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Final Exam Questions


 Remember to read the Instructions.


            In An Invitation to Law and Social Science Desert, Disputes and Distribution (1986) [on reserve], Richard Lempert and Joseph Sanders have defined a legal system as "autonomous" if it is "independent of other sources of power and authority in social life.  Legal action, be it a decision to prosecute, an award of damages, or the reapportionment of a state legislature, is in an autonomous system influenced only by the preestablished rules of the legal system.  These rules determine not only the consequences of social action, but also . . . its meaning, and it is from the assigned meaning that legal consequences follow. . . ."

            "If the law is to be autonomous . . . it must in the ideal case be fully independent of society's other mechanisms of social control. . . .  [The] legal system should be autonomous [too] in one further sense.  It must be self-legitimating, for to depend upon political, social or ethical forces for authority is to be vulnerable to the reach of such forces on decision making.  A legal system is self-legitimating when its rules and rulings are accepted because they are legal. . . .

            ". . . [T]he situation of the law, as we know it in Western society, is one of partial autonomy.  Law is influenced by the political, ethical or social order, but this does not mean that the law must be in essence a tool of the dominant class's immediate self-interest, the plaything of those in high office, or the obedient servant of some moral majority. . . ."

            Lempert and Sanders state that some systems are more autonomous than others.  A system is more autonomous when "a standard once embedded in law acquires meaning through the law's own canons of construction rather than by reference to the interests that gave it birth."  Also "the more general the applicability of legal language, the less close will be the tie between the legal norm and the interests of a particular status group.  Thus a system that forbids anyone from forging a check is more autonomous than one that protects only capitalists from forgery.  Put another way, a legal system characterized by generally applicable rules is likely to be more autonomous than one riddled with particularistic enactments."

            In the light of what you have learned in this course, (a) how "autonomous" is the American legal system, either in terms of the criteria which Lempert and Sanders set out, or in terms of other criteria which you think better fit their initial definition; (b) has the "autonomy" (or lack of it) of the American legal system remained stable over time, or has it gotten greater or less great?  And does "autonomy" vary from field to field of law?  If so, which branches of law are more "autonomous" and which are less?




Answer either Question A or Question B.

Do not answer both questions.


A.  The Lawes & Libertyes (1648) of the Massachusetts Bay Colony included a section entitled "Bakers" (Documents, p. 2) that regulated the baking of bread.  In Lochner v. New York (1905, Documents, p. 460), the United States Supreme Court overturned a New York statute that regulated the baking of bread.  In what ways did the relationship of law and economic activity change or not change during the 257 year period from the Lawes &  Libertyes to Lochner?


B.  In Calder v. Bull (1798, Documents, p. 119), Justices Chase and Iredell have a disagreement.  What is the nature of their disagreement?  Identify other instances in the legal history of colonial North America and the United States to 1954 in which the problem between Justices Chase and Iredell has arisen.  What does the struggle over this problem reveal about the legal history of the United States?  How has the issue been resolved?


2009.  Thomas D. Russell
Last modified:  18 November 2009