George Mason University

Jurisprudence Seminar Law 435 Professor Krauss

2008 Syllabus

I. About the seminar

The Jurisprudence Seminar examines the nature of the judicial function (and, resultingly, the nature of Law) through a series of weekly discussions and the drafting of a substantial research paper. This seminar has proven over the years to be one of the more stimulating, and challenging, courses given at GMUSL. Quite a few student publications (including an article that was instrumental in securing our law school’s first-ever Supreme Court clerkship) began as Jurisprudence Seminar term papers. In addition, current events lend to this theoretical seminar a practical importance that is both unusual and compelling.

The structure of this year’s edition of the seminar is somewhat open-ended, i.e., your interests, manifested during the course of the semester, can impact on the content of classes. This will be the case most particularly for the final weeks. Please tell me a.s.a.p. of any topics you wish to explore.

Subject to your adaptation, then, here is a breakdown of the problems likely to be covered by readings (no compulsory book, rather photocopied readings) in this seminar.

1. Introduction to the problem of interpretation in Law. This introductory portion of the seminar should take three to four weeks. It has as its goal to persuade you of the use, indeed the necessity, of “intellectualizing” questions of interpretation. The participatory nature of the seminar should also be established during this period. Attendance at the first session (delayed until Sept. 2, 2008 because I will be out of town until then) is compulsory.

2. Legal reasoning: a critical analysis. Are the processes of argumentation (for lawyers) and of justification (for judges) logical? Do they lend themselves to the conclusion that there is one right answer to all or any legal questions? Can/Should human legal interpreters be replaced by “objective” computers to some extent?

3. Analysis of "schools" of interpretation. The next part of the seminar introduces you to grand debates in legal interpretation today. Does interpretation "exist", or is there no real difference between interpretation of a [legal] text and creation of a [legal] text? Is the ‘Rule of Law’ [as opposed to the rule of judges] intelligible, or is it an unclothed emperor? Is any separation of legal powers possible?

Among the ‘schools’ to be examined is the ‘literalist’ school (i.e. the meaning of a text is found in its words); the subjectivist or ‘interpretivist’ school (the meaning of a [legal] text is found in the intention of its author); other ‘interpretivists’ (i.e. who deny that literalist or subjectivist interpretations are possible while maintaining that there does nonetheless exist one ‘right’ answer to any legal dispute); and ‘non-interpretivists’, who hold that interpretation is intrinsically indeterminate (and, therefore, that legal ‘interpretation’ is in reality policy-making).

4. Other interpretive issues. This could include an introduction to feminist interpretive jurisprudence, to “critical race theory”, to the potential role of economic analysis of interpretive issues, etc. Your feedback will be vital in the selection of these topics. Please don’t let me down!

The classroom readings and discussions will, hopefully and crucially, encourage you to examine relationships between legal interpretation and interpretation in other fields, such as literature and theology. In all these fields, as in law, expertise consists essentially of the ability to read and derive meaning from texts. So, in effect, this seminar will lead you to clarify and refine your own vision of legal philosophy.

II. Research paper

The paper can cover a variety of subjects. I must emphasize that the following list is not all-inclusive: you may request my permission to select another topic. In a typical year, about half the students enrolled in the seminar choose topics other than those listed below. Permission to research another topic will be granted if your project is an interesting one and is related to the seminar's subject matter.

1. Analysis of the duties of the interpreter of an immoral law.

2. Analysis of an important debate about legal interpretation (e.g. Hart vs. Fuller, Fish vs. Fiss, Fish vs. Dworkin, Hart vs. Dworkin, West vs. Posner, etc.).

3. Critical, theoretical analysis (and discussion of the relevance to Law) of a recent book discussing the phenomenon of interpretation. Among other possible choices, consider these examples (in alphabetical order by author – the more recent the book the more likely that your review would be publishable – note that "older" books can spur your research paper, even if this does not take the form of a review: so this should be seen as a list of suggested outside readings):

Alexy, Robert. A Theory Of Legal Argumentation. Oxford: Clarendon Press. 1989

Atria, Fernando. On Law And Legal Reasoning. Oxford: Hart Publishing. 2002

Barak , Purposive Interpretation in Law (Translated from the Hebrew by Sari Bashi) Princeton U. Press, 2005

Bix, Brian, Law, Language and Legal Determinacy, Oxford, Clarendon Press, 1993

Burton, S., Judging in Good Faith, Cambridge, Cambridge U. Press, 1992

Davidson, Donald. Inquiries Into Truth And Interpretation. Oxford: Oxford University Press (2nd edition) 2001

Delgado, R., The Rodrigo Chronicles: Conversations About America and Race, New York: N.Y.U. Press, 1995.

Diggins, The Promise of Pragmatism: Modernism and the Crisis of Knowledge and Authority, Chicago: University of Chicago Press, 1994.

Eco, U., The Limits of Interpretation, (Indianapolis: Indiana University Press, 1990)

Eisenberg, M. The Limits of Reason: Indeterminacy in Law, Education and Morality, 1993)

Fish, Stanley.. Is There A Text In This Class? Cambridge, MA: Harvard University Press. 1990

Greenawalt, Kent. Law And Objectivity. Oxford: Oxford University Press. 1995

Günther, Klaus. The Sense Of Appropriateness. Albany, NY: SUNY Press. 1993

Haack, Evidence and Inquiry: Towards Reconstruction in Epistemology (Cambridge: Blackwell, 1993)

Habermas, Jurgen. Between Facts And Norms. Cambridge: Polity Press. 1997

LaRue, Constitutional Law as Fiction: Narrative in the Rhetoric of Authority, 1995)

Leiter, Brian. Objectivity In Law And Morals. Cambridge: Cambridge University Press. 2002

MacCormick, D. Neil. Legal Reasoning And Legal Theory. Oxford: Clarendon Press. 1994

Marmor, Andrew. Law And Interpretation---Essays In Legal Philosophy. Oxford: Oxford University Press. 1998

Minda, Postmodern Legal Movements New York: NYU Press, 1995

Peczenik, Aleksander. On Law And Legal Reason. Dordrecht: D. Reidel. 1989

Quine, Willard V. From A Logical Point Of View. Cambridge, MA: Harvard University Press (Second Edition). 1980

Raz, Joseph. Practical Reason And Norms, Princeton, NJ: Princeton University Press. 1992

Searle, Mind, Language and Society New York: Basic Books, 1998

Smith, Steven D., Law’s Quandary, Cambridge MA, Harvard U. Press, 2004

Twining William, & Miers David R.,  How To Do Things With Rules: A Primer Of Interpretation 4^th ed. Cambridge University Press, 1999

Unger, Roberto M. What Should Legal Analysis Become? London: Verso. 1996

4. Study of the possible uses of artificial intelligence in legal interpretation.

5. Study of a “school” of literary or biblical interpretation: e.g. subjectivism (E. Hirsch), deconstruction (J. Derrida, N. Frye, S. Fish), semiotics (U. Eco), etc. and of its relevance for legal interpretation.

6. Analysis of some aspect of “Critical Legal Studies” or “Feminist Jurisprudence” or “Critical Race Studies”.

7. Interdisciplinary analysis of the concept of author's intention. [I.e., what does literary studies have to say about this? Biblical studies? Psychology?]

8. Analysis of the nature and content of stare decisis, of the nature of a "holding", of the nature of a "dissent", etc.

9. Cross-literature comparison of issues in legal versus biblical or literary interpretation.

In principle, I prefer that papers be done individually. I will grant very rare exceptions to this rule upon adequate justification, but increased quality and quantity will be required from team members in this case.

III. Timetable for paper submission

I find that I’m by nature “soft”: i.e. if I don’t bind myself in advance, I tend to grant all student requests for late submissions. This almost never has good results for the student or for me. So I’m hereby binding myself. I announce that the following calendar is mandatory, that no extensions will be granted, and that failure to comply with a deadline will result in a penalty of up to one “notch” (off your final grade) per late day. Plus, and more importantly, I’ll be really mad if you miss a deadline!

1. On or before Sept 30, 2008, you will submit a proposal for your paper.[1] The proposal should be 2-3 pages long, should demonstrate that you have read a bit about your topic (i.e., that you’re not choosing any old topic just because the deadline is upon you...), and should show why you're interested in it. You are strongly encouraged to meet with me beforehand to discuss possible topics.

I will return the proposal to your mailbox, more or less annotated[2] and marked “approved” or “disapproved” by Friday, Oct. 3. If the topic is disapproved, you must meet with me on Oct. 6 to select a satisfactory topic. If you don't have a suitable topic to propose at that meeting I will assign one. Don’t worry: I do not anticipate having to resort to this.

2. If you wish to request an extension for the submission of the final paper (see immediately infra), you must do so on or before Oct. 21 [absolutely no exceptions allowed on this]. A response to your request will be provided within three days. Please note that denial of an extension request is the default position: i.e., an extension request will be granted only if you convince me that: a) you have already done research; and b) you will put the Spring semester to good use and make the paper much better than it would otherwise be. The extension should not be requested unless you expect to substantially improve the paper over the Spring.

Grading standards are higher for papers submitted after an extension. What's more, students may lose focus on a subject matter if, for example, they put aside their paper from December till March (when previous research is no longer fresh). On the other hand, a Spring semester during which, say, 100 quality hours are spent on research and writing can transform an excellent term paper into a prize-winning, publishable article that can reap long-term rewards. This is not a pipe-dream: it has happened for over a half dozen students in this seminar, and has led to GMUSL's only Supreme Court clerkship. It has changed career plans and enriched lives.

3. October 21 is the deadline for submission of the optional but strongly recommended first draft. [This deadline is extended to Dec. 1, but the first draft is then compulsory, for those to whom an extension has been granted.] The draft should be 15-50 pages long. It can be ‘rough’, i.e., structure and form need not be polished and research need not be complete. The first draft should, however, demonstrate substantial research and thought, and provide the basic thrust of the paper.

Why do a first draft if it is optional? Because it forces you to put down your thoughts, and it will elicit feedback from me. With other time commitments, if a draft is not submitted by the deadline I cannot commit to providing feedback before the final paper is due.

ASAP after the first draft deadline, I will return the draft with written comments. I will indicate what type of grade the first draft looks “headed for”, and what could be done to improve the grade. Note that your first draft doesn’t “risk” anything: a “C” draft followed by an “A” final paper earns an “A” final grade.

5. On or before Dec. 9 you will submit the final paper. [This deadline is pushed back to May 1 for those who have obtained extensions.] Total length of the final paper must be 20-50 pages, unless written authorization to submit a longer or shorter paper has been granted.

An annotated bibliography must accompany your paper (but its length is not included in the page total). The bibliography will list and summarize (one short paragraph per entry) sources used in preparing your paper, whether or not you cite them in the paper. This helps me plan future editions of the seminar – which readings did you find more or less useful? You get knocked down one grade level on your final paper if you forget the bibliography, so don't forget!

Blue book or Maroon book citation methods are preferred; parallel cites are not required.

Drafts, as well as the final paper, are double-spaced with normal margins, in size 12 font. Footnotes should be single-spaced and contained on each page of text (i.e. no endnotes), in size 10 font.

IV Class participation

The final paper will count for 3/4 of the “final grade”. My evaluation of your class work will determine the rest. You are expected to attend and participate actively in every class session. You may be assigned specific discussion responsibilities for a class sessions.