Critical Legal Thought - Spring 2016

L6173: Critical Legal Thought - Spring 2016

Professor Katherine Franke

Course Description

The concepts "public law" and "private law," as well the notions of "canon," "field" and "foundational curriculum," all rest on a set of unstated premises for their integrity. Certain legal concepts, forms of reasoning, and values are privileged, while others are marginalized and devalued, if not ignored. Critical Legal Thought will introduce second-semester, first-year law students to a range of critical approaches to law with the goal of giving them tools for testing legal arguments, assertions of legal pedigree, and the underlying normative premises that often make certain legal outcomes seem just, if not inevitable. Further, the constitutive courses of the first-year curriculum will be critically examined.

The first weeks of the semester will examine the underlying structure of "regular law," including the work done by legal positivists, and formalists. From there we will cover critical approaches to the assertion of law's objectivity and rationality. Beginning with Legal Realism and it's progeny Critical Legal Studies, readings will cover Feminist and Critical Race critiques of law's aspiration to objectivity and neutrality. We will then move to examine the foundational curriculum - Torts, Contracts, Criminal Law, Property, and Civil Procedure.

Students will be evaluated based on class participation, one short paper, and a final open-book take home paper in which they will be expected to articulate their own critical evaluations of the material covered during the semester.



January 20th

  • DeShaney v. Winnebago County
  • Peter Slevin, In Filling Supreme Court Vacancy, Obama Looks for a Jurist With Empathy, Washington Post, May 13, 2009 

Reading Questions:

As you read the DeShaney case I want you to be thinking about the following questions:

  • How does Justice Rehnquist see the role of the judge in a hard case?  Do Justices Brennan and Blackmun have different accounts?
  • What role should empathy play in the project of finding a just result?  How does the sympathy that a judge might use to inform his or her decision-making relate to the fiction of the "reasonable person"?
  • Shouldn't legal reasoning be characterized by objectivity, neutrality, predictability and determinacy?  If so, how can empathy and emotion figure in legal adjudication?
  • Is finding a just result necessarily the same thing as finding whether or not the plaintiff has a right under the Constitution in this case?  That is to say, is there some daylight between the concept of law and the concept of justice?
  • What does Justice Blackmun mean when he accuses the majority of the Court of "sterile formalism"?
  • Should law have a grounding in morality?  Is this what Justice Blackmun means when says that law should have a moral ambition on p. 1012?
Law's Relation to Morality

January 25th

  • Lord Patrick Devlin, The Enforcement of Morals (1965)

  • H.L.A. Hart, "Immorality and Treason," The Listener (1959)
  • Excerpt from Jacobellis v. State of Ohio
  • Excerpt from Bowers v. Hardwick
  • Excerpt from Lawrence v. Texas

Reading Questions:

  • When you say: "It is the law that X" - what does putting "It is the law that" in front of X add to the proposition?  Does it, and if so how does it, give you additional reasons for doing X?  How do those who ground the nature of law in morality answer this question?
  • How does a natural law approach to legal rules help answer the question: "why ought one obey the law?"
  • For natural law theorists, what does it mean for something to be an immoral law?  Or an unjust law?
  • What is the relationship between moral validity and legal validity?
  • What is the relation of law to morality in the excerpt from Bowers v. Hardwick?
  • How does the Supreme Court's approach change in Lawrence v. Texas?  How does Justice Kennedy affect that change?
Legal Positivism

January 27th

  • Summary of John Austin's Legal Positivism

  • H.L.A. Hart, The Concept of Law (1961)
  • Riggs v. Palmer, 22 N.E. 188 (NY 1889)

Reading Questions:

  • How well does Austin's "command theory" of law describe a legal system such as ours in the U.S.?
  • How does Hart frame the weaknesses of Austin's command theory of law?
  • Is Hart's concept of law best characterized as an analytic theory of law (a theory in the abstract that offers a generalizable account of what law is in a top down fashion) or as a kind of descriptive sociology (a theory of law the is more bottom up in the sense that it offers a coherent description of the social facts of law and would speak to existing and varied social phenomena, accommodate social realities, and 'fit the facts')?
  • Does the court in Riggs v. Palmer apply the law to the facts in a manner that accords with Hart's account of law?
  • Is Riggs a hard or easy case for Hart?
Reasoning from History: Precedent

February 1st

  • A Random Thought on the Segregation Case

  • Anthony Kronman, Precedent and Tradition (1987)  
  • Planned Parenthood v Casey
Legal Realism

February 3rd: Oliver Wendell Holmes and the Roots of Legal Realism

  • Oliver Wendell Holmes, Book Review, 14 Am. L. Rev. 234 (1880)

  • Oliver Wendell Holmes, The Path of the Law (1897)
  • Jerome N. Frank, Why Not a Clinical Lawyer-School?, 81 Penn.L.Rev. 907 (1932)

February 8th: The Legal Realists - The Critique of the Public/Private Distinction

  • Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State (1923)
  • Morris R. Cohen, Property and Sovereignty (1927)
  • Louis Jaffe, Law Making by Private Groups (1937)
  • M. Witmark & Sons v. Fred Fisher Music Co., 125 F.2d 949, 954-956 (2d Cir. 1942) (Frank, J., dissenting)
Critical Legal Studies

February 10th

  • Mark Tushnet, An Essay on Rights, 62 Tex. L. Rev. 1363 (1984)

  • Derrick A Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 Harv. L.Rev. 518 (1980)
  • Robert W. Gordon, Unfreezing Legal Reality: Critical Approaches to Law – optional

February 15th

  • Robin L. West, “Tragic Rights: The Rights Critique in the Age of Obama,” 53 Wm. & Mary L. Rev. 713 (2011)
Return to Norms - Dworkin's Theory of Legal Interpretation For Common Law Courts

February 17th

  • Ronald Dworkin, Law's Empire (excerpts)
Feminist Legal Theory

February 22nd

  • Martha Fineman, Gender and Law: Feminist Legal Theory's Role in the New Legal Realism, 2005 Wisc.L. Rev. 405

February 24th

  • Rebecca Hall and Angela P. Harris, Hidden Histories, Racialized Gender, and the Legacy of Reconstruction: The Story of United States v. Cruikshank, in Women and the Law Stories (2011)
  • Cathy J. Cohen and Sarah J. Jackson, Ask a Feminist: A Conversation with Cathy Cohen on Black Lives Matter, Feminism, and Contemporary Activism, Signs: Journal of Women in Culture and Society (Summer 2016)
Critical Race Theory

February 29th

  • Alan David Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review
  • Derrick Bell, Racial Realism
  • Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism and Narrative Space, in Critical Race Theory: The Cutting Edge 354-368 (1994)

March 2nd

  • Charles Lawrence, The Id, The Ego and Equal Protection: Reckoning with Unconscious Racism, in Key Writings
  • Washington v. Saintcalle, 2013 WL 3946038 (Wash. 2013) 
  • Jeffrey Toobin, “A Judge Takes On Stop and Frisk,” New Yorker, 5/27/2013
  • Floyd v. City of New York, 2013 WL 4046206 (S.D.N.Y. 2013)

Before class, please complete the online demonstration test for racial bias.  Go to:  Then select your language, then click through to the “Race (‘Black-White’) IAT.”

Interdisciplinary Legal Study

March 7th:  Social Control: Law and Its Alternatives

  • Toni Massaro, The Meanings of Shame: Implications for Legal Reform, 3 Psych., Pub. Policy & Law 645 (1997) NOTE: skip Part V

  • NYS Division of Criminal Justice Services, Sex Offender Management Page: (please go on this page and navigate around its features)

March 9th: Law's Dispassion

  • Martin Jay, Must Justice Be Blind: The Challenge of Images to the Law, in Law and The Image: The Authority of Art and the Aesthetics of Law (Douzinas and Nead eds. 1999)
  • Neil Gotanda, A Critique of “Our Constitution is Color-Blind” (1991)

March 14th & 16th: Spring Break

The First Year Curriculum Revisited

March 21st: Torts

  • Trial Record of Palsgraf v. Long Island Railway Co.
  • John T. Noonan, Persons and Masks of the Law (2002 ed.) chapter 4
  • Richard A. Posner, Cardozo: A Study in Reputation (1990) chapter 3

March 23rd: Torts (Continued)

  • Martha Chamallas & Linda Kerber, Women, Mothers and the Law of Frights: A History, 88 Mich.L.Rev. 814 (1990)
  • Alderson v. Bonner, 132 P.3d 1261 (Idaho App. 2006)

March 28th: Contracts

  • Patricia Williams, The Pain of Word Bondage, in The Alchemy of Race and Rights (1991)

March 30th: Contracts (Continued)

  • Mnookin & Kornhauser, Bargaining in the Shadow of Law: The Case of Divorce, 88 Yale L.J. 950 (1979)
  • Homa Hoodfar, Shifting Boundaries in Marriage and Divorce in Muslim Communities, Grabels: Women Living Under Muslim Laws, 121-141 (1996)

April 4th: Criminal Law

  • Robert Cover, Violence and the Word, 95 Yale L.J. 1601 (1986)

April 6th: Criminal Law (Continued)

  • Center for American Progress, The Top 10 Most Startling Facts About People of Color and Criminal Justice in the United States
  • Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 Yale L.J. 677 (1995)

April 11th: Property

  • George Washington's Last Will and Testament
  • Letter from Abigail Adams to Mrs. Richard Cranch, Dec. 21, 1800 (handwritten and typed)
  • Alice Curtis Desmond, Martha Washington: Our First Lady pp. 297-98 (1943)
  • Cheryl Harris, Whiteness as Property, 106 Harv.L.Rev. 1709 (1993)

April 13th: Property (Continued)

  • Eduardo Moisés Peñalver & Sonia K. Katyal, Property Outlaws, 155 Penn.L.Rev. 1095 (2007) edited
  • State v. Shack, 58 N.J. 297 (1971)

April 18th: Constitutional Law and Social Change: Should Law Lead or Follow?

  • Alabama Clergymen's Letter To Dr. Martin Luther King, Jr., and Martin Luther King, Letter from a Birmingham Jail
  • Christopher W. Schmidt, Conceptions of Law in the Civil Rights Movement

April 20th - Does It Matter How You Win? Getting to the Same Place By Significantly Different Routes: The Case of Same-Sex Marriage

  • Fundamental Right:
    • Goodridge v. Dept of Public Health, Plaintiffs' Memorandum in Support of Motion For Summary Judgment - optional
    • Goodridge v. Dept of Public Health, 798 N.E. 2d 941 (2003)
  • Equality:
    • Complaint in Varnum v. Brien - optional
    • Varnum v. Brien, 763 N.W.2d 862 (2009)
  • Dignity:
    • Complaint in Varnum v. Brien

April 25th: Review of Prior Exam Questions