Legal Studies 491L



Legal Studies 491C April 30, 2007

Professor Arons

Final Essay Topics

For the final essay in the course you should pick one of the topics below. Each is flexible enough to admit of a number of different ways of focusing or organizing the topic. You may also choose a format for your paper that differs from the standard academic analysis. But if you do so, you must discuss it with me (email or otherwise) and get my explicit permission to undertake the project you propose. The paper should be 10 pages in length, double-spaced, 1-inch margins, numbered pages, font no bigger than 12-point. The paper is due Wednesday, May 16th by noon in the Legal Studies office. I am going out of town thereafter and want to take the papers to grade on the plane.

Three things to keep in mind: 1) The idea of this final essay is for you to tie together several of the works and to find themes that run through the course. You don’t have to focus on the themes that I may have used to organize the materials. You do have to show that your way of looking at these materials is coherent and interesting. 2) If you choose a non-conventional format for your paper, you should consult with me via email, in person or by phone before you put a great deal of work into the project. I want to encourage you to experiment with form and substance, but I don’t want you to get into something overly ambitious that might overwhelm you and lead to frustration and low grades. 3) The series of questions in each topic below should be regarded as a way to provoke your thinking and suggest avenues of exploration; they are not questions that must be answered in order to write a good essay. Here are the topics:

1. Law and the Struggle over Justice.

If one examines the outcome of a particular case or conflict, it is tempting to conclude either that law has advanced social justice or that it has ground justice and conscience under foot. But if these same conflicts are examined more carefully, it becomes clear that there are many sides and many motives, that victory is often tainted with partial defeat and that a loss may have hidden or unforeseen positive effects on individuals or society. In other words, the struggle goes on. It is never really won, nor is it lost.

For example, if we examine the Amistad case we might conclude that slavery is dealt an important blow by the Supreme Court’s freeing of the Amistad Africans and its ruling that the Africans were people, not property. Yet the law remained a bulwark of slavery in the U. S. for nearly twenty years until a brutal civil war brought it to an end. We might be tempted to conclude as well that whites, who maintained and defended slavery, stand as a shameful reminder of the evil that whites can do. Yet many of the “heroic” figures in the Amistad struggle were whites. Likewise with other conflicts; the more closely we look, the more complex and multifaceted the struggles appear.

Write an essay in which you examine at least four of the conflicts that we have studied and show whether it is the immediate “outcome” or the long-term effect of the struggle that defines whether justice and conscience have been advanced. Pay attention to the complexities of motives on all sides, to the values for which various players stand or claim to stand, to the building of internal strengths as well as to the securing of short-term advances, and to the roles of the characters.

2Arthur Kinoy, People’s Lawyer—Did He Succeed in Combining Law and Conscience?

Rights on Trial comes at the end of the course, and thereby raises a number of questions about the tension between law and conscience that we have been exploring all semester. In what ways has Arthur Kinoy succeeded (and in what ways failed) in using law as an instrument of conscience? What do his career and views suggest about his understanding of the relationship among law, conscience, and community? How does he deal with the pressures of the profession and of legal institutions to put conscience aside and to ignore or even denigrate some communities? Does the Kinoy book help you to answer any questions that have been building in your mind as the seminar has progressed?

Compare and contrast Arthur Kinoy’s personal and professional values—his attitudes and approaches to some of the conflicts of which he was a part—with those of the lawyer(s) in at least two of the following works that we studied during the semester: A Man for All Seasons, Amistad, Long Goodbye, Blind Ambition, The Front. You may discuss other characters and other works as well; but you must discuss the lawyers in at least two of the five works listed above.

What does the comparison teach you about the variety of ways that law can be used? About the effect on individuals, conflicts and society that result from different approaches to using law? About the nature of law and the importance of conscience in public life? About different ways of approaching conflicts over conscience or social justice?

3. Pity the Land that Has No Heroes; Pity the Land that Needs Heroes.

Many of the works that we have studied involve individuals standing against power or against “the flow” of their times. Sometimes we admire these individuals as heroes and inflate their character beyond mere humanity. Sometimes we criticize any flaw that these characters may have, condemning them for being less than perfectly heroic. Sometimes we think them foolish for abandoning family, wealth, power or just plain safety in order to preserve pride or some personal principle. Sometimes heroes inspire and empower us; sometimes they make us feel that we would be powerless without them. Often we interpret the presence or absence of heroes as indicating that there is some force for evil in society that is so great that it cannot be dealt with by ordinary people.

Sometimes we ask of our heroes as individuals what we cannot ask of ourselves as a society. In many cases, the power that individual heroes have or the power that keeps heroes from arising in society seems to affect individuals, societies and institutions in peculiar ways. The lure of power and the fear of powerlessness seem to make some people lose sight of all other goals and values in life.

Using at least five of the twelve works that we have studied during the seminar, write an essay about heroes and heroism; the pursuit of, resistance to, and effects of power; and the implications for society as a whole of having or lacking heroes.

4. New themes in old works.

Pick five works in the syllabus, and write an essay in which you trace two themes or motifs that you think run through all those five works. How do these themes add to your understanding of law and society? How is your own way of thinking about the world and about yourself influenced by these works and themes? Do the works you have chosen expand your sense that you understand more about the conflict between power and conscience? Ten years from now you will probably not remember anything specific about this course. Is there something general about Law and Conscience or about some theme that appeared in your mind during the course that you think might stay with you? What? Why?

5) Thinking about the Nature of Conscience

We began the semester with a number of speculations and explorations about the nature of conscience, and during the last three months have continued to explore these issues in the context of various literary works and films. The materials handed out on the first day of the seminar raised a number of problems about conscience and provided some quotations about the many ways that the concept has been understood and used. As the semester moved on, we wondered whether conscience is individual and subjective or universal and objective. We asked whether it is simply a psychological function or whether it has ties to cultural standards. We observed how differently it operated in the various characters with whom we have become familiar during the seminar; and we wondered on occasion whether conscience is a force for justice or whether it is sometimes used by the most intolerant and narrow-minded people to justify campaigns of injustice. The tension between law and conscience was always somewhere in our minds, and we sometimes speculated on the role of law as a forum in which to contest various ideas of what conscience demands or even what conscience includes.

By reference to and analysis of several of the works that we have studied in the seminar, write an essay setting out your ideas about the nature of conscience and its role in law and society as those ideas have developed during the seminar.

6) Judicial Independence and the tension between law and conscience

“Amistad” gives us the clearest sense of the damage that can be done—to society, to conscience, justice, and to constitutional democracy in particular—when the independence of the judiciary is weakened and the law becomes subservient to political pressure or to other powers outside the judicial institutions. But other works also raise the issue of how much independence of the judiciary is important to a functioning democracy and to the possibility of conscience being part of law. Some of these other works were Long Goodbye, “The Front,” “Montgomery to Memphis,” Blind Ambition, Moyers’ “Constitution in Crisis” (Iran/Contra). Perhaps even An Enemy of the People, A Man for All Seasons and Emma have something to say about the problems that arise when law is manipulated by political power. Some legal studies scholars would argue that law is itself always a means of exercising political or economic or religious power, and that advancing conscience or transcending the narrow interests of power are rarely part of the functioning of law.

Write an essay in which you use at least four of the works that we have studied to develop and comment on the idea and importance of judicial independence in a constitutional democracy. Base your essay on the works that you discuss, not on outside research or long, abstract disquisitions about democracy or political philosophy.

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