Reading Assignments. The following books can be purchased
at the Campus Bookstore. They will serve not only for class discussion,
but as the basis of the exams, too.
Melton A. McLaurin, Celia, A Slave
Howard Jones, Mutiny on the Amistad
James Mohr, Abortion in America. The Origins and Evolution
of National Policy
Charles E. Rosenberg, The Trial of the Assassin Guiteau. Psychiatry
and the Law in the Gilded Age
In addition, a Course Packet of Cases and Materials (referred
to as CP in the syllabus) should be purchased at the History
Department office, Busch Hall 118.
Schedule of Class Meetings and Assignments
January 11
Lecture: The Law of Nature and the Nature of American Law—Competing
Views
January 13
Discussion: CP -- “Gravity” (cartoon); “Honestus” on law; Calder
v. Bull; Tocqueville on adjudication; Rantoul on the common law.
Questions to Consider: When a case
is to discussed in class, we will follow a basic format for "briefing"
it. For our purposes, the following questions should guide your reading
of the case:
1. Date and
venue of the case. When did this case occur, and in what historical
context was it decided? (For example, what major events were taking
place while Calder was being decided?) What court decided
this case?
2. Facts
of the case. What happened to bring this case into court?
This question involves the basic narrative of events in the dispute.
3. Issues.
On what legal basis was this case being brought? That is, was the
claim based on a statute? on the common law? on a Constitutional
provision? Also, what legal remedy was the plaintiff seeking on this
basis?
4. Law.
What legal arguments did each side make in support of its position?
5. Holding
of the court. What did the court (or jury) decide? What
legal position did the court accept, and why?
January 20
Lecture: Gender and the Constitution of Marriage
January 25
Discussion: CP -- Hogarth. “Marriage a la Mode” (painting); Benton
v. Benton; Fenton v. Reed; Medford v. Worcester; Wightman v. Coates; Donnerschlag
v. Behrens
Questions to Consider: (See January
13, on briefing a case.) In view of the law on "breach of promise
to marry," how did the court in Donnerschlag differ from that in
Wightman,
and why? What legal requirements for marriage are held in Fenton
and in Milford? Are they the same or different?
January 27
Lecture: Lawyers Juries, and Mobs—The Struggle to Control “Law”
February 1
Discussion: CP -- Burr-Hamilton Duel; Portland Brothel Riot; Vicksburg
Gamblers Riot; Tocqueville on lawyers
Questions to Consider: "Law on the
books" often clashed with "law in action." In these materials, the
clash occurred when formal legal institutions did not meet demands for
"popular justice." What purposes were served by recourse to
"self-help" in these various episodes?
**Take-Home Essay Topic Distributed**
Topic: Historically, lawyers have been the one profession that Americans
love to hate. Despite their leadership
in achieving
independence and in establishing new popular constitutions (both state
and federal), lawyers were
regarded by
many Americans as a plague and as a threat to the republic. Despite
the great demand for
their services,
lawyers and their activities were widely resented. Despite this opprobrium,
the supply of
lawyers steadily
increased in the new nation.
How can this paradox be explained? In an essay of no more than five
double-spaced pages (12-point
type, normal
margins), use the reading materials and lectures to describe the factors
that led American society
to demand and/or
to criticize lawyers. What needs did lawyers serve in the new republic,
and why were they
criticized for
performing them? What were the major reasons for criticizing them?
What positive roles did
others attribute
to lawyers and credit them for in establishing the new nation?
February 3
Lecture: Jacksonian Legal Culture—The “Age of the Common Man” and the
Contest over the "People's Welfare"
February 8
Discussion: CP -- Tocqueville on popular sovereignty; Commonwealth
v. Pullis; Farwell v. B&W Rail Road; Commonwealth v. Hunt
Questions to Consider: This
week's readings reveal the contested meaning of the concept of "the people's
welfare" in a democracy. In the two cases concerning the right of
laborers to organize, how did both the laborers and management argue the
"people's welfare" and the "public good" in support of their positions?
What position did the courts hold? In addition, the cases involved
the traditional common-law crime of "criminal conspiracy." What did
this "crime" involve? How did its opponents argue that this English
"crime" was not appropriate to the conditions of the United States?
In Farwell, another common-law principle
was involved -- that of the "fellow servant rule." How did this rule
affect the right of the injured railway worker to compensation for his
injury suffered on the job?
February 10
**First Take-Home Essay Due**
Lecture: Slavery and the Legal Control of Human Property
February 15
Discussion: CP -- The Law of Negro Slavery
McLaurin, Celia, A Slave
Questions to Consider: How did the
legal system serve to protect the interests of slaveholders in a case such
as this? How did slave law's treatment of Celia as property
affect her defense? What motions did the prosecutor make in order
to take advantage of this? Despite the lack of "equal justice under
law," what sort of a defense did Celia receive from her court-appointed
attorney? What strategy did he follow, and what legal arguments did
he make in pursuing it? What risks did he take in doing so?
February 17
Lecture: Slavery, the Rule of Law, and the Judge’s Dilemma
[NOTE: This week’s assignments
include a screening of the 1997 film by Steven Spielberg, “Amistad,” on
Wednesday the 17th at 7 pm in January Hall.]
February 22
Discussion: Jones, Mutiny on the Amistad; Spielberg's "Amistad"
Questions to Consider: Spielberg's
movie is a compelling portrayal of the inhumanity and injustice of slavery,
and of its opponents. How does the film present the various "legalities"
in conflict here? Does the film omit any dealt with in Jones's book?
To what extent do the characterizations of John Quincy Adams, the Tappans,
and -- especially -- Roger Baldwin depart from the descriptions in Jones's
book? How do these cinematic departures produce a different picture of
the issues in conflict?
February 24
Lecture: The Legal Crisis of the Civil War
**Take-Home Essay Topic Distributed**
Topic: Debating Stephen A. Douglas,
Abraham Lincoln argued that America could not survive half-slave and half-free.
He referred to the fact that one position or the other would win out and
overwhelm the other, becoming a national condition. Altready, Lincoln
-- himself a lawyer -- was well aware of the many ways that the defense
of slavery had corrupted America's common law heritage as well as its Revolutionary
ideals.
Describe the many ways that the protection of a system of human chattel
property had twisted the law in America by the 1850s. Be sure to
include as many examples of this process as possible, and to do so concisely
-- with examples -- in an essay of no more than five pages, double-spaced,
in 12-point font.
Essays are due in class on Wednesday, March 17.
March 8
Discussion: CP -- Vanity Fair cartoon; “Barbarous Outrages,”
in New York Times; Lincoln, “Message to U.S. Congress”; Davis,
“Message to Confederate Congress”
Questions to Consider: In many respects,
the Civil War was a war over competing notions of legality. In the
Times article, how did ideas of Southern "justice" outrage Northern
readers? Linclon and Davis use their messages to claim the high ground
of legal and moral legitimacy in 1861. How and why do their views
differ? What arguments and examples does each give to support his
position? What terms does Lincoln use to describe the Southern
states and their actions? What states does he identify by name, and
why does he choose to cite them?
March 10
Lecture: Law and the Western Outlaw
March 15
Discussion: CP -- “Hatfields and McCoys”; “Gunfight at the OK Corral”;
Kernan, “Jurisprudence of Lawlessness” (ABA Report)
Questions to Consider: "Popular justice"
was "lawlessness" to some, but a necessary step to others. What competing
ideas of legality are seen in these various episodes? How did the
actions of the Hatfields seek to evade, frustrate, or replace formal law
and procedures? Was the gunfight at the OK Corral simply a wild melee,
or did Wyatt Earp's actions reveal a legal strategy? What social
norms and assumptions about human behavior are being enforced in the system
that Kernan describes?
March 17
**Second Take-Home Essay Due**
Lecture: Criminalizing Medicine – Birth Control and Abortion
March 22
Discussion: Mohr, Abortion in America
Questions to Consider: When did the
current concept of "illegal abortion" develop? Why did it change?
What historical forces -- social and scientific/medical -- might have led
to this change? Whom has the law of abortion been designed to protect?
has this goal always been the same? Do changes in modern medicine
suggest further changes in the way society -- and thus the law -- might
view the termination of pregnancies?
March 24
Lecture: Medicalizing Crime – The Insanity Defense
March 29
Discussion: Rosenberg, Trial of the Assassin Guiteau
Questions to Consider: As with abortion,
changing medical ideas produce changes in the law. What changes were
taking place in psychiatry to cause a reinterpretation of the "insanity
defense" in criminal law? Why did the expert witnesses disagree so
sharply? Why do history textbooks commonly refer to Guiteau as "a
disappointed office seeker"? Does this term accurately describe him?
The concept of a defense of "not guilty by reason
of insanity" has aroused fierce debate, as has that of "diminsihed capacity"
[See "Glossary" for definition]. Public opinion generally opposes
these, but juries seem more willing to apply them. Why do you think
this has been so?
The use of physicians as "expert witnesses" raises
the question of a jury's ability to comprehend and make decisions on highly
complex technical isuues. Do you think that specialized "expert"
juries would provide better "justice"? Does the type of case (criminal
or civil) they hear make any difference?
March 31
Lecture: The Victorian Family and the Challenge of Polygamy
April 5
Discussion: CP -- Bishop on marriage; U.S. v. Reynolds; Davis v.
Beason; People v. Oades
Questions to Consider: Why did polygamy appear
so threatening to nineteenth-century Americans generally? What definition
of "marriage" did the Supreme Court insist on in supporting a ban on it?
What factors continue to induce many Americans to assume polygamous relationships
today? Why is there such hostility to this idea? Does it make
any difference if men or women are asked this question? What factors
would the Supreme Court consider in revisiting this issue, were it litigated
now? If you were on the Court in a challenge to the ban, how would
you decide, and why?
As a basis for answering the above questions, you
should brief the three cases assigned in the Course Packet, according
to the guidelines provided at the beginning of the syllabus.
April 7
Lecture: Crime and Deceit in the Gilded Age
April 12
Discussion: CP -- “Our Rival, the Rascal”; materials on the "Pine Tar"
case and the infield fly rule
Questions to Consider: What is the
"infield fly rule" and why is it at all necessary? What does this
apparently arcane matter have to do with concerns outside baseball?
Did the rules of baseball require that George Brett be called out and his
"homerun" be nullified? Why do we keep such arcane rules on the books?
April 14
Lecture: Big Business, Big Crime, Big Government
April 19
Discussion: CP -- materials on the Black Sox scandal; Major
League Baseball v. Sed Non Olet Denarius
Questions to Consider: What changes
in baseball and, more broadly, American culture did the Black Sox scandal
produce or accelerate? Brief the case of Sed Non Olet Denarius
according to the framework outlined earlier this semester (See January
13). Pay particular attention to the requirements to be proved
in alleging copyright infringement. How did the defendants prove
they had not done so?
What are the limits of what the law should protect
in the way of one's name or face as "property"?
April 21 **Sample Questions for Final Exam Distributed**
April 27 Exam Help Session: Noon to 2 pm, Busch Hall 113
April 29 Final
Exam (in class): 10:30 to 12:30, Brown Hall 100
RESOURCES
The Legal Information Institute of Cornell University Law School maintains
a website providing all state and federal law codes, as well as vast information
on Constitutional law. It can be accessed at
www.law.cornell.edu
Despite its commercial purposes, a useful website for information on current trials and legal issues is maintained by Court TV. It can be accessed at
www.courttv.com
Especially useful, too, with links to law review articles and other essays thropugh its LawCrawler is
http://caselaw.findlaw.com
Glossary of Terms
[Italicized words in definitions are also defined in the
Glossary.]
actus reus -- criminal act (See "mens rea.")
banns -- public announcement of espousal, made in church
caveat emptor -- literally, "let the buyer beware"
chancellor -- presiding official at a court of equity
chattel property -- moveable property, including cash
comity -- largely a courtesy among sovereign powers, the recognition by one legal entity of the laws of another when citizens of the latter are under its protection
common law -- that body or English legal principles and procedures originally developing out of decisions and practices of the central courts at Westminster; judge-made law, to be distinguished from natural law, statute law, or equity
common law marriage -- a marital union recognized in some jurisdictions as lawful, upon proof of cohabitation and the public "holding out" of the couple as being married
coverture -- the legal status of a married woman, or feme covert
divorce a mensa et thoro -- legal separation
divorce a vinculo matrimonii -- full divorce from the ties of matrimony
damnum absque injuria -- damages not producing a legal liability
diminished capacity (also "diminished responsibility") -- a partial defense to mitigate a criminal act (usually to reduce to manslaughter a charge of murder) by introducing facts showing the defendant's mental state to be impaired such that he or she was not fully accountable for the criminal act. Some states have abolished this defense by statute.
dower -- the common-law right of a widow to a life estate in one-third of her husband's real property
entail -- the legal incumbrance requiring that real property descend by inheritance undivided and only along a specified line
equity --that body of principles and procedures providing
justice where the rigor of the common law might work injustice,
or where no common law remedy exists; it is obtained
at a court of equity, under the control of a chancellor
espousal -- A promise to marry, expresed in the future tense
ex post facto law -- a law making criminal an act which had been legal when commited
extenuation -- see mitigation
fellow servant rule -- the common law rule shielding an employer
from liability to an employee injured on the job by the
negligence of a co-worker
feme covert -- see coverture
feme sole -- a single woman, or woman who was married or divorced
habeas corpus -- the "great writ" of Anglo-American legal history,
the command of a court that the detention of
a person be shown to be legal
imperium in imperio -- a sovereign power within a sovereign power
intestate -- dying without a will
justification -- facts excusing an act otherwise criminal
law of nations -- the body of law governing questions of right between nations
lex loci -- the law in force at the place in which the rights involved in a cause of action arose
life estate -- a property interest existing for the life of the
holder, and not passed on to that
person's heirs
limited liability -- as established by statute, the limiting
of legal liability below that otherwise available
at common law, and usually limited to the
amount of one's investment in a corporation
manslaughter -- unlawful killing, without intent to kill
martial law -- the body of law imposed by military authorities
in a theater of operations, and defined by the
necessities of the situation
mens rea -- a guilty mind, sometimes called "malicious intent." It may consist of actual, direct intent to commit the actus reus (criminal act), or of recklessness.
military law -- the body of law governing the acts of military personnel
mitigation -- facts that lessen damages or reduce criminal charges (synonymous with extenuation), but not providing justification
murder -- at common law, unlawful killing of a person, with intent to kill, and without any circumstances that might mitigate or reduce the charge
natural law -- law that exists outside human action or volition, according to an abstract idea of consistency with nature
offer and acceptance -- a "meeting of the minds," the steps necessary to create a contract
parens patriae -- the doctrine that the state must act as "parent of the country" to provide protection to minors and others suffering from disability
prescriptive rights -- right, acquired by long and uninterrupted occupation, to use land
positive law -- as distinct from natural law, that law established by human custom or state action
primogeniture - the legal rule requiring the descent of all real property to the eldest male child unless otherwise specified
pro bono publico -- for the good of the public
real estate -- immoveable property, such as land and buildings
recorder -- formerly, a judge at a municipal court
salus populi suprema lex esto -- literally, "the welfare of the people ought to be the highest good"
self-defense -- the right at common law justifying the use of force to defend oneself in certain situations
sic utere tuo ut alienum non laedas -- literally, "use your own so as not to injure others"
sojourner -- a person staying temporarily in a location; e.g., a slave in transit through a free jurisdiction
stare decisis -- the principle that a decision stand as precedent in future cases
statute, statutory law -- law positively enacted by a legislature, altering the common law or establishing new principles or procedures
sui juris -- possessing full legal capacity to make binding obligations
taking -- appropriating private property or interfering with it such that the owner loses all or part benefit of the property; a taking requires just compensation to the owner
tort -- a private wrong (excluding breach on contract), for which damages may be recovered
turn-out -- 19th-century term for a workers' strike
vested right -- the right to the present or future enjoyment,
or exemption from a demand