HISTORY 356
AMERICAN LEGAL HISTORY
FALL 2006

PROF. M. DUBOFSKY

OFFICE HOURS: LT 608,

MON. 1-2; WED. 10-12

E-mail: dubof@binghamton.edu

TAS: Ryan Asher (rasher1@binghamton.edu)

Loretta Charles (lcharle1@binghamton.edu)

Todd Goehle (tgoehle1@binghamton.edu)

Katherine Newell (knewell1@binghamton.edu)

Faherty Nielsen (fnielse1@binghamton.edu)

I. Preliminary Statement: This course remains as new to me as it probably is to all of you. Having taught it only occassionally, I am still not sure how my approach to legal history will evolve or precisely what all of us will learn by the semester's end. Briefly, I hope that we learn that the "law" derives its meaning or essence from history, from the actions and interactions, desires and struggles, of human beings, that in the words made famous by Oliver Wendell Holmes, Jr., "the life of the law is experience not logic." What we want to examine is how humans experienced the law in the past and how those experiences shaped the law for future generations. Our concern is history not legal procedures, terms, or definitions. All that can wait for law school.

II. Procedures, Requirements, Grades: All students will be expected to attend lectures and discussion sections regularly. Please arrive on time. In a large class, tardiness disrupts the educational process, and, moreover, those of you planning to enter law school might as well get accustomed early to the realities that you will later encounter. I expect to call upon students at random in class to answer questions about the subject or to seek voluntary student responses to questions that I raise.

Attendance at discussion sections will be absolutely mandatory, and TAs will take weekly attendance. TAs will organize and conduct the sections in a manner that elicits the greatest student participation. Student participation, assuming that it is regular, intelligent, and constructive, will have a positive impact on final grades. Otherwise exceptional students, who behave like shrinking violets, will not be penalized for non-class participation provided that they attend regularly.

All students will take a midterm and a comprehensive final examination as well as write an extended essay on a book that examines race, violence, and the law. We will provide you with detailed instructions about the essay as well as a written warning about plagiarism and what constitutes it. Students taking the course for writing credit will have to write an essay that compares the book about race and violence that you will all read with another equally famous case that involved race, alleged rape, and the law, the case of the Scottsboro boys. Writing credit students will all prepare drafts of their essay, the final product of which will figure more substantially in their final grade. For nonwriting students the midterm will count as 30% of the final grade, the essay as 30% and the final examination as 40%. For writing requirement students the midterm will be 20% and the research paper and final examination each 40%. Class participation or its lack will raise or lower final grades except in the case of exceptional straight A students.

The following three web- page sites should provide all, or nearly all, of the materials that you need to locate materials on specific cases and judicial rulings.

http://supct.law.cornell.edu/supct/

http://www.supremecourt.us.gov /

lexis-nexis–this is available directly through our library and its data-base collections.

III. Required Reading:

Kermit Hall, The Magic Mirror (Oxford U. Press, 1989).

K. Hall, P. Finkelman, & J.W. Ely, Jr. American Legal History: Cases and Materials (Oxford U. Press, 2005).

Kevin Boyle, Arc of Justice, (Owl Books, 2005).

IV. Course Themes, Lecture Schedule, and Required Readings:

August 28: WHAT IS LAW?

August 30: ANGLO-COLONIAL LEGAL TRADITIONS

Reading: K. Hall, Magic Mirror, Intro, Chs. 1-2.

K. Hall, et. al., American Legal History, Ch. 1, pp. 3-77.

Sept. 6 & 11: THE REVOLUTION, THE CONSTITUTION, AND JUDICIAL REVIEW

Reading: K. Hall, Magic Mirror, Chs. 3-4.

K. Hall, et. al., American Legal History, Ch. 2, pp. 78-144.

Sept. 13 &18: LAW AND ECONOMIC DEVELOPMENT: FREEING THE MARKETPLACE

Reading: K. Hall, Magic Mirror, Chs.5-6.

K. Hall, et. al., American Legal History, pp. 148-177, 184-217.

Sept. 20 & 25: LAW AND LIBERTY: SLAVERY AND FREE LABOR

Reading: K. Hall, Magic Mirror, Chs. 7-9.

K. Hall, et. al., American Legal History, pp.. 177-184, 218-242.

Sept. 27: CIVIL WAR AND RECONSTRUCTION

Reading: K. Hall, et. al., American Legal History, pp. 242-282.

Oct. 4 & 9: LAW AND THE NEW INDUSTRIALISM

Reading: K. Hall, Magic Mirror, Chs. 10 & 12.

K. Hall, et. al., American Legal History, Ch. 6, pp. 351-384.

Oct. 11: RACE, GENDER, AND THE LAW

Reading: K. Hall, Magic Mirror, Chs 8 &11.

K. Hall, et. al, American Legal History, Ch. 5, pp. 285-350.

Oct. 16: MIDTERM EXAMINATION

Oct. 18 & 23: LOCHNER ERA JURISPRUDENCE

Reading: K. Hall, Ch 12.

K. Hall, et. al., American Legal History, Ch. 6, pp. 385-410.

Oct. 25 & 30: THE NEW DEAL REVOLUTION

Reading: K. Hall, Magic Mirror, Ch. 14.

K. Hall, et. al., American Legal History, Ch. 8 pp. 459-492.

Nov. 1 & 6: LIBERTY AND DISSENT: PART 1 - THE WORLD WARS

Reading: K. Hall, Magic Mirror, Ch. 13.

K. Hall, American Legal History, Ch. 7, pp. 411-458.

Nov. 8 &13: LIBERTY AND DISSENT: PART 2–THE COLD WAR AND AFTER

Reading: K. Hall, Magic Mirror, Ch. 15.

K. Hall, et. al., American Legal History, pp. 535-540, 655-675.

Nov. 15 & 20: CIVIL RIGHTS LAW

Reading: K. Hall, Magic Mirror, Ch. 15.

K. Hall, et. al., American Legal History, pp. 495-535.

Nov. 27 & 29: THE WARREN COURT: INDIVIDUALISM AND PERSONAL LIBERTY

Reading: K. Hall, Magic Mirror, Chs. 15-16.

K. Hall, et. al., American Legal History, pp. 535-572, 581-616.

Dec. 4: THE LAW TODAY

Dec. 6: REVIEW

Reading: K. Hall, Magic Mirror, Ch. 16 & Epilogue.

K. Hall, et. al., American Legal History, pp. 573-581, 617-627, 628-655.