Sunday, August 7, 2011

Law & Social Policy Syllabus

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August 2011 Draft
There is hardly a political question in the United States which does not sooner or later turn into a judicial one.  
Spring 2012 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer
Course Description
This course will focus on law as it shapes or reflects social policy not as it facilitates the resolution of disputes between private parties. This course will examine the relationship of law to social, political, cultural and economic conditions in the United States.
Overview of Classes
There will be twelve topics covered in fourteen classes. Here is an overview:
1) The People and Social Policy. Tocqueville observations of democracy in America, The Federalist Papers, the antecedents and hallmarks of United States social and legal P
policy; separation and balance of powers: the social, civic and political ethos of the United States.
2) The Judiciary and Social Policy
3) The Legislature and Social Policy
4) The President and Social Policy along with twenty one questions about Tocqueville ‘s views on the source of law in a democracy, the role of the legal profession, judicial power, customs, religion, education, race, majority rule, a free press, criminal laws, executive power, possible tyranny of the legislature, individualism, family, material prosperity and love of money, how a new aristocracy may emerge in the United States, how democracy affects wages and why regulation is needed, the equality of men and women, waging war in a democracy, the main objective of law-making in a democracy and the basic social tableaux of the United States.
The Judiciary
5) Capital Punishment and Social Policy: An Evolving Standard of Decency
6) Race, National Origin, School Segregation: Law & Policy, A Pas De Deux
7) Libel: Weaving Together Law and Policy or is it Policy and Law?
8) Corporate Political Activity: Social Policy, Public Policy or Legal Policy?
The Presidency
9) War Powers: Who’s Policy?
10) Enhanced Interrogation: Law or Policy or Neither?
The Legislature
11) Sex, Marriage, Defense of Marriage Act: Limits on Majority Rule
12) The Takings Clause: Economics as Policy

Objective of the Course
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville p.58.

What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.
Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.
What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.
Social policy may be based on the culture, zeitgeist, necessity of the day, convenience, consent of the governed or popular will. Social policy is more permeable than law.
Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.
Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch, the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion or an informed elite?

Class Dates:
January: 9,16, 23, 30
February: 6, 13, 20, and 27
March: 5, 12, and 26
April: 2, 9
Course Syllabus
Basis of grading: There will be a final exam comprised of five essay questions each worth 20 points. The questions will invite straightforward expository prose responses (there are no hidden or subtle issues lurking in the questions). Each question will ask ‘what’ or ‘why’ or both or will begin with instructions to ‘discuss’ or ‘evaluate’ or ‘describe’ or ‘compare’ or ‘provide examples of’. Each question will invite the student to demonstrate both reportorial and analytical skills based on memory, preparation, analysis, critical thinking and command of class presentations. Good reportage will earn a “C” while superb insight and analysis will earn an “A”. [See the attached Appendix for more elaboration on the grading criteria].
You may contact me directly at or you may communicate through a class ombuds committee of three students that will be appointed to facilitate presentation of any complaints, suggestions or requests that an individual student may not want to present directly.
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam): The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty one law and social policy questions considered by Tocqueville in his master work Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital Punishment and Segregation).
1) Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Student Treatise Series, 2011). ISBN 978-0-7355-9808-3.
2) The Federalist Papers, Introduction and Notes by Charles R. Kesler, Edited by Clinton Rossiter (Signet Classic, 1999) First Signet Classic Printing, April 2003.
3) Alexis de Tocqueville, Democracy in America (Penguin Classics, 2003) ISBN-13: 978-0-140-44760-6.
August 7, 2011

Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71
Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville culminates in the 4th Class with a discussion of twenty policy points presented in the book. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction in part, pages 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail in the 4th Class: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71]. The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END

Lecture #2: The Judiciary
[January 16, 2012]
…there is no liberty if the power of judging be not separated from the legislative and executive powers. The Federalist Papers, No. 78: The Judiciary Department (Hamilton)
…an American judge is dragged, despite himself, on to the political field. Tocqueville 121
There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Tocqueville 315
…the idea that gold and silver mines are the source of national wealth: a fatal idea which has done more to impoverish those European nations who were enslaved by it and has destroyed more men in America than the united influence of war and bad laws. Tocqueville 41.
Assignments for Class #2:
1. The Federalist Papers, No. 78: The Judiciary Department (Hamilton) pp. 463-471.
2. Alexis De Tocqueville, Democracy in America (Penguin Classics, 2003) Chapter 6 Judicial Power in the United States…pp. 116-124; The Federal Courts of Justice pp.161-177 (especially the head notes of each section); page 315. The three characteristics of judicial power, the political power of the judge, the power to declare laws unconstitutional [here is the threshold of law and social policy].
3. Tocqueville Chapter 8 “The Federal Courts of Justice” pp. 161-177.
4. Marbury v. Madison 5 U.S. 137 (1803)
5. Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Publishers, New York), Chapter 2, The Federal Judicial Power pages 32-37, 43-45, 52 (Advisory Opinions) 130-135 (Political Questions).

Lecture #3: The Legislature
[January 23, 2012]
It is to a legislature thus constituted that almost all the authority of the government has been entrusted. Tocqueville Ch XV
The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
Assignments for Class #3:
1. Chemerinsky Chapter 3 The Federal Legislative Power Section 3.1 pp. 238-240; Section 3.3.3—3.3.5 Commerce Clause Before and After 1937 pp. 251-269.
2. U.S. v. Lopez 514 U.S. 549 (1995) (limits of commerce clause found). Confer Chemerinsky pp.269-272.
3. Can Congress overrule the Supreme Court? Chemerinsky Section 3.6.2 “What is the Scope of Congress’s Power?” pp. 299-307.
4. Tocqueville Chapter 8 “The Federal Constitution: Legislative Powers” pp. 137-140.
5. The Federalist Papers No. 10 (Madison) on factions ( *compare with Tocqueville on associations) pp. 700-702; No. 47 (Madison) and No. 51 (Madison) on checks and balances, separation of powers.

Lecture #4: The Presidency and Twenty+-Policy Issues Observed by Tocqueville
[January 30 2012]
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (288, 304-305), (2) tyranny of the majority (68, 71, 223-224, 287-304), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 713, 721-722), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583- 586, 587, 589-91, 683), (16) religion (54-55, 336-352), (17) public education American style (53-54, 65 [job preparation], 352-357), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 ( Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.

Lecture #5: Capital Punishment
[February 6, 2012]
Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49.
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840).
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). *Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.


Lecture #6: Race
His son is excluded from the school where the sons of Europeans come to be educated. At the theatre, any amount of gold could not buy him the right to take his seat beside his former master; in hospitals he lies apart. The black is allowed to pray to the same God as whites but not at the same altars. Tocqueville 402.
[February 13, 2012]
Americans have granted their judges the right to base their decisions upon the constitution rather than upon the laws. –Tocqueville 118
A lengthy war in a democratic country places freedom under threat. –Tocqueville 755
Assignments for Class #6:
1. Dred Scott v. Sandford 60 U.S. 393 (1857).
2. Plessy v. Ferguson 163 U.S. 537 (1896).
3. Brown v. Board of Education 347 U.S. 483 (1954).
4. Korematsu v. U.S. 214 (1944). [Also germane to Lecture #10].
5. Tocqueville “The Position of the Black Race in the United States” pp.398-426.
6. The Federalist Papers No. 54 (Madison) on why slaves are counted in the census for purposes of congressional representation pp. 334-338.
7. Chemerinsky Chapter 9, Section 9.1.1 pp.684-685, 691 (first two paragraphs only), Section 9.3.1 “Race Discrimination” pp. 706-726.


Lecture #7: Libel
[February 20, 2012]
In order to enjoy the priceless advantages guaranteed by press freedom, one must submit to the unavoidable evils it produces. --Tocqueville 213
Assignments for Class #7:
1. Tocqueville “The Freedom of Press in the United States” Vol. 2, Chapter 3, pp.209-219.
2. The Federalist Papers No. 84 (Hamilton) (arguing against a bill of rights) on liberty of the press (513).
3. Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.
4. New York Times v. Sullivan 376 U. S. 254 (1964).
5. Curtis v. Butts 388 U. S. 130 (1967).
6. Gets v. Welch 418 U. S. 323 (1974).
7. Hustler Magazine v. Falwell 485 U. S. 46 (1988).
8. Dun & Bradstreet v. Greenmoss Buildings, Inc. 472 U. S. 749 (1985).

The press is by far the most effective democratic instrument of freedom. –Tocqueville 8 12.


Lecture #8: Corporate Political Activity
[February 27, 2012]
The business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. –Tocqueville 648

Assignments for Class #8:
1. Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.
2. Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED in….
3. Citizens United v. Federal Election Commission 130 S. Ct. 876 (2010).
4. Kentucky Constitution (1890) Section
5. Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116.

Generally speaking, I think the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on the earth; but at the same time, it is one of the most restrained and least dangerous. However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. –Tocqueville 648.


Lecture #9: War Powers
[March 5, 2012]
There are two things it will always be difficult for a democratic nation to do: beginning and ending a war. Tocqueville 755
A lengthy war in a democratic country places freedom under threat. Tocqueville 755
In America, conscription is unknown; men are enlisted for payment. Compulsory recruitment is so alien to the idea and so foreign to the customs of the people of the United States that I doubt whether they would ever dare to introduce it into the law. Tocqueville 260
Assignments for Class #9:
1. Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp. 290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348; 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).
2. Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757; Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.
3. The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.
4. The Federalist Papers No. 69 (Hamilton) on executive branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.

(in process August 5, 2011)

Lecture #10: Enhanced Interrogation
[March 12, 2012]
All those who wish to destroy freedom within a democratic nation should realize that the most reliable and the most rapid means of achieving it is war. Tocqueville p.756
The clatter of arms drowns out the voice of the law. Thoreau
Assignments for Class #10:
1. Federalist Papers No. 34 and No. 41 (Hamilton) cited by John Yoo.
1. Memorandum of John C. Yoo for the President (this memo has been withdrawn by the current Administration as not reflective of law or policy of the United States).
       The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
        The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
        The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
       September 25, 2001
By John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
(In process 8-7-11)
Lecture #11: Family
[March 26, 2012]
Assignments for Class #11: Marriage, Procreation and Sexual Orientation
1. Meyer v. Nebraska 262 U.S. 390 (1923).
2. Loving v. Virginia 388 U.S. 1 (1967).
3. Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003).
4. Buck v. Bell 274 U.S. 200 (1927).
5. Skinner v. Oklahoma 316 U.S. 535 (1942).
6. Bowers v. Hardwick 478 U.S. 186 (1986).
7. Romer v. Evans 517 U.S. 620 (1996).
8. Lawrence v. Texas 539 U. S. 558 (2003).
9. Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual Orientation” pp.807-809.
10. Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and cases cited in Section 10.2.1 on Defense of Marriage Act and California’s Proposition 8) **(Give special thought to whether the executive branch can refuse to defend a congressional law); Section 10.3 “The Right to Procreate” pp. 829, 833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868.

I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? Tocqueville 292.

In process 8-7-11
Lecture #12: The Takings Clause
[April 2, 2012]
Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them having any at all. –Tocqueville p. 705
…usually the love of wealth lies at the heart of Americans’ actions…--Tocqueville p. 713
Assignments for Class #12:
1. Pennsylvania Coal v. Mahon 260 U.S. 415 (1922).
2. Keystone Bit. Coal v. Benedictus 480 U.S. 470 (1987).
3. Eastern Industries v. Apfel 524 U.S. 498 (1998) (Coal Act).
4. Berman v. Parker 348 U.S. 26 (1954).
5. Kelo v. City of New London 125 S. Ct. 2655 (2005) (economic development).
6. Nollan v. California Coastal Comm. 483 U.S. 825 (1987) (beach access).
7. Chemerinsky Chapter 8, Section 8.4 “The Takings Clause” p. 656, “What is a Taking for Public Use” pp.678-681.

End. August 7, 2011.

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