Jurisprudence Fall 2006
Dr. William R. Long, Willamette University College of Law
The purpose of this course is to survey significant movements in the history of the Western legal tradition that ask and seek to answer fundamental questions about the nature and purpose of law. We will be using a textbook for the course, but I will also supplement it with more-detailed readings and my mini-essays from the previous three years. My style is to teach the course historically, beginning with the earliest legal systems of which we have knowledge. After a four-week survey of the ancient world, we will lay out the major distinction in class--that between a natural law theory of law and positivism. Then, we will spend the last half of the course focusing on jurisprudential developments in American history since the Civil War and class presentations. My hope is that you will have a thorough grounding in the two major theoretical models (natural law theory and positivism) and will be acquainted with the significant twentieth and twenty-first century thinkers on the purpose and nature of a legal system.
I have become increasingly committed to using the Internet as a means of learning both outside and inside of class, and I will seek opportunities to use it. My mini-essays, several of which I will highlight in the assignments, are intended to take you one or two steps further than you are now in knowledge on the subject/person assigned.
Instructor: Professor William R. Long. My office is # 452 and email is blong@willamette.edu. Office phone is (503) 370-6411 and home phone is (503) 589-4455. I will not set official office hours since we can easily arrange a meeting through email.
Class Meeting: T and Th, 8:30-10:00 a.m. Law 201 for first meeting, after which we will meet at Atkinson School 302.
Class Expectations: I look at our meetings together as preparations for your legal practice. What that means is that you need to be present, be on time and be ready to participate. I will probably rotate "leadership" of class discussions, where one of you will be responsible for "getting the ball rolling." Regular attendance is therefore expected. Missing more than 3 classes subjects you to either a one or two gradation penalty. Some exceptions apply--such as if you have a job interview--but these are fairly narrow in scope. Thus, I expect you to come prepared to discuss together and to be ready at almost any time to say something intelligent, which is the expectation which will be on you as an attorney.
In addition to class assignments, there will also be either a term paper (20 pages) or a final. If you do the term paper, you must also give a short presentation on it in class (about 20-30 minutes). If you elect to take the final (3 hour, closed book), you must also do a "response" to one of the presentations which may take the form of a brief essay on the presentation or some questions for discussion that arise as a result of the presentation. The last three classes of the term will be devoted to student presentations. A good place to seek topics is from the series of issues in our textbook that we won't have time to cover.
In past years students have done papers/presentations on Louis Brandeis; Oliver Wendell Holmes; jurisprudential issues in gay marriage proposals; the legality of the War in Iraq; the debate over "Intelligent Design;" The role of "equity" in law; Law & Economics; Establishment of Religion/The Pledge of Allegiance; Critical Race Theory; The Theory of Original Intent; various themes or philosophers of Postmodernism; and several others.
Grading: At present the course has fewer than 20 students registered; this means that no "curve" will be applied. The final paper/examination will be worth 60% of the grade, your "in class presentation" and attendance/alertness/general commitment to making the class "work" will each be worth 20%.
Book: I am generally dissatisfied with all one-volume books that try to put a jurisprudence course together, but one that is least bad is the one ordered for the class: Stephen E. Gottlieb, Brian H. Bix, Timothy D. Lytton and Robin L. West, Jurisprudence Cases and Materials: An Introduction to the Philosophy of Law and Its Applications (2d; Lexis-Nexis, 2006) ("Gottlieb").
Tentative Schedule:
August 22 Introduction
READING: Dennis M. Patterson, "What is at Stake in Jurisprudence?" 28 Oklahoma City University LR 173 (2003). I am not providing a copy on reserve, as you can easily get your own. Also, read my mini-essays (on the Jurisprudence page) on "JURISPRUDENCE" and "Introduction I."
UNIT ONE: THE ANCIENT WORLD
August 24 Law and the Ancient Near East
READING: Gottlieb, 5-28.
August 29: Ancient Greece I: The Trial of Socrates
READING: Gottlieb, 29-42.
August 31: Ancient Greece II: Plato's Shorter Dialogues
READING: Gottlieb, 42-57.
September 5: Ancient Greece III: Aristotle
READING: Gottlieb, 57-67. I have written four essays on Aristotle which try to help explain the reading. Here they are.
September 7: Classical Rome: Cicero
READING: Gottlieb, 67-84.
September 12: Justinian and the Shaping of a Code
READING: Gottlieb, 84-89. Supplemental reading on the Glossators and the Italian Medieval Jurists will be assigned. **(from Sept. 10) No reading of Glossators; just focus on my two essays in addition to the assignment.
September 14: The Talmudic Tradition in Judaism
READING: Gottlieb, 90-98.
UNIT TWO: NATURAL LAW AND POSITIVISM
September 19: St. Thomas Aquinas and Natural Law
READING: Gottlieb, 179-88. Read the essays on Aquinas on my Jurisprudence page.
September 21: Hugo Grotius and the Origin of International Law
READING: The Rights of War and Peace. Campbell's 1814 translation is online. Assignment is Book I, Chapter 1. Also, do some reading around online to learn who Grotius was.
September 26: William Blackstone and Codifying the Common Law
READING: Commentaries on the Laws of England, vol 1. (1765 ed.), 38-62. It is important that you read the facsimile edition which is on reserve, since Bentham's fulminations against Blackstone will refer to this section of his book. Read also my essays on Blackstone.
Setpember 28 and October 3: Jeremy Bentham and Positivism
READING: Bentham's Fragment on Government (1776) is online. We will only read the preface, and the long notes that go with it. I also would like you to read the following essays: My first two on Bentham from 2004, and then the first four essays on Bentham from 2005 (called Bentham (05), III, IV, V).
No Class on October 5.
Note: I will be revising the class over the break. My plan is that on Oct. 10 we will focus on Christopher Columbus Langdell. Assignment is Bruce A. Kimball, "Warn Students That I Entertain Heretical Opinions, Which They Are Not To Take As Law: The Inception of Case Method Teaching in the Classrooms of the Early C.C. Langdell, 1870-1883," 17 Law and History Review 57-94 (1999) (sections Intro-IV). This article can be found on the Internet also. Also be familiar with these two essays on Langdell from my web page.
October 12, 17: Oliver Wendell Holmes, Jr.
READING: Holmes' "The Path of the Law," the most famous law review article ever published (from 1897) can be found in a number of places. I have several essays on the Jurisprudence page on Holmes and "The Path of the Law" which I would like you to read.
UNIT III: THE TWENTIETH CENTURY
October 19: American Legal Realism; Sociological Jurisprudence.
READING: Feldman, Stephen, American Legal Thought, 105-115 (on reserve); Recommended but not required is R. Pound, "Mechanical Jurisprudence," 8 Columbia Law Review 605-623 (1908) (on reserve). I also gave out a (required) handout on Jerome Frank's view of judging.
October 24: Process Jurisprudence
READING: Please read Stephen Feldman, American Legal Thought, 115-123, on the Process School of Jurisprudence in the wake of WWII. Also, we focused on language and "characterization" in our discussion on Oct. 19. I wrote two essays on Newt Gingrich and that issue here. Read them for class on the 24th.
October 26, 31: The Jurisprudence of the Warren Court
READING: The entire week will be spent considering not simply the holding but also the manner of argument of the Justices in Brown v. Board of Education (1954); Griswold v. Connecticut (1965); and Roe v. Wade (1973). Be familiar witih these and the essays I have written about them.
November 2: No Class--I am out of town.
November 7: Critical Legal Studies
READING: Gottlieb, 410-427.
November 9: Ronald Dworkin
READING: Handout in class; essay on Dworkin.
November 14, 16, 21: Student Presentations and Discussion. For the oral presentation, distribute no more than 10 pages of text for your classmates to read. Distribution must take place at the class prior to the one in which you are giving your report.
2006
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