In this course, we consider courts as political institutions, comparable to but also different from Congress and the Presidency. We will examine whether or in what sense legal decision making is "political" – that is, whether or in what sense what goes on in the courtroom is anything other than judges making policy according to their own policy preferences. We’ll take a close look at how judges makes decisions and at the logical, social and institutional factors that constrain their discretion. We’ll also consider the relationship between the courts and the other branches of government, and whether or how courts can be used to effect significant political change.

Course requirements: There will be no exams. Your grade will be computed as follows:

***All assignments must be turned in on the day they are due. No late papers, please!

***Readings should be completed prior to class

Texts: Frank Murphy, Courts, Judges and Politics, 5^th ed.

Class 1: Introduction: Law vs Politics?

1. Courts as Political Institutions

Class 2: Structure of the Judicial System and the Role of Courts

Class 3: Judicial independence

Class 4: Selection of judges

• Assignment #1 due: Judicial independence exercise

Class 5: Selection cont.: Advise and consent?

Silverstein, "Bill Clinton’s Excellent Adventure," in Gillman & Clayton, The Supreme Court in American Politics

Class 6: What is Law, Anway? (A Little Jurisprudence)

Class 7: Reasoning from Cases: Basic principles

Class 8: Reasoning from Cases: Reasoning by Analogy

Class 9: Reasoning from Cases: Stare Decisis?

Class 10: Reasoning from Statutes

• Assignment #2 due: Alice v Brad

Class 11: Reasoning from Statutes: Court/Congress interaction

Class 12: Case study: TVA v. Hill

• Assignment #3 due: TVA scenario, 2-3 pp.

Class 13: Constitutional Interpretation: What is a Constitution?

Class 14: Constitutional Interpretation: Judicial Review and the Countermajoritarian Dilemma

Class 15: Constitutional Interpretation: Theories of Interpretation

• Paper #1 due

Class 16: Legal Reasoning and the Legal Community: Interpretation as a Chain Enterprise

Class 17: Theoretical Approaches: From Attitudinal to New Institutionalist

Spaeth, "The Attitudinal Model," in Epstein, Contemplating Courts [R]

Gillman & Clayton, "Introduction," in Clayton & Gillman, Supreme Court Decision-Making, pp. 1-5 [R]

*Judicial Behavior exercise

Class 18: New Institutionalism: Game Theory

Epstein & Walker, "The Role of the Supreme Court in American Society: Playing the Reconstruction Game," in Epstein, Contemplating Courts [R]

*Discussion Questions on Epstein and Walker

Class 19: The Court/Congress/President Game: Partial Birth Abortion

Class 20: New Institutionalism: Other Institutional Factors

Epp, "External Pressure and the Supreme Court’s Agenda," in Clayton & Gillman, Supreme Court Decision-Making

Class 21: New Institutionalism: The Return of the Legal Model?

Kahn, "Institutional Norms and Supreme Court Decision-Making," in Clayton & Gillman, Supreme Court Decision-Making

Baum, "Recruitment and Motivation of Supreme Court Justices," in Clayton & Gillman, Supreme Court Decision-Making

**Extra class Nov. 7: Class 22: Powers of Court

• Assignment #4 due: Theories of Judicial Behavior

Class 23: Powers of Court cont.

Class 24: Impact of Judicial Decisions

• Final draft of Paper #1 due

Class 25: Impact of Judicial Decisions cont.

Class 26: Impact of Judicial Decisions cont.

• Paper #2 due

Class 27: Can (and Will) Courts Achieve Social Reform?

Class 28: Bush v Gore: Judicial Overreaching or Judicial Statesmanship?

• Assignment #5 due: Reflection paper

MAJOR PAPERS [35% each]

Paper #1:

The choices that are made by judges . . . always involve value consequences, thus making value choice unavoidable. The principles which judges employ in projecting their choices to the future, or in explaining them, must also refer to such value alternatives, if given empirical reference.

Is law determined simply by judges’ subjective preferences? Can judges, and law, achieve objectivity? If so, how? Explore this debate. Do not present only one side of the argument; consider and respond to counterarguments.

Your paper should draw on the readings for examples and arguments. (Please be careful to credit the author when you draw on his or her writing.) I am looking for a careful, thoughtful analysis, in clear, concise, readable prose.

The paper should be 7-9 pages (double-spaced, normal 1-inch margins). You do not have to include a bibliography, but you must include a full citation when you cite an author.

DUE: October 23, in class

Paper #2:

Alexander Hamilton anticipated that the courts would be "the least dangerous branch," because it lacked the power of the purse and the sword. Consider the power of the judiciary in American society today. Was Hamilton correct? In answering this question, please draw on the readings and class discussions; I do not expect you to do any outside research. You may want to consider the formal powers of court, the institutional constraints on its power (including the powers given to the other branches to check the courts), the political calculations and dynamics that influence judicial decision making, and the relative success of the court in ensuring compliance with its decisions.

Do not present only one side of the argument; consider and respond to counterarguments. Your paper should draw on the readings for examples and arguments. (Please be careful to credit the author when you draw on his or her writing.) I am looking for a careful, thoughtful analysis, in clear, concise, readable prose.

The paper should be 7-9 pages (double-spaced, normal 1-inch margins). You do not have to include a bibliography, but you must include a full citation when you cite an author.

DUE: November 15, in class

Graded Assignments

Assignment #1: Judicial Independence [due Class #4]

You have just been appointed to the Supreme Court of an African common law country by the newly-elected President. You have received the following memo from one of the other members of the Court. Please draft a 3-4 page (double-spaced) reply, drawing on the readings and class discussion. I am looking for evidence that you understand the readings and issues discussed in class, and can respond to the question thoughtfully, in clear, concise and readable prose.

Dear Justice,

Congratulations on your appointment. Your tenure promises to mark a new era for our legal system. With the recent establishment of multiparty democracy, we can expect at last to reap the benefits of constitutionalism and the separation of powers.

Toward that end, I respectfully suggest that the first priority of the Court should be the protection and promotion of judicial independence. As you are aware, the need to establish the rule of law is urgent. The country remains troubled by tribal conflict, and our struggling business community is in desperate need of impartial forums for the adjudication of contract disputes. I am aware of your familiarity with the experience of our neighboring countries in building judicial independence. What can we learn from their experiences, and from the considered judgment of legal scholars, that would enhance our efforts to ensure judicial independence? What strategies would you advise this Court to follow in achieving this end?

Assignment #2: Alice v Brad [due Class #10]

You are a judge on the Minnesota appellate court. The following case has been appealed and you must make a ruling:

The parties are disputing possession of a rare Ted Williams autographed bobble-head doll, valued at $10,000. A customer found the doll in the trash can outside of the sports bar that Alice owns, which is located in a mall in downtown Minneapolis. The honest customer, recognizing the doll’s value, gave it to Alice so that she could locate the owner. Alice kept the doll in her "lost-and-found" box for eight weeks. When no one claimed it, she decided to auction it on e-bay. She told Brad, the owner of the mall, about her lucky find. Brad claims that because the doll was found outside the bar in a public part of the mall, it belongs to the mall’s owner (namely, him). Alice points out that she put the trash can out there; it’s hers, so the doll should be hers as well. Brad responds that he (well, the janitors that he hired) actually empty the trash can every day.

Brad is suing Alice for the doll. There are no relevant statutes or contract provisions governing this case.

Attorneys for Alice cite the following precedents:

In Casey v Jones, a 1940 Minnesota Supreme Court case, the court held that where the original owner could not be located after a good faith effort was made, a $100 bill found in Casey’s restaurant belongs to the owner of the restaurant, not the customer who found it. The court declared that it was applying the common law rule on found property, accepted by all common law jurisdictions.

In Brock v Morton, a 1986 Minnesota appellate court case, the court held that a restaurant owner was liable when a customer tripped over a decorative planter that the owner had placed just outside the restaurant, on the sidewalk. The court reasoned that the owner of the restaurant owned the planter and a city statute made the owner responsible for keeping the sidewalk clear of obstructions.

Attorneys for Brad cite the following precedents:

In Marks v Engel, a 1927 Minnesota appellate court case, the court ruled on the ownership of a suitcase full of rare gems found on the grassy verge just off the sidewalk outside the entrance to Engel’s private home. The court awarded to suitcase to Engel, but explained in dicta that if the suitcase had been found on the sidewalk itself, a public area, it would belong to the city.

In Very Large Corporation of America (VLCA) v Small Time, Inc., a 1997 New York appellate court case, the court ruled on the ownership of a valuable baseball card found in a trash can outside Small Time restaurant in a mall owned by VLCA but found by the manager of Small Time. The court held that the card belonged to VLCA. The court argued that the trash can was owned and maintained by VLCA, so the card was found on VLCA’s property. Under the common law rule on found property, the found object belongs to the owner of the property on which it was located.

How would use these precedents to decide the case? Explain which precedents are relevant and how they apply to this case. Also consider and discuss how authoritative each precedent is (that is, to what extent you are bound to follow it). I am looking for evidence that you understand the common law method of decision making, how judges use precedents and the principle (as well as the actual practice) of stare decisis. As always, I am also looking for a well-written paper in clear, concise, readable prose.

I expect this paper to be 3-5 pages, double-spaced.

Assignment #3: TVA v Hill [due Class #12]

In 1967, Congress authorized the TVA to build a dam on the Little Tennessee River. In 1973, Congress passed the Endangered Species Act, which ordered federal agencies "to insure that actions authorized, funded or carried out by them do not jeopardize the continued existence" of an endangered species. When it was discovered that the dam would threaten the snail darter, an endangered variety of perch, the Supreme Court stopped the project.

Your task is to:

1. Locate TVA v. Hill on Academic Universe (Lexis/Nexis) or Findlaw and read it;
2. Take the position of the US government, and explain how you would have defended the TVA (argue that the Act shouldn’t stop the dam.) You must draw on the principles of statutory interpretation discussed in the readings and in class to make your case. If you want to argue that the decision is just good policy, you must explain why, under the rules of statutory interpretation, the Court should be allowed to weigh policy reasons.

The following guidelines will help you make an effective legal argument:

1. Your introduction should be brief and clearly state your position

2. In making your argument, you should state the legal rule or principle first, then explain

how it applies to this case.

1. Follow this rule/application formula for each point. If you want to argue that a rule should not apply, state the rule and then explain why it doesn’t apply here.

I expect this paper to be 2-3 pp., double-spaced, and written in clear, concise, readable prose.

Assignment #4: Theories of Judicial Behavior [due Class #22]

You are planning to do a research project to find out why the Supreme Court has been unable to develop a consistent doctrine concerning the separation of church and state for the last 30 years. Which theory of judicial behavior will you use to explore this question? Please explain assumptions of each model, what kind of evidence it calls for, which model is most useful in this case. I will be looking for evidence that you understand the theories of judicial behavior we’ve discussed and can evaluate their strengths and limitations. Please do not do any outside research for this assignment! You should draw on the readings we’ve discussed in this section of the course.

I expect this paper to be 3-4 pp., double-spaced, and written in clear, concise, readable prose.

Assignment #5: Reflection paper [due Class #28]

Please write 3-5 pages (double-spaced) reflecting on how your understanding of the law and the courts has (or hasn’t) evolved over the course of this term. I will be looking for thoughtfulness (evidence that you are taking the question seriously and thinking about it carefully) and insight (evidence that you have some understanding of how your own ideas and perspectives evolve). I will also be looking for clear, concise, readable prose, as always.

Ungraded EXERCISES AND Discussion Questions

Jurisprudence exercise: [for Class #6]

After completing the reading for this class, consider the following question. Be prepared to discuss how you would answer this question and how the various theories discussed in the readings would apply. I encourage you to discuss this question with other students before coming to class. You do not have to turn in a written response.

A state appellate judge in Michigan has decided that a doctor may be held criminally liable for assisting someone in committing suicide. There is no statute making assisted suicide a crime in Michigan. The judge defends his decision by arguing that we should recognize common law crimes, as we used to in the eighteenth and nineteenth centuries. He adds that the doctor’s action was inherently unjust and inconsistent with mores of community, and court is empowered to punish it. No other court in any state has ruled on this issue. Legal scholars have criticized the judge’s decision to revive the notion of common law crimes, but are split on the question of whether assisted suicide should be illegal.

Under these conditions, would you say that there is a law against assisted suicide in Michigan? Has the judge made a new law, declared an existing law, or what?

Common law exercise: [for Class #7]

You’re a judge asked to decide the following case:

Plaintiff Mary lived with Defendant Mark for 6 years. When Mary told Mark she intended to leave him, he threw their television out the window, destroying it. Mary is suing Mark for the cost of the television. Mary has produced evidence – a cancelled check drawn on her account – that she purchased the television while they were living together. She also contends that the television was kept in her home office and she used it much more frequently than Mark did. "It was understood that the television was mine," she said in her testimony.

Mark claims that television was jointly owned and he should be liable for only half the cost. He argues that although they held separate checking accounts, they considered all the income of the household to be jointly owned. Mary agreed during cross-examination that they regularly consulted on the purchase of "big-ticket" items, and had agreed together that they could afford to purchase the television.

There are no statutes relevant to this issue. But lawyers for Mary and Mark have brought up two previous decisions from this jurisdiction that might be relevant:

In James v. James, a couple that had been married for 5 years got divorced. The divorce decree awarded their Mercedes to Ben. However, Wanda continued to drive the car, apparently with Ben’s permission. Eight months after the divorce was finalized, after a particularly bitter exchange between Wanda and Ben, Wanda deliberately drove the car into a tree, causing substantial damage. Ben sued for the full cost of repairing the damage. Wanda claimed that she should be liable for at most only half the damage, because in fact Ben had given her the car. She produced evidence at trial that, although Ben had always held the title to the car (even before the divorce), she started paying the insurance on the car after the divorce.

The court held that Wanda was liable to Ben for the full cost of the damage.

In Cohen v. Lee, a couple had lived together for 10 years but never married. When they separated, Jennie Lee sued for half the value of a television and VCR that Tim had taken. She argued that the equipment was jointly owned because Tim had purchased it with a credit card, and they had paid the credit card bill from a joint checking account. Tim, a college professor, argued that he owned the equipment because he had put funds from his professional development account into the joint checking account to pay for it, it was kept in his office and used solely in his classes. The couple had another television that they used at home.

The court held in favor of Tim and denied Jennie’s claim.

Consider the following questions. As always, I encourage you to discuss this question with other students before coming to class. You do not need to turn in a written response:

1. What is the legal issue in Mary v. Mark?

1. How does Carter (the reading in Murphy) tell us to proceed?
2. Which theory of jurisprudence best describes what you’re doing? Natural law, legal positivism, legal realism?
3. Is this common law method a good way to make law?

Discussion Questions on Levi, MacPherson v Buick, Dworkin: [for Class #8]

As you do the reading for this class, consider and discuss the following questions. You do not need to turn in a written response:

1. Levi describes the process by which a legal concept is created, becomes fixed and easy to apply, then gradually breaks down as it is applied to an increasing variety of new cases. Levi goes on later in his book to use MacPherson v Buick to illustrate this process.

• What is the legal rule announced in Thomas v Winchester?
• What was the legal rule announced in MacPherson v Buick?
• How did the Thomas rule become the MacPherson rule? Did Levi accurately describe the process?
• Is the MacPherson decision best viewed as an objective decision resulting from a process of legal reasoning, a subjective (or "political") decision based on the judge’s biases or interests, or something else? What else might we want to know to answer this question?

1. Levi asserts that common law decision making (judges reasoning from cases) is a good way to make law because it "accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity." (p. 432) He makes it sound very democratic. How does this process compare with law-making by legislatures? Is it a rational and democratic way to make laws? What about Dworkin’s justification for common law decision making? Is it persuasive?

Chain story exercise: [for Class #16]

You will be assigned to a group in class. Each group is to write two stories in the following manner: The first person will write the first paragraph and send it (you can use e-mail or get together in person) to the next person. The next person writes the next paragraph, and so on. The last person will write the final paragraph, concluding the story. Print out the final version of the story. Then you will write a second story (it does not need to have any relation to the first story).

The first story should be written without any concern for who might read it. Just have fun. The second story will be evaluated by your classmates, who will assign it a score from 1-10. Bring both stories to class.

Judicial Behavior exercise: [for Class #17]

After completing the readings for this class, consider and discuss what theoretical models [legal, attitudinal or one of the institutional approaches, such as game theory, historical or ethnographic analysis] would be helpful in answering the following questions. Consider (1) what assumptions each theoretical approach would make; and (2) what sort of data those assumptions would lead you to gather. You do not need to turn in a written response.

1. Why did Supreme Court justices start writing separate opinions more frequently after World War II?
2. A couple years ago, many court watchers were predicting that, given the ideological dispositions of the current Supreme Court justices, the Court would soon overturn Roe vs Wade and Miranda vs Arizona. But when the opportunity arose, the Court refused to do so. Why?
3. In some states, state court judges seem more willing to challenge the authority of the Supreme Court by criticizing or openly defying Supreme Court constitutional decisions. How can we explain that phenomenon?
4. Supreme Court doctrine concerning how much the court should defer to agency decisions has been extremely unstable since 1970. Why?
5. Will the current legislative proposals to expand the powers of law enforcement to tap phones and conduct searches be upheld in court?

Discussion Questions on Epstein and Walker: [for Class #18]

As you do the reading for this class, consider and discuss the following questions. You do not need to turn in a written response:

1. What is the puzzle the authors are trying to explain?
2. How might the attitudinal model explain the puzzle? (Can it explain the puzzle?)
3. What factors do the authors think are important in explaining the puzzle?
4. How do the authors think judges make decisions? What do they think judges are motivated by?
5. Is this a convincing explanation of the puzzle?

Remedy exercise: [for Class #23]

A group of black motorists have sued the Police Department of a large city on the grounds that the police officers practice "racial profiling" – that is, they are more likely to cite black than white motorists for minor traffic violations. You’re the U.S. District Court judge hearing the case.

You’ve determined that the Police Department does have a pattern of racial profiling and that this practice violates the Constitution’s Equal Protection Clause. You must now decide upon a remedy. Defendants argue that money damages to the complaining parties is the proper remedy. Plaintiffs argue that such a remedy will not prevent the Department from continuing the practice. They request some form of injunctive relief.

After holding hearings on the question of remedy, you have made the following findings:

• The police department has a 6-month training program for new officers. The program does not include training on race relations, but it does include training on basic constitutional principles.
• The department has requested additional funding from the city for training every year for the past 6 years. Each request has been denied; the city council has concluded that other programs have higher priority.
• A recent study by a University sociologist concludes that the police department has an "entrenched culture of racial intolerance."
• Currently, 13% of the police officers are black or Hispanic; the rest are white. The city’s population is 45% black or Hispanic.
• The legislators who represent the city in the state legislature have called for the State to take temporary control of the city’s police department in order to restructure it; or, alternatively, they want the State Highway patrol to take over traffic enforcement in the city. There is very little support for these proposals in the state legislature.

After completing the readings for this class, please consider and discuss the following questions. You do not need to turn in a written response: What relief will you order, and why? If you issue an injunction, what specifically will you order the Department to do or not to do? What would Fletcher say about this question?