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Final Exam Questions
1991
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[Students were to pick
one of these four questions.]
For some
time now, one of the big debates among legal historians,
legal theorists, and legal sociologists has been the
debate over whether what goes on in the legal system --
legal norms, rules, procedures, institutions, etc. -- is
more or less "autonomous" from or influenced by
political, economic, or cultural forces and events
originating in the society "outside" the legal system.
In the interpretation of American legal history, for
example, Roscoe Pound and Lawrence Friedman have taken
up opposite sides of the issue. Pound wrote:
Tenacity of taught tradition is much more significant in
our legal history than the economic conditions of time
and place. These conditions have by no means been
uniform, while the course of decision has been
characteristically steady and uniform, hewing to
common-law lines through five generations or rapid
political, economic, and social change, and bringing
about a communis opinion over the country as a
whole on the overwhelming majority of legal questions,
despite the most divergent geographical, political,
economic, social, and even racial conditions. . . .
Economic and political conditions of time and place have
led to legislative abrogations and alterations or rules
and even at times to attempts to alter the course of the
taught tradition. But such changes are fitted into the
traditional system in their interpretation and
application, and affect slowly or very little the
principles, conceptions and doctrines which are the
enduring law. The outstanding phenomenon is the extent
to which a taught tradition, in the hands of judges
drawn from any class one will, and chosen as one will,
so they have been trained in the tradition, has stood
out against all manner of economically or politically
powerful interests.
Friedman,
by contrast, takes the following approach:
This book treats American law . . . not as a kingdom
unto itself, not as a set of rules and concepts, not as
the province of lawyers alone, but as a mirror of
society. It takes nothing as historical accident,
nothing as autonomous, everything as relative and molded
by economy and society. . . . The [legal] system works
like a blind, insensate machine. It does the bidding of
those whose hands are on the controls. . . . [T]he
strongest ingredient in American law, at any given time,
is the present: current emotions, real economic
interests, concrete political groups.
Does your
understanding of the History of American law tend to
conform to either that of Pound or that of Friedman? If
neither, formulate and defend a third position on the
"autonomy" issue that you believe the historical
evidence plausibly supports.
END OF QUESTION ONE
In
Calder v. Bull (1798), Justice Iredell made the
point that judges were not philosophers, but lawyers:
If . . . the legislature . . . shall pass a law, within
the general scope of their constitutional power, the
court cannot pronounce it to be void, merely because it
is, in their judgment, contrary to the principles of
natural justice. The ideas of natural justice are
regulated by no fixed standard; the ablest and the
purest men have differed on the subject; and all that
the court could properly say, in such an event, would
be, that the legislature, possessed of an equal right of
opinion, had passed an act which, in the opinion of the
judges, was inconsistent with the abstract principles of
natural justice. . . . We must be content to limit
power where we can, and where we cannot, consistently
with its use, we must be content to repose a salutary
confidence.
Yet, as
Alexis de Tocqueville pointed out in 1835, in the United
States, judges are called to decide political,
philosophical, or otherwise value-laden questions all
the time:
An American judge, armed with the power to declare laws
unconstitutional, is constantly intervening in political
affairs. He cannot compel the people to make laws, but
at least he can constrain them to be faithful to their
own laws and remain in harmony with themselves. . . .
There is hardly a political question in the United
States which does not sooner or later turn into a
judicial one. . . . There are cases, and they are often
the most important ones, in which the American judge has
the right to pronounce alone. He is, then, for the time
being in the position which is usual for a French judge,
but his moral authority is much greater . . . and his
voice has almost as much authority as that of the
society. . . ."
In 1972,
Christopher Stone turned Tocqueville's description into
prescription:
[O]ur highest court is but a frail and feeble -- a
distinctly human -- institution. Yet the Court may be
at its best not in its work of handing down decrees, but
that the very task that is called for: of summoning up
from the human spirit the kindest and most generous and
worthy ideas that abound there, giving them shape and
reality and legitimacy. Witness the School
Desegregation Cases which, more importantly than to
integrate the schools (assuming they did), awakened us
to moral needs which, when made visible, could not be
denied.
What do you think?
Comment from the perspective of the course.
END OF QUESTION TWO
Discuss
the role played by historical analysis in the following:
Johnson v. McIntosh, 21 U.S. (4 Wheat.) 542
(1823)
Commonwealth v. Alger, 7 Cush. 53 (Mass. 1853)
Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1857)
The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36
(1873)
Brown v. Board of Education, 347 U.S. 483 (1954)
You should
deal with these cases at a minimum; you might wish to
bring to bear additional examples from the course
material (and not just appellate opinions, either), in
order to further substantiate points you make with
regard to the listed cases or in order to make wholly
separate points the listed cases do not support.
Possible
points to consider include differing views expressed in
these documents about the nature of historical change,
they function of explicit or implicit historical
conclusions in legitimating legal conclusions, what
difference it makes whether or not the history used is
"correct" or not and, of course, the mutually
constitutive nature of doctrinal and social change. In
any event, be sure to subordinate your discussion to a
single, synthetic thesis point.
END OF QUESTION THREE
Compare
and contrast the historical and doctrinal development of
substantive due process as it appeared in the decisions
of Lochner v. New York, 198 U.S. 45 (1905) and
Roe v. Wade, 410 U.S. 179 (1973). (Note that Roe
v. Wade was not part of the reading assignments for
this course, but it is a case with which you may perhaps
have some familiarity.)
You should
pay particular attention to the issue of the
relationship between social and legal change. You might
consider, for example, how it is that the
nineteenth-century version of the doctrine appeared in
the guise of Lochnerism and the twentieth‑century
version in Griswoldism. Perhaps the differences
in the doctrine's content in its nineteenth- and
twentieth-century manifestations tell us something about
the doctrine itself, or about certain even more basic
questions about the nature of U.S. legal culture.
You may
pursue this problem from any direction you choose. Be
sure, however, to make some concrete, synthetic point
about the comparison/contrast and to support your
position thickly with materials from the course,
including but of course not limited to the principal
cases themselves and their doctrinal predecessors.
END OF QUESTION FOUR
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