790-106 - LAW AND POLITICS 790:106 Prof Lisa L Miller...

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1 LAW AND POLITICS , 790:106 Prof. Lisa L. Miller, Spring 2009 https://sakai.rutgers.edu Professor Lisa L. Miller Hickman Hall 101 Department of Political Science Mondays and alternate Wednesdays, 3:55-5:15pm 303 Hickman Hall Section meetings on Mondays, Tuesdays and Office hours: Wednesdays in alternative weeks starting Feb. 2nd Wednesdays 1:30-3:00, or by appointment [email protected] Teaching Assistants : Joseph Dwyer, [email protected] Nadia Brown, [email protected] Evren Yalaz, [email protected] The demand for certainty is one which is natural to man, but is nevertheless an intellectual vice. so long as men are not trained to withhold judgment in the absence of evidence, they will be led astray by cocksure prophets, and it is likely that their leaders will be either ignorant fanatics or dishonest charlatans. To endure uncertainty is difficult, but so are most of the other virtues. Bertrand Russell This class is designed to introduce students to the study of law and courts as integral parts of the political process. In recent decades, leaders of both political parties have charged the other with ‘politicizing’ the federal courts. The implications of this allegation are numerous. First, it suggests that legal decision-making is a neutral process that involves simply applying clear legal rules to specific sets of facts. It implies that judges both can and should engage in decision-making that is devoid of political preferences. Is it possible to read and understand legal questions in a wholly neutral fashion? Or do our politics inevitably get in the way? Is there a middle ground? In this class we will observe the inherently political nature of legal decision-making and legal rules and seek to understand how reasonable people can disagree over fundamental legal questions. Second, the charge of politicizing is often a thinly veiled criticism of court ‘policymaking’ – the allegation is that court decisions often create new public policy that is undesired by the majority of citizens. Critics charge that it is not the role of federal judges to tinker with the legislative process. What does it mean to “make policy” and is that what courts are doing? In this class we will seek to understand how legal decisions intersect with policymaking and discuss how and whether legal decision-making contribute to policymaking. Third, the ‘politicization’ of the courts implies that judges are making decisions that are too political – that is, they are encroaching on legislative domain. Critics of this process argue that judges should interpret law in the narrowest possible way and only intervene in legislative action in cases of clear and egregious violations. But what constitutes a clear and egregious violation of the law that warrants court interference? How do we know judicial policymaking when we see it? Finally, the notion of politicizing the courts assumes that court decisions – whatever side of the
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790-106 - LAW AND POLITICS 790:106 Prof Lisa L Miller...

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