DRAFT: LS 100 Spring 2015, Syllabus parts 1-3

LEGAL STUDIES 100: FOUNDATIONS OF LEGAL STUDIES

Instructors
Professor Jonathan Simon
Adrian A. Kragen Professor of Law
UC Berkeley, School of Law
592 Simon Hall
501.643.5169
jsimon@law.berkeley.edu

Office Hours:
Tuesdays: 2-4
Wednesdays: 11-12:30
(Or email for an alternative
appointment)

GSIs:
James Dillon, Doctoral Candidate Jurisprudence and Social Policy
jrdillon@gmail.com
Terra Rose, MPP Candidate Class of 15. Goldman School of Public Policy
terrarose@berkeley.edu
Course Description
This course offers an introduction to the study of the rule of law (sometimes called
legality or the legal system) through an exploration of eight basic questions about
law in contemporary society:
1. What is the rule of law and does it really differ from the rule of the powerful?
2. Do you need the rule of law to develop a modern economy?
3. Are moral considerations relevant or even necessary to interpreting the current
law?
4. Does the rule of law promote equality (or inequality)?
5. Why are so many people of color in US prisons?
6. Why do people obey the law?
7. What do you learn in law school?
8. Are there too many lawyers? Do people in contemporary society use law to
resolve disputes (litigate) too often?
These questions will require us to explore different disciplines, including: jurisprudence,
philosophy, economics, sociology, political science, criminology, psychology, social
psychology, linguistic anthropology, and history (among others). While some of these
questions focus on the United States, all of them involve comparisons with other existing,
historical, or possible legal and social arrangements. Each question breaks down into
many smaller research questions. While we will endeavor to provide answers wherever
the research literature supports them, our major objective of the course is the help you
formulate research questions of your own.

DRAFT: LS 100 Spring 2015, Syllabus parts 1-3

Texts
Please purchase the following books:
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of
Colorblindness, 2nd Edition (New Press 2012)
Edward Levi, An Introduction to Legal Reasoning, 2nd Edition (University of Chicago
Press 2013)
Anne Tusa and John Tusa, The Nuremberg Trial (Skyhorse Publishing, 2010)
[note this is a long book with a lot of historical detail that you will not be
responsible for on the examinations. Please start reading the book now so you
can complete it by March 3. We will spend two weeks discussing it in the context
of our study of law and morality.]
All other assignments will be made available as Pdfs through the bcourse site
Methods of Evaluation
Students are expected to attend all lectures and section meetings barring exceptional
circumstances. In addition to attendance, students will be evaluated through the
following methods (and with the weight noted) as reflected in the final grade:
Midterm examination covering questions 1-3 (15%)
Final examination, cumulative (25%)
Section participation and assignments (20%)
Research paper (2500-4000 words) on sub-question of questions 1-8 (40%)
Topics and Reading Assignments and Learning Objectives:
Pt. I: What is the rule of law? (what makes a legal system different from some
other system of control?)
January 20. Where is the law? (Is there law in this class?)
Levi, An Introduction to Legal Reasoning, forward by Fred Schauer, pp. v-xvi, pp. 1-8
January 22. Common law method: The example of tort liability for consumer goods
Levi, An Introduction to Legal Reasoning, pp. 8-27

DRAFT: LS 100 Spring 2015, Syllabus parts 1-3

January 27. Statutory analysis
Levi, An Introduction to Legal Reasoning, pp. 27-57
January 29. A Written Constitution
Levi, An Introduction to Legal Reasoning, pp. 57-104
February 3. Law in the Administrative State
King v. Burwell, No. 14-1148 4th Circuit en banc opinion (July 22, 2014)
http://caselaw.findlaw.com/us-4th-circuit/1673339.html
February 5. Making Policy in The Supreme Court
King v. Burwell (filings)
Petition for Certiorari
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/King-Petition-Final.pdf
Brief for Respondent Sylvia Burwell, Secretary of Health and Human Services, et. al.
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14-114-King-v-Burwell2014-10-03-1245-FINAL.pdf
Reply brief of Petitioners David King, et. al.
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/10/14-114-reply.pdf
Part I Learning objectives:
After completing this section, students should have a good idea how to:
Recognize the core elements of modern legal systems: Courts, Legislatures,
Constitutions, Legal culture, Legal reasoning and how they fit together
Formulate legal arguments and policy arguments, and be able to both distinguish
and move between them.
Find and read a statute, a judicial opinion, or an administrative rule or decision
Part II. Do you need the rule of law to develop a modern (capitalist) economy?
February 10. Max Webers thesis about law and the rise of capitalism
David Trubek, Weber on Law and the Rise of Capitalism, 1972 Wis. L. Rev. 720
(1972), pp. 720- 731, 739-748
http://heinonline.org/HOL/Page?handle=hein.journals/wlr1972&div=50&g_sent=1&coll
ection=journals

DRAFT: LS 100 Spring 2015, Syllabus parts 1-3

Silk Road Drug Market was an Economic Experiment Gone Wrong, NPR Morning
Edition, December 2, 2014
http://www.npr.org/2014/12/02/368041031/silk-road-drug-market-was-an-economicexperiment-gone-wrong
February 12. State Law, Norms, and Economic Development
Ryan Bubb, Evolution of Property Rights: State Law or Informal Norms? Journal of
Law & Economics, Vol. 56 (3) 555-594 (2013)
As Uber Expands, It Asks Cities For Forgiveness Instead Of Permission, NPR Morning
Edition, December 26, 2014
http://www.npr.org/blogs/alltechconsidered/2014/12/26/373087290/as-uber-expands-itasks-cities-for-forgivness-instead-of-permission
February 17. China Modernization and the Rule of Law
Rachel Stern, Environmental Litigation in China pp. 1-15
Stanley Lubman, Bird in a Cage: Chinese Law Reform after Twenty Years, 20 Nw. J.
Int'l L. & Bus. 383 (1999-2000) pp. 383-399
http://heinonline.org/HOL/Page?handle=hein.journals/nwjilb20&div=24&g_sent=1&coll
ection=journals
February 19. Governing China though the Rule of Law
CPC Sets New Blue Print for the Rule of Law
http://news.xinhuanet.com/english/china/2014-10/23/c_133737845.htm
Andrew Jacobs and Chris Buckley, China Moves to Reinforce the Rule of Law, With
Caveats, The New York Times, October 23, 2014, A1
http://www.nytimes.com/2014/10/24/world/asia/china-moves-to-enact-rule-of-law-withcaveats.html?_r=0
Part II: Learning Objectives:
After completing this section, students should have a good idea how to:

Formulate testable theories about the relationship between law and

economic development.
Explain the relationship between free markets and rules.
Compare economic and legal modernization across different societies and
across history

DRAFT: LS 100 Spring 2015, Syllabus parts 1-3

Part III. Is morality an appropriate source for interpreting existing law (we assume
it shapes the formulation of law)? Does the rule of law exclude moral
considerations by authorities enforcing the law, like courts and police officers, or
require it? (2 weeks)
February 24: Law and State Power: The Problem of Nazi Law
Liam Murphy, What is the Moral Law, in What Makes the Law: An Introduction to the
Philosophy of Law (Cambridge, UK: Cambridge University Press), pp. 7-22 (bcourse)
H.L.A. Hart, Positivism and the Separation of Law and Morals, Harvard Law Review,
Vol. 71, No. 4 (Feb., 1958), pp. 593-606, 615-621
http://www.jstor.org/stable/1338225?seq=1#page_scan_tab_contents
February 26: Natural Law or Moral Jurisprudence
Ronald Dworkin, Laws Empire, 1-44 (bcourse)
Lawrence v. Texas, 539 U.S. 558 (2003)
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=02-102
Recommended:
Philip Selznick, Sociology and Natural Law, " (1961). Natural Law Forum. Paper 61,
pp. 94 to pp. 104 (Part III & IV), .http://scholarship.law.nd.edu/nd_naturallaw_forum/61
March 3: Atrocity as Crime: The Social Function of War Crime Trials?
Anne Tusa and John Tusa, The Nuremberg Trial (Skyhorse Publishing, 2010)
March 5: Was the Nuremberg Trial Fair
Anne Tusa and John Tusa, The Nuremberg Trial (Skyhorse Publishing, 2010)
Learning Objectives for Part III
After completing this section, students should have a good idea how to:
Distinguish between moral imperatives and legal obligations
Recognize the tensions between the centrality of sovereignty to modern law and
the promise of law based authority to being just.
Identify the structure of legal authority in a modern nation state
Recognize opportunities to use law to challenge political authority
Place positive state law into the framework of international law and human rights
Tuesday March 10: Midterm Examination (covering parts 1-3)