Critical Legal Thought - Spring 2022

Critical Legal Thought - L6173

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, neutral, and objective, 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 its progeny Critical Legal Studies, readings will cover Feminist, Queer, 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.

Syllabus

Introduction

Class 1 - January 19th

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?
    • Do Professor Bandes’ observations about how she responded to the readings in the 1L curriculum resonate with you?  If so, how?

Law's Relation to Morality

Class 2 - January 24th
•    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:

o    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?
o    How does a natural law approach to legal rules help answer the question: "why ought one obey the law?"
o    For natural law theorists, what does it mean for something to be an immoral law?  Or an unjust law?
o    What is the relationship between moral validity and legal validity?
o    What is the relation of law to morality in the excerpt from Bowers v. Hardwick?
o    How does the Supreme Court's approach change in Lawrence v. Texas?  How does Justice Kennedy affect that change?

Legal Positivism

Class 3 - January 26th 
•    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)

o    How well does Austin's "command theory" of law describe a legal system such as ours in the U.S.?
o    How does Hart frame the weaknesses of Austin's command theory of law?
o    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')?
o    Does the court in Riggs v. Palmer apply the law to the facts in a manner that accords with Hart's account of law?
o    Is Riggs a hard or easy case for Hart?

Legal Realism

Class 4 - January 31st - 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)

    • What does Holmes mean when he calls Langdell a "legal theologian"
    • Is this praise or criticism?
    • What is the conception of law that Holmes attributes to Landell?
    • What is the relationship between law and morality for Holmes?  How does his account differ from Devlin's and Hart's?
    • What does he mean by describing law and legal duties as predictions?  As prophecies?
    • What's up with Holmes' dragon?
    • In what ways do you see the spirit of Holmes in Frank's article?

Class 5 - February 2nd - The Legal Realist Critique of Neutral Baselines
•    Cass Sunstein, Lochner’s Legacy, 87 Colum.L.Rev. 873 (1987)

    • In what ways does law's promise of neutrality animate Sunstein's critique of the Lochner Court's treatment of baselines?
    • How might you apply Sunstein's analysis of Lochner to deShaney?  Which elements of the majority's decision in deShaney are amenable to Sunstein's critique?
    • Can the state action doctrine survive Sunstein's critique?
    • On page 904 Sunstein argues that "the common law is not prepolitical".  What does he mean by this?  Are there examples from your common law classes that illustrate his point?
    • What does Sunstein mean when he says that "the Holmesian position would amount to an abandonment of constitutionalism altogether"?  p. 906

Critical Legal Studies

Class 6 - February 7th 
•    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)

    • In what way does Tushnet’s critique of the liberal promises of law’s authority build on the Legal Realists, Holmes in particular?

    • The Critical Legal Theorists (aka the Crits) were informed not only by Legal Realism but by a Marxist critique of economic relations.  How do you see this in evidence in the Tushnet article?

    • Tushnet makes four big moves: 1. Rights are unstable; 2. Rights-based reasoning does not produce determinate results; 3. Rights are empty abstractions that are essentially alienating; and 4. Rights-based claims impede progressive reforms.  How would you explain each, and which, if any, poses the greatest challenge to liberal legalism?

    • Bell offers a strong critique of the NAACP’s rights based strategy to dismantling Jim Crow segregation.  Is his analysis an indictment of rights altogether or of this particular strategy?

    • If you were Jack Greenberg, the head of the NAACP’s legal team at the time, how would you respond to Bell?  

Class 7 - February 9th
•    Robin L. West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713 (2011)

    • What does West add to the critique of “rights’ moral stature”, or their pathology?

    • How does she use the example of Miranda rights to make this point?

    • In what way does she regard the pathology of rights even more toxic in the era of Obama?

    • How does West stitch deShaney to Heller to enhance the Legal Realist critique of rights, and the individual’s relationship to the social contract?

Return to Norms - Dworkin's Theory of Legal Interpretation For Common Law Courts

Class 8 - February 14th
•    Ronald Dworkin, Law's Empire (excerpts)

    • How would you summarize Dworkin's critique of Hart's account of law as rules, identified through the rule of recognition?
    • Dworkin's introduction of the idea of principles addresses what shortcoming of Hart's account of law?  That is, what problem does it promise to solve?
    • Unlike Hart, Dworkin offers a theory of adjudication.  In what way is it both backward and forward looking in its method?
    • How does Dworkin save the notion of "Integrity" from the risk that judges are merely imposing their own morality in determining right answers to legal disputes?
    • How would Dworkin answer Herbert Weschler's call to provide a neutral justification for the Supreme Court's decision in Brown v. Board of Education?  Would Bell be satisfied?

Feminist Legal Theory

Class 9 - February 16th 
•    Martha Fineman, Gender and Law: Feminist Legal Theory's Role in the New Legal Realism, 2005 Wisc.L. Rev. 405

    • What new tools of analysis does Fineman, as a feminist theorist, develop that build upon and exceed the critiques of law offered by the Crits?
    • What baselines does she question?
    • In what way does she offer a distinctly "feminist" critique of liberal legalism?
    • How does she critique the centrality of a de-sexed, de-raced reasonable person in classical legal theory?
    • Are there any problems or limit to Fineman's effort to analyze law with a feminist lens?

Class 10 - February 21st

•    Catharine MacKinnon, Difference and Dominance: On Sex Discrimination (1984).

•    Katherine Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 COLUM. L.REV. 181 (2001)

    • What was MacKinnon's purpose in offering the imagined dialogue between a feminist and a soldier in the afterlife?
    • What is MacKinnon’s critique of the difference approach and what do you see as the limits of the dominance approach she puts forth as an alternative?
    • What does MacKinnon mean when she claims that "gender might not even code as difference . . . were it not for its consequences for social power"?
    • Based on your reading of Theorizing Yes, what would Professor Franke say about MacKinnon's examples of experiences (pg. 88) that "happen almost exclusively to women" and the way they are characterized?
    • What do you think of MacKinnon’s comparison of sex equality with racial equality?
    • What is Professor Franke’s critique of Fineman’s distinction between motherhood and purchasing an expensive car?
    • "[C]hildren remain the private property of parents," writes Professor Franke in noting the paradoxical politics of "public value, public subsidy, but private accountability with respect to raising children."  Do you agree? What are your observations about this statement? How would Robin West and Martha Fineman respond to it?
    • In Theorizing Yes, Professor Franke identifies various baselines at play in the way repronormative forces play out in women’s lives.  What are some of these baselines? What are the alternative baselines?
    • According to Professor Franke, within the overarching project of legal feminism, "'no' remains the only viable feminist answer to any sexual question."  Can the sex question be reframed in order to move beyond this limitation? Can law be the site for an affirmative theory of sex?

Queer Theory

Class 11 - February 23rd
•    Katherine Franke, Dating the State: The Moral Hazards of Winning Gay Rights, 44 Columbia Human Rights Law Review 1 (2012) 

  • What does Professor Franke mean by the role of human rights law “in the evolution of a state’s “credentialization” as global citizen?”
  • What are the limits of “using human rights law as the lever with which to pry more “backward” nations from their pre-modern ways and induct them into modern global citizenship?”
  • What is “the human rights script” (pg. 28)? Who writes it and where is it performed?
  • What does Professor Franke mean here: “Yet the almost singular focus on sexual rights as the marker of modernity has been accompanied by the neglect of other types of security and rights-based values?”  How does this tie up with Professor Franke’s Theorizing Yes.
  • What does Professor Franke mean when she writes that “the body of the nation becomes sexualized?” How, when, and why?
  • Professor Franke notes that “there is a risk that the rights-bearing gay subject—a new “good citizen”—emerges in the foreground of a national landscape while at the same time producing at its margin others who are not so good.”  How does this point apply to same sex marriage politics?
  • A “gay right” is not a “gay right” is not a “gay right” (pg. 39).  What does this statement mean?
  • What is the challenge in “disentangling the state’s agenda from our own” and what does the reference to Foucault’s phrase, “incitement to discourse” mean in this regard?

Critical Race Theory

Class 12 - February 28th
•    Alan David Freeman, Legitimizing Racial Discrimination through Antidiscrimination Law: A Critical Review
•    The Combahee River Collective Statement (1977)
•    Neil Gotanda, A Critique of “Our Constitution is Color-Blind” (1991)

    • How does Freeman describe the baseline that operates in what he calls “anti-discrimination laws”?  What work does that baseline do?  What alternative baseline does he suggest?
    • In what ways is Freeman critiquing a kind of formalist reasoning in anti-discrimination law?  What are those “forms”, and what work do they do in perpetuating and normalizing a perpetrator perspective in anti-discrimination law?
    • Reflecting on doctrine you have learned in other 1L classes, what are other salient examples of cases or legal doctrine that embraces a perpetrator perspective?  Have there been any that manifest a victim perspective?
    • How does Gotanda’s mapping of difference meanings of “race” add something different to the Realist’s and CLS’ critique of liberal legalism?
    • What would a queer critique of racial categorization (similar to the queer critique of sexual categorization we covered in class) look like?  Is this what Gotanda is up to, without calling it as such, or is he up to something different?
    • Gotanada’s article was published in 1991.  Do his insights about the jurisprudence of race equality and about threats to the legitimacy of the Supreme Court still hold, in your view?

    • "We believe that the most profound and potentially most radical politics come directly out of our own identity . . . ." What do you think the Collective meant by this particularly "revolutionary concept" in the case of Black feminism?

    • How does the Statement offer an "expansion of the feminist principle that the personal is political"?

    • Does the Collective's conceptualization of the processes involved in consciousness and "consciousness-raising" differ from how it could be understood through MacKinnon's account of feminism? 

Class 13 - March 2nd
•    Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations
•    Derrick A. Bell, The Chronicle of the Amber Cloud  
•    Patricia Williams, The Brass Ring and the Deep Blue Sea

    • Matsuda turns to Frederick Douglass to inform her own response to CLS's "incoherency" (or radical indeterminacy) critique.  How does it work? Do you find it persuasive?
    • In a way, Matsuda is arguing that people of color don't have the luxury to sign up for CLS's skeptical critique of liberal legalism.  Do you agree?  Is she persuasive on this account?
    • Does the moral ground she posits for a right to reparations "solve" the problem of liberal legal thought?
    • Could we understand Matsuda's moral ground as answering Justice Blackmun's call for law to have a moral ambition?  Or is it something else?
    • What do you think of Matsuda's view that the refusal of the legal system to remedy the harms done to Japanese Americans is as bad as, or worse, than those original harms themselves? 
    • What part of liberal legal principles is Bell engaging with the Chronicle of the Amber Cloud?
    • Is there something in Bell's use of allegory that allows him to do more, or at least something else, than traditional legal scholarship can do?
    • In what way does Williams' introduction to her book build on, yet contest, the insights of CLS theorists?
    • Is she "up to" the kind of epistemic project (ie, looking to the bottom) that Mastuda is, or her story telling about her own life meant to do something else?  If it is, what is it?

Interdisciplinary Legal Study  - Law's Dispassion

Class 14 - March 7th
•    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)

    • How has a commitment to "Blind justice" appeared in your first year classes?  As a virtue of legal adjudication, as necessary to justice and/or fairness?  Something else?
    • Both Jay and Gotanda critique the idea of "blind" justice.  In what way does Jay offer a different critique than does Gotanda?
    • In what way is freedom threatened by reduction of justice to law?  Do you have examples from the first year curriculum?
    • Anticipating our next class's reading, how is "blind justice" implicated in the idea of precedent, and what kinds of violence are done its name?
    • What image of justice do you think each of the schools of thought we've looked at so far would choose?  Natural law, Positivism, Legal Realism, Critical Legal Studies, Law as Integrity, Feminism, Critical Race Theory?

Reasoning from History: Precedent 

Class 15 - March 9th 
•    A Random Thought on the Segregation Case
•    Anthony Kronman, Precedent and Tradition (1987)   
•    Planned Parenthood v Casey

    • What does Kronman mean when he writes that for lawyers and judges, the past is “a repository not just of information but of value?"  How has your view about the role of the past in law developed or changed during law school?
    • What does Kronman mean by the “human meaning of the past?”
    • For Kronman, the “standpoint of eternity,” necessarily looks backwards, taking the “past as the benchmark for the present.”  Can you imagine a standpoint of eternity that looks backwards, but from the future? What would that look like in law?
    • Who are the “modern friends of precedent” as referenced by Kronman? Who would they be today?
    • “Liberty finds no refuge in a jurisprudence of doubt.”  Why do you think Justice O’Connor begins the Casey opinion with this statement?
    • Justice O’Connor cites Justice Harlan’s observation that “tradition is a living thing” in discussing the adjudicative function of “reasoned judgment” in interpreting the law.  How does this view of tradition compare with Kronman’s account of tradition?  Do you agree with him that traditionalism is "in disrepute” today?
    • How does the court in Casey frame the liberty interest and argument in the case? How does this framing set up the Court’s extensive discussion of stare decisis?
    • Planned Parenthood v. Casey provides discussion of exceptions to applying the rule of precedent.  Which of these exceptions are most relevant for the Casey opinion? How would you address these exceptions if you were deciding Casey today?

March 14th & 16th - Spring Break

THE FIRST YEAR CURRICULUM REVISITED

Torts

Class 16 - March 21st
•    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

    • Why do facts matter in a legal opinion? 
    • Could a legal opinion have "weight" (or even Integrity to harken back to Dworkin) if it does not contain factual findings?
    • Do courts have any duty of loyalty to plaintiffs/defendants to tell their stories "correctly"?
    • Cardozo wrote that a judge "must permit oneself a certain margin of misstatement."  What does this tell you about his thinking about how facts matter in a legal opinion?
    • In what way do facts play a role in determining whether a judge has written a "good" opinion?  What are the different ways in which to answer this question?
    • With respect to the kinds of facts Judge Noonan illuminates - facts beyond the details of the dispute between the parties - does it matter that Cardozo, Homes, and Frankfurter never had children?  Why is this relevant to Judge Noonan?  Do you agree?

Class 17 - March 23rd

  • Martha Chamallas & Linda Kerber, Women, Mothers and the Law of Frights: A History, 88 Mich.L.Rev. 814 (1990)
  • G.M.M. v. Kimpson - 116 F. Supp. 3d 126 (E.D.N.Y. 2015) 
    • How does the construction of dichotomy and dualism in tort law, such as through categories of objective/subjective, physical/emotional, etc., prop up gender differentiation and disadvantage?
    • What do you see as the work of repronormativity in the history and development of fright-based cause of action in tort law?
    • How does the reliance on expert testimony and literature in tort cases, as described in the Chamallas and Kerber article and as depicted in the G.M.M. v. Kimpson case, reveal the gendered aspect of its historical development? In what way can this reliance limit or contribute to a feminist reconstruction of tort law?
    • How has gender played a role in the evolution of tort law with respect to fright-based harms?  In what way was the gendered context ignored and what were the implications of taking it into account?
    • What are the grounds identified in the G.M.M. v. Kimpson opinion for invalidating the use of ethnicity-based statistics to limit damages in tort cases? How can gender-based statistics be analogized or distinguished using the analysis and holding from G.M.M. v. Kimpson?
    • In what way does the G.M.M. opinion address colorblind formalism?

Contracts

Class 18 - March 28th
•    Patricia Williams, The Pain of Word Bondage, in The Alchemy of Race and Rights (1991)

    • How does Professor Williams' suggestion that we view Pierson v. Post from the perspective of the fox surface the issues of property and ownership differently?
    • How does this chapter help us understand contract doctrine differently when we focus on the "thing" being contracted for, and situate it within a racial past and present?
    • To what degree is she offering a rejoinder to the CLS critique of contract doctrine?
    • What does this chapter add to our discussion/readings on law and emotion?

Class 19 - March 30th
•    Brittany Farr, Breach By Violence: The Forgotten History of Sharecropper Litigation In The Post-Slavery South,  69 UCLA L. Rev. __ (2022)

    • Farr's article describes the roles of contract, property, and tort in freedpeoples' efforts to combat economic and physical violence from white people in the post Civil War period.  What does the article tell you about the possibilities and limits of the use of private law to defend the rights of Black people during this period?
    • How did contract, property, or tort work as a "container" for new Black freedom during this period? 
    • How was that new freedom best elaborated in, protected by, or frustrated by contract, property, or tort?  That is, in what sense were these possibilities essential to the idea of contract, property, or tort, or were merely accidental to those legal forms or traditions?
    • What might this article/history tell us about how best to protect/advance Black freedom today - especially reparations for slavery and the atrocities of White Supremacy?

Criminal Law

Class 20 - April 4th
•    Robert Cover, Violence and the Word, 95 Yale L.J. 1601 (1986)

    • How does law, criminal law particularly, usually portray its relationship to violence?  In what way is Cover contesting that portrayal?
    • When Cover opens the essay with "legal interpretation takes place on a field of pain and death" and then later claims that legal interpretation is designed to generate credible threats and actual deeds of violence (p. 1613) is he merely restating Austin's command theory of law?
    • When he argues that legal interpretation is effective precisely because it is bonded in nature, and can never be free (p. 1617) what does he mean by this?
    • Is there any way in which to understand the essay as a brief refuting Dworkin's account of legal interpretation?
    • In the end, is Cover inviting us to regard the violence of legal adjudication as a kind of failure, or as something we should make peace with?

Class 21 - April 6th 
•    Butler, The System is Working the Way It Was Supposed To: The Limits of Criminal Justice Reform
•    Racially Based Jury Nullification - Professor Paul Butler on 60 Minutes (Links to an external site.)
•    Michelle Alexander, Go to Trial: Crash the Justice System

    • Do you agree with Butler that police violence/murder of Black men is an example of the criminal justice system working the way it was supposed to?
    • What do you think if Butler's explanation for why he focuses on the experiences of Black men at the hands of the police and CJ system?  Did it satisfy you?  Do you see him offering an analysis of policing that undertakes a racial and gendered analysis of how Black men  “are the prototypical criminals in the eyes of the law”?
    • Do you agree with Butler's claim that "the Court has a different point of view about the kind of policing that is reasonable for black people than is reasonable for white people"?  That the Court has authorized police "super powers" when it comes to policing Black men that they would never allowed relative to the policing of white people?  p. 108
    • What does Butler mean when he claims that many of the Supreme Court's criminal cases amount to a "racial project"?  Do you agree?
    • If the Court were to avoid the kind of "racial project" Butler describes, how should they take race and racial bias into account?
    • How might you see Butler's article as offering a critique of colorblind legal reasoning?
    • How would you imagine Robert Cover would respond to Butler's reading of Court's criminal justice cases?
    • Is jury nullification a legitimate response to the failures of the CJ system?  What about other forms of "self help" like crashing the system?  If these types of tactics gained wide-spread adoption, how might you imagine officials of the CJ system and courts would react?
    • Might these forms of radical resistance echo Cover's reference to "rebellion and revolution" on p. 1605 of Violence and the Word?
    • How might the kind of legal vigilantism of jury nullification or crashing the system risk violating the organizational structure of law that Cover describes?  If so, what kind of problem might it create?

Property

Class 22 - April 11th
•    George Washington's Last Will and Testament www.pbs.org/georgewashington/milestones/free_slaves_read.html
•    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)

    • Why might George Washington have given his wife Martha a life estate in all of the people he enslaved?
    • What do you think about how he structured both freedom and bondage in his will - especially in relation to Martha's ownership of the people they enslaved?
    • Can we understand freedom as a property interest, and if so, what kind of property interest is it?
    • What would it mean to treat whiteness as a property interest?  How does whiteness function as something that is property-like?
    • Are you persuaded by Harris' argument?
    • Is there a similar property interest in Blackness?  In other racial identities?
    • How does whiteness as a property interest persist today - what examples can you provide?
    • Do other aspects of identity such as one's sex, sexual orientation, citizenship etc, have property-like qualities?
       
  • Class 23 - April 13th
    •    Eduardo Moisés Peñalver & Sonia K. Katyal, Property Outlaws, 155 Penn.L.Rev. 1095 (2007) edited
    •    State v. Shack, 58 N.J. 297 (1971)
    • In what way(s) is property law especially amenable to transformation by outlaws?  More than, or different from, contracts for instance?
    • How might you relate the acquisitive potential of property outlaws as similar to Cover's notion of jurisgenerativity?
    • Given Holmes' and others' concerns about the "bad man", how is it legitimate for non-institutional actors to be law-makers/reformers?
    • Do property outlaws perform a similar role to those who engage in jury nullification?
    • Does the concept of "property outlaw" suggest a conception of "property inlaw"?  Are there ways that property outlaw-ness can lead to new and transformative ways of deploying property relations as liberatory models of belonging and freedom?


Constitutional Law

Class 24 - April 18th

  • Dorothy Roberts, Abolition Constitutionalism   
    • In what way(s) is abolition constitutionalism a citizenship project?
    • Professor Roberts notes in the Foreword that the functioning of the carceral punishment system is not a malfunction and that “reforming prisons results in more prisons.”  How does this point add to our discussions and readings on criminal law?
    • What can coalition-building look like for abolition activism in light of the Foreword’s distinction between reformist reforms and abolitionist reforms?
    • How does the immunity granted to state agents reveal the disconnect between social harm and carceral punishment?  What role does it play in the Foreword’s point that one of the aims of the carceral model is to maintain social control of marginalized populations?
    • What do you think forms the “logic of human relations” that Professor Roberts identifies as a replacement for carceral logic in guiding activism? What is the move that is made in denoting it as a system or process of logic?
    • What/who decides the meaning of the Constitution? Does abolition constitutionalism offer an alternative “public meaning” of the Constitution that resides outside of Supreme Court opinions?
    • This Foreword makes a case for imagining a different society by deploying the Constitution and its abolitionist provisions instrumentally.  To what extent are you persuaded, and why?

Class 25 - 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:

   o    Goodridge v. Dept of Public Health, Plaintiffs' Memorandum in Support of Motion For Summary Judgment - optional

   o    Goodridge v. Dept of Public Health, 798 N.E. 2d 941 (2003)

•    Equality:

   o    Complaint in Varnum v. Brien - optional
   o    Varnum v. Brien, 763 N.W.2d 862 (2009)

•    Dignity:

   o    Complaint in Varnum v. Brien

  • What's wrong with not allowing same-sex couples to marry, as a constitutional matter?
  • The same-sex marriage movement should be best understood as growing out of which civil rights tradition?  Racial justice in the context of marriage (Loving v. Virginia); racial equality principles that render separate as inherently unequal (Brown v. Board); sexual liberty (Lawrence v. Texas & Planned Parenthood v. Casey); "sex-blind" [sic] constitutionalism (Reed v. Reed and Craig v. Boren)?
  • What constitutional principles were joined by the litigation in Goodridge and Varnum?  That is, what was the nature of the constitutional harm articulated by the parties and by the courts?
  • Which path to winning the right to marry for same-sex couples do you prefer, and why?