Constitutional Theory Courses

3 credits

This seminar examines the oppressive role of race and ethnicity in American society from the early colonial period to the present, resistance to that oppression, and the moral case for both resistance and reparations. Each seminar session will begin with a presentation by a seminar member, a schedule for which will be developed after the first seminar meeting. Readings will be mainly historical but will also include relevant cases and legislation; all readings will be available online or on the seminar's Blackboard website. Grades will be based primarily on the term paper, on an approved topic, which is written after comments have been received on a polished draft; class participation will also be considered, as well as the weekly log that seminar members are required to maintain, noting issues raised by the readings. OBJECTIVES: Students will be expected to become familiar with the history of racial and ethnic stratification in the United States as well as resistance to it, enabled to pursue that history on their own, and capable of appraising relevant scholarship and public policies. The CR/NC/H grading option is available. LAW ENROLLMENT LIMIT: 15 students. NOTE: This class does not satisfy the upper-class writing requirement. ** A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

3 credits

In the mid-1980s, a scholarly movement to become known as "Critical Race Theory" (CRT) developed in legal academia. Early critical race theorists--including Derrick Bell, Mari Matsuda, Charles Lawrence, Richard Delgado, Kimberle Crenshaw, and Patricia Williams--challenged the substance and style of conventional legal scholarship. Substantively, race crits rejected formal equality, individual rights, and colorblind approaches to solving legal problems. Stylistically, critical race scholars often employed new methodologies for legal scholarship, including storytelling and narrative. The Critical Race Theory Colloquium is designed to expose students to core CRT principles and interrogate CRT's possibilities and limitations. This endeavor will require students to think critically about race and racism in conjunction with other intersecting structures of oppression and hierarchy. The Critical Race Theory Colloquium employs a workshop-format that enables students to engage leading scholars in the field of Critical Race Theory. The first part of the semester will involve a general overview of Critical Race Theory. During the remaining meetings, invited scholars will present works-in-progress for discussion. To prepare, students will write short reaction papers that include three questions for further discussion. Final grades depend on the reaction papers, class participation, and attendance. UPPER-CLASS WRITING REQUIREMENT: This class may not be used to satisfy the requirement. GRADING NOTICE: This class will not offer the CR/NC/H option. **A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

3 credits

This course will examine some classic issues of jurisprudence as they arise in contemporary controversies over law and morality. Topics will include the following: (1) Originalisms versus moral readings. Does constitutional interpretation involve determining the original meaning of the Constitution as a matter of historical fact (originalisms) versus making normative judgments about the best understanding of our constitutional commitments (moral readings)? We will examine these competing theories through assessing two competing approaches to the Due Process Clause: that of Washington v. Glucksberg and Dobbs v. Jackson Women’s Health Organization and that of Planned Parenthood v. Casey and Obergefell v. Hodges. Does protection of the right to abortion or the right of same-sex couples to marry necessarily entail a moral reading of the Constitution? How does the Supreme Court actually use history in denying rights in Glucksberg and Dobbs? In service of originalism as commonly understood or of conservative moralism and traditionalism? (2) The legal enforcement of morals. In Lawrence v. Texas, which recognized a right of gays and lesbians to intimate association, Justice Scalia protested in dissent that the case “effectively decrees the end of all morals legislation.” Is Scalia right that there is really no distinction between same-sex intimate association and, to quote Scalia’s list, “fornication, bigamy, adultery, adult incest, bestiality, and obscenity”? What are the proper limits on traditional “morals legislation”? Does Obergefell put us on a slippery slope from same-sex marriage to plural marriage (including both polygamy and polyamory)? (3) Grounds for justifying rights. What are the best grounds for justifying rights in circumstances of moral disagreement? For example, should we justify a right of same-sex couples to marry on the ground that government should respect people’s freedom to choose whom to marry? Or instead on the ground that protecting such a right promotes moral goods (the same moral goods that opposite-sex marriage furthers): commitment to another human being, along with “the ideals of mutuality, companionship, intimacy, fidelity, and family” (quoting Goodridge v. Department of Public Health, the Massachusetts decision protecting a right of same-sex couples to marry). Furthermore, does the Due Process Clause or the Equal Protection Clause provide the better ground for such a right (as well as a right of pregnant persons to decide whether to terminate their pregnancies)? What are the criteria for deciding between these grounds? Do liberty and equality oppose or reinforce one another? (4) Government’s role in promoting civic virtues and public values: conflicts between liberty and equality. To what extent may government inculcate civic virtues and promote public values? We will focus on (a) battles over civic education (including teaching about race and gender) and (b) conflicts between religious liberty and freedom of speech and the use of antidiscrimination and marriage equality laws to secure the status of equal citizenship for all. For example, must laws recognizing same-sex marriage or protecting against discrimination on the basis of sexual orientation or gender identity grant exemptions to business owners who disapprove of such rights on religious grounds? (5) Originalism and the right to bear arms. The Supreme Court has based its major decisions protecting an individual right to bear arms on originalism. Do Heller and Bruen vindicate originalism as yielding objective answers of historical fact about constitutional meaning or, to the contrary, do they suggest that originalism is a site of contestation between competing understandings of our constitutional commitments? How does the Court actually use history in these cases? UPPER-CLASS WRITING REQUIREMENT: This class may be used to satisfy the requirement. ** A student who fails to attend the initial meeting of a seminar, or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

3 credits

In the United States, and around the world, many people still suffer from basic lack of access to sexual and reproductive health services. This course explores the role of law in understanding the distribution of access to SRH services and care. We will draw on various theoretical and doctrinal tools including critical legal theory, critical race theory, sociology of science, human rights, feminist theory, and a range of public health methods to understand the current state of the law and the possibilities and limitations of legal reforms. The course will foreground issues of race and reproduction as well as the politics of public health law (including the role of scientific evidence and medical expertise in courts). We will examine various sites of lawmaking including courts and legislatures and we will pay attention to the legal reforms offered by social movements both for and against greater access to services and care.

3 credits

Atrocity crimes--including genocide, war crimes, and crimes against humanity--continue to rage around the world. This course examines origins, operations, and outcomes of historical and contemporary measures to address such heinous offenses. We will consider the full range of judicial, legislative, and executive options available to policymakers as societies emerge from periods of violence and repression. These "transitional justice" mechanisms include war crimes tribunals (such as the International Criminal Court), truth commissions, amnesties, lustration, exile, indefinite detention, lethal force, and inaction. The course draws on various case studies, including present-day Ukraine, Syria, and Myanmar; Rwanda and the Balkans in the 1990s; and World War II. Readings address the legal, political, and philosophical underpinnings of justice; questions of institutional design; and how different societies have balanced competing legal, policy, and moral imperatives. UPPER-CLASS WRITING REQUIREMENT: This class may be used to satisfy the requirement. ** A student who fails to attend the initial meeting of a seminar (designated by an (S) in the title), or to obtain permission to be absent from either the instructor or the Registrar, may be administratively dropped from the seminar. Students who are on a wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.