Willamette University College of Law and Jurisprudence Seminar and William R. Long and Langdell and Bentham and Plato and Blackstone and Aquinas

The purpose of this class is to study various theories about the purpose and function of law in the Anglo-American legal tradition. After a preliminary overview of the differences between pre-modern, modern, and post-modern thinking, we will commence with a famous legal hypothetical and a classical statement of the nature of law and justice from ancient Greece. Then we will study six major jurisprudential movements: natural law theory, positivism, the code pleading movement, formalism, legal realism and modernism, and post-modernism. The final two weeks of the course will be devoted to student mini-presentations on selected topics in jurisprudence. Thus, while the focus of the class will be on legal theory, the approach will be largely historical.

Instructor: William R. Long, Office 452. Phone is (503) 370-6411. Email is blong@willamette.edu. My web page, which you are on, will have several essays on topics covered in the class as the semester progresses.

Class Expectations: Regular attendance and informed participation, teaming up with another person for a 30-minute presentation/critique of one topic, and either a final paper (10-15 pages) or a 2-hour final examination. Classroom particpation will count 20% toward the grade, oral presentation 15% and final paper or exam will be 65%.

Class Meetings: Tuesday and Thursday, 3-4:30 p.m. in Law 114. On Thursday, September 23, we will meet in Portland at the federal courthouse to attend the US District Court of Oregon Historical Society program on the Pledge of Allegiance.

Readings/Books: The following titles have been ordered in the bookstore. Other readings will be assigned and either distributed in class or available on the Internet. I would like you to use the Grube/Reeve translation of the Republic.

1. Bix, Brian, Jurisprudence: Theory and Context (3d Ed.; Durham, NC: Carolina Academic Press, 2004).

2. Feldman, Stephen M., American Legal Thought from Premodernism to Postmodernism (New York: Oxford, 2000).

3. Plato, The Republic (Trs. by G.M.A. Grube and Revised by C.D. C. Reeve; Indianapolis: Hackett Publishing Co., 1992).

Course Schedule:

1. WEEK OF AUGUST 30. Introduction to the Course; Thinking about Pre-modern, Modern, and Post-modern.

READING: August 31--Dennis M. Patterson, "What is at Stake in Jurisprudence?" 28 Oklahoma City University LR 173 (2003). Article is available on his Personal Website through Rutgers Law School also; Feldman, 3-15. September 2--Feldman, 15-48.

2. WEEK OF SEPTEMBER 6. A Jurisprudential Legal Hypothetical: The Case of the Speluncean Explorers

READING: September 7--"The Case" on Professor Teuber's Brandeis University web site. http://people.brandeis.edu/~teuber/lawspelunk.html. Pages 1-23. September 9--continue on the case by reading the internet article by Professor Anthony D'Amato, "The Speluncean Explorers--Further Proceedings," from 32 Stanford Law Review 467 (1980).

3. WEEK OF SEPTEMBER 13. Plato's Republic. Introduction to Plato, his place in Greek thought, background information, theories of justice, building the Kallipolis.

READING: September 14--Republic, Introduction and Book I-Book II (partial), Stephanus pages 327a-368d, Grube/Reeve edition, pages vii-xx and 1-43. September 16-- Republic, Books II (rest) and III, Stephanus pages 369a-417b, Grube/Reeve edition, pages 44-93.

4. WEEK OF SEPTEMBER 20. Plato's Republic (concluded); Introducing Plato's Laws; US District Court of Oregon Historical Society program.

READING: September 21--Republic, Book IV, Stephanus pages 419a-445e, Grube/Reeve edition, pages 94-121. TBA from Laws. September 23--The Jurisprudence of Saluting the Flag, Newdow v. US Congress, et al. (9th Cir., June 26, 2002).

5. WEEK OF SEPTEMBER 27. The Natural Law Tradition: St. Thomas Aquinas (1225-1274) and William Blackstone (1723-1780).

READING: September 28--Summa Theologica, First Part of the Second Part. Treatise on Law, Questions 90-97, in The Great Legal Philosophers, ed. by Clarence Morris (Philadelphia: U of Pennsylvania Press), 56-79 (on reserve). September 30--William Blackstone, Commentaries on the Laws of England, Section the Second, (Facsimile of the First Edition, 1765-1769), 38-62 (on reserve). Feldman, 49-57.

6. WEEK OF OCTOBER 4. The Positivist Tradition and Jeremy Bentham (1748-1832).

READING: For both days (October 5 and 7). Jeremy Bentham, A Fragment on Government (1776). The text is 70 pages on the Internet and can be found at: http://www.ecn.bris.ac.uk/het/bentham/government/htm. We will only read pages 1-30 and the notes (## 1-67) on pages 49-63. Feldman, 65-70.

7. WEEK OF OCTOBER 11. The Codification Movement in America in the Mid-Nineteenth Century.

READING: October 12--Freedman, Lawrence M., A History of American Law, 391-411 (on reserve); Clark, David S., "The Reception of Continental Ideas in the Common Law World 1820-1920" (on reserve); Feldman, 70-71. October 14--I will distribute sections of the Field Code in class on October 12 for discussion on October 14.

8. WEEK OF OCTOBER 18. Legal Formalism, the Concept of the Casebook and the Work of Christopher Columbus Langdell (1826-1906).

READING: For the entire week: Feldman, 74-105; I will assign a case from the first edition of Langdell's Contracts casebook (1871); Bruce A. Kimball, "Warn Stduents That I Entertain Heretical Opinions, Which They Are Not To Take As Law: The Inception of Case Method Teaching in the Classrooms of the Early C.C. Langdell, 1870-1883," 17 Law and History Review 57-94, 108-131 (1999) (sections Intro-IV and VI). This article can be found on the Internet also.

9. WEEK OF OCTOBER 25. American Legal Realism (1890-1940).

READING: October 26--Feldman, 105-115; O.W. Holmes, "The Path of the Law" (on the Internet or at 10 Harvard Law Review 457 (1897) and on reserve); Bix 177-187. October 28-- R. Pound, "Mechanical Jurisprudence," 8 Columbia Law Review 605-623 (1908); Excerpt from Jerome Frank, Law and the Modern Mind (on reserve), and excerpt from the American Law Institute's web page on the early history of the Restatement Movement.

10. WEEK OF NOVEMBER 1. Legal Process and Modern Movements (1).

READING: November 2--Feldman, 116-129; Bix, 33-53. November 4--Bix, 65-86.

11. WEEK OF NOVEMBER 8. Modern Movements (2) and Economic Analysis of Law.

READING: November 9--Bix, 87-117; November 11-- Bix, 189-215.

12. WEEK OF NOVEMBER 15. Post-modernism, including a brief consideration of the various "isms" of jurisprudential thought in the last 35 years: feminism, critical legal studies, "lat crit," and critical race theory.

READING: For the entire week. Feldman, 137-198; Bix, 217-252.

13 and 14. WEEKS OF NOVEMBER 22 (no class on Nov. 25) and NOVEMBER 29 (class only on December 1).

Student Presentations/Discussion. Each presentation team will be required to distribute (or get to me for copying the week prior to the presentation) no more than 10 pages of text for the rest of the class to read in preparation for the presentation.