Description: An introductory course examining the foundations of law in American society, historical and contemporary uses of law, and the conflict between individual freedom and government power. We will explore the nature of law and rules and the extent to which judges do and should have discretion to bend the rules for the sake of justice; whether the law should be used to uphold moral values; and whether courts effectively implement public policy. Specific topics we shall address include the jury system, gun control, whether drug use should be legal, privacy, and the prison system. We draw on a variety of sources including film and literature, court cases, and social science research.

Requirements: Grades will be based on: two exams (25% each), 3 short assignments (5% each), a moot court paper of 6-8 pages (25%), and class participation (10%), which will be based on contributions to class discussion and participation in the moot court. Students are expected to come to class prepared to discuss the reading listed for that class. For every unexcused absence beyond 1, your participation grade will be reduced 1/3 letter grade (e.g. 5 unexcused absences drops a participation grade of A to B-). Students agree to adhere to the honor code, see http://www.fau.edu/divdept/honcol/academics_honor_code.htm. If you have any doubts about what constitutes plagiarism or a violation of the honor code, consult with the professor beforehand. You should take notes of all the readings, of lectures, and of class discussions. As an incentive to take good notes, for the exams you will be permitted to use any notes you authored, but you will not be permitted to have access to the readings or to notes not authored by you. You should brief cases. A sample brief is online.

Office Hours: You are very much encouraged to stop by to discuss anything related to the course. I am available before and after class and am happy to arrange to meet at other times. I can be reached by phone (799-8670), email (tunick@fau.edu), or you are always welcome to stop by my office (HC 133).

Reading: The following books have been ordered for the course: Shakespeare, Merchant of Venice (Penguin Viking); John Lott, More Guns, Less Crime; Pete Earley, The Hot House: Life Inside Leavenworth Prison; Husak and de Marneffe, The Legalization of Drugs: For and Against (2005); and Gerald Rosenberg, The Hollow Hope. Court cases and law review articles are available through Westlaw (better formatting) or Lexis-Nexis, or when indicated, jstor, and news articles are available through Lexis-Nexis: access these via the FAU library database. To access these databases off-campus you must create a proxy. Some reading is available at the MYFAU course site in the "files" section. Reading listed for each day must be done prior to that day's class. Be sure to bring to each class the reading for that day's class as you will need to refer to it in class discussion. For students who are interested, there are several worthwhile legal resources on the web.

I. Introduction: The American legal system and the U.S. Constitution
1/8. Introduction
Handout: Fountainebleau Hotel v. Forty-Five Twenty-Five, Inc. (myfau)

1/10. The U.S. legal system and U.S. Constitution
Rdg: U.S. Constitution; Washington v. Chrisman (455 U.S. 1, 1982); State v. Chrisman (100 Wash. 2d 814, 1984)
For those interested: U.S. Constitution key provisions; Articles of Confederation; other cases involving searches of college dorm rooms: State v Hunter, 831 P.2d 1033 (1992); Piazzola v Watkins, 442 F.2d 284 (1971); Com. v Neilson, 666 N.E.2d 984 (1996); State v Ellis, 2006 WL 827376 (Ohio App. 2 Dist., 2006); People v. Walker, 2006 WL 2873256 (Cal. Rptr. 3d, Oct. 11, 2006); "Broken Bench": New York Times series on abuses in New York's town and village courts, Sept. 25-27, 2006, online

1/15: No class, Martin Luther King, Jr. Day

II. The 2nd Amendment: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed"
1/17. The cases
Rdg: U.S. v. Miller (307 U.S. 174, 1939); Quilici v. Morton Grove (695 F. 2d 261, 1982); U.S. v. Emerson (270 F.3d 203, 2001--edited version at myfau); Silveira v. Lockyer (312 F. 3d 1052, 2003--edited version at myfau)
    Video excerpt of Black Panthers on gun regulation, from 'Berkeley in the 60s'   

1/22.  The historical debate about the 2nd Amendment
Rdg: Sanford Levinson, "The Embarrassing Second Amendment," 99 Yale L.J. 637-659 (1989), online through jstor.

1/24.  The policy debate: what is the effect of gun control on crime?
Rdg: John Lott, More Guns, Less Crime (1998) 
For those interested: Brady center: criticisms of Lott's research; 2nd Amendment law library; New York Times articles on gun control; Congressional Quarterly Researcher: 'Gun control standoff', online from within FAU domain: search 'Gun control'; Lott and Mustard, 'Crime, Deterrence, and Right-to-Carry concealed handguns,' 26 U. Chi. J. of L. Studies (1997); Gary Kleck and Marc Gertz, 'Carrying guns for protection: results from the National Self-Defense Survey', Journal of Research in Crime and Delinquency 35:2 (May 1998), available online; Gary Wills, 'Spiking the Gun Myth', review of Michael Bellesiles, Arming America: The Origins of  a National Gun Culture, NYT Review of Books (Sept. 10, 2000), available online; and Robert Worth, "Historian's Prizewinning Book on Guns is Embroiled in a Scandal," New York Times, Dec. 8, 2001 (on Bellesiles' book)

III. The nature of law: What is law? How are laws different from other sorts of commands? Is discretion in interpreting law desirable or dangerous? Is law autonomous from politics?
1/29. Theories of law
Rdg: Tunick, "Ethics, Morality and Law," in Hall, ed., Oxford Companion to American Law (2002) (myfau); Lawrence Lessig, Code, ch. 7 (myfau); Riggs v. Palmer, 115 N.Y. 506 (1889--edited version at myfau). BRIEF THIS CASE. A sample brief is online.
Short Assignment 1 due

1/31. The Speluncean Explorers and the nature of law
Rdg: Fuller, "The Case of the Speluncean Explorers," Harvard Law Review 62(4):616-45 (February, 1949), available through jstor.
BRIEF THIS CASE

2/5. Legal Moralism and Paternalism
Rdg: World Bank Group, "Do Smokers Know their Risks and bear their Costs?", ch. 3 of Curbing the Epidemic: Governments and the Economics of Tobacco Control, available online; "NY Bans Transfats," Economist Nov. 25, 2006 (myfau); "Georgia Man Fights Conviction as Molester" and "Husband sentenced for sex with girl, 13" (myfau)
Short Assignment 2 due
For those interested: "Don't Shoot the Messenger" (on banning videogames), Economist Jan. 20, 2007 (myfau); "Holocaust denial is profoundly wrong. But should it be illegal?", Economist Jan. 27, 2007 (myfau)

2/7. Discretion in the law: should we make exceptions to rules?
Rdg: Jacob and Youngs, Inc. v. Kent (230 N.Y. 239, 1921); People v. Davis (286 N.Y.S. 2d 396, 1967)
For those interested: "Review set on reasonableness," New York Times, Dec. 5, 2000 (Linda Greenhouse); and Atwater v City of Lago, 532 U.S. 318 (2001), concerning custodial arrests for minor traffic offenses    

2/12. Discretion in the law: Shylock's view
Rdg: Shakespeare, Merchant of Venice
For those interested: Lawrence Friedman, on 'hypertechnicality in U.S. law' (myfau)
Short Assignment 3 due

2/14. Who should have discretion--Juries? The issue of jury nullification
Rdg: Paul Butler, "Racially Based Jury Nullification: Black Power in the Criminal Justice System," 105 Yale L.J. 677 (December, 1995), online via jstor; Andrew D. Leipold, "The Dangers of Race-Based Jury Nullification: A Response to Professor Butler,"  44 UCLA L. Rev. 109 (October, 1996)
For those interested: Adam Liptak, "A state weighs allowing juries to judge laws," New York Times, Sept. 22, 2002.

IV. Law and morality

2/19. Is there a moral or legal duty to help others?
Rdg: A. D. Woozley, "A Duty to Rescue: Some Thoughts on Criminal Liability," Virginia Law Review 69 (7):1273-1300 (Oct. 1983), online via jstor; State v. LaPlante, 521 N.W. 2d 448 (1994)
For those interested: A.M. Rosenthal, Thirty-Eight Witnesses: The Kitty Genovese Case, available electronically through the FAU library.    

2/21. The case of Jeremy Strohmeyer
Rdg: Nora Zamichow, "The Fractured Life of Jeremy" (on Jeremy Strohmeyer and David Cash), L.A. Times, July 19, 1998, available online (scroll to Los Angeles Times and search Proquest); Michael Kelly, 'Expel Murdering punk's apologist', Palm Beach Post, Sept. 19, 1998 (myfau)
Review Session, 7pm, HC 116

2/26. Exam 1

V: Moot Court on Privacy   

2/28. Introduction to the moot court and privacy
Rdg: Katz v. U.S. (389 U.S. 347, 1967); Charles Fried, ‘Privacy’, Yale Law Journal 77:475-93 (1968), online via jstor.
Moot Court Instructions
Moot Court Case

3/5, 3/7: No class: SPRING BREAK

3/12. Surveillance
Rdg: California v. Ciraolo (476 U.S. 207, 1986); Florida v. Riley (488 U.S. 445, 1989); U.S. v. Kim (415 F. Supp 1252, 1976); People v. Mayoff (197 Cal Rptr 450, 1983); U.S. v. Cuevas-Sanchez (821 F.2d 248, 1987); California v. Greenwood  (486 U.S. 35, 1988); U.S. v. Scott (975 F. 2d 927, 1992); State v. Schultz (388 So. 2d 1326, 1980); U.S. v. Billings (858 F. 2d 617, 1988); Smayda v. U.S. (352 F. 2d 251, 1965); Bielicki v. Superior Court of Los Angeles County (371 P. 2d 288, 1962): all moot court cases available at westlaw or in myfau/files/moot court cases

3/14. Open fields; beepers and GPS devices
Rdg: Oliver v. U.S. (466 U.S. 170, 1984); U.S. v. Knotts (460 U.S. 276, 1983); Johnson v. State (493 So.2d 693, 1986); State v. Campbell (759 P. 2d 1040, 1988); U.S. v. McIver (186 F.3d 1119, 1999); Osburn v. State of Nevada (44 P.3d 523, 2002); State of Washington v. Jackson (76 P.3d 217, 2003); People v. Lacey (787 N.Y.S.2d 680, 2004): all moot court cases available at westlaw or in myfau/files/moot court cases

3/19, 21. The MOOT COURT

VI.  Law and Public Affairs    

3/26. Prisons, prisoner rights, and private prisons
Rdg: Begin Earley, The Hot House: Life Inside Leavenworth Prison
Moot Court Paper Due

3/28. The prison system
Rdg: Finish Earley, The Hot House
For those interested:  Congressional Quarterly Researcher: Prison-building boom, online within FAU domain: search 'prison building'; John J. DiIulio, Jr., No Escape: The Future of American Corrections   

4/2. Drug policy: the case for legalization
Rdg: Husak and de Marneffe, Legalization of Drugs, Part I (Husak)

4/4. Drug policy: the case against legalization
Rdg: Legalization of Drugs, Part II (de Marneffe)
For those interested: James Ostrowski, 'Thinking about drug legalization', available online; Mark Moore, "Drugs: Getting a Fix on the Problem and the Solution," Yale Law and Policy Review 8:701-28 (1990), online via westlaw; Mark Moore, "Actually, Prohibition was a success," New York Times, Oct. 16, 1989; James Q. Wilson, 'Against the Legalization of Drugs', Commentary 89:21-28 (Feb 1990), available online via PCI Full Text; Drug Enforcement Agency: Speaking Out Against Drug Legalization ; TV ads discouraging drug use, online; Gary E. Johnson, "Another Prohibition, Another Failure," New York Times, Dec. 30, 2000; Tracey Meares, "Social Organization and Drug Law Enforcement," 35 American Criminal Law Review 191 (1998) (arguing that long drug sentences destroy poor minority communities and may be counterproductive); Congressional Quarterly Researcher: Drug Policy Debate, online within FAU domain: search 'Drug Policy'; Benjamin and Miller, Undoing Drugs, chs. 1-7, 9-14, App. A and B; Matthew Klam, "Experiencing Ecstasy," New York Times Magazine, Jan. 21, 2001; and Gorman, 'The myths of drug legalization', available online.
Recommended films: Traffik (original British series on which American film 'Traffic' was based); The Corner (HBO); Spike Lee's Jungle Fever    

4/9. Is law an effective tool for social change?
Rdg: Gerald Rosenberg, The Hollow Hope, ch. 1-5 (pp. 9-169)    

4/11. Law as an instrument of social change (continued)
Rdg: Rosenberg, pp. 304-314.
For those interested: Carl Bogus, Why Lawyers are Good for America ; Thomas Burke, Lawyers, Lawsuits, and Legal Rights; Lawrence Friedman, Total Justice; Philip K. Howard, The Death of Common Sense; Robert Kagan, Adversarial Legalism; Walter Olson, The Litigation Explosion    

4/16 Are juries equipped to resolve complex disputes?
Film: Twelve Angry Men (1957, dir. Lumet), in HC 130, April 16th, 6:30 pm (96 minutes).
Rdg: Adam Liptak, "Inviting TV into Jury Room in a Capital Case," New York Times, Nov. 26, 2002, available at Lexis-Nexis    

4/18. Juries (continued).
Rdg: Stephen J. Adler, The Jury: Disorder in the Court, pp. 84-144 (myfau)
For those interested: Congressional Quarterly Researcher: The Jury System, online within FAU domain: search 'jury'; William Glaberson, "Juries, Their Powers Under Siege, Find their Role is Being Eroded," New York Times, March 2, 2001; Fully Informed Jury Association

4/23. Should the courts interfere with private agreements to achieve social justice and fairness?
Rdg:  Williams v. Walker-Thomas Furniture Co. (350 F. 2d 445, 1965); and American Car Rental, Inc. v. Commissioner of Consumer Protection (273 Conn. 296, 2005)
For those interested: Henningsen v. Bloomfield Motors, Inc.(161 A.2d 69, 1960).    

4/25. Review for Exam

4/30. Exam 2 (Final Exam): 4-6:50, AD205 [Note new room]

Updated April 11, 2007