texts:
H.L.A. Hart, The Concept of Law (Oxford paperback: 1994) second edition [ISBN: 0-19-876123-6]
Neil MacCormick, Legal Reasoning and Legal Theory (Oxford paperback: 1978; 1994) 328 pp., $35. [ISBN: 0-19-876384-0]
A. Mitchell Polinsky, An Introduction to Law and Economics—second edition (Aspen: 1989) [ISBN: 0-316-71278-7]
first 3 weeks:
Hart is probably the most important twentieth century contributor to jurisprudence. We will first work to understand Hart on his own terms: that will require us to understand his sketch of John Austin's theory, Hart's objections to it, and then Hart's own theory. Then we will look critically at Hart's theory, trying to see how the various parts of his theory determine his answers to traditional questions about the law, attempting to identify difficulties for his answers, and trying to expand on his sketch. In conjunction with Hart, we will read MacCormick's Appendix on the "Internal Aspect" of Norms.
next 4 weeks:
We will study MacCormick's discussion of legal reasoning. We will also examine a Brief Case Study of changes in judicial doctrine in the USA, focused especially on:
Max Radin, "Case Law and Stare Decisis: Concerning
Präjudizienrecht in Amerika " 33 Columbia Law Review 199 (1933)--a trenchant Legal Realist, arguing that such change demonstrates that judges function as legislators.
last 3 weeks:
Finally, we will study Polinsky's introduction to law-and-economics, exploring the connections of law with economics.
There will be a 70 minute midterm exam at the end of the third week, a three-hour final exam, (hopefully) another after MacCormick, and a term paper of approximately twelve pages due at the end of the tenth week.
The three hour final exam will begin at 8:30 on Tuesday, December 11.
You will write your name only on the title or cover sheet for an exam or paper; you will also write out (the words, "I hereby reaffirm the Lawrence Honor Code") and sign your honor code pledge on the title or cover sheet.
Boardman's office is 312 Main Hall (or outdoors in decent weather).
Boardman's OFFICE HOURS.
Office phone: 832-6682; or home phone after 9 a.m. and before 10 p.m.: 731-9477;
or, address e-mail to boardmaw@lawrence.edu
Boardman's home page.
In our examination of legal reasoning, we will study excerpts from the series of historically important and controversial cases discussed by Radin: Winterbottom v. Wright, Thomas v. Winchester; MacPherson v. Buick Motor Co.; Henningsen v. Bloomfield Motors, Inc.; and many of the relevant, intervening cases. The complete texts of those cases, with the exception of Henningsen, are posted at the Philosophy of Law page. (From on-campus, you can gain access to the complete text of Henningsen v. Bloomfield Motors, Inc. (Supreme Court of N.J.: 1960) [161 A. 2d. 69 (1960)] via Lexis-Nexis Universe.)
Some cases since Macpherson might be useful to read in connection with the economic theories of torts:
- Baxter v. Ford Motor Co. (Washington State Supreme Ct.: 1932) [108 Wash. 456, 12 P.2d.409, 88 A.L.R. 521] [despite lack of privity, manufacturer's advertisements and brochures furnished to dealers for distribution are representations by the manufacturer to the ultimate consumer];
- Escola v. Coca Cola Bottling Co. of Fresno, (Supreme Court of California: 1944) [24
Cal.2d 453, 150 P.2d 436 (1944)]; [note Traynor's concurrence broaching strict liability for such cases—a judicial bell-wether];
- Greenman v. Yuba Power Products, Inc., (Supreme Ct. of California: 1962) [377 P. 2d. 897 (1962)] [manufacturer's strict liability for defective product];
- Boomer v. Atlantic Cement Co., (Ct. of Appeals, Appellate Div. of Supreme Ct. in the Third Judicial Dept. of New York) [26 N.Y. 2d. 219 (1970)]; [uses economic rationale in policy questions involved in deciding injunction and damages against nuisance].
To read, on line from the Lawrence campus, George Priest, "The Modern Expansion of Tort Liability: Its Sources, Its Effects, And Its Reform," 5 Journal of Economic Perspectives 31 (1991)—an excellent historical account of the changes in tort law since 1960 (and especially since 1970):
point LU browser to ELECTRONIC LIBRARY RESOURCES: http://www.lib.lawrence.edu/www/lib/elecres.html
then to BADGER LINK: http://www.dpi.state.wi.us/badgerlink/
then choose Magazines, Journals and Other Information: http://www.epnet.com/ehost/badger/badger.htm
now Connect To Ebesco Host: http://search.epnet.com/login.asp?site=ehost
now CHOOSE A SERVICE: (LUWEB)
(then wait for service)
check "academic search elite" and click "enter"
search for "Priest and George"
on the seventh page: choose 65. The modern expansion of tort liability: Its sources, its effects, and its reform.; By: Priest, George L., Journal of Economic Perspectives, Summer 91, Vol. 5 Issue 3, p31, 20p, 2 graphs Full Text.
Also from on-campus, and off-campus with your library account number, you may use "JSTOR":
From the Lawrence campus: you can use the Lawrence library's Lexis-Nexis Academic Universe link to read cases in state law, e.g., the 1944 California Supreme Court case, Escola v. Coca Cola Bottling Co., as well as older federal cases which have not been posted on their federal web sites:
First, go to the Lawrence library's Lexis-Nexis site: http://web.lexis-nexis.com/universe/form/academic/index.html
Now choose: "State Legal Research" to reach http://web.lexis-nexis.com/universe/form/academic/univ_states.html
Now choose : "Case Law: State" to get http://web.lexis-nexis.com/universe/form/academic/univ_statecase.html
Now choose: "California" to get the California State Case Search Page.
Now select "full text" and
as Search Terms type "Escola" and
as date, select "From" button, and then type "1944" for the first box, and "1944" for the "To" box. You will then be able to choose from options which include Escola v. Coca Cola Bottling Co. of Fresno, 24
Cal.2d 453, 150 P.2d 436 (1944) (Note that in the text of the report, the numbers in square brackets preceded by a single asterisk denote pagination of the California Reporter, 2nd Supp, vol. 24. In legal citations, the first number is the volume number, followed by the standard abbreviation for the journal or reporter, followed by the number of the first page of the article or report of the case, followed by the date.)
When you use Lawrence's Lexis-Nexis, there are restrictions on downloading the complete texts of cases, though not on printing the texts. For recent cases, FindLaw is a wonderful engine for finding cases, and I believe that there are no restrictions on downloading the texts.
You can also use Lawrence's Lexis-Nexis connection to read and print articles from very many law journals (though generally they only go back as far as the fall of 1982).
Suppose that you wish to read Sanford H. Kadish, "Letting Patients Die: Legal and Moral Reflections," 80 California Law Review 857 (1992): First go to the Lawrence library electronic library site:
http://www.lib.lawrence.edu/www/lib/elecres..html
Then click on the Lexis-Nexis Universe site: http://web.lexis-nexis.com/universe/form/academic/index.html
Then click on "Legal Research;" then click on "Law Reviews;" then choose "More Options." You will get a page which looks like this picture:
Enter the last name of the author, and set the "in"-box to "Author." Be sure to set the "Date" to "all." Type the name of the journal or choose from a list of journals which can be found by clicking on "Source List." (I would not try to fill in all the keyword boxes: a small bit of information tends to be more efficient.)
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Many documents and links relevant to this course are posted at |  |
Research Paper:
A term paper of approximately eight to twelve pages in length, is due by 4 p.m. on Friday, March 10; if you have any questions, ask Boardman. You will want to have begun your research by the third week. You must discuss with me the outline of your paper during the fifth week. When you begin to write your paper, put a lot of care into the way you set-up your discussion: that will make a lot of difference to whether your subsequent discussion will be clear and will work.
On reserve there is a bibliography of articles and books from which you may draw your topic: your topic will need my approval, and you will wish to begin reading things by the third week. If you do not know how to search for things by author, by title, and by key-word, on LUCIA, be sure to ask a librarian.
| N. B.: Every book or article used in your research must be in the Lawrence library, or you must submit with your paper copies of all those articles and portions of books which you used in your paper and which are not available at Seely-Mudd. I do encourage you to use inter-library loan to acquire articles and books which are not at Lawrence; but remember that copies of those things must be handed in with your paper. Similarly, if you find a useful web site, you must print a copy of the article or discussion you are using and hand it in with your paper. |
Suggestions1 for your paper:
1. Indicate at the outset of the paper how your topic is limited and how you intend to handle the topic. You may write in the first person if you wish; rhetorical questions are also a useful device for indicating what you intend to cover. Throughout your paper, remember that you have a reader: it is your job to help him understand the transitions you make and how one point is related to another. Imagine that you are writing for an intelligent reader who does not know what you have learned and who is inclined to be skeptical about any conclusion you draw.
2. You must do more than simply write an accurate report on the articles or parts of books which you consider--though it will be your job to explain the relevant intricacies of whatever you report on.
a. In general, do not quote your sources unless you need to consider the controversial interpretation of some difficult passage: explain what an author says in your words. Also do not simply paraphrase: usually one does that when he hasn't completely digested what he has read. (Don't worry if you fail to sound as eloquent as the source you are using: your job is not to imitate but to explain. And an imperfect understanding of an author is far better than a blind paraphrase. If something which an author says seems to be important yet puzzling, go ahead and say that it is puzzling--for such and such reasons--and then do your best to make sense out of it.)
b. Remember that you must footnote every piece of information which you get from a source: while it is intelligent to use information gathered by others, it is dishonest to fail to disclose the sources of that information. Place your footnotes at the end of your paper, specifying the page(s) from which the piece of information or the premise to an argument or the quote comes. If a friend (or a roommate) makes a suggestion which you use, cite him in a footnote for the point you use.
c. The points you make should be woven into your text: don't just abruptly "plop" a piece of information into your paper: introduce it as, for example, "According to Mr. Ralph, blah ... blah."
3. In addition to reporting on what various authors say, you must present a thesis--your conclusion--and give arguments for it. It should not be an obvious claim; often it will be useful to have found articles which argue for opposing views. But you may not simply conclude, e.g., "Ralph has the better of the argument;" you must explain carefully and clearly why Ralph's position is better. (If the issues are complex--as most interesting ones are--you will probably find points on both sides, though some may be more significant than others.)
4. You may use any of the accepted footnote forms so long as you are consistent. I would prefer the format customarily found in legal materials--which is explained at the beginning of the bibliographical list of articles and books--as mentioned earlier. If you are to be citing frequently from a few sources, simply use last name of author-colon-page number in parentheses after the quotation or information in your text--but in the first footnote to that source indicate that subsequent references to this work will cited parenthetically in your text. Your presentation of the information will make it clear that these various points are (say) Mr. Ralph's further claims--recall (2c) above.
A list of likely journals in our library is available from Boardman; please remember that you must not write in books which do not belong to you.
[1] A number of Professor Goldgar's "hints" have been gratefully borrowed for this sheet.
