This course meets on Tuesdays and Thursdays at 12:00-1:20 p.m. Please note the following class cancellations and make-up classes:

Transcription

1 COMPARATIVE LAW: WESTERN LEGAL ORDERS SPRING 2018 PROFESSOR JULIE SUK SYLLABUS COURSE DESCRIPTION This course develops a critical perspective on U.S. law through an exploration of the legal traditions, institutions, and cultures of Europe. LEARNING OBJECTIVES The course is has four main objectives. The first is to develop students familiarity with the history of the Western legal tradition, including the history and debates about the aims and methods of comparative law. The contrasts between the common-law and civil-law traditions will be exposed through an introduction to Roman law, its reception in Continental Europe, and its evolution in the French and German civil codes. Some attention will be paid to the different and evolving understandings of the nature of law and judging reflected in these historical developments. The second objective will be to understand and explain the important institutional differences between contemporary American and European legal orders, as manifested in civil procedure, criminal procedure, constitutional review, administrative regulation, the judiciary, and the legal profession. Third, through the study of selected problems, students will gain an appreciation for the distinctiveness of U.S. law s approach in some domains as well as areas of convergence across legal systems. The final objective is to understand the influence of supranational law particularly that of the European Union and the European Convention on Human Rights -- on domestic legal orders in European countries. REQUIRED TEXTS TB = Textbook: Glendon, Carozza & Picker, Comparative Legal Traditions: Texts, Materials, and Cases on Western Law, 4th Ed (available for purchase at the Cardozo Bookstore). C = Canvas. C indicates materials, usually in PDF format, on the course site on Canvas. SCHEDULE This course meets on Tuesdays and Thursdays at 12:00-1:20 p.m. Please note the following class cancellations and make-up classes: Scheduled class cancellations: Thursday, January 18 Thursday, February 8 1

2 Scheduled make-up classes (Room 304): Monday, January 29, at 12-1:20 p.m. Monday, February 12, at 12-1:20 p.m. Thursday, April 26, at 12-1:20 p.m. Reserved Make-Up Classes: In anticipation of class cancellations for weather or other unforeseen circumstances, please reserve the following dates and times for make-up classes. I will let you know at least a week in advance whether we will be meeting at these times. Monday, April 9, at 12-1:20 p.m. Monday, April 16, at 12-1:20 p.m. Monday, April 23, at 12-1:20 p.m. Numbered Reading Assignments Reading assignments for the entire semester are listed on the reading assignment list that appears at the end of this syllabus. We will cover one numbered reading assignment per class. I will not tell you what to read for the next class; please assume that you should prepare the next numbered reading unless I explicitly announce otherwise. Occasionally, I may modify the reading assignment, in which case I will make an announcement in class as well as on the course website. Stay tuned. COURSE REQUIREMENTS AND EXPECTATIONS Final Examination Your grade for the course will be based primarily on a 3-hour in-class open-book final examination. I will provide more guidance about what to expect and how to prepare for the final examination as the semester progresses. Exceptionally good or bad attendance and class participation may affect your final grade as detailed below. Attendance Policy Cardozo s attendance policy, as required by the ABA, is stated in the student handbook: Students are required to attend a minimum of 80% of all classes in order to receive credit for a course. This class is scheduled to meet 27 times. Therefore, every student MUST attend a minimum of 22 classes to receive credit. You will be asked to sign in on an attendance sheet at the front of the room at the beginning of each class. If you are absent more than 5 times for medical or other extraordinary circumstances, please contact the Dean of Students to discuss 2

3 an exception to this policy. I will not make any exceptions or excuse any absences without the recommendation of the Dean of Students. Unless you are in danger of failing to meet the Cardozo/ABA attendance requirement, there is no need to discuss your attendance or reasons for absence with me. Any student who has perfect attendance (all 27 classes attended, including all make-up classes) will receive a 10-point attendance bonus on their final exam grade. The attendance bonus will not be awarded to students with any absences, even if the absences are excusable. The attendance is a prize for exceptional attendance. Routine absences, as long as they do not exceed 5 instances, will have no effect on the final grade. Laptop and Device Policy Students may NOT use laptops or phones during class. Recent studies indicate that students absorb more information and learn better when they are not typing and staring at computer screens. The only electronic device that will be permitted is a tablet or ipad, used solely as an e-reader for the required readings. The tablet must lay flat on the table, and the keyboard may not be used. The use of other applications, such as web browsing, , and word processing, is not permitted during class. Class Discussion I will cold-call on students with no advance notice. When you are called on, the purpose is to engage in a collective dialogue or conversation in which we are trying to understand, articulate, and challenge various lines of thinking. It is NOT a quiz to make sure you have done the reading (although doing the reading is usually necessary to successful participation). The focus should not be on getting the right answer (often there won t be one right answer), but rather, on constructing arguments, one step at a time. When called on, please do your best to engage the question, even if you are uncertain about your response or where we will end up. Speak loudly and clearly. As time permits, I will also call on volunteers who have their hands up to make a comment or question. I encourage all of you to volunteer frequently. But do keep in mind that I will not be able to call on all the students who have their hands up, and inevitably, some questions will go unanswered during class time. If the class discussion has moved on to another subject without your having had the opportunity to speak, please save your question or comment for office hours or it to me after class. Preparation for Class Due to the nature of this course, we will be reading a wide range of materials cases, statutes, regulations, policy papers, and scholarship by legal academics as well as by political scientists, historians, and sociologists. Many of these materials will be from outside the United States and 3

4 will have different styles, which we will discuss. They will present challenges that will feel different from those encountered in other classes. After you read the assigned readings, you should try to articulate what you would say if you had to write an op-ed about the materials you have just encountered. Concretely, I offer 3 tips for getting the most out of the readings and being well-prepared for class discussion (and eventually for the exam): (1) If you are reading a case, make sure you understand the facts and procedural posture. (2) For any scholarly texts, be able to articulate the author s main argument and write down 2-3 questions or critiques of the argument. I will not ask to see any of your writings, but I will regularly ask students what the author s main argument is, and what data or evidence the author uses to support the argument, whether or not the argument makes sense. (3) For any foreign legal materials, ask yourself whether there is a relevant American counterpart, and if so, what it might be and why. If not, why not? Student Pages I regard the class as a community, so it is vital for me to get to know everyone in the room. To facilitate this, I require each student to submit one page on the Student Pages Assignment Dropbox on the course canvas site. The page could be your resume, or a written description of yourself and your career trajectory and/or your interest in the topics studied in this course. Please submit it ASAP and no later than Friday, January 26, You are also strongly encouraged to attend office hours at least once before the semester is over. Office Hours and My office is in Room 939. My regularly scheduled weekly office hours will be on Thursdays 1:30-3:30 p.m. READING ASSIGNMENTS Comparative Law: What is it? Why do it? 1. In advance of the first class, please watch the documentary film by Michael Moore, Where To Invade Next (2016). The DVD is on reserve at the Cardozo Library. The film is also available for rental ($3.99) on Amazon Instant Video or ITunes. 2. Rafael La Porta et al., Law and Finance (C) 3. Ralf Michaels, The Functional Method of Comparative Law (C) 4

5 The Civil Law Tradition 4. From Roman Law to the French and German Civil Codes, TB Constitutional Frameworks: TB Judicial Review in France and Germany: TB Organization of the Court System: TB ; , Legal Education, Legal Profession, Judges, and Scholars: TB Sources of Law and Interpretation: TB ; Jand heur v. Les Galeries Belfortaises (1930) (C) 10. Judicial Process: TB Civil Justice: Procedure and Institutions 11. Civil Procedure TB (Continental Europe) Excerpts from Mattei, Ruskola & Gidi (C) 12. Comparative Political Economy of Civil Litigation Robert Kagan, Adversarial Legalism ch. 6 (2001)(C) Francesca Bignami & Daniel Kelemen, Kagan s Atlantic Crossing, at (C) Criminal Justice: Procedure and Institutions 13. Criminal Procedure TB ; , Films: L Affaire Delnatte; 10 th District Court; The Shooting of Big Man 14. Plea Bargaining TB William J. Stuntz, The Collapse of American Criminal Justice excerpts (2011) (C) 15. Punishment James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe, excerpts (2003) (C) 5

6 Mugambi Jouet, Exceptional America: What Divides Americans from the Rest of the World and From Each Other, Chapter 7 (C) Film: Le film de Tour de France Cycliste Pénitentiaire Comparative Private Law 16. The Abuse of Right Doctrine Abuse of Right: Schlesinger s Comparative Law (Mattei, Ruskola & Gidi eds. 2009) (C) 17. Tort Damages Anthony Sebok, Translating the Immeasurable: Thinking About Pain and Suffering Comparatively, 55 DePaul L. Rev. 379 (2006) (C) Michael G. Faure, Accident Compensation, in Elgar Encyclopedia of Comparative Law (Smits ed. 2006) (C) Siewert Lindenberg, Damages (in tort), in Elgar Encyclopedia of Comparative Law (Smits ed. 2006) (C) 18. Standard Form Contracts: TB Effects of Unforeseen Conditions on Contracts: TB Social and Economic Regulation: Selected Topics 20. The Constitution and Judicial Review The Example of Abortion: TB Marriage and the Family: Mary Ann Glendon, The Transformation of Family Law, ch. 3 (C) 22. Consumerism and Producerism James Q. Whitman, Consumerism and Producerism: A Study in Comparative Law (C) (Read ; ). 22. Work and Health Julie C. Suk, Preventive Health at Work (C) Supranational Legal Regimes 23. The European Union: Supremacy, Constitutionalism, Legitimacy TB TB , , , ;

7 Bruno de Witte, The European Union as an International Legal Experiment (C) Bermann, et al. Cases and Materials on EU Law , (C) 24. EU Law in National Legal Orders Bermann et al., Cases and Materials on EU Law , )(C) Society for the Protection of Unborn Children v. Grogan (C) 25. The European Convention on Human Rights: TB , , The Margin of Appreciation in European Human Rights Law: Wojciech Sadurski, Constitutionalism and the Enlargement of Europe (C) Handyside v. UK (C) Dudgeon v. UK (C) A,B, & C. v. Ireland (C) 27. Conclusion: Materials TBD 7