370.01 Modes of Legal Argument
Introduction to Legal Theory: Modes of Legal Argument is a 3-credit seminar with enrollment capped at 12, and a final paper that can be used to satisfy the Substantial Research and Writing Project.
The course will be organized around a set of essential questions, all vital to the ways we argue about the law. The major schools of legal and constitutional interpretation will be explored. For example, we will discuss formalism and textualism, purposivism, originalism, process theory, economic analysis, realism and legal pluralism. Each of these theories has an answer to the question, what is the right way to interpret a legal text? Beyond the text, what modes, or forms of argument are permissible, or mandatory, within our legal tradition? But each of those inquiries depends on deeper questions. Where does law come from? What, if anything, makes it legitimate? It will also deal with some concrete examples in which those modes of legal argument are tested and deployed: Does the law create the market economy, or is there a pre-existing template for market economies that frames and limit the interpretation of the laws that govern those markets? The public/private distinction is central to a liberal society: do we have a consistent or principled way of interpreting those boundaries? How should our understanding of law be affected by the fact that we live in a democratic country, a free-market country, a country with a written constitution? We will consider and approach these questions by way of major schools of legal thought, testing the theoretical approaches against concrete problems the legal system has had to address, and the shapes these problems take today.
Requirements: The class requirements include regular Sakai postings on the readings. Those who are using the paper to satisfy the Substantial Research and Writing Paper will write a 25-30 page final paper on an approved topic, going through the normal process of first draft, conference and revision. Those who are not will write a 15 page final paper, either on an approved topic of your choice or on one assigned by the instructor. No prior exposure to legal theory, philosophy or political theory is required.
Research paper option, 25+ pages
Research and/or analytical paper(s), 15 pages
|Sakai site: https://sakai.duke.edu/portal/site/LAW.370.01.F21
|Email list: LAW.370.01.F21@sakai.duke.edu