Legal Studies - Fall 1998

[Note: Following is the syllabus for last year's course. It may be modified in some degree this year.]

In this course, we will be examining modern selves and modern societies. In a course devoted to the modern, it might thus seem strange to focus on "sacrifice"--one of the most ancient and primitive of rituals, and one that, at least in its traditional guise, has largely died out in the modern world. And yet the fact that sacrifice as a central ritual should have been as ubiquitous as it was in early societies (albeit with significant differences across societies) might itself give us pause: why should this kind of act have been so central to the life and "religion" of such societies? And if it was so central, why has it died out?

Or has it? Have we, indeed, abandoned the practice of sacrifice? Or have we simply transformed it? If certain forms of sacrifice were central to primitive societies, what, if anything, has taken their place? What are our sacrificial practices, and what role do these play in constituting and reconstituting ourselves and political society? This is the line of thought that this course means to explore.

In the first part of the course, we shall examine some aspects of the phenomenology of sacrifice in general: how the processes of sacrifice (with their renunciation, surrender, destruction, etc.) participate in the construction of identity. In the second part of the course, we shall turn specifically to the political, and some of the "sacrificial" aspects of law.

The requirements for the course are:

• attendance at all lectures and sections;
• participation in section;
• completion of the reading on time;
• two midterm papers (approximately 5-6 pages);
• a final paper (10-12 pages);
• weekly short thought pieces (1-2 pages) or quizzes.

The reading for the course is contained in a two-volume reader available at the campus copy center (Communications Building).

September 25: Introduction to the Theme, Part I

September 30: Introduction to the Theme, Part II

• Readings:
  • from Berlin, "Two Concepts of Liberty"

October 2: "The Incarnation of Dissonance"

• Readings:
  • from Nietzsche, The Genealogy of Morals
  • ______________, The Birth of Tragedy
  • from Freud, New Introductory Lectures on Psychoanalysis
  • Freud, "Negation"

October 7: Will, Action and the Self

• Readings:
  • from Nietzsche, Beyond Good and Evil
  • ______________, The Genealogy of Morals
  • ______________, Will to Power
  • ______________, Thus Spoke Zarathustra
  • from Ryle, The Concept of Mind

October 9: Sickness and Health, Life and Death

• Readings:
  • from Nietzsche, Beyond Good and Evil
  • ______________, The Gay Science
  • ______________, Philosophy in the Age of the Greeks
  • from Plato, The Republic
  • from Sophocles, Oedipus Rex
  • from Evans-Pritchard, Nuer Religion

October 14 - No class

October 16: The Sacred and the Profane

• Readings:
  • from Durkheim, Elementary Forms of Religious Life
  • from Lienhardt, Divinity and Experience: The Religion of the Dinka
  • from Cassirer, The Philosophy of Symbolic Forms
  • from Hubert and Mauss, Sacrifice: Its Nature and Function

October 23: Sublimation and the Sublime

• Readings:
  • from Nietzsche, The Genealogy of Morals
  • from Freud, Totem and Taboo
  • from Freud, Group Psychology and the Analysis of the Ego
  • from Freud, Beyond the Pleasure Principle

October 28: Sacrifice and Sin

• Readings:
  • Genesis: 1-4
  • Genesis: 21-22
  • Leviticus: 4-5; 7-9;16
  • 2 Samuel Chapters 23-24
  • John 1-5;11-21
  • Matthew: 5-8
  • Hebrews: 7-10
  • Romans 4-8

October 30: Preservation and Violation: Pleasure and Taboo

• Readings:
  • from Freud, "A Child is Beaten"
  • Wright, "Black Boy Goes Home"
  • from Geertz, "Notes on a Balinese Cockfight"

November 4: Speech and Silence

• Readings:
  • Brown, "In the 'folds of of our own discourse': The Pleasures and Freedoms of Silence"
• Film: The Piano

November 6: Violence and the Collective Consciousness

• Readings:
  • from Emile Durkheim, from The Function of the Division of Labor
  • from Foucault, Discipline and Punish

November 11: The Routinization of Punishment

• Readings:
  • from Foucault, from Discipline and Punish
  • from Trombley, The Execution Protocal

November 13-18:

• Readings:
  • From Bork, The Tempting of America
  • Furman v. Georgia
  • Lockett v. Ohio
  • Callins v. Collins (petition for certiorari)
  • from Che Guevara, Che Guevara Speaks
• Film: Eye on the Prize

November 20

• Readings:
  • from Devlin, The Enforcement of Morals
  • Dworkin, "Liberty and Moralism"
  • from Hart, Law, Liberty and Morality

November 25

• Readings:
  • Griswold v. Connecticut
  • Eisenstadt v. Baird
  • Bowers v. Hardwick

November 27 - No class

December 2

• Readings:
  • Dennis v. United States
  • from Sullivan, Unconstitutional Conditions

December 4

This is a course about the administrative state and the nature of legal interests within it. As such it is a course about law, politics and democratic theory.

The course can roughly be divided into two parts. In the first part, we shall look at the development of modern administrative agencies, the character of administrative power and the nature of judicial review of agency decisions. In the second part of the course, we shall turn our attention to legal rights and to the relationship between the interests embodied within a statute and the legal rights which can be asserted under the statute.

Most of the readings in the course are of one of two kinds; decisions of courts, and writings about what courts have been doing and saying. Courts are not necessarily the most important actors in exercising modern state power, but one of the roles that courts play is to review the actions of other state bodies, and this requires courts to struggle with questions concerning the justification of state power. These questions do not admit of easy answers; they are not well-settled, and, in any case, our goal is not merely to describe the current state of the law. Our primary goal is rather to use particular legal controversies to explore certain essential questions of modern state power.

There is a midterm and final for this class. In addition, you may be asked to brief the cases and some articles and to prepare several short papers (approx. 2 pages) for class. You are responsible for having completed the reading on schedule and for spending some time before class thinking about it; and you should be prepared each session to discuss the reading in class. Your evaluation for this course will be based both on your written work and on your contribution to class discussion. While this course does not require background in reading cases, students who have not read cases before may have some difficulty especially during the first several weeks. I strongly encourage students who are having any difficulty with the reading to stop by during office hours (or make an appointment) for help.

Attendance at each class session is mandatory. Class sessions on Tuesday are from 12:00-3:10. (There will be a 15-minute break from 1:45-2:00 in order to move from Kresge to Porter.) Thursday sessions are from 12:00-1:45. In addition, there will be an optional section from 2:00-3:10 on Thursdays. Any student may attend these sessions. However, at least the first few sessions will be designed for students who have not had a background in reading cases and for students who do not have already taken a course that required reading cases, these sections are mandatory.

The reading for this course is contained in a two-volume reader, available at the copy center on campus (in the Communications building).

I. Introduction

(January 7)

Deshaney v. Winnebago County Social Services

II. The Classical Model of Adminstrative Power

(January 9)

A.V. Dicey, Law of the Constitution (excerpts)

III. Delegated Power, the Judiciary, and Individual Rights in the

Classical Model

(January 14)

A. Marbury v. Madison

B. Federal Trade Commission v. Gratz (majority opinion)

C. McAuliffe v. Mayor of New Bedford

D. William Van Alstyne, "The Demise of the Right-Privilege

Distinction in Constitutional Law" (excerpt)

IV. Legal Interests and Administrative Power in the Activist State

(January 16)

A Lochner v. New York

B. Breyer & Stewart, "The Historical Development of Administrative Government and Administrative Law," (excerpt)

C. Nebbia v. New York

D. West Coast Hotel v. Parrish

E. Home Building & Loan Association v. Blaisdell

(January 21)

F. Charles Reich, "The New Property"

G. Samuel Beer, "In Search of a New Public Philosophy" (excerpt)

H. Cass Sunstein, "Constitutionalism After the New Deal," (excerpt)

I. A.L.A. Schechter Poultry Corp. v. United States

(January 23)

J. Amalgamated Meat Cutters v. Connally

K. Richard Stewart, "The Reformation of American Administrative Law" (excerpt)

L. Federal Trade Commission v. Gratz (dissenting opinion)

M. Hearst Publications v. National Labor Relations Board

N. Breyer & Stewart, "The Historical Development of Administrative Government and Administrative Law," (excerpt)

(January 28)

O. The Administrative Procedures Act 551, 553-4, 556-8, 701-2

P. Martin Shapiro, The Supreme Court and Administrative Agencies (excerpt)

Q. Peter Strauss, An Introduction to Administrative Justice (excerpt) [Note: read pp. 133-164 and 177-178 (in original).]

V. Judicial Review of Agency Decisions

(January 30)

A. Chevron v. National Resources Defense Council

B. Peter Strauss, An Introduction to Administrative Justice (excerpt) [Read pp. 178-182 (in original).]

C. Securities & Exchange Commission v. Chenery

D. Ronald Dworkin, "The Model of Rules," Taking Rights Seriously (excerpt)

E. Richard Stewart, "The Reformation of American Administrative Law" (excerpt)

(February 4)

F. Richard Stewart, "The Development of Administrative and Quasi- Constitutional Law in Judicial Review of Environmental Decision-making" (excerpt)

G. Peter Strauss, An Introduction to Administrative Justice (excerpt) [Read pp. 164-177 (in original).]

H. Vermont Yankee Nuclear Power Corp. v. NRDC (D.C. Circuit)

I. Vermont Yankee Nuclear Power Corp. v. NRDC (Supreme Court)

J. Greater Boston Television v. FCC

K. Ethyl Corp. v. EPA

L. (optional) Portland Cement Association v. Ruckeshaus

M. Scenic Hudson Preservation Conference v. FPC

N. Citizens to Preserve Overton Park v. Volpe

O. State Farm Insurance v. Motor Vehicle Manufacturers Association

P. (optional) Martin Shapiro, "On Predicting the Future of Administrative Law"

(February 6)

Q. Pierce, et. al., "Administrative Law Symposium"

R. Schuck and Elliott, "To the Chevron Station"

S. Lowi, The End of Liberalism

T. Sunstein, "Interpreting Statutes in the Regulatory State"

U. Bethlehem Steel v. Environmental Protection Agency

VI. Private Interests, Public Interests and Legal Rights in the Modern State I: Standing to Participate in Administrative Decisions

(February 11)

A. United Church of Christ v. Federal Communications Commission

B. National Welfare Rights Organization v. Finch

C. In the Matter of Edlow

VII. Private Interests, Public Interests and Legal Rights in the Modern State II: Standing to Challenge Administrative Decisions

(February 13)

A Alabama Power Co. v. Ickes

B. FCC v. Sanders Bros. Radio Station

C. Perkins v. Lukens Steel

D. Associated Industry v. Ickes

E. [APA 701-2]

F. Kansas City Power & Light

(February 18: Exchange Day. No Class)

(February 20)

G. Association of Data Processing Service Org. v. Camp

H. Vining, Legal Identity

I. Barlow v. Collins

J. Arnold Tours v. Camp

K. Control Data v. Balridge

L. Investment Institute v. Camp

M. Clarke v. Securities Industry Assn.

(February 25)

N. Air Courier Conference of America v. American Postal Workers Union

O. Lujan v. National Wildlife Federation

P. Lujan v. Defenders of Wildlife

(February 27)

Q. Scenic Hudson Preservation Conference v. FPC

R. Sierra Club v. Morton

S. Havens Realty Corp. v. Coleman

T. Center for Auto Safety v. NHTSA

(March 4)

U. U.S. v. SCRAP

V. Simon v. Eastern Kentucky Welfare Rights Organization

W. Allen v. Wright

X. Joseph Vining, Legal Identity

VIII. Private Interests, Public Interests and Legal Rights in the Modern State III: Constitutional Due Process

(March 6)

A. Goldberg v. Kelley

B. Board of Regents v. Roth

C. Perry v. Sinderman

D. Bishop v. Wood

E. William Van Alstyne, "Cracks in the New Property"

F. Jerry Mashaw, "'Rights' in the Federal Administrative State"

(March 11)

G. Chernin v. Lyng

H. Arnett v. Kennedy

(March 13)

I. Block v. Community Nutrition Institute

Revised 7/19/04.