holiday Instruction Ends Examination Period 1. Introduction 09/25 Introduction Cases o McBoyle v. United States, 283 U.S. 25 (1931) (Justice Holmes); o State Farm Mutual Automobile Insurance Company v. Amato, 528 N.E.2d 162 (N.Y. 1988). o Pierre Schlag, No Vehicles in the Park, 23 Seattle University Law Review 381 (Fall 1999, No.2). 09/27 o Edward H. Levi, An Introduction to Legal Reasoning, 15 University of Chicago Law Review 501 (Spring 1948, No.3). 2 P a g e

3 2. Institutional Foundation: The Power of the Judiciary 10/02 Cases o Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) o Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) o Alexander Hamilton, Federalist Paper No.78 (1788). 10/04 o Hiroshi Itoh, Judicial Review and Judicial Activism in Japan, 53 Law and Contemporary Problems 169 (Winter & Spring 1990, No.1). 3. Rise of Doctrine: Formation of Contract 10/09 Cases o Adams v. Lindsell, 1 B. & Ald. 681 (King s Bench 1818). o Mactier v. Frith, 6 Wend. (N. Y.) 103 (1830). 10/11 o Christopher Columbus Langdell, Selection of Cases on the Law of Contracts (1871) (Preface). o Morton J. Horwitz, The Historical Foundations of Modern Contract Law, 87 Harvard Law Review 917 (Mar. 1974, No.5). o Hiroshi Itoh, The Role of Precedent at Japan s Supreme Court, 88 Washington University Law Review 1631 (2011, No.6). o Mark Jia, Note, Chinese Common Law? Guiding Cases and Judicial Reform, 129 Harvard Law Review 2213 (Jun. 2016, No.8). o Basil Markesinis, Judicial Style and Judicial Reasoning in England and Germany, 59 Cambridge Law Journal 294 (Jul. 2000, No.2). 4. Policy in Torts: American Legal Realism 10/16 Cases o Dixon v. Bell, 5 Maule & Selwyn 198 (1816); o Longride v. Levy, 2 Meeson & Welsby 519 (1837); o MacPherson v. Buick, 217 N.Y. 382 (1916). o Edward H. Levi, An Introduction to Legal Reasoning, 15 University of Chicago Law Review 501 (Spring 1948, No.3). 10/18 o Heikki Pihlajamaki, Against Metaphysics in Law: The Historical Background of American and Scandinavian Legal Realism Compared, 52 American Journal of Law 469 (Spring 2004, No.2). 3 P a g e

4 5. Formalism: Contract Law as an Example 10/23 Cases o Dartmouth College v. Woodward, 17 U.S. 518 (1819) (optional); o Lochner v. New York, 198 U.S. 45 (1905). 10/25 o Morton J. Horwitz, History of the Public/Private Distinction, 130 University of Pennsylvania Law Review 1423 (Jun. 1982, No.6). o John Henry Merryman, The Public Law-Private Law Distinction in European and American Law, 17 Journal of Public Law 3 (1968). 6. Statutes in Court: Where to Find Legislative Intent? 10/30 Cases o Athanasaw v. United States, 227 U.S. 326 (1913); o United States v. Holte, 236 U.S. 140 (1915); o Caminetti v. United States, 242 U.S. 470 (1917); o Mortensen v. United States, 322 U.S. 369 (1944). o Edward H. Levi, An Introduction to Legal Reasoning, 15 University of Chicago Law Review 501 (Spring 1948, No.3). 11/01 o John Henry Merryman & Rogelio Perez-Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America (3rd ed.), Stanford, CA: Stanford University Press 2007, Chapter 7 The Interpretation of Statutes. 7. Modern Legal Process 11/06 11/08 Cases o United States v. Gayle, 342 F.3d 89 (2nd Cir. 2003) (Judge Katzmann). o Robert A. Katzmann, Madison Lecture: Statutes, 87 New York University Law Review 637 (June 2012, No.3) (pp only). o John O. Haley & Daniel H. Foote, Judicial Lawmaking and the Creation of Legal Norms in Japan: A Dialogue, in Legal Innovations in Asia: Judicial Lawmaking and the Influence of Law (John O. Haley & Toshiko Takenaka eds. 2014), pp P a g e

5 8. Textualism: Wither Legislative History? 11/13 Case o United States v. Holte, 236 U.S. 140 (1915) (the case has been covered in 6); o Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984); o INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (Justice Scalia s concurring opinion); o Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012). o Antonin Scalia, The Rule of Law as a Law of Rules, 56 University of Chicago Law Review (Fall 1989, No.4), pp /15 9. Law s Empire: Law as Principle 11/20 Cases o Brown v. Board of Education, 347 U.S. 483 (1954). o Obergefel v. Hodges, 135 S.Ct (2015). 11/22 o Ronald Dworkin, Law s Empire, Cambridge, MA: The Belknap Press of Harvard University Press 1986, pp The Super-Statute: Canons of Construction 11/27 Cases o Small v. United States, 544 U.S. 385 (2005). o EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991). o Antonin Scalia, The Rule of Law as a Law of Rules, 56 University of Chicago Law Review (Fall 1989, No.4), pp / Presentations 12/04 o Schedule to be decided. o Schedule to be decided. 5 P a g e

6 12/06 o Schedule to be decided. 6 P a g e