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it Makin and Fakin it: Legal Fictions 397P Spring 08 Gaitenby 106 Gordon Hall Legal Fictions are traditionally understood as law s counter-factuals, i.e. codes, concepts, doctrines and practices which seem to be at odds w/ aspects of the social world. It is not the counter-factual status of legal fictions that interests us most, we are concerned with the power they exert, or rather, how legal fictions are shaped and applied. The most prominent fiction is that of law s animation, law s separation from corporeal bodies and elevation to autonomous status (i.e. the rule of law ). It is relatively unproblematic to say that law assumes facts, creates entities, and conceals aspects of its operation in order to extend or limit power. As such, law creates and deploys fictions (e.g. corporate persons, reasonable persons, equal protection, compelling interests ). This social construction of law may be seen as proper or not depending upon the power of competing stories and story tellers in legal discourse, as well as how we in the audience receive and give life to them. The bulk of this course will be a critical examination of some operational fictions as they are constituted with the objective of developing a critical legal fiction lens. Books, materials, etc: Crows Over a Wheatfield, Paula Sharp (OPTIONAL if you choose to do the extra credit) online via Amazon.com or others (lots of affordable used copies available). The Vietnam War on Trial, Michael Belknap (REQUIRED) available at Food for Thought Books, Amherst. We will also be using selections from Before the Law by Legal Studies department faculty. I will make photo-copies of relevant sections for those of you who don t have a copy of the text. Course Packet is at Collective Copies in downtown Amherst. Work: i) ii) iii) Assignments (quizzes and response papers)- 40% 2 Exams 50% (dates to be determined) Class Participation 10% You can make-up quizzes / exams if you clear it in advance of the scheduled quiz / exam time. No late work otherwise. There will be an extra credit opportunity made available after the first exam. 1. Legal Fictions and Their Power: (1/29 2/12) Read: Tactic of Delayed Miranda Warning is Barred, NYT 6/29/2004; Brooklyn Man, 38, Dies After Jolt From Police Taser, NYT 1/9/2007; The Safety of Tasers Is Questioned Again, NYT 5/25/2006; Tasers for UMass? Daily Collegian, 3/21/05 hand out; Don t Tase me, sis! Hamp. Gaz. 1/5/08 hand out; Words Create Worlds, National Geographic, December 2006, pp. 29 hand out; At Many Homes, More Profit and Less Nursing, NYT, 9/23/07 hand out; Crime w/out Conviction section at http://www.corporatecrimereporter.com; Hartmann s Intro, Ch. 6 from Unequal Protection Course Packet; d Errico s Corporate Personality and Human Commodification Course Packet; Fuller s What is a Legal Fiction, Course Packet; Bell v. Maryland (378 U.S. 226) online; Heart of Atlanta Motel v. U.S. (379 U.S. 241) - online. 2. Construction Fact of and Truth in Law: (2/14 3/6) NOTE: President s Day causes us to miss class 2/19 NOTE1: Legal Research Labs 3/4 3/6 Read: Mensch, The History of Mainstream Legal Thought Course Packet; Minnow, Making all the Difference Course Packet; Carter s chapter on legal reasoning from Reason in Law hand out; Llewellyn s passage on precedent in The Bramble Bush hand out; Terry v. Ohio (392 U.S. 1 (1968)), Brown v. Texas (99 S. Ct. 2637 (1979)), Hiibel v. Sixth Judicial District Court of Nevada (542 U.S. 177 (2004)) - online;; Lab(s): Online Legal Research and Standing (dates and details TBA); Read Crows for extra credit (details TBA); MIDTERM (likely 3/11 3/13, subject to change) SPRING BREAK 3/17 21 3. Law and Relationships: (3/25 4/8) Read: Crows Over a Wheatfield for extra credit (details TBA), Joshua s Story in The Deshaney Case, Child Abuse, Family Rights, and the Dilemma of State Intervention Curry Course Packet; Deshaney v. Winnebago County Dept. of Social Services (489 U.S. 189; 109 S. Ct. 998; 103 L. Ed. 2d 249 (1989)) online; A Mother s Quest, Latina, August 2005 hand out; Town of Castle Rock v. Gonzales (125 S.Ct. 2796 (2005) online; ( Battered Women Suing Police for Failure to Intervene, The Legal Studies Forum, 75 Cornell Law Review 1393, Sept. 1990 online; MacKinnon, Rape: On Coercion and Consent, hand out/ Before the Law; From Chastity to Sexuality License: Sexual Consent and a New Rape Shield Law, Anderson, 70 Geo. Wash. L. Rev. 51, Feb 2002 online; On Law and Chastity, Rodes, 76 Notre Dame L. Rev. 643, January 2001 online; Court rules sex through fraud not rape, http://www.boston.com/news/local/articles/2007/05/11/court_rules_s ex_through_use_of_fraud_is_not_rape/ and case name: Suliveres v. Commonwealth found at http://www.masslaw.com/signup/opinion.cfm?page=ma/opin/sup/10 08707.htm 4. Law and Violence: (4/10 4/22) Read: The Vietnam War on Trial, Belknap; Cover, The Violence of Legal Acts hand out / Before the Law; Marine Corps Squad Leader Is Guilty of Unpremeditated Murder in Killing of Iraqi Man, NYT 8/3/07 - handout; Convicted Marine Details Ill-Fated Plan, NYT 8/10/07 - handout; Other materials TBA. 5. Color Blindness and Equal Protection: (4/24 5/6) Read: Seeing a Colorblind Future The Emperor s New Clothes, P. Williams Course Packet; Siegal In the Eyes of the Law Course Packet; Massachusetts Racial and Gender Profiling Study (pp. 1-33) online at www.irj.neu.edu/research_and_publications/technical_reprints/; Grutter v. Bollinger, (123 S. Ct. 2325, 2003) online; Gratz v. Bollinger, (123 S.Ct. 2411, 2003); Parents Involved in Community Schools v. Seattle School District (127 S. Ct. 2738 (2007)); History, Principle and Affirmative Action, Stanley Fish in NYT 7/14/07 hand out; Privacy versus Antidiscrimination, STRAHILEVITZ (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1003001); In Class Video(s), OJ: Ten Years After, PBS. Second Exam (TBA)

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