PS 390: The American Judicial System
Dr. Brian Smentkowski
Office: 211H Carnahan Hall
This course is designed to introduce upper division students to the dynamics of the American Judicial System. While a considerable amount of time will be spent discussing "the courts", much of our work will focus on the nexus of law, society, and judicial behavior. As such, we will examine the role of various actors, institutions, situations, and realities that define the legal environment. In other words, we will discuss, inter alia, the politics of judicial selection, collegial court decision making, the impact of interest groups on each, and the impact of court decisions themselves on society. The world of law and courts is complex and animated, ethereal and omnipresent, engaging and even a bit dramatic. To demonstrate these features I have selected two very good books for you to read: The Supreme Court, by Lawrence Baum, and Judicial Politics: Readings from Judicature, edited by Elliot Slotnick. The first is a clear, concise and comprehensive analysis of our highest court's function, while the latter consists of several outstanding pieces of research published in one of the leading law and society journals. All are scholarly and readable, and many take on controversial issues. Please note that a few outside readings will be assigned as well. Don't panic --they will be worth the effort. Seriously.
Given the inquiry-based nature of our investigation and my reliance upon the Socratic Method, you will be expected to attend class and participate daily. Meaningful participation requires that you do the readings and develop sound arguments. Law is not simply a matter of opinion, and you will be pushed to think critically, analytically, and brilliantly.
Assignments, Exams, Rules of the Game
You will be expected to write four reaction papers and two major essays in this class. The reaction papers will punctuate the time and material covered in-between the midterm and final exams. Specific instructions will be given in class. I will also grade your oral participation and periodically require you to investigate and answer specific questions emanating from class discussion. Obviously, if you are not in class, you cannot do the work, and if you cannot do the work, you cannot get a grade above a zero. Shy of documented evidence of death, natural disaster, and the like, there is no make-up policy. Do the work, and do it on time. Also, recording devices of any kind (audio, visual, et cetera) are absolutely impermissible in this class. This includes cell phones. Cheating and plagiarism: don't even try it. It'll just get you kicked out of school.
The exams will be take-home essays. I have high expectations of written work, and I will discuss them in class. Suffice it to say, I do, in fact, expect you to labor over every word you write. Well written, well reasoned papers are mandatory.
|Assignment||Number of Assignments||Percent of Final Grade|
|Assignments and Participation||semester-long||20%|
Final grades will be determined according to the conventional 10 point split.
Note: the pace of the class will determine when we will get to- and conclude each section. Some sections may take more time than I expect; others may breeze by. A lot depends upon the class, so we will set our own tempo (within reason, of course).
|The Constitution and the Court||Read: Slotnick, pp. 1-46 and Baum Ch. 1. Click here for additional info on civil and common law, natural law and legal positivism. Click here for information on a political view of the court.|
|Judges and Justices||Read: Slotnick, pp. 47-120 and Baum, Ch. 2|
|Lawyers, Trial Courts, and Juries, Part I||Read: Slotnick, pp. 145-165, Church article, Casper article, and Heumann article|
|Lawyers, Trial Courts, and Juries, Part Deux||Read: Slotnick, pp. 302-336; 202-263, and Scheppel article|
|Lawyers, Organized Interests, and The US Supreme Court||Read: Slotnick, pp. 166-197, McGuire article, Caldeira and Wright article, and Kobylka article|
|Access to the Court||Read: Slotnick, pp. 3336-401 and Baum, Ch. 3|
|Judicial Decision Making||Read: Slotnick, pp. 402-459 and Baum, Ch. 4|
|Policy Outputs, The Public, and The Media||Read: Slotnick, pp. 460-507 and Baum, Ch. 5|
|Judicial Impact||Read: Slotnick, pp. 634-668, Baum, Ch. 6, Canon article, and Franklin and Kosaki article|
|Special Topics: Courts, Congress, and the Presidency||TBA|
|Special Topics: The Courts and Political Representation|
EXAM #1: I have thought long and hard about how to develop a good question regarding sexualized violence. This is a difficult subject. In order to keep ourselves on task, I have decided that you should address three specific issues: delayed discovery, "imagined pasts", and the revision of truth. All three are central to Sheppel's essay, and I want you to write an essay that addresses why this is the case. Be creative and critical, but stay focused. Deal with those issues as they pertain to sexualized violence and the American legal system. Your answers should be about 3 word processed pages in length, and are due in class on Thursday, Oct. 4.
Reaction Paper #1. Now that you have read about judges, justices, the politics involving judicial selection, and even the ideological and political proximity of judicial personnel to their appointing presidents, you probably have a sense that judges and justices have considerable latitude to determine the meaning of the law, free from outside influence. Justices are protected by life terms. They are selected by presidents in no small measure to do their legal bidding. They are typically wise, well trained, and at times even arrogant. Let's turn to lawyers now. We talked about their persuasive powers, the preponderance of evidence, and skill levels. We like to think that good lawyers make a difference, or at least a dent, in the judicial decision making. For this assignment, I want you to critically assess the role of lawyers in appellate court decision making. Do they --can they-- really make a difference? Why? Why not?
Reaction Paper #2. This is a short paper assignment. I would like you to contemplate the impact of public opinion on the Court. Does it matter? If so, how? Is the impact direct or indirect? Is it only meaningful when filtered through (and supported by) congress, or is it meaningful in its own right? What about public compliance with law, institutional relations? Two good pages should do it. The papers are due on Thursday, Nov. 8.
Reaction Paper #3. This also is a short paper assignment, and a genuine reaction paper. I would like you to critically assess one of the articles covered in class regarding the courts, congress, and the presidency. My assumption is that you have been keeping up on the readings and paying attention in class, so you should have a sufficiently developed background in this area. This should inform your analysis. Advice: pick an essay that raises some questions about "the system" and how it works, then address it. Being critical does not require you to be disagreeable; rather, to be able to systematically analyze what you are reading and to draw meaningful conclusions about it. A solid 2 pages (no less) should do the trick. The papers are due on Tuesday, November 20.
Reaction Paper #4. In furtherance of representing intellectual and academic diversity, and in furtherance of providing critical perspectives on the structure, function, and operation of the American judicial system, I asked you to read Meese's Reigning in the Federal Judiciary. This material follows on the heels of the relationship between congress, the presidency, the public, and the courts, addressing the "so what can be done about it (meaning the presumed 'activist' nature of courts)?" question. For this paper, I want you to critically assess Meese's argument. Are the federal courts so out of line that they need to be reigned in? Should they be reigned in? If so, how and by whom?
Final Exam Questions --Choose ONE. Bring it to class at 8:00 AM, Thursday, December 13, 2007!!!
Q1: Jennifer Segal's "Judicial Decision Making and the Impact of Election Year Rhetoric" raises interesting questions about the uneasy relationship between law and politics. Her work focuses mostly on the case of US v. Bayless, and examines the impact of election rhetoric on the courts. Explain how this case --and Segal's argument-- provide a full-circle picture of judicial impact, looking at the impact of a decision, and the impact of events on the courts. Are there any threats to the independence of the judiciary?
Q2: Tell me how you would study the impact of the US Supreme Court's decision in the case of Kelo v. City of New London. You don't need to master the case per se, but you do need to know that it involves eminent domain in general, and a new twist: that private acquisition of property in furtherance of economic growth and development satisfies the "public use" requirement of the 5th Amendment's Takings Clause. Using our heuristic model of judicial impact, identify the relevant populations (decision-making, interpreting, implementing, consumer, and secondary) and what role they would play.