Peters
– SS 2610 Spring 2011
Intro to Law and Society
Schedule
of Readings and Assignments Part I
Updated: 1/27/2011 9:21 AM
Course
Website: http://www.social.mtu.edu/faculty/speters/SS2610Spr09_Home.htm
Note: This Schedule is not the
It
is subject to change without a 2/3 vote!
Week
1:
Jan 11 The Role of Law – Is Law Enough?
Structure
of US Judicial System
Intro to
Statutory Interpretation and Precedent
No
Sleeping in the Park
Case briefing basics (if time): Schwartzanegger or American
Amusement v. Kendrick
·
Lawrence
Lessig, Code 2.0 (2006) pdf here / web http://codev2.cc/
Ø
Chap 7 “What
Things Regulate” pp 135- 152
Ø
Chap 12 “Free
Speech” pp 248
-252 of the .pdf file (this corresponds to pp.
233-237 in the text itself).
·
“Disgusting
but not Illegal” NYT Aug1, 2019
Bring
to class:
Lessig provides several examples of behaviors/activities that are
regulated by the 4 modalities of law, norms, the market and architecture. One is Pornography,
another might be animal cruelty as discussed in the NYT article above. Come to
class with your of your own example and explain how the example is governed by Lessig’s 4 modalities in both ‘real space’ and in
‘cyberspace’. For your example do you think Cyberspace
or real space provide the best justice?
Jan
13 When Law Fails and the Role of Precedent
Read:
·
Sarat, “Social
Organization of Law” excerpts Ch 1-4 (Hockey Dad Death Probed as Suicide; A
Crime of Self Defense –examination of the Geotz
case) (avail on course Reserve)
o
“Law
Making from Precedent – How Judges and Lawyers Reason from Prior Cases” (see marriage
cases excerpted from“Before the Law” (ed. Bonsignore et al), (19 pages) () (see reserve readings page on course website)
o
1.1
The Bramble Bush
o
1.2 State v. Pendergrass, 2 Dev & B., NC
365 (1837)
o
1.3
Joyner v. Joyner, 59 NC 322 (1862),
o
1.4
State v. Black, 60 NC 262 (1864),
o
1.5State
v. Rhodes 61 NC 453 (1868),
o
1.6
State v. Mabrey 64 NC 592 (1870),
o
1.7
Bramble Bush
o
1.8
State v Oliver, 70 NC 60 (1874
In class exercise: A- Represents Husband;
B Represents State – What precedents do
you want to use? Distinguish? How will you do so?
Jan 18:
Law as Power/Objectives of Law -
Focus on statutory interpretation
(via American Arab Disc case) and
substantive due process via Cruzan and the refusal of medical treatment cases
Due
Assn 1 (see Assignments page)
Read:
·
Schubert
Chapter 1:
o
Skim
pp 1-14. Review materials on Case Reading (Video
Software Dealers Assn v. Schwartenegger p. 15-21;
o
Substantive
Due Process pp 22-32
o
Washington
v. Glucksburg 521 US
702 (1997) (or text 25).
o
Cruzan
v. Director, Missouri Dept of Health, 110 S.Ct.
2841 (1990) here
or http://web.utk.edu/~scheb/decisions/cruzan.html)
o
Brian
Clark, “Whose Life is it Anyway” pp. 194-223 (available on reserve section of
website) You can skim this..
o
Buck
v. Bell, 274 US 200 (1927) (FYI -
for more information on this case see the Eugenics Archive exhibits on the case
here
Jan 20 What is Law For?
Read:
Equal Protection & Due Process
o
Schubert
Text Chap 1, pp 33-47 (Smith v. Idaho,
203 P2d 1221 (2009) (p 34);
o
Katko v. Briney 183 NW2d 657 (p 38) (civil liability);
o
Suggs
v. Norris (contracts) (p. 42)
·
“Andrea
Yates Ill or Evil?” (Court TV) http://www.trutv.com/library/crime/notorious_murders/women/andrea_yates/index.html
·
Optional: Feminist Listing.com, Jan 16, 2007 “Air Force
Sargeant Relieved of Duty after modeling in Playboy” (a
different equal protection problem) http://feministing.com/archives/006358.html.
See also “Playboy Airwoman Relieved of Duty” BBC 1/13/2007 http://news.bbc.co.uk/2/hi/asia-pacific/6258193.stm
·
Facing
Death, Frontline November 23, 2010 (60 min) (how far would you go to
sustain your life or the life of someone you love?)
Week
3 Ethics – How do Ethical and social Standards Influence perceptions of Law and
Justice.
Jan
25 Ethics - Chap 2 pp 50 -66
Read:
·
Gregg
v. GA (1976) (death penalty) (p. 52) (overturning Furman
(1972))
·
Roper
v. Simmons (2005) here
(juvenile death penalty)
·
State
v. Mobbley (1982) (spouse as accessory) p. 61
·
Holland
v. State of Flordia (1974) (misprison)
p 63
·
Michael
Sandel, “Justice” (2009) (Chap 1 pp 3-11, 19-30) (see
pdf file on reserve) (it could be easier to print
out)
·
Amish
Elders Plead Guilty in Child Sex Abuse Case, South County Mail, Oct 27,
2010
Optional:
·
Malcolm Gay, “a
Crisis in Amish Country”, NYT Sept 2
1010; :
·
Nadya Labi, The
Gentle People, Legal Affairs, February 2005
·
Queen v. Dudley &
Stephens (Queens Bench 1884) (trial of sailors who killed and ate fellow
survivor of shipwreck- ruling on necessity doctrine) (edited
here)
·
Daniel Solove, the Future of Reputation, Chap 4 “Shaming
and the Digital Scarlett Letter” (see course reserve)
Due
Assn 2:
Using the framework adopted by Michael Sandel in Chapter 1 of “Justice” describe “justice” with regard to:
1) The disposition of the case
against of the Amish Elders who know about the child abuse by a member of their
community but for religious reasons, keep it within the community and ‘punish’ the
crime in their own way (shunning etc).
2) The
decision as to whether a juvenile should be eligible for the death penalty for capital
crimes.
3) Should the legislature enact a law that relieves close
family members (parents or spouse) of
criminal liability for hiding/harboring a their relation who they know
is wanted for a crime (e.g. Mobbley)
4) What would be your response be
to the dilemma posed by the encounter with the Afghan Goatherds described by Sandel? Could the
military realistically craft a “rule” for these situations to avoid such a dilemma?
Would such a rule be politically palatable?
Jan
27 Ethics
·
Continue
readings from Chap 2 pp. 66-83
·
Lawrence
v. Texas (2003) p. 66
·
Reardon
v. Windswept (2006) (Business Ethics)
·
Caperton v. Massey
Coal (2009) p. 77
·
Feds
Reveal Theory on Why WVA Mine exploded (NPR Jan 19, 2011) (3 min) and
Massey Mine Workers Disabled Safety Monitor (NPR July 15, 2010)
·
Queen
(Regina) v. Dudley & Stephens
(Queens Bench 1884) (you can find an unedited version of this classic opinion
on the doctrine of necessity on … Wikipedia among other places)
·
Ward
Farnsworth, The Legal Analyst, Chap
1, Ex Ante & Ex Post (2008)
Optional
Abraham Lustgarten,
“Furious
Growth and Cost Cuts Led to BP Accidents Past and Present” ,
Pro Publica, Oct 26, 2010
Week
4
Feb
1 Sources of Law – Statutes
& Common Law
Read
·
Text
Chap 3 pp. 91-119
o
Gonzales
v. Raich (2005) p. 91;
o
State
v. Butler (1969) p. 103 -105,
o
Dempsey
pp 106-108 (2004)\;
o
Strunk v. Strunk (1969)
(kidney donation) p. 109-112;
o
Tarasoff
Reconsidered, APA 2005 here
(or Skim Paul Herbert “Tarasoff A Duty to Warn
–Reconsideration and Critique” J Am. Psych. Law Vol
3 2002 or Summary here (We
will talk about Common law development of a rule using this case)
o
Hubbard v. Greeson
(1987) (choice of law) (p. 113);
o
Finstuen v. Crutcher (p. 116) (full faith and credit)
Feb
1: Due: Interview on Justice --
Feb
3 Civil Procedure – Anatomy
of a Case (In class)
Readings:
Chap 5 Civil Procedure – read this
chapter to become familiar with terminology 158-60, 162-64, 167-75 (you need
read only the Timmerman spousal privilege case
on p. 172)
Other –TBA
Week
5
Feb
8 Torts Chap XI pp 390-432
McDonalds Reading - Andrea Gerling,
“How the
Jury Decided What the Coffee Spill was Worth,”
St Louis Post Dispatch Sept 14, 1994
Other TBA
Due Assn 4 -TBA
Feb
10 No
Class – Winter Carnival
Week
6
Feb
15 Torts Continued Read
234-246
Feb 17 Exam 1- In class**
Week
7
Feb
22 Property –(tent)
Read Chap
12, pp 434-452
Feb
24 Criminal
Law & Procedure
Readings Chap 8 249-277
Controlled
Substances during pregnancy – Regina Kilmon v. Md (2006) & Ferguson v. Charleston, 532 US 67 (2001) (see pdf on
reserve)
Tentative (read one)
David Freed, The
Wrong Man Atlantic Monthly (May 2010) (Investigation of Mark Hatfield
during post 9/11 Anthrax Scare)
David Grann
“Trial
by Fire - Cameron Todd Willingham, Did Texas Execute an Innocent Man?” New
Yorker Sept 2009 or Frontline
–Death By Fire (Oct 2009) (Willingham
investigation)
Week
8
March
1 Criminal Procedure Cont –Searches,
Right to Attorney
Text pp 277-97
Michigan –Gideon’s
Trumpet- Promises Unrealized (TBA)
GPS Cases –TBA
Tent: (in class) Frontline “Are
We Safer” (report by Dana Priest on surveillance) (Jan 18, 2011) (21 min)
or The
Confessions. (60 min)
Due Assn 5-TBA
March
3 Criminal Procedure
Cont.
(Guest
Speakers?)
/Debate Topics Chosen
TECH SPRING BREAK – March 5-13
Week
9
March
15 Family Law
Read Chap 9 pp. 301-326
Other TBA
Due Assn 6 –TBA
March
17 Family Law Cont
Pp 327-47
TBA
Week
10 Contracts Chap X
March
22 Read 349-372
Tent: Michigan Cow Transaction – Mich Law Journal
March
24 Exam
II or Contracts Cont
Read
372-387
Other TBA
Week
11
March
29 Alternate Date for Exam 2 / Film / Meetings
March
31 Group Meetings- no regular class
Week 12
April
5 Film/meetings
April 7 Discuss Group Presentation
Guidelines, Film (Death by Fire, The Confession, Copyright Criminals, The New
Asylums….)
Week 13
April
12 Group Presentations- Debates
April
14 Group Presentations - Debates
Week 14
April
19 Group Presentations- Debates
April
21 Group Presentations - Debates
Week 1 Day
1: In Class Discuss marriage cases Theory/Practice Precedent Readings: If
Oliver had seen his lawyer before this trial and asked ‘what are my chances here?”
how might the lawyer have responded? Is an injustice done to Oliver? Could he
say he planned his affairs in reliance on the state of the prior law? Imagine
you are practicing law in North Carolina in 1876 – assume that either the
husband or the wife has consulted you in this case. The husband and wife had an
argument in their home. Two children, both eight, were playing where they could
see and hear what was going on. One was the child of the couple, the other of a
neighbor. The discussion was over finances, the husband’s sporadic work, his
regular drinking, which according to his wife make all their problems worse.
The husband insisted that he had not been drinking and that if his wife did not
shut up he would hit her. She continued to shout at him and he went over to a
stack of wood and picked up a piece of kindling two inches in diameter. He
approached his wife with the piece of wood raised up, but when she screamed he
dropped the wood and slapped her with his hand. Her nose started to bleed and
her eye blackened but there was no sign of injury after 5 days.
Week
2 Day 1
Due Tues
Jan 18: Assignment 1
1)
Brief
Washington
v. Glucksburg, 521 US 702 (1997) (p. 33 text) Use FIROA)
– Facts, Issue, Rule and Rationale, Other Opinions (including
dissent) & your Analysis (see case briefing
instructions on assignment page for more detail) or use format from text p.
25 or other format you are familiar with.
2)
Is the right to refuse treatment a liberty
interest/fundamental right that may not be compromised by the state without
compelling state interests and due process of the law? What about the right to
suicide?
3)
What
is the difference in the Courts analysis in Cruzan
and Buck v. Bell. Both deal with incompetent
patients – but in Buck the court did
not require the state to demonstrate that sterilization was necessary to some
purpose and not arbitrary. After this decision over 60,000 women, mostly poor,
were sterilized by 1978. How does the
Courts view of genetics affect its result? Is this good law based on good
genetics? Should the same result affect men? Should the right to bear children
be the kind of liberty interest the court should protect? What should the state
have to show for such a right to be taken away? What if the prospective mother
had a history of abusing and neglecting her children – should the state be
allowed to petition for sterilization of such a mother?
4) If we have
thought deeply about the right to die for those who are dying imminently, we
have not typically extended the discussion to those who are not dying. Ken
Harrison, the patient in “Whose Life is it Anyway” is not dying. Should any
person have the right to end his or her own life? Aren’t there other
consequences? What gives the state the right to regulate this? What is the
public interest in preserving life in this way? Of course the state has in
interest in preventing homicide – but what is the state interest in preventing
suicide by competent adults ? Does the state an equivalent interest in
preventing suicide by physically incapacitated but legally competent adults?
5)
Lessig provides several examples of behaviors/activities
that are regulated by the 4 modalities of law, norms, the market and architecture. One is Pornography,
another might be animal cruelty as discussed in the NYT article above. Describe
an example of this - explain how the example is governed by Lessig’s 4 modalities in both ‘real space’ and in
‘cyberspace’.
Jan
18: Additional questions for class
discussion (Do not turn in)
1.Doctors examining Nancy Cruzan concluded that she was in a persistent vegetative
state, had no awareness of her environment, and had no hope of EVER having
awareness of her environment. What reason is there to doubt that any
person in Nancy's circumstances would want--if they were capable of even
wanting--feeding to be continued? Was there any evidence at all suggesting
Nancy would want to continue to "live"?
2. In what sense could Nancy Cruzan even be
considered a "person"? What are the essential attributes of a
person?
3. If there was a right to
assisted suicide, as the 9th Circuit found, why should the right be limited to
terminally ill and competent adults? Why would persons in great pain, or who
are severely depressed, also have such a right?
4. Does the distinction between
passive euthanasia (withdrawl of feeding tubes, for
example) and active euthanasia (administration of lethal drugs, for example)
make sense to you?
5. What state interests
supporting laws against physician-assisted suicide do you think are the str Is it legitimate to
presume that all suicidal decisions either irrational or coerced?
6.What about a person whose life
is severely impaired – should they have such an option? What are the problems with taking the
position that all persons have a right to choose to die? That seems to be in
accord with our notion of free will? People who know what they want should be
allowed to decide and act accordingly. Is this so? What about the argument that
we are under the influence ofunconscious wishes,
fears, misunderstandings or other influences? Is perfect autonomy really
possible? Can we ever know that we will not regret any particular decision?
Should the soldier suffering stress after a term in Iraq be left to his own
devices? What about the parent who loses his or her job and is in turn left by
his or her spouse and child? The person who experience sudden onset of
blindness or survives an accident?
7.Does the author of Whose Life
is It anyway seem to take a side? Does he dispose us to side with Ken or Dr. Emmerson? Is this in essence a didactic play that is
essentially argumentative with an ax to grind?