First-Year Electives. Spring 2014

Transcription

1 First-Year Electives Spring 2014

2 Table of Contents Critical Legal Thought with Prof. Katharine Franke 2 Empirical Analysis of Law with Prof. Jeffrey Fagan 4 Lawyering for Change with Prof. Susan Sturm 7 Legislation and Regulation with Ms. Caitlin Halligan 8 The United States and the International Legal System with Prof. Matthew Waxman 9 Appendix A: 1L electives schedule and upper-year courses with very limited enrollment for 1L students 10 Appendix B: 1L pre-registration memo 11 NOTE: All of the 5 First-Year Electives are offered for 3 credits but several of the upper-year courses are offered for 4 credits. 1

3 CRITICAL LEGAL THOUGHT (L6173) Professor Katherine Franke Oliver Wendell Holmes wrote in 1871 that "torts is not a proper subject for a law book." One would be hard pressed to show that any of the courses in the first year foundational curriculum contain a coherent body of doctrine that can be logically deduced from fundamental principles, instead their content is best defined by reference to the boundaries of adjacent areas of law. Is nuisance a problem of torts or of property? What frame of analysis - torts or contract - should be brought to bear on the tortious interference with contract? The concepts "public law" and "private law," as well the notions of "canon," "field" and "foundational curriculum," all rest on a set of unstated premises for their integrity. Certain legal concepts, forms of reasoning, and values are privileged, while others are marginalized and devalued, if not ignored. Critical Legal Thought will retrace and re-examine the courses that make up the foundational curriculum with a critical eye toward uncovering their hidden assumptions, unstated premises, and leaps of faith that give much of the law we teach and learn a "taken for grantedness". This course will introduce second-semester, first-year law students to a range of critical approaches to law with the goal of giving them tools for testing legal arguments, assertions of legal pedigree, and the underlying normative premises that often make legal outcomes seem both just and inevitable. In the first year of law school we teach you to think like a lawyer thinking of law as rules and judges as umpires is part of what that means. This official story of law includes the following notions: Law is a system of rules, as distinct from morality, that are applied to a set of facts that come before judges, so as to produce results that are predictable, consistent, and don t, ex ante, favor one party or team over the other. Judges are like an umpire who calls a runner out a first based not because he likes the runner, thinks he deserves to be safe, or thinks his team needs a break, but instead applies a rule: safe if he got there before the throw, out if he was too late. Law and rules are the best alternative to violence and vigilantism; indeed law itself is not violent. Emotion, empathy, compassion, or forgiveness should not move judges in deciding how to apply a legal rule to a particular factual circumstance. There are right answers to every legal dispute. Optimally, considerations of race or gender should be banished from a modern notion of law. In Critical Legal Thought we ll explore readings that explain the official story law tells about itself, and what we re teaching you about what it means to be a lawyer. Then we ll read critiques of that story, drawing from readings in: Legal realism Law & Society Empirical Legal Studies Critical Legal Studies 2

4 Feminist Theory Critical Race Theory Queer Theory We ll do this through readings in each of your first year foundational courses, thus giving you the critical tools to evaluate what it means to get a legal education, and what it means to be governed by a system of rules not men. Students will be evaluated based on class participation, two short papers, and a final take-home examination. The syllabus for the class is available here: 3

5 EMPIRICAL ANALYSIS OF LAW (L6172) Professor Jeffrey Fagan What Do These Cases Have in Common? Preface Napster Roper v Simmons NAACP v Accusport et al. Georgia v. Ashcroft Dukes v Wal-Mart Zamora v CBS Soto v New Jersey Rios v Steamfitters Local Casteneda v Partida In re Agent Orange Griggs v Duke Power Co. One answer is that each turned on modern, rigorous social science evidence, evidence that established facts, that evaluated causal claims, that provided the context and meaning of a constitutional claim, or that estimated the impacts of new procedures and rules. The need for these analytic skills and tools for the contemporary lawyer, jurist, regulator, or legislator is evident in this tableau of cases. Materials Casebook: R. Lawless et al., Empirical Methods in Law (2010) Optional Texts: David Faigman et al., Modern Scientific Evidence: Standards and Research Issues, Thomson (2008) D. Rowntree, Statistics Without Tears, Pearson (2004) J. Gastwirth, Statistical Science in the Courtroom, Springer (2000) Newspaper articles, law review articles, scientific studies, and other materials will be posted on the course portal website. Please check it regularly. 4

6 Participation and Evaluation Textbook reading assignments are assigned from casebook as well as case summaries and articles. Class participation is a meaningful part of the course grade and is essential to the success of the course. Students are expected to have done the reading before class and to be prepared to answer questions. Classes will include lectures, case studies of specific substantive areas of the law, case studies of the uses of analytic methods to establish evidence, and case presentations. Grades will be based on (1) student participation in class discussions and analysis of hypotheticals, (2) two (500 word) memos analyzing the use of social science in specific or hypothetical cases, and (3) a final exam. Optional Writing Credit. Optional writing credit for a substantial, publication-quality paper is available for all students. The requirements for the optional writing credit are stringent. The paper will be an original work relevant to substantive, methodological, or procedural dimensions of the course work. Course Description The course has five sections. First, we review modern rules of scientific evidence in the courtroom. We analyze recent cases such as Daubert v Merrill that have had significant impacts on the federal rules of evidence and state law. Next, we review concepts in scientific evidence and inference, including the elements of scientific inquiry that determine the reliability of scientific evidence. Then, we review cases, both in litigation and constitutional adjudication, to examine how scientific evidence is used in the courtroom. Cases will address topics such as discrimination, trademark, juries, torts, criminal procedure, speech, and voting rights. Finally, we review how empirical methods can be used in planning and conducting litigation: choosing a venue, selecting jurors, assessing the potential contributions and weaknesses of experts, and creating jury instructions. 5

7 Syllabus Class 1 Introduction Cases A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001) Roper v. Simmons, 543 U.S. 541 (2005) N.A.A.C.P. v. Accu-Tek, 271 F.Supp.2d 435 (2003) Class 2 Recent Developments in the Federal Rules of Evidence Class 3 & 4 Causation in the Law, Evidence, and Inference Class 5-9 Research Design and Methods Class 10 - Human Subject Regulations Class 11 - Intellectual Property Class 12 - Trademark Class 13 Obscenity Class 14 - Damages Class 15 - Juries and Witnesses Class 16 - Capital Punishment Class 17 - Gender Discrimination in Education and Employment Class 18 - Racial Discrimination in Education and Housing Class 19 - Affirmative Action Class 20 Elections Class 21 - Racial Profiling Class 22 & 23 Criminal Procedure Class 24 - Predicting Future Dangerousness Class 25 - Juries, Venues, and Jury Instructions Class 26 Case Study: New York City Gun Litigation 6

8 LAWYERING FOR CHANGE (L6369) Professor Susan Sturm This course will explore how lawyers advance social and institutional change both using and moving beyond the traditional model of litigation. By linking theory and practice, the class will explore innovative roles and strategies for addressing pressing social problems and advancing social justice in challenging times. Over the course of the semester, we will explore a variety of theories of change currently in use, and link each theory to practice by (1) meeting with a practitioner involved in advancing change or (2) conducting a workshop designed to build knowledge and skills needed to put that theory of change into practice. Students will select a cluster organized by issue or problem area (such as education, criminal justice, employment, immigration, community economic development, child welfare, health, racial and gender justice, LGBTQ issues) and will work in those clusters to critically assess and apply each theory of change. The class will cultivate the strategic capacity lawyers need to effectively collaborate and address difficult and complex problems. The course will introduce a systems approach to addressing complex problems, and a variety of cutting edge change frameworks and strategies for advancing change through law. It will address strategies for collaborative change as well for addressing intractable change and the backlash that predictably accompanies transformational change. We will consider the role of judicial intervention in producing mobilization and counter-mobilization. By developing practical tools informed by theory, students will be enabled to produce their own theories of change and plans for their roles as change agents. To see a tentative syllabus, please go The intention is for the elective to include some 2L, 3L and LLM students, to provide perspectives on lawyers roles, based on their work experience during and after law school. For their final project, students will write a paper that (1) identifies and critically assesses the theory of change guiding a current or past change initiative in which lawyers play a role or (2) explores their own theory of change for a project or goal they would like to pursue either now or in the future. 7

9 LEGISLATION AND REGULATION (L6169) Ms. Caitlin Halligan Although most of the first-year curriculum is devoted to understanding the development of common law, today s world is shaped to a large extent by the work of Congress and administrative agencies. This course is designed to introduce you to a critical part of our legal landscape: the ways in which laws are made by Congress and administrative agencies, and interpreted by courts and agencies, in the modern administrative state. We will examine the theories behind statutory interpretation and administrative agencies, the judicial precedents that grapple with these issues, and their practical import for lawyers. Part I will cover statutes and their interpretation by courts. We will focus primarily on statutory interpretation by federal courts, and examine the strategies that courts and lawyers have developed to give meaning to statutory text. We will also briefly look at the diverse approaches to statutory interpretation developed by state courts, and consider how and why they might differ from the methodology used in the federal courts. Part II will cover the structure and function of the regulatory state, including the constitutional position of administrative agencies, and the controls that both Congress and the President can wield over administrative agency action. Part III will cover the regulatory process, judicial review of agency action, and agency statutory interpretation. We will look at how agencies make decisions; the extent to which courts can exercise oversight over agency actions, particularly those involving complex scientific or technical issues; and how tenets of statutory interpretation apply to agency actions. Throughout the course, we will consider how the power to make, interpret, implement, and enforce laws is allocated among the branches of government; the relative strengths and weakness of each institution; and the checks imposed on each branch of government. Interpreting statutes and understanding agency rulemaking is a skill, just like learning to read and distinguish cases. To that end, we will look at primary source materials statutes, legislative history, agency rules, and executive orders in addition to cases and secondary sources. Throughout the course, we will also consider, from a practical perspective, how lawyers use these materials to advance their position in the course of litigation. Grades will be based on your performance on a final 3-½ hour exam; I will also take class participation into account. 8

10 THE UNITED STATES AND THE INTERNATIONAL LEGAL SYSTEM (L6183) Professor Matthew C. Waxman Summary: This course explores some of the many ways in which the United States and the U.S. legal system operate within a broader, international legal system. The course will introduce students to key concepts and debates in areas such as public international law; U.S. foreign relations law; and the use, application or enforcement of international law in U.S. courts. This course is not meant to substitute for upper-level survey courses in public international law, foreign relations law, or human rights law. Rather, it seeks to introduce students to each of them, in hope of sparking interest in studying them more thoroughly, or, for those students who don t take the upper level courses, at least equipping them with some basic analytic tools. Tentative Outline PART I. International Law (A) (B) (C) (D) (E) What Is International Law? Theory and Methodology Treaty Law and Customary Law Is IL Really Law? Legal Regulation of the Use of Force and the UN Charter International Law and the Global Economy PART II. Foreign Relations Law (A) (B) (C) Constitutional Allocation of Foreign Relations Powers The Treaty Power Treaty Interpretation and Termination PART III. International Law in U.S. Law and Courts (A) (B) (C) The United States and Human Rights International Law and Interpretation of U.S. Law Medellin Litigation: Tying It All Together 9

11 Appendix A SPRING L ELECTIVES SCHEDULE Course ID Course Title Pts Instructor Days Offered Start-End Time LAW -L Legislation and Regulation 3 HALLIGAN, CAITLIN TR 1:20PM-2:40PM LAW -L Empirical Analysis of Law 3 FAGAN, JEFFREY MW 1:20PM-2:40PM LAW -L Critical Legal Thought 3 FRANKE, KATHERINE MW 1:20PM-2:40PM LAW -L The United States & the International Legal System 3 WAXMAN, MATTHEW MW 1:20 PM-2:40 PM LAW -L Lawyering for Change 3 STURM, SUSAN TR 1:20 PM-2:40 PM A Note to First Year Students The Faculty has approved opening a limited number of seats to 1L students in the nine (9) upper-level courses listed below. These courses were selected because they present alternative perspectives or methodologies of the sort the First Year Electives are intended to offer. When pre-registering you must rank all 14 elective offerings (the 5 1L Electives and the 9 upper-level courses listed below). If you are interested in any one of these upper-level offerings, you should give them very high priority as only a limited number of seats will be available for 1L s. If you are not interested in the upper-level courses, assign them low priority. Course ID Course Title Pts Instructor Days Offered Start-End Time LAW- L Administrative Law 4 STRAUSS, PETER MTW 1:20 PM-2:40 PM LAW- L Advanced Contracts 3 KRAUS, JODY TR 1:20 PM-2:40 PM LAW- L American Legal History 3 PONSA, CHRISTINA TR 1:20 PM-2:40 PM LAW -L Antitrust and Trade Regulation 3 WU, TIMOTHY TR 1:20 PM-2:40 PM LAW- L Corporations, Sec 2 4 GOLDSCHMID, HARVEY TWR 1:20 PM-2:40 PM LAW -L International Law 3 POZEN, DAVID MW 1:20 PM-2:40 PM LAW L Japanese Law & Legal Institutions 3 MILHAUPT, CURTIS MW 1:20 PM-2:40 PM LAW -L Labor Law 4 BARENBERG, MARK MTWR 1:40 PM-2:40 PM LAW L Law and Development 3 PISTOR, KATHARINA TR 1:20 PM-2:40 PM Please note that the faculty listed above will not be present at the First Year Elective panel. For course descriptions for these offerings, see the online course guide at 10

12 Appendix B SPRING L ELECTIVE PRE-REGISTRATION Dear First Year Students: OPENS: 10 am Monday, November 4 CLOSES: 5 pm Friday, November 8 Pre-registration for the Spring 2014 First-Year Electives will open at 10 am EST on Monday, November 4, and will close promptly at 5 pm EST on Friday, November 8. During this period you will be able to select from a list of 14 courses: 5 First-Year Electives and 9 upper-level courses. The upper-level courses present alternative perspectives or methodologies of the sort the 1L electives are intended to offer. A limited number of seats for 1L s in the upper-level courses was approved by the Faculty, so students interested in any of the 9 upper-level courses should give them high priority in their rankings. The 1L electives and the 9 upper-level classes are scheduled so that they will not conflict with any of your other 1L foundation courses (Constitutional Law, Contracts, Criminal Law, Property, Legal Practice Workshop II). TO PRE-REGISTER FOR SPRING 2014 ELECTIVES: To access the 1L Elective pre-registration application, log in to Lawnet at You must rank all fourteen (14) elective offerings in order for your pre-registration to be completed. If you are interested in being considered for one of the upper-level electives, you should give them very high priority since seats will be limited (between 5-15 seats in each class). If you are not interested in the upper-level courses, assign them low priority. A course lottery will be run and the results will be available by the end of the December exam period, when Spring 2014 schedules for all students will be posted in Lawnet. NOTE for students who do not make their selections by the close of the 1L elective pre-registration period: First-year students who do not finalize their elective pre-registration before 5 pm on Friday, November 8, will not be included in the lottery and thus will not receive any priority for an elective. They will be registered for an elective that has available seats after all students who pre-registered are placed. You are advised not to leave your elective pre-registration for late in the afternoon on Friday, November 8, since technical or connectivity issues may prevent you from completing your pre-registration before the 5 pm deadline. Please let us know if you have any questions. The Staff of Registration Services William and June Warren Hall Room 500 (212)