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Final Exam Questions
1997
Remember to read the
Instructions.
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Legal History of Slavery
A number
of my professional colleagues have suggested to me that
the legal history of slavery is not a topic that
deserves much emphasis.
I have heard this most often from law professors who are
not themselves legal historians. While they might
grudgingly concede that the legal history of slavery
could be a worthy topic within a history department,
they do not see why students should study this history
within law schools or why legal historians generally
should spend much time on the question of slavery.
After all, my colleagues have suggested, American
slavery is long dead as an institution, and there seems
to be no chance that it will be revived in the United
States. Slavery was so obviously an injustice that
dwelling on it in the classroom or in published articles
will only serve to inflame racial tensions. In short,
they can see no reason to spend a lot of effort on the
slavery question.
Draft an essay in which you respond to their concerns.
Think broadly about the disadvantages or benefits of
studying the legal history of slavery. An obvious
question, of course, is whether the study of slavery's
legal history sheds any light on our contemporary
situation. But you might also wonder whether the study
of slavery helps us to better understand other,
non-slavery historical topics. Be sure, in your answer
to consider any differences that you might see between
slavery in the 17th century and slavery as it
developed in the 19th century.
END OF QUESTION ONE
In 1835, Alexis de
Tocqueville commented:
In actual fact, the lawyers do not want to
overthrow democracy’s chosen government, but they do
constantly try to guide it along lines to which it is
not inclined by methods foreign to it. By birth and
interest a lawyer is one of the people, but he is an
aristocrat in his habits and tastes; so he is the
natural liaison officer between aristocracy and people,
and the link that joins them.
The legal body is the only aristocratic
element which can unforcedly mingle with elements
natural to democracy and combine with them on
comfortable and lasting terms. I am aware of the
inherent defects of the legal mind; nevertheless, I
doubt whether democracy could rule society for long
without this mixture of the legal and democratic minds,
and I hardly believe that nowadays a republic can hope
to survive unless the lawyers’ influence over its
affairs grows in proportion to the power of the people.
If you ask me where the American aristocracy
is found, I have no hesitation in answering that it is
not among the rich, who have no common like uniting
them. It is at the bar or the bench that the America
aristocracy is found.
The more one reflects on what happens in the
United States, the more one feels convinced that the
legal body forms the most powerful and, so today, the
only counterbalance to democracy in that country.
Question: Have
lawyers, over the course of American history, acted as
an aristocratic bulwark against the excesses of
democracy? Describe how the legal profession has
changed since the time of Jefferson and why. What have
been the effects of such changes upon law and American
society?
END OF QUESTION TWO
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